BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LORI VAN WYHE, 
 
                      
 
                 Claimant, 
 
                                            File Nos. 952729 976964
 
            vs.       
 
                                            A R B I T R A T I O N
 
            TYSON FOODS,   
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
                           STATEMENT OF THE CASE
 
            
 
                 These consolidated cases are upon petitions in 
 
            arbitration filed by claimant Lori Van Wyhe against her 
 
            self-insured employer, Tyson Foods.  Ms. Van Wyhe seeks 
 
            benefits under the Iowa Workers' Compensation Act as the 
 
            result of stipulated injuries to the right arm on December 
 
            17, 1990 (976964) and April 5, 1991 (952729).
 
            
 
                 A contested case hearing was accordingly held in Sioux 
 
            City, Iowa on May 20, 1993.  The record consists of joint 
 
            exhibits 1, 2, 8 through 11, 13 through 33 and 35 through 40 
 
            along with the testimony of claimant and Phillip Reinders. 
 
            
 
                                     ISSUES
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of employment on the 
 
            two dates alleged.  They agree that the injuries caused 
 
            temporary disability and that claimant was off work on 
 
            February 15, February 22 and March 22, 1991.  Defendants 
 
            deny liability, though.  The parties have also agreed to the 
 
            appropriate rates of compensation (12-17-90: $143.34) 
 
            (4-05-91: $121.88).  Entitlement to medical benefits is no 
 
            longer in dispute.  The parties agree that claimant was paid 
 
            $56.22 in weekly benefits prior to hearing.  
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of entitlement to healing 
 
                 period/temporary total disability benefits;
 
            
 
                 2.  Whether either injury caused permanent 
 
                 disability;
 
            
 
                 3.  Entitlement to permanent partial disability 
 
                 benefits for scheduled member disability to the 
 
                 right arm.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Lori Van Wyhe, 29 years of age at hearing, was employed 
 
            by Tyson Foods from December 18, 1989 through April 5, 1991.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Tyson Foods is a manufacturer of various food products, 
 
            including hamburger patties and processed food products.  
 
            Claimant worked numerous assembly line jobs in the cook room 
 
            and IQF ("instant quick freeze") areas of the plant.
 
            
 
                 Much of the work claimant did, including boxing meat, 
 
            scooping product into containers and packing, required 
 
            repetitive use of the upper extremities, although the 
 
            particular motion involved would vary with the job.  
 
            
 
                 In early 1990, claimant was packing fajitas into bags 
 
            when she felt a "popping" sensation in the left wrist 
 
            followed by swelling and pain.  Claimant compensated by 
 
            trying to use her dominant right arm more, but soon 
 
            developed an assortment of bilateral symptoms.  
 
            
 
                 On May 24, 1990, claimant underwent EMG testing 
 
            interpreted by Dr. J. L. Case.  Bilateral findings were 
 
            normal.
 
            
 
                 On December 17, 1990 (the injury date stipulated by the 
 
            parties in number 976964), defendant's attendance records 
 
            reflect that claimant "called in sick with the flu."
 
            
 
                 On December 18, 1990, Mel Wallinga, M.D., imposed a 
 
            restriction of a maximum two shifts per week to be worked on 
 
            the IQF line due to tendonitis.
 
            
 
                 As of February 20, 1991, Dr. Wallinga permitted 
 
            claimant to work, but "as light of duty as possible."  The 
 
            record contains no indication of more recent treatment by 
 
            Dr. Wallinga.
 
            
 
                 Claimant was next treated by J. Michael Donohue, M.D..  
 
            On March 15, 1991, Dr. Donohue found minimal objective 
 
            findings in support of his assessment of chronic 
 
            tenosynovitis of the right forearm and elbow.  He found 
 
            prognosis to be poor, based largely on persistent symptoms 
 
            despite prolonged treatment and activity modification versus 
 
            minimal objective findings on evaluation.  Claimant was to 
 
            return to work, but avoid activities requiring repetitive 
 
            flexion and extension of the wrist and elbow. 
 
            
 
                 Dr. Donohue's assessment on June 3, 1991 was of 
 
            bilateral upper extremity dysfunction - subjective 
 
            complaints outweigh the objective findings.  As of December 
 
            3, 1991, his assessment was of persistent right forearm 
 
            discomfort, while noting that tenderness was now localized 
 
            over the extensor musculature.  On each occasion, Dr. 
 
            Donohue opined that based on objective findings, claimant 
 
            had not sustained permanent injury.
 
            
 
                 Claimant also received treatment from T. M. Zoellner, 
 
            M.D..  Dr. Zoellner is an orthopedic specialist.  His chart 
 
            notes of July 13, 1992 show an impression of persistent 
 
            lateral epicondylitis (more commonly known as "tennis 
 
            elbow") and assigned an impairment rating of 2 percent of 
 
            the upper extremity based on the American Medical 
 
            Association Guides to the Evaluation of Permanent 
 
            Impairment.  Dr. Zoellner's examination showed tenderness 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            at the lateral epicondyle, 5 degrees to 130 degrees active 
 
            range of motion and some tenderness on the dorsal wrist 
 
            extension, more so with the elbow extended.
 
            
 
                 Claimant has also been evaluated by two medical doctors 
 
            and a chiropractor.
 
            
 
                 John J. Dougherty, M.D., wrote on January 2, 1992 that 
 
            he was not impressed with claimant's reported pain and that 
 
            she did not have swelling.  It was Dr. Dougherty's opinion 
 
            that claimant had not sustained any permanent impairment.
 
            
 
                 Joel T. Cotton, M.D., wrote on March 24, 1993 that the 
 
            previous abnormal physical findings described by Dr. 
 
            Zoellner were no longer present as of his evaluation of 
 
            March 17, 1993.  His examination of claimant's right elbow 
 
            was normal and he opined that claimant had no permanent 
 
            partial impairment or subsequent disability pursuant to the 
 
            AMA Guides.
 
            
 
                 Claimant was seen by Pat Luse, D.C., on March 13, 1992.  
 
            While Dr. Luse felt that claimant had suffered an injury and 
 
            would be subject to recurrent problems in the area of the 
 
            right forearm, he did not impose any impairment rating under 
 
            the AMA Guides since they "do not allow for rating 
 
            tendonitis unless it is constructive tenosynovitis or causes 
 
            subluxation."  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury on both dates alleged, even though December 17, 1990 
 
            apparently involved an attach of influenza.  Defendants 
 
            agree that claimant missed three separate days of work, but 
 
            do not consider the time compensable because temporary total 
 
            disability entitlement accrues only beginning the fourth day 
 
            under Iowa Code section 85.32.  If, however, the injury 
 
            caused permanent disability, those three days would be 
 
            compensable as healing period under Iowa Code section 
 
            85.34(1).  
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Although claimant has subjective complaints of pain, 
 
            objective signs of injury are scarce.  Only Dr. Zoellner was 
 
            able to rate impairment, and Dr. Cotton later found that the 
 
            conditions Dr. Zoellner described were no longer present.  
 
            Dr. Donohue, a primary treating physician, has repeatedly 
 
            opined that claimant did not sustain permanent injury.  
 
            
 
                 Claimant has failed to establish by the weight of 
 
            expert testimony that she has sustained permanent injury.  
 
            Neither Dr. Donohue, Dr. Dougherty, Dr. Cotton or even Dr. 
 
            Luse found permanent ratable impairment.  Accordingly, 
 
            defendants prevail on this issue. 
 
            
 
                 Because claimant did not miss in excess of three days 
 
            of work, her temporary total disability is not compensable 
 
            under section 85.32.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further under either 
 
            contested case file.
 
            
 
                 Costs are assessed to defendant.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg.
 
            P.O. Box 1194
 
            Sioux City, IA  51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce, Suite 200
 
            Sioux City, IA  51102
 
            
 
            
 
 
            
 
       
 
            
 
            
 
            
 
                                          5-1801.1, 5-1803
 
                                          Filed September 27, 1993
 
                                          David R. Rasey
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LORI VAN WYHE, 
 
                      
 
                 Claimant, 
 
                                           File Nos. 952729 976964
 
            vs.       
 
                                           A R B I T R A T I O N
 
            TYSON FOODS,   
 
                                              D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1801.1, 5-1803
 
            Three days of temporary total disability were not 
 
            compensable where record did not show permanency.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE MASON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 952884
 
            SIPCO, INC. d/b/a MONFORT,    :
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Suzanne Mason, against her employer, Sipco, Inc., 
 
            d/b/a Monfort, Inc., and its insurance carrier, Home 
 
            Insurance Company.  Claimant sustained a work-related injury 
 
            on May 31, 1990.  
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Sheryl Howell, John Fricke (the head room 
 
            supervisor at Monfort), Robin Clark (the registered nurse 
 
            employed by Monfort), Michael Slifer (claimant's 
 
            supervisor); and, joint exhibits 1-41.  The matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on October 18, 1993 at Des Moines, Iowa.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to temporary total or 
 
            permanent partial disability benefits; 
 
            
 
                 2.  Claimant's workers' compensation rate; and 
 
            
 
                 3..  Whether claimant is entitled to penalty benefits 
 
            due to defendants' "failure to pay claimant any industrial 
 
            disability."
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            reviewed all of the evidence received, finds the following 
 
            facts:
 
            
 
                 Claimant, Suzanne Mason, was born on October 20, 1949.  
 

 
            
 
            Page   2
 
            
 
            
 
            At the time of the hearing, she was 43 years of age.
 
            
 
                 Currently, claimant is single.  She has a child from a 
 
            previous marriage, Joshua, who was born on March 30, 1972.  
 
            Claimant stated that although Joshua lived with her "off and 
 
            on," he was living with her at the time of the injury, May 
 
            31, 1990.  Apparently, in her deposition, claimant was 
 
            unable to remember whether Joshua was living with her on the 
 
            date of the injury.  Joshua's girlfriend, Sheryl Howell, 
 
            also testified at the hearing.  She recalled that both she 
 
            and Joshua were living with claimant at the time of the 
 
            injury.
 
            
 
                 Claimant graduated from high school in 1967.  She 
 
            attended Humboldt Institute in Minneapolis for nine months, 
 
            and studied to become an airline secretary.  She has never 
 
            secured work in this area.  Claimant also received training 
 
            to become a resident treatment worker, a term she used to 
 
            describe nurses' aide work.  Her certificate is not current.  
 
            
 
                 Claimant's work history includes positions in the mail 
 
            room and as a clerical person at Lennox Industries in 
 
            Marshalltown, Iowa.  She also worked for Marshalltown 
 
            Trowel, sanding handles and polishing trowels.  
 
            
 
                 In July of 1976, claimant began working for the 
 
            defendant employer.  She has held a myriad of jobs with the 
 
            company including, what claimant described as chitterlings, 
 
            pulling pancreas, salt casings, pulling small guts and work 
 
            on the cut floor, wrapping and packing butts. 
 
            
 
                 In 1978, claimant was diagnosed with bilateral carpal 
 
            tunnel syndrome and underwent surgery to relieve her 
 
            symptoms.  She received excellent results from the 
 
            surgeries, and she was released to return to work on the 
 
            production floor without restrictions.
 
            
 
                 At the time of her injury, claimant was working on the 
 
            boneless butts line.  Her job duties included using a 
 
            straight knife to separate the bone from the butt of the 
 
            meat.  According to claimant, the job required repetitive 
 
            use of both arms and standing on cement, but no heavy 
 
            lifting.  Claimant's dominant hand is her right hand. 
 
            
 
                 On May 31, 1990, claimant visited the company nurse 
 
            with complaints of neck and shoulder pain.  She was directed 
 
            to the company physician, a Dr. Lund, who examined her and 
 
            sent her back to work with restrictions of no lifting of 
 
            more than ten pounds.  He diagnosed possible cervical disc 
 
            or strain, and suggested a CT scan if the pain persisted. 
 
            (Joint Exhibits 1, 2 and 3).
 
            
 
                 Claimant underwent an MRI in June of 1990, which 
 
            confirmed  a broad-based, left-sided herniated disk which 
 
            was causing cord compression and central canal stenosis at 
 
            the C5-6 level.  Claimant was complaining of pain in the 
 
            neck as well as pain and numbness in the right arm and 
 
            fingers on the right hand.  She was referred to Robert 
 
            Jones, M.D.  (Jt. Exs. 4, 5, 7, 8 and 22).  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
                 In August of 1990, Dr. Jones ordered a second MRI which 
 
            showed a herniated disc at the C5-6 level on the left side.  
 
            He imposed restrictions of no lifting of more than 20 
 
            pounds, and a limited amount of lifting, pushing and 
 
            pulling, and felt claimant could return to her job.  Dr. 
 
            Jones did not recommend surgery at this time, but prescribed 
 
            a course of physical therapy.  (Jt. Exs. 9 and 10).  
 
            
 
                 Apparently, claimant did not feel relief, and returned 
 
            to Dr. Jones in September of 1990.  Although the notes are 
 
            poorly copied and illegible, an examination revealed that 
 
            claimant was experiencing loss of strength in the right 
 
            biceps and continued pain in the neck and right arm.  She 
 
            underwent an anterior cervical diskectomy and fusion on 
 
            September 11, 1990.  (Jt. Exs. 11, 12 and 13).  
 
            
 
                 Approximately one month after the surgery, claimant 
 
            returned to Dr. Jones for an evaluation.  Her biceps 
 
            strength was normal, and he predicted she could return to 
 
            work in several months.  (Jt. Ex. 14).  While the progress 
 
            notes from October through January are illegible, a 
 
            follow-up letter from Dr. Jones to the adjusting company 
 
            associated with this case indicates that claimant sustained 
 
            a permanent impairment between seven and ten percent due to 
 
            the surgery, and as of January 14, 1991, claimant was 
 
            released to return to work.  Later, Dr. Jones determined 
 
            claimant's impairment was 8 percent.  (Jt. Exs. 15, 16, 17 
 
            and 18).
 
            
 
                 Evidently, claimant returned to work, but in September 
 
            of 1991 returned to Dr. Jones with renewed complaints of 
 
            discomfort in her neck and shoulders, with headaches 
 
            "extending into the right upper arm."  He suggested a change 
 
            in jobs so that she would not be required to  use her arms 
 
            on a repetitive basis.  (Jt. Ex. 19).  
 
            
 
                 Claimant was afforded several different positions with 
 
            the defendant which allowed her to continue to work at the 
 
            same rate of pay as before the injury.  For a time, she 
 
            worked in the supply room passing out gloves, knives and 
 
            other supplies.  She indicated that prior to the injury, she 
 
            was allowed to work 14 to 15 hours of overtime per week 
 
            whereas now, she could not.  And, while her position in 
 
            boneless butts had been classified as a seven bracket 
 
            position, her current position is a three bracket position.   
 
            Each bracket is worth $.05 per hour; although claimant is 
 
            earning the same hourly wages she earned prior to the 
 
            injury, this is due to a contractual wage increase.  Due to 
 
            the drop in brackets, she is actually earning $.10 per hour 
 
            less. 
 
            
 
                 In September of 1992, Dr. Jones opined that claimant's 
 
            cervical disc problem was caused by her job duties at 
 
            Monfort.  He suggested that she continue to perform clerical 
 
            jobs.  (Jt. Ex. 20).
 
            
 
                 Claimant underwent an independent medical examination 
 
            in November 1992.  Martin Rosenfeld, M.D., an orthopaedic 
 
            specialist, determined that claimant had decreases in neck 
 
            motion, but agreed with Dr. Jones' assessment that claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            had sustained an eight percent permanent impairment.  (Jt. 
 
            Ex. 25).
 
            
 
                 Claimant underwent a functional capacities evaluation 
 
            (FCE) on November 17, 1992.  The results showed claimant was 
 
            "capable of performing light-medium employment lifting and 
 
            carrying up to 35 lbs. maximum infrequently and up to 20-22 
 
            lbs. maximum frequently at heights up to waist level and 
 
            lifting up to 20 lbs. maximum infrequently and up to 13-15 
 
            lbs. maximum frequently at heights above approximately 
 
            mid-chest level."  (Jt. Ex. 39).  She was to be allowed 
 
            10-15 minute breaks after working for two to two and 
 
            one-half hours.  (Id.).
 
            
 
                 Other exhibits address claimant's complaints of low 
 
            back pain, which began in September of 1991 (jt. exs. 33, 
 
            34, 35, 36, 37, and 38);  a list of claim payments (jt. ex. 
 
            40); a claim activity report (jt. ex. 41); claimant's prior 
 
            work experience (jt. ex. 32); and, a request for and a 
 
            denial of industrial disability benefits (jt. ex. 31).  
 
            
 
                 Claimant has worked for the company for more than 17 
 
            years.  The job bidding process is governed by seniority, 
 
            and few workers, if any, have more seniority than claimant.  
 
            She recently bid on a job called "fresh pack" in the box 
 
            room.  In this capacity, she would wrap boxes of fresh 
 
            loins.  Claimant believed she could perform all of the 
 
            functions of this position.  This is a three bracket job. 
 
            
 
                 John Fricke has worked for the defendant for eight 
 
            years.  He has been the head room supervisor for two and 
 
            one-half years, and manages 42 employees, including 
 
            claimant.  In August of 1993, he supervised claimant while 
 
            she worked on the jaw bone line, separating temple meat from 
 
            the bone.  He stated she was able to adequately perform the 
 
            job, which involved using a straight knife to cut two pieces 
 
            of meat, each weighing less than one pound.  Mr. Fricke 
 
            admitted that the position required constant use of the 
 
            arms.  He also explained that the company had completely 
 
            eliminated the job at which claimant was working at the time 
 
            of her injury.  
 
            
 
                 Robin Clark, the registered nurse for the defendant 
 
            employer, testified that after claimant underwent the 
 
            functional capacities evaluation, she was given four to five 
 
            job options at the plant that fell within the restrictions 
 
            delineated by the FCE report.  
 
            
 
                 Michael Slifer is a supervisor at the plant and has 
 
            known claimant for 15 years.  Although he did not remember 
 
            the exact date, at some point during the time claimant was 
 
            off of work, he saw her riding a horse.  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained a permanent disability, which would allow her to 
 
            recover healing period benefits. 
 
            
 
                 The party who would suffer loss if an issue were not 
 

 
            
 
            Page   5
 
            
 
            
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the 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's treating physician, Dr. Jones, indicated 
 
            that she had sustained an eight percent permanent impairment 
 
            due to the surgery to her cervical spine.  He also imposed 
 
            permanent restrictions of no repetitive use of her arms.  No 
 
            other physician rendered an opinion addressing her 
 
            condition, although some additional restrictions were 
 
            imposed via a functional capacities evaluation. 
 
            
 
                 The greater weight of the evidence supports a finding 
 
            that claimant sustained a permanent impairment. She is 
 
            entitled to healing period benefits for the time she was off 
 
            of work, from June 15, 1990 through August 5, 1990 and from 
 
            August 16, 1990 through December 12, 1990. 
 
            
 
                 The next issue to address is claimant's industrial 
 
            disability.  
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an analysis of her industrial disability is 
 
            warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 

 
            
 
            Page   6
 
            
 
            
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of her hearing, claimant was 43 years old.  
 
            
 
                 Most of her work history has been with the defendant 
 
            employer.  Claimant has held a variety of jobs with Monfort, 
 
            and currently earns more than $9.00 per hour. 
 
            
 
                 She sustained an injury to her neck, which prior to 
 
            fusion surgery caused pain and discomfort not only in her 
 
            neck but also in her right arm.  At one point, she sustained 
 
            a significant loss of strength in her right biceps, but 
 
            according to the medical documentation, she has had an 
 
            excellent result from the surgery, which alleviated most of 
 
            her symptoms.  While claimant's injury and treatment were 
 
            somewhat severe, her healing period went smoothly and no 
 
            complications were noted. 
 
            
 
                 The employer has accommodated claimant's restrictions, 
 
            and has continued to employ claimant.  Some injured workers 
 

 
            
 
            Page   7
 
            
 
            
 
            are not so lucky.  
 
            
 
                 Claimant has taken responsibility for her recovery and 
 
            return to work as well, and her motivation to return to work 
 
            is noted. 
 
            
 
                 Claimant's actual loss of earnings has been minimal.  
 
            The job she currently holds is a lower classification than 
 
            the job she held at the time of the injury.  As a result, 
 
            she earns $.10 less per hour now than at the time she was 
 
            injured.  
 
            
 
                 After considering all of the factors enumerated above, 
 
            including the eight percent permanent impairment rating; 
 
            claimant's work restrictions; the employer's willingness to 
 
            accommodate claimant's work restrictions; claimant's current 
 
            earnings, and her earnings at the time of the injury; the 
 
            severity of the injury and length of her healing period; 
 
            and, claimant's training, it is found that claimant has 
 
            sustained an eight percent industrial disability. 
 
            
 
                 Claimant has also asked for penalty benefits. 
 
            
 
                 Iowa Code section 86.13 (4) states, in relevant part:
 
            
 
                    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 chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The standard used by the agency to determine whether 
 
            claimant is entitled to penalty benefits is whether the 
 
            claim is fairly debatable.  
 
            
 
                 In the case at bar, the claim was fairly debatable.  
 
            Claimant returned to a job which she has been able to 
 
            perform, and a good faith argument can be made addressing 
 
            any loss of earning capacity she may have sustained.  And, 
 
            defendants did pay claimant 40 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Claimant is not awarded any penalty benefits. 
 
            
 
                 The final issue to address is claimant's workers' 
 
            compensation rate.  
 
            
 
                 Both claimant and her son's girlfriend testified that 
 
            claimant's son was living with her at the time of the 
 
            injury.  Defendants present no evidence to dispute this.  
 
            Therefore, claimant has proved by a preponderance of the 
 
            evidence that she is entitled to two exemptions, and her 
 
            correct workers' compensation rate is $253.66 per week based 
 
            on gross weekly earnings of $410.06 per week, two 
 
            exemptions, and marital status (single).
 
            
 

 
            
 
            Page   8
 
                                      
 
                                      
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant healing period benefits 
 
            from June 15, 1990 through August 5, 1990 and from August 
 
            16, 1990 through December 12, 1990 at the rate of two 
 
            hundred fifty-three and 66/100 dollars ($253.66) per week; 
 
            
 
                 That defendants pay claimant permanent partial 
 
            disability benefits for fifty (50) weeks commencing on 
 
            December 13, 1990 at the rate of two hundred fifty-three and 
 
            66/100 dollars ($253.66) per week; 
 
            
 
                 That defendants shall pay accrued benefits in a lump 
 
            sum; 
 
            
 
                 That defendants shall pay interest on the award as 
 
            provided by Iowa code section 85.30; 
 
            
 
                 That defendants shall pay the costs of this action;
 
            
 
                 That defendants shall file a claims activity report as 
 
            required by the agency.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Fred L Morris
 
            Attorney at Law
 
            405 Sixth Ave Ste 700
 
            Des Moines IA 50309
 
            
 
            Mr Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed November 3, 1993
 
                                            Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE MASON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 952884
 
            SIPCO, INC. d/b/a MONFORT,    :
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 43 years of age, sustained a herniated disc at the 
 
            C5-6 level.  She underwent a fusion, and returned to work in 
 
            four months.
 
            The company accommodated claimant's restrictions.  She has a 
 
            significant amount of seniority, and is able to bid on and 
 
            likely secure most jobs at the plant.
 
            She received excellent results from the surgery, but 
 
            sustained an 8 percent permanent functional impairment 
 
            rating.
 
            
 
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SUZANNE MASON,                :
 
                                       :       File No. 952884
 
              Claimant,                :
 
                                       :
 
         vs.                           :          N U N C
 
                                       :
 
         SIPCO, INC. d/b/a MONFORT,    :           P R O
 
         INC.,                         :
 
                                       :          T U N C
 
              Employer,                :
 
                                       :         O R D E R
 
         and                           :
 
                                       :
 
         HOME INSURANCE COMPANY,       :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The decision filed November 3, 1993 contains an error on page 
 
         seven, in the seventh full paragraph.  The following statement is 
 
         correct:
 
         
 
              After considering all of the factors enumerated above, 
 
         including the eight percent permanent impairment rating; 
 
         claimant's work restrictions; the employer's willingness to 
 
         accommodate claimant's work restrictions; claimant's current 
 
         earnings, and her earnings at the time of the injury; the 
 
         severity of the injury and length of her healing period; and, 
 
         claimant's training, it is found that claimant has sustained a 
 
         ten percent industrial disability. 
 
         The remainder of the decision remains the same.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                      PATRICIA J. LANTZ
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Fred L Morris
 
         Attorney at Law
 
         405 Sixth Ave Ste 700
 
         Des Moines IA 50309
 
         
 
         Mr Max Schott
 
         Attorney at Law
 
         6959 University Ave
 
         Des Moines IA 50311
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS R. WITTE,              :
 
                                          :
 
                 Claimant,                :      File Nos. 966533
 
                                          :                966534
 
            vs.                           :                952950
 
                                          :
 
            LENNOX INDUSTRIES, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 2, 1991, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on February 17, 1989, July 27, 1989, and April 9, 
 
            1990.  The record in the proceedings consist of the 
 
            testimony of the claimant and Dennis Hart; joint exhibits 1 
 
            through 42; and defendants' exhibits A and B.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 As to the February 17, 1989 and July 27, 1989 injuries, 
 
            the only issue is the extent of claimant's permanent 
 
            disability, if any.
 
            
 
                 As to the April 9, 1990 alleged injury, the issues are:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to his April 9, 1990 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Claimant's entitlement to 86.13 penalty benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 28-year-old high school graduate who has 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            no other formal education.  Claimant began working for 
 
            defendant employer on February 6, 1984.  He described his 
 
            work prior to working for defendant employer, which 
 
            basically involved working at a service station at which he 
 
            also did mechanic work.  Claimant had a pre-employment 
 
            physical and back x-rays prior to working for defendant 
 
            employer and said the x-rays and physical were negative.
 
            
 
                 Claimant described his work at defendant employer's 
 
            during the years he worked.  He described his duties and the 
 
            changes that occurred in various positions or jobs within 
 
            his employment.
 
            
 
                 On February 17, 1989, claimant was picking up a blower 
 
            by hand to place in a heating unit when he felt a pain in 
 
            his lower back which went down his leg to his knee, more on 
 
            the right than the left.  Claimant said he got better and he 
 
            did his job but the back pain never completely went away.  
 
            Claimant returned to work with no restrictions and no loss 
 
            of time.
 
            
 
                 Claimant said his symptoms increased on July 28, 1989, 
 
            after he had been adjusting a heat exchanger in a heating 
 
            unit by aligning some screws and while in a bent over 
 
            position.  He returned again to Ron K. Dunham, D.C., for 
 
            treatments.  Claimant said he obtained some but not total 
 
            relief of his symptoms.  The doctor made the same diagnosis 
 
            as he did in February of 1989, namely, muscle sprain.  Dr. 
 
            Dunham did not take x-rays this time either.  Claimant lost 
 
            no time and returned to his same job with no restrictions.
 
            
 
                 On April 1, 1990, claimant was transferred to the 
 
            automatic punch press, which required changing 500 to 1800 
 
            pound dies on the press depending on the particular part to 
 
            be made.  Claimant said he used a hoist to put the dies in 
 
            the roller but there is pushing and pulling required to get 
 
            them in or out of the machine.  Claimant related that around 
 
            the second week in April, the pain occurred again.  He could 
 
            not relate a particular day or hour as he continued to work 
 
            as usual.  Over the Easter weekend (Easter Sunday was April 
 
            15, 1990), claimant's symptoms became worse and he went to 
 
            the company nurse on April 18, 1990, to seek treatment.  
 
            Claimant related the nurse gave him an option of filling out 
 
            a workers' compensation form or going through his health 
 
            insurance and going to his own doctor instead of the company 
 
            doctor.  Claimant indicated since he did not get complete 
 
            relief from Dr. Dunham, who took no x-rays, he thought he 
 
            would go to his doctor.  Claimant went to Lloyd L. Cutler, 
 
            D.C., on April 19, 1990, and received nineteen treatments in 
 
            April, May and June of 1990.  Claimant said he got temporary 
 
            relief but one-half hour after treatment, the back pain 
 
            returned.  Joint exhibit 9, page 10, reflects the employee's 
 
            first aid record indicating an office visit on April 18, 
 
            1990.  These notes reflect that claimant indicated his pain 
 
            started on the Easter weekend and that his back hurt two or 
 
            three weeks before and the pain went away until that Easter 
 
            weekend.  At that time, claimant told the nurse that he did 
 
            not know what he did to cause the pain but that it had just 
 
            started hurting.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On June 15, 1990, the company nurse recommended 
 
            claimant see his family doctor, David L. Thomas, Jr., M.D., 
 
            who took x-rays.  The x-rays were negative.  Claimant then 
 
            was given a CT scan which showed a ruptured disk at L5-S1.  
 
            Dr. Thomas' notes on June 15, 1990, reflect that claimant 
 
            denied a specifically known injury and that he was not sure 
 
            exactly where he got hurt - whether at work or at home.  
 
            Claimant could not remember any specific injury (Jt. Ex. 13, 
 
            p. 15).  It is this exhibit and the prior exhibit 
 
            specifically that defendants rely heavily on to show 
 
            claimant was not injured on April 9, 1990, and that if there 
 
            was an injury on or around that time, it was not work 
 
            related (Jt. Ex. 13, p. 15).  Joint exhibit 15, page 17, is 
 
            Dr. Thomas' report of July 30, 1990, indicating claimant's 
 
            injury at work happened a year ago, which would have been in 
 
            reference to the July 27, 1989 injury.  Joint exhibit 29 
 
            shows claimant had an L5-S1 diskectomy on July 16, 1990.
 
            
 
                 Joint exhibit 12 reflects an October 12, 1990 letter in 
 
            which Dr. Cutler wrote to claimant's attorney indicating he 
 
            was unable to ascertain the exact cause of his injury 
 
            although he thought it related to his work routine.
 
            
 
                 Joint exhibit 36 reflects a November 20, 1990 letter 
 
            from Carl O. Lester, M.D., in which he gave claimant a 12 
 
            percent permanent impairment as a result of his L5-S1 
 
            laminectomy that he performed on claimant on July 16, 1990.  
 
            Nothing in this letter indicates the cause of claimant's 
 
            surgery or injury.  Obviously, a follow-up letter to the 
 
            doctor from claimant's attorney, Dr. Lester, on November 26, 
 
            1990, causally connects claimant's sequence of events that 
 
            led up to his surgery and the surgery itself and subsequent 
 
            office visits to claimant's original injury in which he 
 
            lifted a furnace blower and felt a back pain.  This would 
 
            have to be referring to the February 17, 1989 injury (Jt. 
 
            Ex. 37).  The letter that claimant's attorney wrote to the 
 
            doctor on November 20, 1990 is defendants' exhibit A, page 
 
            12.  There is at least a page of the letter missing.  The 
 
            question arose as to whether Dr. Lester had all of the 
 
            medical history of the claimant.  Claimant pointed out in 
 
            the letter that there were various attachments relating to 
 
            claimant's history and that the doctor did in fact have 
 
            adequate information.  Since the defendants' exhibit is not 
 
            complete as far as the total pages of the November 20, 1989 
 
            letter and claimant did not have this as an exhibit in its 
 
            entirety, it is hard for the undersigned to determine the 
 
            full or entire situation.  Claimant has the burden of proof.
 
            
 
                 The undersigned is concerned by the doctor's comment 
 
            that the original injuries started the entire sequence of 
 
            events.  There has been no denial that two injuries 
 
            occurred, February 1989 and July 1989, that arose out of 
 
            claimant's employment, but it appears undisputed that the 
 
            claimant returned back to work and at least as of April 1, 
 
            1990, there was no permanent impairment no restrictions nor 
 
            any permanent disability.  Claimant lost no work and 
 
            continued to perform his job.  Claimant testified that he 
 
            never completely got over his pain and, other than his testi
 
            mony and subjective comments, there is no other real 
 
            evidence that there is any residue from these other 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injuries.  At least, it is undisputed there was no 
 
            permanency contended by the claimant until at least the 
 
            April 9, 1990 incident allegedly occurred.
 
            
 
                 In looking at joint exhibit 39, dated December 18, 
 
            1990, the doctor appears to be attempting to reaffirm his 
 
            original position as to causally connecting claimant's 
 
            injury to his current problems and resulting surgery, but he 
 
            refers to what claimant told him and in reviewing his 
 
            injury, he referred to the fact that  claimant injured 
 
            himself over a year ago and did not simply get over the 
 
            original injury.  As the undersigned indicated earlier, he 
 
            thought the doctor originally was referring to an original 
 
            injury of February 17, 1989, but it would appear now that he 
 
            might be referring to an injury of July 1989, which would be 
 
            approximately a year and a half ago and not February 1989, 
 
            almost two years ago.  Claimant testified that on the side 
 
            he does work on automobiles, performing mechanical work for 
 
            pay for various individuals.  There is also evidence that he 
 
            did some bowling.  It would seem that claimant under the 
 
            facts of this case could be more specific as to when in fact 
 
            he occurred an injury or an aggravation of a prior injury, 
 
            or a specific trauma itself, in April 1990.  It would also 
 
            seem that claimant could be more certain as to whether he 
 
            incurred it at home or at work.  It is obvious he was not 
 
            sure.  Defendants' exhibit A, page 10, indicates that the 
 
            claimant was not sure of the nature of his injury or illness 
 
            as he didn't mark whether it was at work or otherwise.  
 
            Joint exhibit 13 shows the notes of June 15, 1990, which 
 
            indicates claimant came in that day complaining of back 
 
            problems beginning early in 1990.
 
            
 
                 This is a difficult and a close call case.  The 
 
            claimant has the burden to prove an injury arose out of and 
 
            in the course of his employment and, that there is causal 
 
            connection to claimant's alleged disability and the alleged 
 
            injury.  The undersigned does not believe that the 
 
            claimant's current problems are causally connected to either 
 
            the February or July 1989 work injuries and that those two 
 
            work injuries did not result in any permanent impairment or 
 
            disability.  The undersigned finds that the claimant has 
 
            failed in his burden to prove that whatever is currently 
 
            causing his problems surfaced sometime in the first fourteen 
 
            days of April 1990, and that the undersigned does not know, 
 
            just like the claimant does not know, whether they were work 
 
            or nonwork related or what specifically brought about 
 
            claimant's complaint.  There is nothing with medical 
 
            certainty from any chiropractor, who performed considerable 
 
            services on the claimant, and the undersigned questions Dr. 
 
            Lester's ability, based on the record presented herein, to 
 
            causally connect claimant's current complaints to a February 
 
            1989 injury.  Dr. Lester, who became involved around June of 
 
            1990, is relying heavily on the subjective history given to 
 
            him by the claimant.  The undersigned, therefore, finds that 
 
            claimant has failed in his burden of proof and recovers 
 
            nothing further from these proceedings and that due to the 
 
            nature of this decision, claimant is not entitled to any 
 
            86.13 penalty benefits.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 9, 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 9, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury on February 17, 1989, that 
 
            arose out of claimant's employment.  As a result of said 
 
            injury, claimant did not incur any permanent disability or 
 
            impairment, restrictions, or loss of income.
 
            
 
                 Claimant incurred an injury on July 27, 1989, that 
 
            arose out of claimant's employment.  As a result of said 
 
            injury, claimant did not incur any permanent disability or 
 
            impairment, loss of work, or loss of income.
 
            
 
                 Claimant did not incur an injury on April 9, 1990, 
 
            which arose out of and in the course of his employment.
 
            
 
                 Claimant's alleged medical complaints, disability and 
 
            surgery in 1990 were not caused by a work injury on April 9, 
 
            1990.
 
            
 
                 Claimant is not entitled to any 86.13 penalty benefits.
 
            
 
                 Claimant is not entitled to anything further in these 
 
            proceedings, as defendants have paid all medical bills and 
 
            have paid claimant all benefits to which he is entitled as 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of the date of the hearing.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That defendants pay the costs of these proceedings.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY M WAKEFIELD,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 953015
 
            VOGEL POPCORN COMPANY d/b/a   :
 
            GOLDEN VALLEY MICROWAVE,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LUMBERMAN'S UNDERWRITING      :
 
            ALLIANCE,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Mary 
 
            Wakefield seeking benefits based upon an alleged injury of 
 
            April 24, 1990.  She seeks compensation for healing period 
 
            and permanent disability.  She seeks to recover medical 
 
            expenses.  Her claim includes an allegation that she 
 
            sustained a physical injury which in turn produced a 
 
            psychological injury.  
 
            
 
                 The primary issues to be determined are whether the 
 
            claimant sustained an injury which arose out of and in the 
 
            course of employment.  Both the occurrence of any physical 
 
            injury as well as any physical injury having proximately 
 
            caused any psychological injury are disputed.  With regard 
 
            to the medical expenses, there is an issue with regard to 
 
            whether all of the treatment which has been provided, 
 
            particularly that most recently provided, was reasonable.  
 
            
 
                 The case was heard at Council Bluffs, Iowa, on March 9, 
 
            1993.  The evidence consists of testimony from Mary 
 
            Wakefield, Brian Vannatta, Doug McMahon, and Lynn Ferguson.  
 
            The record also contains jointly offered exhibits 1 through 
 
            20.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Mary Wakefield is a 38-year-old woman who has held a 
 
            variety of employments in her life.  She dropped out of 
 
            school after completing the eighth grade and married at age 
 
            15.  That marriage ended by the death of the husband in a 
 
            tragic accident.  Mary has experienced a remarkable number 
 
            of tragedies during her lifetime.  
 
            
 
                 Mary has a history of substance abuse, depression, 
 
            panic attacks, and agoraphobia.  The record in this case 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shows Mary to have been diagnosed with left shoulder 
 
            tendonitis on October 4, 1988.  She was treated with an 
 
            injection and medication (exhibit 9j).  She was off work for 
 
            approximately one week in early February 1990 due to a low 
 
            back strain.  The records show that she sought treatment 
 
            again on May 9, 1990, for a left shoulder problem which the 
 
            doctor felt was probably work related.  She was seen again 
 
            on May 25, 1990, with back and left shoulder complaints (ex. 
 
            9j).  
 
            
 
                 Mary testified at hearing that in early February 1990, 
 
            she had back complaints which came on following bowling on a 
 
            Saturday night but then resolved.  Mary attributes her 
 
            current complaints to lifting and twisting at work with a 
 
            particular incident having occurred on April 24, 1990.  
 
            There were no witnesses who confirmed the occurrence of any 
 
            incident on or about April 24, 1990.  The incident was not 
 
            reported until the following Sunday evening.  The 
 
            description of Mary's work was such that it is not the type 
 
            of work which would be expected to produce serious or 
 
            substantial injury.  It does require repetitive activity and 
 
            moderate exertion.  
 
            
 
                 Mary initially was treated by T.H. Largen, M.D., her 
 
            family physician.  On April 30, 1990, he reported that she 
 
            would be off work due to a sacroiliac strain for a week and 
 
            would then be expected to be on light duty for two weeks 
 
            (ex. 9i).  On May 25, 1990, however, he reported she could 
 
            not resume regular duty and released her to perform light 
 
            duty indefinitely (ex. 9h).  On June 14, 1990, he again 
 
            reported that she was not able to resume regular duty and 
 
            would be on light duty indefinitely (ex. 9f).  By September 
 
            25, 1990, Dr. Largen reported that claimant's response to 
 
            treatment had been poor and that no further treatment was 
 
            indicated except passage of time and medication.  
 
            Nevertheless, he did not expect any long-term permanent 
 
            impairment (ex. 9e).  
 
            
 
                 Mary attempted to resume work in mid-May, but did not 
 
            provide her supervisor with her restricted release from her 
 
            doctor (ex. 17).  She apparently worked 10 hours on May 14, 
 
            three hours on May 15, approximately six or seven hours on 
 
            May 16, and five and one-half hours on May 17.  She worked 
 
            on May 21 but has not worked since (ex. 17).  
 
            
 
                 There is a dispute in the record regarding whether or 
 
            not light duty was available.  On May 30, 1990, Mary made a 
 
            written request for a personal leave of absence (ex. 16).
 
            
 
                 May has been extensively evaluated.  MRI and CT scans 
 
            have been conducted.  None have shown any evidence of a 
 
            substantial, recent, acute injury though conditions of 
 
            long-standing origin such as disc degeneration at the L4-5 
 
            disc level, sacralization at the L5-S1 level and the 
 
            mineralization at the T-12 level of Mary's spine have been 
 
            identified (exs. 6a-e).  Mary was evaluated by Michael J. 
 
            Morrison, an orthopedic surgeon, on July 3, 1990.  In his 
 
            report he stated that she had reached maximum medical 
 
            improvement, that no further treatment was necessary other 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            than muscle strengthening, flexibility exercises and 
 
            over-the-counter medications.  He saw no reason to restrict 
 
            her activities and expected no long-term permanent 
 
            impairment (ex. 8).  
 
            
 
                 When she was examined by orthopedic surgeon Thomas C. 
 
            Bush, M.D., on September 4, 1990, he could find nothing 
 
            wrong with her but did note that she made complaint of a lot 
 
            of pain and suspected that there could be a psychological 
 
            overlay (ex. 7).  
 
            
 
                 Mary has been evaluated and treated by orthopedic 
 
            surgeon Timothy C. Fitzgibbons, M.D., since early 1991.  He 
 
            diagnosed her as having a chronic lumbosacral strain, upper 
 
            back pain which was probably related to her lower back 
 
            strain and with a possible thoracic strain.  He also found 
 
            her to have left shoulder impingement syndrome.  In a report 
 
            dated March 5, 1991, he stated that the most likely cause of 
 
            her problems was repetitive activity at work.  In a report 
 
            dated September 20, 1991, he noted that she had not improved 
 
            with therapy.  He also stated that his opinion on causation 
 
            was based upon her statements that she had not had prior 
 
            problems (ex. 4).  Dr. Fitzgibbons rated claimant as having 
 
            a 7 percent permanent impairment to the body as a whole due 
 
            to her back and shoulder problems.  
 
            
 
                 Mary was also evaluated by Peter M. Cimino, M.D.  He 
 
            diagnosed her as having chronic lumbar spondylosis.  He 
 
            stated that it was difficult to determine whether the 
 
            symptoms which she related to him were truly due to a back 
 
            injury (ex. 10).  
 
            
 
                 In early 1993 Mary was also evaluated by Jay J. Parsow, 
 
            a physiatrist.  Dr. Parsow found several conditions which he 
 
            indicated were probably work related (ex. 3).  Dr. Largen 
 
            has concurred with the assessment made by Dr. Parsow (ex. 
 
            9).  
 
            
 
                 Mary has also been evaluated and treated for her 
 
            psychological problems.  Cathy Peters-Midland reported on 
 
            October 22, 1991, that Mary is afflicted with situational 
 
            depression which appears to be due to back and shoulder pain 
 
            as well as financial stress from being unemployed and being 
 
            denied workers' compensation benefits (ex. 2).
 
            
 
                 Psychiatrist David G. Windsor, M.D, reported that Mary 
 
            has at least a 10 percent permanent partial impairment on 
 
            psychiatric grounds resulting from her injury while she was 
 
            employed by Vogel Popcorn.  He felt that her work had been 
 
            somewhat beneficial to her in that being unable to work 
 
            aggravated her psychiatric symptomatology (ex. 1).  
 
            
 
                 Mary was evaluated by Timothy Patterson, D.O.  Dr. 
 
            Patterson indicated that Mary experienced a great deal of 
 
            anxiety regarding returning to work, that the circumstances 
 
            of her original injury had become personalized and that, 
 
            when combined with the problems she was having at home and 
 
            with her children, interfered with her ability to return to 
 
            work.  He reported that she clearly wants to be pampered and 
 
            needs to feel that her original injury was, in fact, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            legitimate.  He found it difficult to support the claim that 
 
            she had suffered any psychological injury (ex. 11).  
 
            
 
                 Mary has had considerable problems with her two older 
 
            children.  Her son has been in prison.  Her daughter has 
 
            been hospitalized.  At about the time of the alleged injury, 
 
            Mary was preparing for her daughter to be released from a 
 
            hospital setting in order to live with her.  
 
            
 
                 As previously noted, Mary's work was not the type of 
 
            thing which would be expected to cause any substantial or 
 
            significant injury.  Like many types of work it appears to 
 
            have the propensity to produce strains, aches and pains 
 
            which normally resolve in a matter of a few days or perhaps 
 
            weeks.  There is nothing in the record of this case, other 
 
            than Mary's own stated complaints, which indicates that 
 
            whatever happened on or about April 24, 1990, produced any 
 
            long-standing physical injury.  Objective diagnostic tests 
 
            have shown some abnormalities but all those abnormalities 
 
            were not the types of things which would develop in a short 
 
            period of time and likely preexisted.  Mary is of slight 
 
            physical build and if would not be unexpected for her to 
 
            have difficulty performing moderately heavy physical labor.  
 
            Nevertheless, the weights described in the record of this 
 
            case do not appear to be anything which would be expected to 
 
            cause her a problem.  It is particularly noted that Mary 
 
            testified to having problems subsequently when performing 
 
            activities such as carrying plates of food when she 
 
            attempted a part-time job.
 
            
 
                 It is found that Mary did sustain some type of a strain 
 
            injury, possibly to her back or possibly to her left 
 
            shoulder, on or about April 24, 1990.  Her first day of 
 
            absence from work was April 30, 1990.  It is further found 
 
            that the injury had resolved by May 14, 1990, when she 
 
            returned to work.  She is therefore entitled to recover 
 
            temporary total disability compensation running from May 3, 
 
            1990 through May 13, 1990, a span of 1 4/7 weeks, pursuant 
 
            to section 85.33.
 
            
 
                 In the hearing report the parties stipulated that her 
 
            gross earnings were $155 per week and that she was single 
 
            and entitled to four exemptions.  The stipulated rate of 
 
            $113.91 is found to be correct.  
 
            
 
                 The events of April 24, 1990, which Mary described have 
 
            been found to be correct.  Dr. Largen recommended that she 
 
            be off work in order to allow her strain injury to resolve.  
 
            From the record in this case, there is a considerable 
 
            question with regard to whether or not the doctors treating 
 
            the physical injury were aware of Mary's psychological 
 
            history.  It is interesting to note that Dr. Bush has noted 
 
            the possibility of some type of psychological overlay (ex. 
 
            7).  
 
            
 
                 The evidence from Dr. Patterson seems to provide that 
 
            best explanation of what has transpired in this case.  
 
            Simply stated, Mary sustained a minor strain type of injury 
 
            and then, due to her psychological condition, focused on 
 
            what she perceived to be a significant injury, though it was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            not, and she now believes herself to be physically disabled.  
 
            Mary is disabled.  The disability is from her psychological 
 
            condition, not from any physical injury that occurred on or 
 
            about April 24, 1990.  The psychological disability does not 
 
            have any substantial basis in the April 24, 1990 injury.  
 
            That injury merely provided the setting in which the 
 
            preexisting psychological condition manifested itself.  
 
            
 
                 The opinions of those physicians who have related 
 
            substantial permanent physical disability to the April 24, 
 
            1990 injury, appear to have done so without understanding 
 
            Mary's underlying psychological history.  Their opinions are 
 
            therefore given little weight.  The opinions of Dr. Windsor 
 
            appear to be based upon the assumption that Mary sustained a 
 
            substantial physical injury.  Accordingly, his opinion which 
 
            relates her psychological disability to the work place 
 
            injury is rejected as is the opinion of Cathy Peters-Midland 
 
            regarding causation.  As indicated by Dr. Cimino, there is a 
 
            serious question with regard to whether or not the symptoms 
 
            Mary experiences are due to any injury to her back.  The 
 
            greater likelihood is that they have their origin in her 
 
            psychological makeup.  As indicated by Dr. Patterson, what 
 
            has transpired is most likely the manifestation of Mary's 
 
            preexisting psychological condition.  There is no good 
 
            evidence showing that she sustained a psychological injury, 
 
            even in the context of an aggravation of a preexisting 
 
            condition, as a result of the April 24, 1990 incident.  
 
            
 
                 It is further found that Mary's psychological status is 
 
            a factor in her continued physical complaints.  It is 
 
            particularly noted that the complaints have expanded since 
 
            the time of the original injury and have not improved with 
 
            any of the treatment which has been provided to her.  There 
 
            is a substantial possibility that Mary was anxious about her 
 
            relationship with Brian Vannatta and also with anticipation 
 
            of her daughter's arrival for the summer of 1990.  Mary has 
 
            demonstrated a practice of focusing on physical complaints 
 
            and developing anxiety over her physical complaints.  At 
 
            hearing she expressed fear of her degenerative disc disease 
 
            eventually causing death, yet the medical evidence in the 
 
            case shows her degenerative condition to be mild.  The 
 
            undersigned is unaware of degenerative disc disease every 
 
            causing death in anyone, though such an occurrence could 
 
            very well be possible through some complication.
 
            
 
                 It is found that Mary's work probably produced a minor, 
 
            temporary physical injury as previously been determined in 
 
            this decision.  It is further found that the work and work 
 
            injury did not play a substantial role in causing or 
 
            aggravating any psychological condition or disability.  The 
 
            physical injury was minor.  It did not produce any permanent 
 
            disability.  In view of those facts it is extremely unlikely 
 
            that it could have produced any psychological injury.  The 
 
            greater likelihood is that Mary was developing anxiety which 
 
            manifested itself over the weekend of April 29, 1990.  It is 
 
            most probable that the work place and work injury merely 
 
            provided that setting in which the psychological condition 
 
            manifested itself.  It should be noted that the undersigned 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            has serious doubt concerning the actual occurrence of any 
 
            physical injury, but the undersigned finds Mary to be honest 
 
            with regard to her testimony describing the incidents of 
 
            April 24, 1990.  The events that transpired thereafter, 
 
            however, were greatly influenced by her underlying 
 
            psychological condition.  
 
            
 
                                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.  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).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic ll recognized that a traumatically induced 
 
            psychological injury is compensable.   Leffler v. Wilson & 
 
            Co., 320 N.W.2d 634 (Iowa App. 1982); Dever v. Armstrong 
 
            Rubber Co., 170 N.W.2d 455 (Iowa 1969).  The same is true 
 
            when the trauma aggravates a preexisting mental condition.  
 
            Coughlin v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa 
 
            1969).  When, however, the work place merely provides the 
 
            setting in which the psychological condition manifests 
 
            itself, the result is not compensable.  Newman v. John Deere 
 
            Ottumwa Works of Deere & Co., 372 N.W.2d 199 (1985).  An 
 
            imagined injury cannot, as a matter of law, form the basis 
 
            of a compensable psychological injury.  
 
            
 
                 In this case, it is found that the physical injury did 
 
            not produce a psychological injury, to the contrary, the 
 
            claimant's preexisting mental status prevented her from 
 
            recovering from what appears to have been a very minor 
 
            temporary injury.  
 
            
 
                 It should be noted that an employer's policy of setting 
 
            some specific time within which injuries are to be reported, 
 
            has no effect upon the statutory right of the employee to 
 
            receive compensation for an injury.  Since employee's cannot 
 
            contract to surrender their statutory rights, it is 
 
            abundantly clear that an employer cannot, through a 
 
            unilaterally imposed policy, deny an employee the rights 
 
            provided by chapter 85 of the Code (section 85.18).  
 
            
 
                 The treatment which claimant received with Dr. Largen 
 
            is found to have been reasonable.  Defendants are therefore 
 
            responsible for payment of his charges in the amount of 
 
            $679.  The other treatments are not shown to have been 
 
            caused by any work place injury.  Defendants are therefore 
 
            not required to pay any of the other medical expenses which 
 
            claimant seeks to recover. 
 
            
 
                 Claimant's entitlement to temporary total disability 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            compensation under section 85.32 and 85.33 is determined by 
 
            April 30 being the first day of disability and May 13 being 
 
            the last with a return to work on May 14.  This is a span of 
 
            two weeks.  Since the compensation begins on the fourth day 
 
            of disability, benefits are payable commencing May 3 and 
 
            running through May 13, a span of 1 3/7 weeks.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Mary 
 
            Wakefield one and three-sevenths (1 3/7) weeks of 
 
            compensation for temporary total disability at the 
 
            stipulated rate of one hundred thirteen and 91/100 dollars 
 
            ($113.91) per week payable commencing May 3, 1990.  The 
 
            entire amount thereof is past due and owing and shall be 
 
            paid in a lump sum together with interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 It is further ordered that defendants pay claimant's 
 
            medical expenses from Medical Clinic, P.C., in the amount of 
 
            six hundred seventy-nine dollars ($679).
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave.
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Carol Knoepfler
 
            Mr. Kirk S. Blecha
 
            Attorneys at Law
 
            1500 Woodmen Tower
 
            Omaha, Nebraska  68102
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51108.2; 51402.20; 51402.30; 
 
                                          52206; 51801
 
                                          Filed March 30, 1993
 
                                          Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSSIONER
 
            ____________________________________________________________
 
                      
 
            MARY M WAKEFIELD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 953015
 
            VOGEL POPCORN COMPANY d/b/a   
 
            GOLDEN VALLEY MICROWAVE, 
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            LUMBERMAN'S UNDERWRITING      
 
            ALLIANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51108.2 51402.20 21402.30 52206 51801
 
            
 
            Claimant sustained a minor strain type of injury.  She also 
 
            had a preexisting mental condition which manifested itself 
 
            at about the time she was experiencing the work injury.  
 
            There is a very substantial question about whether there had 
 
            been any physical injury but that question was resolved in 
 
            favor of the claimant.  It was found that the mental 
 
            condition prevented the claimant from recovering from her 
 
            minor injury.  She was awarded two weeks temporary total 
 
            disability.  Her claim for permanent disability was denied.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EARL  LOVE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 953048
 
            vs.                           :                1003230
 
                                          :                1054174
 
            VIKING PUMP,                  :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
         
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a consolidated contested case proceeding upon 
 
            petitions in arbitration filed by claimant Earl Love against 
 
            his former employer, Viking Pump, and its insurance carrier, 
 
            Liberty Mutual Insurance Company.
 
            
 
                 This litigation has featured and continues to feature 
 
            wildly eccentric procedure.  In file number 953048, Mr. Love 
 
            alleged a work injury to his right leg on June 4, 1990.  In 
 
            file number 1003230, he alleged an injury to the "body as a 
 
            whole" on January 10, 1991.  This petition was apparently 
 
            based on a cumulative trauma theory of injury. 
 
            
 
                 These two files were consolidated and came on for 
 
            hearing in Waterloo, Iowa on November 29, 1993.  Paragraph 
 
            one of the hearing assignment order required defendants to 
 
            file a first report of injury prior to hearing or face a 
 
            specific sanction: closing of the record to further evidence 
 
            or activity.  Defendants failed to file a first report in 
 
            case number 1003230.  As a result, that sanction was 
 
            imposed.
 
            
 
                 Claimant thereupon offered an amended petition which 
 
            sought to allege an alternative injury date of October 18, 
 
            1988.  This, of course, was totally improper.  Under rule 
 
            343 IAC 4.6, a separate date of injury must be alleged and a 
 
            separate original notice and petition filed on account of 
 
            each claimed injury.  It is proper to amend a petition to 
 
            allege a different injury date, but not to allege multiple 
 
            dates in the alternative.
 
            
 
                 The amendment had actually been filed in the 
 
            commissioner's office on November 18 (11 days before trial), 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            but the document had not been matched with the file.  
 
            Notwithstanding the last minute nature of the amendment, 
 
            defendants insisted they were not prejudiced and eagerly 
 
            waived further notice.  Not coincidentally, defendants 
 
            produced a first report of injury relative the 1988 injury 
 
            claimed, which involved a single traumatic incident.  In the 
 
            belief (later proved mistaken) that this first report had 
 
            actually been filed, the hearing deputy rescinded the 
 
            imposition of sanctions.  It has since been discovered that 
 
            the first report was never filed in the commissioner's 
 
            office, but acceptance of the first report at hearing will 
 
            be deemed compliance.  This decision orders the Division of 
 
            Industrial Services to establish a litigated file under 
 
            number 1054174.
 
            
 
                 The record consists of joint exhibits 1-16 and 18-21, 
 
            along with the testimony of claimant, David Love, Gale Sells 
 
            and Daniel Frommelt.  The unnecessarily voluminous exhibits 
 
            included multiple copies of numerous documents.  Attorneys 
 
            Robert Fulton and Kevin Rogers are referred to Iowa Code 
 
            section 17A.14(1) and paragraph nine of the standard hearing 
 
            assignment order for guidance in future litigation before 
 
            this agency.
 
            
 
                                      ISSUES
 
            
 
                 In file number 953048, the parties stipulated to the 
 
            following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on June 4, 
 
                    1990;
 
            
 
                    2.  The injury caused temporary disability, 
 
                    the extent of which is no longer in dispute;
 
            
 
                    3.  The injury caused permanent disability 
 
                    equivalent to a seven percent loss of the 
 
                    right leg;
 
            
 
                    4.  The proper rate of weekly compensation 
 
                    is $298.99; 
 
            
 
                    5.  Medical benefits are no longer in 
 
                    dispute; and,
 
            
 
                    6.  Defendants are entitled to credit 
 
                    against an award of permanent disability 
 
                    totalling $4,604.45.
 
            
 
                 The parties presented no issues for resolution under 
 
            this file number, as claimant seeks no further benefits.  
 
            However, as shall be seen, the parties stipulation as to the 
 
            extent of permanent disability is rejected in this decision.
 
            
 
                 In file number 1003230, the parties stipulated to the 
 
            following:
 
            
 
                    1.  An employment relationship existed at 
 
                    the time of the alleged injury;
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                    2.  Permanent disability, if any, should be 
 
                    compensated industrially;
 
            
 
                    3.  The commencement date for permanent 
 
                    disability benefits is August 19, 1991;
 
            
 
                    4.  Claimant had average gross weekly 
 
                    earnings of $482.00, was single and entitled 
 
                    to three exemptions on the date of injury; 
 
            
 
                    5.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    6.  Defendants are entitled to credit for 
 
                    voluntary payment of benefits totalling 
 
                    $32,408.02.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment;
 
            
 
                    2.  Whether the injury caused temporary or 
 
                    permanent disability;
 
            
 
                    3.  The extent of permanent disability, if 
 
                    any; and,
 
            
 
                    4.  Whether the claim is barred by failure 
 
                    to give timely notice under Iowa Code 
 
                    section 85.23.
 
            
 
                 Based on the above foundational facts, the parties 
 
            calculated the weekly compensation rate at $298.99.  The 
 
            rate tables published by the commissioner and in effect on 
 
            the date of injury show that an individual so situated is 
 
            entitled to a benefit rate of $299.00.  That rate is hereby 
 
            established as the correct rate.
 
            
 
                 Because of the unique manner in which the 1988 
 
            (1054174) claim was presented, the parties did not prepare a 
 
            hearing report outlining issues.  This decision will 
 
            consider the following issues:
 
            
 
                    1.  Whether an employment relationship 
 
                    existed between claimant and Viking Pump on 
 
                    October 19, 1988;
 
            
 
                    2.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment;
 
            
 
                    3.  Whether the injury caused permanent 
 
                    disability; and,
 
            
 
                    4.  The nature and extent of permanent 
 
                    disability, if any.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 It will be assumed that claimant was also single and 
 
            entitled to three exemptions on October 19, 1988.  The first 
 
            report of injury accepted for filing reflects gross weekly 
 
            wages of $447.60 (40 hours at a wage of $11.19).  The rate 
 
            tables in effect at that time show that the proper 
 
            compensation rate is $279.28, which is hereby adopted as the 
 
            correct rate.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Earl Love, 39 years of age at hearing, is a 1973 high 
 
            school graduate.  Even though Mr. Love was awarded a high 
 
            school diploma, testing indicates that he is functionally 
 
            illiterate.  Mr. Love's intelligence falls into the 
 
            borderline classification, between retarded and low normal.  
 
            Except for a six-month welding course in approximately 1975 
 
            (a skill claimant has not used vocationally), he has no 
 
            further academic or technical training.
 
            
 
                 Claimant's work history consists of employment in 
 
            several factories and a brief stint as a youth worker in a 
 
            now-discontinued community program.  He was employed by 
 
            Viking Pump, a manufacturing facility, from August 21, 1978 
 
            through June 8, 1992, when he was discharged due to the 
 
            employer's inability to offer work compatible with medical 
 
            restrictions.
 
            
 
                 At Viking, claimant operated a number of machines, 
 
            including drills, grinders and milling machines.  From 1984 
 
            through 1991, claimant operated a rotor, idler mill, a job 
 
            that required substantial bending, twisting and reaching, 
 
            along with manipulating parts weighing as much as 150 
 
            pounds.
 
            
 
                 Claimant is a large man, over six feet tall and 
 
            weighing in the vicinity of 300 pounds.  As early as 1977 
 
            x-rays disclosed spondylolisthesis, or a 1/2 centimeter 
 
            forward displacement of L5 on S1.
 
            
 
                 Claimant also has a bad right knee, which has twice 
 
            been the subject of arthroscopy surgery.  The more recent 
 
            procedure took place after the 1990 injury in file number 
 
            953048.  The knee has suffered arthritis, cartilage damage 
 
            and aseptic necrosis.  The knee very likely will require a 
 
            prosthetic replacement at some future time.  As will be 
 
            discussed below, medical restrictions imposed by claimant's 
 
            treating orthopedic specialist relate both to claimant's 
 
            back and right knee.
 
            
 
                 Claimant was injured on October 19, 1988, when he 
 
            slipped over a pallet and a piece of equipment fell on his 
 
            leg.  Claimant testified to an injury to the right leg, but 
 
            the initial treating physician, Jay W. Keiser, M.D., 
 
            reported injury to the left leg (although the "aching" went 
 
            up into the left hip and also reportedly bothered the right 
 
            leg).  Dr. Keiser reported subjective tenderness over the 
 
            sciatic nerve, particularly on the right side.  Initial 
 
            assessment was of musculoskeletal back pain.  According to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the first report of injury, claimant did not lose time from 
 
            work.
 
            
 
                 Dr. Keiser then referred claimant to Dr. Delbridge, a 
 
            board certified orthopedic surgeon who testified by 
 
            deposition on January 27, 1993.  Dr. Delbridge was the 
 
            primary treating physician for this injury, and also 
 
            claimant's subsequent right knee injury (953048).
 
            
 
                 Dr. Delbridge first saw claimant for this problem on 
 
            November 14, 1988, and charted complaints of pain in the 
 
            back down into the left thigh and calf.  Clinical diagnosis 
 
            following x-ray studies was of low back pain with 
 
            spondylosis at L4 and 5 and probable mild spondylolisthesis 
 
            at L5-S1.  Dr. Delbridge also ordered a magnetic resonance 
 
            imaging study which disclosed a probable left-sided 
 
            herniated disc at L5-S1.  This study was consistent with 
 
            claimant's report of a tingling sensation at the bottom of 
 
            the left foot.  Dr. Delbridge correctly notes that claimant 
 
            is unlikely to have the medical sophistication to realize 
 
            the consistency of this subjective complaint.  Claimant was 
 
            returned to work with general light duty restrictions, 
 
            including a 20 pound lifting restriction and limitation to a 
 
            40-hour week.  Mr. Love continued working with similar 
 
            restrictions until injuring his right knee in 1990.  This 
 
            injury resulted in a second arthroscopic procedure at the 
 
            hands of Dr. Delbridge and permanent impairment.  Dr. 
 
            Delbridge assigned a 20 percent impairment to the leg, seven 
 
            percent of which was attributable to the 1990 injury, which 
 
            aggravated a preexisting condition.
 
            
 
                 In file number 1003230, claimant alleges a back injury 
 
            on January 10, 1991.  As it happens, he was seen by Dr. 
 
            Delbridge on that date.  The entire chart note follows:
 
            
 
                 Earl was seen.  He is getting by.  He is working.  
 
                 He has a little catching in his knee, a little 
 
                 catching in his back, but is getting by.  We will 
 
                 see him in about 2 months.
 
            
 
                 The evidence does not show that claimant sustained a 
 
            work injury on January 10, 1991.
 
            
 
                 Dr. Delbridge eventually concluded that as a result of 
 
            the combined knee and back injuries, claimant would be 
 
            unable to return to Viking Pump in the foreseeable future.  
 
            He rated impairment as the result of the back injury at 12 
 
            percent of the body as a whole.  Absent significant 
 
            preexisting problems, he attributed that entire impairment 
 
            to the work injury of October 18, 1988.
 
            
 
                 As to restrictions, Dr. Delbridge testified:
 
            
 
                    A.  Mr. Love, if he were to do some type of 
 
                 work at this point, would have to have fairly 
 
                 stringent restrictions.  He would have to avoid 
 
                 repeated hard gripping because of his carpal 
 
                 tunnel.  Now, that would not preclude picking up 
 
                 light objects or reaching for light objects or 
 
                 even bending his wrist to some extent.  But 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 repeated hard gripping would likely get him into 
 
                 problems.  So I would recommend that he not do 
 
                 repeated hard gripping.
 
            
 
                    He has a great deal of difficulty standing up.  
 
                 There are days when he can't stand very well 
 
                 because of his back.  And he also has trouble 
 
                 getting around because of his knee.  I would 
 
                 recommend that he stand no more than half an hour 
 
                 at a time, and no more than two hours out of 
 
                 eight.
 
            
 
                    And as far as sitting is concerned, he can sit 
 
                 for one hour, but he is limited by his back.  And 
 
                 then he would have to get up and around a little 
 
                 bit.  he can sit six hours out of eight.  He can 
 
                 do only minimal walking.
 
            
 
                    He can occasionally lift ten pounds, but his 
 
                 maximum lift is probably about 20.  But he cannot 
 
                 repetitively lift and carry.  And he can't carry 
 
                 because he can't walk very well because of his 
 
                 knee.  And he can't lift a lot because of his 
 
                 back.  He cannot squat at all because his knee 
 
                 just does not allow it.  It would immediately 
 
                 swell, in all probability, if he did that.  He 
 
                 can't lift anything from below knee level.  If he 
 
                 did, he would probably get into trouble with his 
 
                 back.  And he certainly is not a candidate for 
 
                 repetitive stooping, bending or twisting, as far 
 
                 as his back is concerned.
 
            
 
            (Delbridge Deposition, Pages 31 & 32)
 
            
 
                 The June 1990 knee injury involved a torn lateral 
 
            meniscus which Dr. Delbridge felt was probably related to 
 
            the work injury, and an aggravation of preexisting 
 
            conditions of chondromalacia, arthritis and aseptic 
 
            necrosis.  However, sequela of the knee injury are much more 
 
            significant.  The following uncontroverted testimony is of 
 
            crucial significance:
 
            
 
                    Q.  Did his condition worsen then from March, 
 
                 '89 until early '91, in regard to his back?
 
            
 
                    A.  His back had some -- it came and went.  But 
 
                 his back never really worsened a lot, except as 
 
                 related to his knee.  And his knee worsened.
 
            
 
                    Q.  Right.
 
            
 
                    A.  And it caused him to limp.  And he limped a 
 
                 good deal.  And when he started limping and he had 
 
                 an abnormal gait, then that certainly aggravated 
 
                 his back.
 
            
 
                    Q.  Was it then more the knee problem than the 
 
                 back problem that eventually forced him to leave 
 
                 work?
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    A.  Well, it was both, but the knee problem did 
 
                 play a significant role, because he -- because he 
 
                 limped.
 
            
 
                    Q.  We.., if the knee is causing the back 
 
                 problems, it seems to me that the knee would be 
 
                 the culprit here, if you will?
 
            
 
                    A.  Well, no.
 
            
 
                    MR. FULTON:  Just a minute, I am going to 
 
                 object to this as being argumentative.  And the 
 
                 question has been asked and answered.
 
            
 
                    A.  It didn't really cause the back problem, 
 
                 because the back problem is his congenital 
 
                 problems, plus his herniated disc.  But it did 
 
                 tend to aggravate his situation, because here's a 
 
                 man who's a great big guy, who is overweight, who 
 
                 has a bad knee, and some problems with his back, 
 
                 including a herniated disc.  And now he is walking 
 
                 with an abnormal gait because his knee hurts.  
 
                 And, yes, it did bother him.
 
            
 
            (Delbridge Deposition, Pages 59-60)
 
            
 
                 Because claimant has no neurological deficit, Dr. 
 
            Delbridge does not recommend surgery.  The knee will only 
 
            get worse, to result probably in a future prosthetic 
 
            replacement.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Two vocational experts involved in this case agree that 
 
            without further training, there is little or any work that 
 
            claimant can now perform in the competitive labor market.  
 
            Claimant, both personally and through counsel, has requested 
 
            that training be provided.  At one point, training at the 
 
            Hawkeye Institute of Technology was arranged, but funding 
 
            was withdrawn by defendants, allegedly because the agency 
 
            (by coincidence, this deputy) refused to order vocational 
 
            rehabilitation benefits under Iowa Code section 85.70 where 
 
            liability on the underlying claim remained disputed.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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).
 
            
 
                           I. January 10, 1991 (1003230)
 
            
 
                 No injury occurred on January 10, 1991.  Claimant fails 
 
            to meet his burden of proof as to that alleged injury.
 
            
 
                           II. October 19, 1988 (1054174)
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Claimant's testimony and the contemporaneous medical 
 
            records established that he sustained injury in a fall at 
 
            work on October 19, 1988.  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Following the 1988 back injury, claimant returned to 
 
            light duty work with a 20 pound lifting restriction and a 
 
            restriction against working overtime.  The lifting 
 
            restriction alone would have foreclosed claimant from many 
 
            of the jobs he had previously performed, but did not result 
 
            in permanent total disability because claimant continued to 
 
            work in gainful and productive employment.  Considering the 
 
            factors set forth above, it is concluded that claimant 
 
            sustained an industrial disability attributable to the 1988 
 
            back injury equivalent to 20 percent of the body as a whole, 
 
            or 100 weeks.
 
            
 
                             III. June 4, 1990 (953048)
 
            
 
                 Although the parties stipulated only to a leg injury, 
 
            Dr. Delbridge's testimony establishes that the injury to 
 
            claimant's knee aggravated Mr. Love's preexisting back 
 
            condition, resulting in much more onerous medical 
 
            restrictions.  The aggravation of claimant's back injury, as 
 
            a sequela of the knee injury, extends that injury into the 
 
            body as a whole.  Therefore, the entire injury is to be 
 
            compensated industrially.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Except for a brief period doing youth work, a position 
 
            no longer available, claimant has worked his entire life in 
 
            factory jobs.  His severe restrictions appear to foreclose 
 
            him from such work in the future.  Illustrative is the 
 
            inability of Viking Pump to offer claimant further work, 
 
            even with the clear financial incentive this litigation 
 
            provides.  He is functionally illiterate.  His intelligence 
 
            does not suggest great potential for extensive retraining.  
 
            Indeed, defendants have offered no retraining whatsoever.  
 
            The mere fact that the agency cannot order 85.70 benefits 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            before liability is established does not suggest that 
 
            defendants cannot provide rehabilitation on a voluntary 
 
            basis, especially where industrial disability may 
 
            potentially be reduced.  As the result of claimant's injury 
 
            of June 4, 1990, he is at this time an odd lot employee 
 
            under a total industrial disability.  Permanent total 
 
            disability benefits shall be awarded effective August 19, 
 
            1991, as the parties have stipulated.  Permanent total 
 
            disability is not subject to apportionment.  Permanent total 
 
            disability does not necessarily encompass the concept of 
 
            absolute perpetuity.  If claimant at some future time 
 
            redevelops earning capacity, review-reopening is available 
 
            to defendants.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In case number 1003230:
 
            
 
                    Claimant takes nothing.
 
            
 
                 In case number 1054174:
 
            
 
                    Defendants shall pay claimant one hundred 
 
                    (100) weeks of permanent partial disability 
 
                    benefits at the rate of two hundred 
 
                    seventy-nine and 28/100 dollars ($279.28) 
 
                    per week commencing October 19, 1988.
 
            
 
                    All accrued benefits shall be paid in a lump 
 
                    sum together with statutory interest.
 
            
 
                    Costs are assessed to defendants.
 
            
 
                 In case number 953048:
 
            
 
                    Defendants shall pay claimant permanent 
 
                    total disability benefits at the rate of two 
 
                    hundred ninety-eight and 99/100 dollars 
 
                    ($298.99) per week commencing August 19, 
 
                    1991 and continuing during such time as 
 
                    claimant remains under a total industrial 
 
                    disability.
 
            
 
                    Defendants shall have credit totalling 
 
                    thirty-two thousand four hundred eight and 
 
                    02/100 dollars ($32,408.02).
 
            
 
                    All accrued benefits shall be paid in a lump 
 
                    sum together with statutory interest.
 
            
 
                    Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                                          ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert D Fulton
 
            Attorney at Law
 
            6th Flr First National Bldg
 
            PO Box 2634
 
            Waterloo Iowa 50704
 
            
 
            Mr Kevin R Rogers
 
            Attorney at Law
 
            528 W 4th Street
 
            PO Box 1200
 
            Waterloo Iowa 50704
 
            
 
                    
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                      2901; 1803.1; 1804; 1806; 2206
 
                                      Filed April 6, 1994
 
                                      DAVID R. RASEY
 
            
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EARL LOVE,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 953048
 
            vs.                           :                1003230
 
                                          :                1054174
 
            VIKING PUMP,                  :
 
                                                A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMANY,                       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
            2901; 1803.1; 1804; 1806; 2206
 
            Consolidated contested case included a claimed leg injury in 
 
            1990 and a back injury in 1991.  Defendants failed to file a 
 
            first report for the 1991 claim, so evidence and activity 
 
            was cut off pursuant to the hearing assignment order.  
 
            Claimant then sought to amend his petition to allege a 1988 
 
            back injury in the alternative.  Defendants, who produced a 
 
            first report for the 1988 injury eagerly waived notice and 
 
            insisted that they were not prejudiced by the late 
 
            amendment.
 
            
 
            Even though it is improper under current rules to allege 
 
            multiple injury dates in the alternative, the hearing deputy 
 
            rescinded the sanction against defendants and allowed 
 
            litigation to proceed on all three claims.  Later, it was 
 
            discovered that the 1988 first report had never been filed, 
 
            but acceptance of the first report at hearing was deemed 
 
            compliance with paragraph one of the hearing assignment 
 
            order.  The agency was ordered to set up a third litigated 
 
            file for the 1988 back injury.
 
            
 
            It was eventually determined that the 1988 injury caused 20 
 
            percent industrial disability.  Although claimant sought no 
 
            further relief at hearing in the 1990 leg injury claim, the 
 
            parties stipulation was rejected.  It was found that altered 
 
            gait as a result of the leg injury aggravated claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preexisting back condition as a sequela, thus extending the 
 
            injury into the body as a whole.  Claimant was determined to 
 
            be totally disabled under the odd lot theory in the 1990 
 
            claim.  No 1991 injury was found.
 
            
 
            The unnecessarily voluminous record contained numerous 
 
            duplicate copies of documents.  Counsel were referred to 
 
            Iowa Code 17A.14(1) and paragraph nine of the standard 
 
            hearing assignment order for guidance in further litigation.