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            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DONNA P. SPURBECK,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 954462
 
            CITY BUILDERS & SUPPLY, INC., :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                 Defendant.     :      D E C I S I O N
 
                      :
 
            ___________________________________________________________
 
            INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Donna P. 
 
            Spurbeck, claimant, against City Builders & Supply, Inc., 
 
            employer, for benefits as a result of an alleged injury 
 
            which occurred on May 18, 1990.  A hearing was held in 
 
            Dubuque, Iowa, on August 13, 1992 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Stephen D. Lombardi.  Defendant was 
 
            represented by Robert L. Rausch.  The record consists of the 
 
            testimony of Donna P. Spurbeck, claimant, Kelly Hanson 
 
            Russell, secretary, Keith Harris, manager of the 
 
            telemarketing room, Michael Roberson, defendant's witness, 
 
            Brian Hunt, defendant's witness, James Way, former neighbor 
 
            of claimant, Dennis Wildeboer, defendant's 
 
            secretary-treasurer and general manager, and Bill Miller, 
 
            former co-employee of claimant, claimant's exhibits 1, 2 and 
 
            3, and defendant's exhibits A through H.  The deputy ordered 
 
            defendant to maintain custody of defendant's exhibit I, a 
 
            telephone headset, until the expiration of all the appellate 
 
            periods at which time this exhibit was to be returned to 
 
            claimant.  Defendant requested and the deputy permitted 
 
            defendant to file an offer of proof and these exhibits are 
 
            marked J, K, L, M and N.  They were not examined or 
 
            considered in the determination of the issues in this case.  
 
            They are found in the industrial commissioner's file in the 
 
            exhibits as offers of proof.  The deputy ordered a 
 
            transcript of the hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on May 18, 1990, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the extent of benefits to 
 

 
            
 
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            which she is entitled.
 
            
 
                 Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
                 Claimant, age 31, was hired as a telemarketer for 
 
            employer on April 27, 1990 (Transcript, Pages 14 & 20).  She 
 
            was employed by employer for a period of 33 days through May 
 
            29, 1990 (Tran., pp. 58 & 59).
 
            
 
                 Her past employments include waitressing, busboy, 
 
            hostess, dishwasher, cook, janitor and shipping and 
 
            receiving clerk (Tran., p. 16).
 
            
 
                 In April of 1990, approximately three weeks before 
 
            beginning this employment with employer, claimant fell on 
 
            some ice in the break room with her previous employer and 
 
            injured her ankle, neck and back (Tran., pp. 18, 164 & 165).  
 
            
 
                 Keith Harris, manager of the telemarketing room, 
 
            testified that approximately two or three days after 
 
            claimant reported for work she complained that she had had a 
 
            bad back for a long time.  She wanted to use a headset and 
 
            she wanted a different chair to accommodate her back pain.  
 
            Claimant was permitted to bring her own headset from home 
 
            (Exhibit I) and a new chair was purchased for her (Tran., 
 
            pp. 133-142, 153 & 154).  Harris also testified that 
 
            claimant frequently worked in a standing position and would 
 
            put one leg in the chair while talking on the telephone 
 
            (Tran., pp. 137 & 142).  He related that claimant complained 
 
            about her back approximately a half a dozen times (Tran., p. 
 
            146).  
 
            
 
                 Claimant was also a skilled landscaper and it was 
 
            agreed between claimant and employer that she would 
 
            landscape the premises at the place of her employment 
 
            (Tans., p. 20-22 & 60).  Claimant was paid her regular 
 
            telemarketer wages for this landscaping work (Tran., p. 26).  
 
            Claimant testified that she kept a daily log or journal of 
 
            her daily landscaping activities.  These activities covered 
 
            the period from Tuesday, May 15, 1990 through Friday, May 
 
            25, 1990 (Tran., pp. 22, 23, 26-28, 65-67 & 71).  Claimant 
 
            was instructed to complete the job no later than Friday, May 
 
            25, 1990, which was the last working day prior to the 
 
            Memorial Day weekend.  The Memorial Day weekend was 
 
            Saturday, Sunday and Monday, May 26, May 27, and May 28, 
 
            1990.  Claimant testified about what she did each day from 
 
            her journal, log or notes as they were variously called.  
 
            
 
                 Referring to her notes, claimant testified that on 
 
            Tuesday, May 15, 1990, she purchased materials (Tran., p. 
 
            22). 
 
            
 
                 On Wednesday, May 16, 1990, she purchased additional 
 
            materials, dug up sod, worked the dirt breaking up the 
 

 
            
 
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            clumps, laid the plastic and built up the border for the 
 
            front of the building (Tran., p. 25).  
 
            
 
                 On Thursday, May 17, 1990, she purchased dirt and 
 
            shoveled it out of the pickup truck into the flower bed and 
 
            flower boxes that she had made (Tran., pp. 26-30).  Claimant 
 
            testified that she also leveled a hill of dirt that was 
 
            approximately six to eight inches high, one foot wide and 
 
            about 30 foot long on this same day (Tran., pp. 31 & 32).  
 
            
 
                 Claimant testified that on the evening of May 17, 1990, 
 
            she left a full load of uncovered dirt in the parking lot.  
 
            She said that it rained hard that night and the dirt in the 
 
            back of the pickup truck became mud (Trans., p. 33).  
 
            
 
                 On Friday, May 18, 1990, claimant related that post 
 
            holes were dug and she put in a split-rail fence because the 
 
            ground was wet and easy to dig the post holes.  Employer 
 
            assigned a man to assist her on Friday, May 18, 1990.  
 
            Claimant stated that he dug the holes and she put the posts 
 
            into the ground.  She assembled the split-rails into the 
 
            posts and held them while the man put the dirt back in the 
 
            post holes and packed it around the posts (Tans., pp. 33 & 
 
            34).  
 
            
 
                 Claimant further testified that she brought a 
 
            wheelbarrow from home to use it to move the dirt from the 
 
            post holes to the flower beds on May 18, 1990 (Tran., pp. 75 
 
            & 76).  Claimant also testified that she used the 
 
            wheelbarrow two or three times on May 16, May 17, and May 
 
            18, to level hills of dirt (Tran., pp. 77 & 86).  She 
 
            testified that she did not use the wheelbarrow on May 25, 
 
            except to move it from the front to the side of the building 
 
            (Tran., p. 77).  
 
            
 
                 On the afternoon of Friday, May 18, 1990, claimant 
 
            testified that she shoveled the mud out of the pickup truck 
 
            into the flower beds that she had prepared.  She related 
 
            that at break time her back was hurting.  Claimant testified 
 
            that she reported this to Bill Miller, another employee, 
 
            Kelly Hanson Russell, the secretary, Keith Harris, the 
 
            manager of the telemarketing room and Jerry Wildeboer, one 
 
            of the owners and managers of the company (Tran., p. 35).  
 
            Claimant testified that Jerry Wildeborer told her to lay off 
 
            the digging for awhile and to plant flowers for the time 
 
            being (Tran., p. 36).  Claimant testified that she shoveled 
 
            all of the mud out of the pickup truck.  No one helped her.  
 
            She said that she worked about 11 or 12 hours on Friday, May 
 
            18, 1990 (Tran., p. 37).  
 
            
 
                 Claimant related that on Monday, May 21, 1990, she was 
 
            having a difficult time sitting and so she planted flowers 
 
            that day and went home early (Trans., p. 38).
 
            
 
                 On Tuesday, May 22, 1990, she said her back was still 
 
            hurting and so she only purchased more flowers and planted 
 
            some grass seed and worked a short day on that day (Tran., 
 
            p. 38).  
 
            
 
                 On Wednesday, May 23, 1990, claimant said that (1) she 
 

 
            
 
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            finished planting the flowers, (2) she picked up four bags 
 
            of lava rock off of the plastic in the front of the building 
 
            and put them in the wheelbarrow because Jerry did not want 
 
            to use lava rock because it was too expensive, and (3) she 
 
            picked up her tools and moved the wheelbarrow off to the 
 
            side.
 
            
 
                 Claimant also testified that on Wednesday, May 23, 
 
            1990, Jerry Wildeboer asked her to landscape the north side 
 
            of the building even though he knew that her back was 
 
            bothering her.  Claimant stated that she also shopped for 
 
            additional materials for the north side of the building on 
 
            this day (Tran., p. 39).
 
            
 
                 Claimant said that on Thursday, May 24, 1990, she 
 
            purchased timber and dirt for the north side of the 
 
            building.  She related that she told Jerry Wildeboer that 
 
            her back was really hurting and he told her to go home and 
 
            take a day of rest (Tran., p. 39).  
 
            
 
                 Claimant testified that on Friday, May 25, 1990, (the 
 
            last day of the landscaping project) that she was present 
 
            but was in too much pain to work.  This is her account of 
 
            what happened that day.
 
            
 
                 "Q.  All right.  Did you do any landscaping on the 
 
                 25th of May?
 
            
 
                 A.  On the 25th when I went in I told Jerry that 
 
                 my back was hurting and that there was just no way 
 
                 I was going to be able to shovel this dirt, that 
 
                 my back was in too much pain and I was not going 
 
                 to be able to do it.
 
            
 
                 He had three gentlemen sitting in the office there 
 
                 and he kind of jokingly told them that "Go on out 
 
                 there and help her."  And a couple of guys kind of 
 
                 hesitated a little bit and he says, "Oh, come on, 
 
                 it isn't going to hurt you, go on out there and 
 
                 help her.  She's been shoveling the dirt out 
 
                 there, she hurt her back.  She's going to need to 
 
                 finish.  I want you guys to go out and help her.  
 
                 See where she wants the shrubs planted, plant them 
 
                 where she tells you to plant them."
 
            
 
                 We go out and I showed the guys how I wanted the 
 
                 timber nailed together and put for the flowers, 
 
                 the bedding, the box.  They laid down the plastic 
 
                 and nailed the boards up and planted all the 
 
                 shrubbery and put in the lights and all I 
 
                 basically did was just stand there and watch them 
 
                 and tell them what I wanted to do.  And they also 
 
                 -- I also drove to Benton's then and got some 
 
                 gravel like I had had in the front and they did 
 
                 shovel that into where I had the shrubs planted 
 
                 also.
 
            
 
                 Q.  So you didn't really do  much physical labor 
 
                 that day?
 
            
 

 
            
 
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                 A.  No, I couldn't.  I was in extreme pain (Tran., 
 
                 pp. 42 & 43).
 
            
 
                 Claimant pinpointed the date of the injury as Friday, 
 
            May 18, 1990, in these words:
 
            
 
                 Q.  I should ask you this:  What do you think you 
 
                 were doing when you injured your back?
 
            
 
                 A.  When the pain first started I had been 
 
                 shoveling the mud.  When my back first started 
 
                 hurting me it was the day before when I was 
 
                 shoveling the dirt, my back seemed more like a 
 
                 muscle hurt, like I strained, my muscle hurt.  It 
 
                 was on the 18th when I was shoveling the mud 
 
                 that's when I got this first pain down in my lower 
 
                 back.
 
            
 
                 Q.  Can you think of any other incident that you 
 
                 were doing other than the work at City Builders 
 
                 that could have caused you injury that resulted in 
 
                 this back and disc problem?
 
            
 
                 A.  No, Sir, not unless it was moving the 
 
                 wheelbarrel the day that I had been cleaning up.  
 
                 The wheelbarrel was heavy but my back was already 
 
                 sore and I had already had pain before that so I 
 
                 couldn't blame it on the wheelbarrel.
 
            
 
                 Q.  Moving the wheelbarrel where?
 
            
 
                 A.  From the front of the building over to the 
 
                 side of the building.
 
            
 
                 Q.  That was at City Builders?
 
            
 
                 A.  Yes, sir (Tran., pp. 57 & 58).
 
            
 
                 Claimant admitted that she did not seek medical 
 
            attention for this injury on Friday, May 18, Saturday, May 
 
            19, or Sunday, May 20, 1990 (Tran., pp. 72 & 73).  Claimant 
 
            also granted that she did return to work on Monday, May 21, 
 
            1990 and worked the rest of the week through Friday, May 25, 
 
            1990.  Claimant further acknowledged she did not seek 
 
            medical treatment on Saturday, May 26, or Sunday, May 27, 
 
            1990 (Tran., pp. 80 & 81).  
 
            
 
                 Claimant testified that she returned to work on 
 
            Tuesday, May 29, 1990, after the Labor Day weekend, however, 
 
            she stated that she had to work laying on the floor in the 
 
            telemarketing room because she was not able to work in a 
 
            sitting position (Tran., pp. 45, 81 & 82).  
 
            
 
                 Claimant testified that she first sought medical 
 
            treatment on Wednesday, May 30, 1990, when her back gave out 
 
            on her at home in the morning while she was preparing to go 
 
            to work.  She was putting on her shoes, her back gave out 
 
            and she fell to the floor (Tran., pp. 49, 72-82).
 
            
 
                 Claimant testified that she called Kelly Hanson 
 

 
            
 
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            Russell, the secretary, and asked about insurance numbers to 
 
            use at the hospital.  Claimant testified, "I asked her if I 
 
            needed any insurance numbers or how did I -- what was I to 
 
            tell the hospital what kind of insurance was it that they 
 
            had." (Tran., p. 82).
 
            
 
                 Russell testified that she began working as a secretary 
 
            for employer in January of 1990 and she was still employed 
 
            there in that position at the time of the hearing (Tran., p. 
 
            100).  Russell testified that claimant called on the morning 
 
            of May 30, 1990 to report that she had bent over to get her 
 
            shoes, had fallen to the floor and her husband was on the 
 
            way home to pick her up.  Russell further testified that 
 
            claimant called back a short time later and made the 
 
            following statement to Russell:
 
            
 
                 "A.  She said that her husband had come home and 
 
                 could not get her off the floor and she had called 
 
                 the ambulance and they were on their way to get 
 
                 them.  And she said, "When I get to the hospital, 
 
                 can I tell them I hurt my back at work?"  (Tran., 
 
                 pp. 105, 106, 114 & 115).
 
            
 
                 Russell testified that she relayed this question to 
 
            Dennis Wildeboer who responded, "No, absolutely not." 
 
            (Tran., p. 106).
 
            
 
                 Claimant was asked to relate what happened when she 
 
            called the employer on the morning of Wednesday May 30, 1992 
 
            and claimant testified as follows:
 
            
 
                 "Q.  Tell the Deputy what you asked Kelly Russell 
 
                 Hanson (sic).
 
            
 
                 A.  I asked her if I needed any insurance numbers 
 
                 or what I was supposed to do, did I just tell them 
 
                 it was a workman's comp. case when I got to the 
 
                 hospital or did they need some kind of a number 
 
                 for their insurance.  And she said she would have 
 
                 to speak with Denny and she put me on hold.  She 
 
                 came back and she says, "No, Denny says we have no 
 
                 workmen's comp. insurance and therefore he says 
 
                 just tell them that you did hurt your back at home 
 
                 and then your husband's insurance will cover it."
 
            
 
                 So I hung the phone up and I called back just not 
 
                 even a minute later and I spoke with Denny.  I 
 
                 spoke with Kelly, Kelly put Denny on the telephone 
 
                 and I spoke with Denny personally on the 30th, and 
 
                 I asked him, "Is it true that we do not have any 
 
                 workmen's comp. insurance?"  And he says, " I 
 
                 never knew I had to have it."
 
            
 
                 I said, "Well, how do I go about telling them when 
 
                 I get to the hospital, the ambulance is on the 
 
                 way."  And he says "Just tell them you did it at 
 
                 home."  I said, "I can't do that."  He said, 
 
                 "That's how the insurance can pay for it.  If you 
 
                 did it a home your husband's insurance will pay 
 
                 for it and then we can discuss what we'll do with 
 

 
            
 
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                 the rest after that."  He specifically told me on 
 
                 the 30th that you knew you did not have workmen's 
 
                 comp. insurance." (Tran., pp. 238 & 239)
 
            
 
                 Russell further testified that she did not recall that 
 
            claimant requested the account numbers for the workers' 
 
            compensation carrier (Tran., p. 125).
 
            
 
                 Claimant further testified that when she talked to 
 
            Jerry Wildeboer on May 30, 1990 that he told her to say that 
 
            she hurt her back at home and then her husband's medical 
 
            insurance carrier would pay the medical bills and whatever 
 
            her husband's insurance would not cover that employer would 
 
            pick up (Tran., p. 54).  
 
            
 
                 Claimant further testified that after she got out of 
 
            the hospital she went to see Jerry and Dennis Wildeboer to 
 
            see about getting her medical bills paid.  Claimant 
 
            testified that they told her to collect under her husband's 
 
            insurance at work.  Claimant said that she then told them 
 
            that her husband's insurance representative had said that if 
 
            the husband's carrier paid the bills, then it would be 
 
            necessary for them to sue claimant's employer to collect the 
 
            money from them.  Claimant testified that at this point 
 
            Jerry Wildeboer became very angry, very profane and shouted 
 
            at her (Tran., pp. 239-243).
 
            
 
                 Harris testified that he checked the Waterloo airport 
 
            weather bureau and radio station KWWL and that they told him 
 
            there was no rain on May 16 or May 17, 1990.  The only rain 
 
            was on Friday, May 18, 1990 between 9 p.m. and midnight and 
 
            early Saturday morning May 19, 1990 (Tran., pp. 149-151 & 
 
            157).  Defendant did not introduce any weather records into 
 
            evidence in order to verify the accuracy of Harris's 
 
            testimony on this point.
 
            
 
                 Harris denied that claimant reported a back injury to 
 
            him on May 18, 1990.  Harris further testified that he saw 
 
            claimant shovel dirt out of the back of the pickup truck on 
 
            May 18, 1990 but that there was no mud (Tran., 157).  Harris 
 
            further testified that claimant's only back complaints were 
 
            about her preexisting bad back (Tran., pp. 142 & 143).  
 
            Harris testified that he never saw claimant working laying 
 
            on the floor in the telemarketing room (Tran., p. 142).  
 
            Harris testified that he never saw a wheelbarrow during the 
 
            landscaping project (Tran., p. 139).  Harris added that it 
 
            was not necessary to use a wheelbarrow in this project 
 
            (Tran., p. 158).
 
            
 
                 Russell denied that claimant reported back pain to her 
 
            on May 18, 1990.  On the contrary, Russell testified that 
 
            claimant told her May 25 that her back was bothering her 
 
            (Tran., p. 130).  Russell testified that she never saw 
 
            claimant working while lying on the floor (Tran., p. 110).  
 
            
 
                 Russell also testified that she did not observe a 
 
            wheelbarrow while claimant was landscaping for employer 
 
            (Tran., pp. 103 & 112).  She did hear claimant say on 
 
            Monday, May 21, 1990, that claimant had worked with a 
 
            wheelbarrow over the weekend at home.  Russell said claimant 
 

 
            
 
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            related that she declined help from her husband and made the 
 
            statement that she could do anything that a man could do 
 
            (Tran., p. 108).  Russell said that this was the Monday 
 
            after Friday, May 18, 1990 and it was before Friday, May 25, 
 
            1990 (Tran., p. 109). 
 
            
 
                 Brian Hunt testified that he and Clay Bowles worked 
 
            with claimant for about two hours on the afternoon of 
 
            Friday, May 25, 1990, unloading rock out of the pickup and 
 
            digging holes for the shrubs on the north side of the 
 
            building.  Hunt testified that claimant made no complaints 
 
            about her back to him and he did not see a wheelbarrow in 
 
            the vicinity of the landscaping site (Tran., pp. 169-180).  
 
            At one point Hunt said that claimant dug holes (Tran., p. 
 
            173) and at another point he said that he Bowles dug the 
 
            holes (Tran., p. 175).  
 
            
 
                 Harris related that claimant requested to use the 
 
            company pickup truck on the Memorial Day weekend because she 
 
            wanted to do some landscaping at home that involved moving 
 
            some heavy dirt (Tran., p. 140).  The dates again, of the 
 
            Memorial Day weekend were Saturday, Sunday and Monday, May 
 
            26, 27 and 28 (Tran., p. 148).
 
            
 
                 Claimant testified that she borrowed the pickup truck 
 
            so her husband could haul dirt to level some ground at home 
 
            (Tran., p. 78).  Claimant testified, "... I spent the whole 
 
            weekend on the couch, I wasn't able to move." (Tran., p. 44 
 
            & 81).  Claimant denied that she performed any work in her 
 
            yard at home on the Memorial Day weekend of May 26, 27 and 
 
            28, 1990 (Tran., p. 44).  Claimant asserted, "No, Sir, I was 
 
            stuck on the couch." (Tran., p. 44 & 93).  Claimant also 
 
            denied that she had done any work in her yard at home 
 
            between May 15, 1990 and May 25, 1990 (Tran., p. 44).  
 
            
 
                 James R. Way, a neighbor of claimant from across the 
 
            street for about four years, testified that he recalled 
 
            seeing claimant and her husband working in their yard on the 
 
            Memorial Day weekend of May 26, 27 and 28, 1990.  Way 
 
            testified, "Well, she had, they had a truck over there and 
 
            they were digging dirt out of the ditch and they were taking 
 
            it over into a flower bed which is right in the middle by 
 
            the garage.  And they were shoveling dirt into the, she was 
 
            shoveling dirt off of the truck into the flower bed." 
 
            (Tran., p.183).
 
            
 
                 Referring to exhibit C, a photograph of claimant's 
 
            yard, Way testified 
 
            
 
                 "Yes, right in this flower bed here in front of -- 
 
                 there's a great big circle there where she planted 
 
                 a bunch of moss roses and that's the flower bed 
 
                 they were working on, both of them.  * * * Mainly 
 
                 I think she was more or less putting it in the 
 
                 flower bed.  Bob was down getting it in the ditch 
 
                 most of the time.  I didn't see a lot of it, just 
 
                 a little.  I didn't pay that much attention to 
 
                 it." (Tran., p. 184 & 185).  
 
            
 
                 This colloquy then transpired between the witness and 
 

 
            
 
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            counsel:  
 
            
 
                 "A.  But you did see her work?  
 
            
 
                 Q.  Yeah.
 
            
 
                 Q.  When you saw her working, did you ever see her in 
 
            the bed of the pickup? 
 
            
 
                 A.  Yeah, she was standing up in there shoveling dirt 
 
            off one time when I looked over there."  (Trans, p. 185).
 
            
 
                 Way testified that he had a telephone conversation with 
 
            claimant on Tuesday morning, May 29, 1990.  Way asserted, 
 
            
 
                 "Tuesday morning she called and talked to me.  And 
 
                 she was trying to get me to apologize to her 
 
                 husband so we could be back to being good friends.  
 
                 And she had mentioned that she borrowed the truck 
 
                 where she works, City Builders, and she was doing 
 
                 her flower bed during the weekend and she had hurt 
 
                 her back when she done her flower bed.  And that's 
 
                 what she had discussed on the phone, she had 
 
                 mentioned she had hurt her back." (Tran., p. 186).
 
            
 
                 Way further testified that after her injury that he 
 
            observed claimant and photographed claimant drag railroad 
 

 
            
 
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            ties out of flood water up to her patio (Tran., p. 188); 
 
            (Ex. G).  
 
            
 
                 Way identified exhibits E and F as photographs that he 
 
            took of claimant shoveling a walk after her injury in a snow 
 
            storm.  He said he took the pictures because he heard that 
 
            claimant had brought a lawsuit against her employer and she 
 
            was out there working all of the time (Tran., pp. 189-192, 
 
            199 & 202).
 
            
 
                 Way gave his opinion of claimant's credibility in the 
 
            following words:  "Do you have an opinion as to whether or 
 
            not Donna Spurbeck is a truthful person?  
 
            
 
                 A.  Very untruthful.
 
            
 
                 Q.  And, Mr. Way, what do you base that on?
 
            
 
                 A.  Just knowing them, very manipulating." (Tran., p. 
 
            193).
 
            
 
                 Way denied that he and the Spurbecks were enemies.  Way 
 
            testified "I liked them, they were mad at me.  *** I was 
 
            never mad at them." (Tran., p. 195).
 
            
 
                 On cross-examination, Way denied that he had anything 
 
            to do with (1) starting their house on fire, (2) blowing up 
 
            their mail box, (3) cutting the transmission lines on their 
 
            car, (4) killing their dog, (5) breaking all the mirrors on 
 
            their truck and their car, (6) sticking a knife in the tires 
 
            of their car and (7) threatening to kidnap their daughters 
 
            and sell them into prostitution.  Way also denied he had any 
 
            knowledge of who might have done these things (Tran., pp. 
 
            193-197).  Way denied that he was present when his son 
 
            stated "Next time I start your house on fire I'm going to 
 
            make sure you're in it." (Tran., pp. 197 & 198).  
 
            
 
                 Way acknowledged that when Spurbecks moved from the 
 
            neighborhood they had a police escort because there were 
 
            several people in Way's yard drinking beer and yelling at 
 
            them (Tran., p. 203).  Way testified that several people in 
 
            the neighborhood did not like them (Tran., p. 205).  Way 
 
            gave the names of several people who did not like claimant.  
 
            Way said they were trouble makers down at the neighborhood 
 
            bar (Tran., pp. 205 & 206).  
 
            
 
                 Claimant testified that James Way, his two sons, and 
 
            their friends and another neighbor shot guns at them, 
 
            destroyed their property and vandalized them (Tran., p. 
 
            229).  She said that the fire marshall told her that the 
 
            cause of the fire was unfounded and unsuspicious (Tran., p. 
 
            228).  She alleged that the son of James Way stated that the 
 
            next time he set their house on fire he was going to make 
 
            sure they were in it (Tran., p. 228).  Claimant alleged they 
 
            blew up her mailbox (Tran., p. 227).  She alleged that one 
 
            or more of them threatened to steal her children and sell 
 
            them in Florida for prostitutes (Tran., p. 229).
 
            
 
                 Claimant alleged that they kicked her little dog and 
 
            killed her big dog; it had been hit on the head with a blunt 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            object and died of drowning.  It was found a few feet behind 
 
            Jim Way's yard (Tran., pp. 229 & 230).  Claimant described a 
 
            physical altercation where Jim Way, Ronnie Way and Johnnie 
 
            Way beat-up her husband and tried to drown him in the flood 
 
            waters and Johnnie Way physically struck her and kicked her 
 
            (Tran., pp. 230 & 231).
 
            
 
                 Claimant said as a result of the fight she had to go to 
 
            the hospital and when she returned she found that they had 
 
            been vandalized.  The dog was gone and the Ways and their 
 
            friends were across the street calling the dog's name 
 
            (Tran., p. 232 & 233).  Claimant said she also noticed that 
 
            the satellite dish was damaged, the mirrors and gas cap was 
 
            missing off of the truck, the tires on the car had been 
 
            slashed, the mirrors on the car had been broken and part of 
 
            the fence was down behind the tool shed (Tran., p. 233).  On 
 
            another occasion transmission lines on their truck had been 
 
            cut in several places (Tran., p. 233).  Claimant alleged 
 
            that one of the Ways shot a rabbit in their yard underneath 
 
            the swing set where the children play (Tran., p. 234).  
 
            
 
                 Claimant denied that she was shoveling snow in the 
 
            photographs (exhibits E & F) but rather, claimant testified 
 
            that she was walking with a cane (Tran., pp. 236 & 237).  
 
            Claimant denied that she moved railroad ties at the time of 
 
            the flood (Tran., p. 237).
 
            
 
                 Claimant denied that she had worked in the yard on 
 
            Memorial Day weekend.  She testified that she spent the 
 
            weekend on the couch because she was not able to go to bed 
 
            upstairs in her bedroom (Tran., p. 238).  Claimant denied 
 
            that she asked Russell if she could say she hurt her back at 
 
            work (Tran., pp. 238 & 239).
 
            
 
                 Dennis Wildeboer, testified that he is the 
 
            secretary-treasurer and general manager of employer.  He 
 
            corroborated Russell's testimony that claimant called the 
 
            company on Wednesday, May 30, 1990, talked to Russell and 
 
            asked if she could say that she hurt her back at work and 
 
            Wildeboer said no.  Wildeboer had no information that 
 
            claimant had ever hurt herself at work.  He testified that 
 
            he did not find out that the company did not have workers' 
 
            compensation until later in June of 1990 (Tran., pp. 
 
            206-210).
 
            
 
                 Wildeboer denied that he talked to claimant on the 
 
            telephone on May 30, 1990 (Tran., p. 211).  He contended 
 
            claimant was not hurt at work and so evidently it must have 
 
            happened at home (Tran., p. 212).  He acknowledged that 
 
            Jerry Wildeboer did get upset when she threatened to sue the 
 
            company (Tran., pp. 213 & 214).  Wildeboer said that he 
 
            never saw claimant working while laying on the floor in the 
 
            telemarketing room (Tran., p. 215).  He acknowledged that 
 
            employer owned no landscaping tools or wheelbarrow (Tran., 
 
            pp. 208 & 217).  Claimant testified several times that she 
 
            provided the wheelbarrow and all of the landscaping tools 
 
            (Tran., pp. 224 & 225).
 
            
 
                 Bill Miller testified that he is a six-year employee of 
 
            employer (Tran., p. 248).  He said that claimant brought a 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            headset to work and was provided a different chair because 
 
            of back problems (Tran., pp. 248 & 249).  Miller did not 
 
            recall claimant telling him that she hurt her back at work 
 
            (Tran., p. 250).  He contended that he drove by claimant's 
 
            house on the Memorial Day weekend and saw her working in the 
 
            yard scooping dirt with a shovel (Tran., p. 253).  
 
            
 
                 On rebuttal, claimant was asked if she worked in the 
 
            yard on Memorial Day weekend and she replied, "No, sir, I 
 
            swear to God I wasn't." (Tran., p. 256).  
 
            
 
                 The paramedics who transported claimant to the hospital 
 
            on May 30, 1990, recorded "She said she sustained a work 
 
            related injury approx 6 days ago.  She states she was 
 
            shoveling dirt." (Ex. 2-10).  
 
            
 
                 Six days prior to May 30, 1990, would have been either 
 
            May 24 or May 25 depending upon whether you count May 30 as 
 
            one of the days.  In her testimony claimant said that on May 
 
            24, 1990, she purchased timber and dirt and Jerry Wildeboer 
 
            told her to go home and take a day of rest on account of her 
 
            back (Tran., p. 39).  Claimant further testified that on May 
 
            25, 1990, she did not do much physical work because 
 
            Wildeboer assigned three gentlemen to help her.  She said 
 
            they did the physical work and basically she just stood 
 
            around and told them what to do (Tran., p. 43). 
 
            
 
                 A medical form completed in the hospital emergency 
 
            department shows that the date of injury was May 24, 1990, 
 
            which was a Thursday.  The admitting notes record, "States 
 
            shoveling dirt Thurs et felt pulling in lower back - Fri was 
 
            pushing a wheelbarrel et noted [increased] discomfort - " 
 
            (Ex., 2-14).  The emergency room physician also recorded 
 
            "Strained low back Thursday ..." (Ex., 2-14).  This exhibit 
 
            places the injury date on Thursday, May, 24 or Friday, May 
 
            25, 1990.
 
            
 
                 An x-ray on May 31, 1990 reported that the alignment of 
 
            her lumbar spine was normal, the vertebral body heights and 
 
            disc spaces are intact, no degenerative change or 
 
            spondylolysis was detected.  The impression was a normal 
 
            lumbar spine (Ex. 2, p. 2-15). 
 
            
 
                 James E. Crouse, M.D., recorded on the admission 
 
            history and physical examination form dated May 30, 1990:  
 
            "Two days ago, she was shoveling dirt and running a 
 
            wheelbarrow when she felt a catch in her back." (Ex., p. 
 
            2-13).  Two days prior to May 30, 1990, was either May 29 or 
 
            May 28 depending on whether you count May 30 as one of the 
 
            days.  May 28 was Monday, Memorial Day and claimant did not 
 
            work for employer on that day.  May 29, was Monday and 
 
            claimant worked as a telemarketer that day because the 
 
            landscaping project was completed on Friday, May 25, 1990.  
 
            Dr. Crouse repeated his statement that claimant's injury 
 
            occurred two days prior to her hospitalization on May 30, 
 
            1990 on the discharge summary dated June 1, 1990 (Ex., 
 
            2-11).  Thus, Dr. Crouse was under the impression that the 
 
            injury occurred either on Monday, May 28, 1990 or Tuesday, 
 
            May 29, 1990.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 On July 19, 1990, Roswell M. Johnston, D.O., 
 
            F.A.A.O.S., an associate of Dr. Crouse, wrote that this 
 
            injury was consistent with heavy strain on the back such as 
 
            shoveling dirt and that it was not something that would be 
 
            caused by bending over (Ex., 2-54). 
 
            
 
                 On May 6, 1991, Dr. Crouse wrote "Donna Spurbeck 
 
            sustained a lumbar disc herniation while working on May 25, 
 
            1990." (Ex., p. 2-56).  There was no further explanation for 
 
            his use of the date May 25, 1990.  Dr. Crouse further said 
 
            that he agreed with Dr. Johnston that this was related to a 
 
            work injury (Ex., 2-56).  By comparison, however, claimant 
 
            testified that she did not perform any physical labor on May 
 
            25, 1990 but that the three gentlemen that were assigned to 
 
            help her performed the physical labor on that date (Tran., 
 
            p. 58).  
 
            
 
                 On May 13, 1992, Dr. Crouse wrote that the injury 
 
            occurred while shoveling and running a wheelbarrow and that 
 
            the landscaping work that she was doing was the cause of the 
 
            injury Ex. 2-57).  There is no indication whether Dr. Crouse 
 
            knew that claimant was alleged to have performed landscaping 
 
            work at home as well as at work at this time.  All 
 
            indications are that the only landscaping Dr. Crouse knew 
 
            about was the landscaping that claimant performed at work.
 
            
 
                 Claimant, however, testified that she injured her back 
 
            on May 18, 1990, from shoveling mud at work on that date 
 
            (Tran., p. 57).  Thus, claimant's very definitive testimony 
 
            for the date of the injury based on her journal, that she 
 
            maintained at that time, is at odds with the all of medical 
 
            records in this case.
 
            
 
                 Claimant was hospitalized for conservative treatment on 
 
            May 30, 1990.  Subsequently she had a lumbar laminectomy on 
 
            August 22, 1990.  Subsequent to that claimant had a lumbar 
 
            fusion on April 2, 1991.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 18, 1990 
 
            which arose out of and in the course of her 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 injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 Claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that she sustained an injury 
 
            to her back on May 18, 1990.  Claimant's account of when the 
 
            injury occurred, where the injury occurred and how the 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            injury occurred is controverted, contradicted, rebutted and 
 
            refuted on so many points that it simply cannot be 
 
            conscientiously determined that she sustained the burden of 
 
            proof by preponderance of the evidence that the injury arose 
 
            out of and in the course of her employment with employer on 
 
            May 18, 1990.  
 
            
 
                 It is true that claimant's testimony could be 
 
            influenced by the fact that she has a very serious back 
 
            condition and that she is asserting a very large workers' 
 
            compensation claim.  The medical bills alone amount to 
 
            $24,036.54 (Ex., 1-1).  She had three hospitalizations and 
 
            two major surgeries, lost time from work and is limited in 
 
            what she can do at the present time.
 
            
 
                  It is also true that the testimony of Dennis 
 
            Wildeboer, Keith Harris, Kelly Hanson Russell and Bill 
 
            Miller could be influenced by the fact that they were and 
 
            still are currently employees of employer.  It was asserted 
 
            by claimant that an award in this case would wipe out the 
 
            employer financially for the reason that they had no 
 
            workers' compensation insurance at the time of the alleged 
 
            injury.  In that event these witnesses would lose their 
 
            employment with employer.  This assertion is quite 
 
            reasonable, plausible and understandable.
 
            
 
                 Jerry Wildeboer did not testify and was not present in 
 
            the courtroom at the time of the hearing although several 
 
            other spectators were present.  Claimant's husband was 
 
            present in the courtroom but did not testify.  
 
            
 
                 It could be stated that the testimony of James Way was 
 
            influenced by (1) the many years he was a neighbor, (2) the 
 
            many and numerous traumatic incidents and (3) the physical 
 
            altercation that occurred between him and his sons and 
 
            claimant and her husband.  There was clear evidence of a 
 
            great deal of animosity and hostility between the Ways and 
 
            the Spurbecks.  
 
            
 
                 At the same time the burden is on claimant and most of 
 
            her testimony was very definitely controverted and rebutted, 
 
            even though there may be some question about the credibility 
 
            of the witnesses that testified against her.  
 
            
 
                 In the final analysis, claimant clearly, definitively 
 
            and unequivocably testified that the injury occurred on May 
 
            18, 1990.  Her testimony was supported by the notes in her 
 
            journal made at the time of the injury.  The medical records 
 
            indicate that the injury occurred on May 24, May 25, or May 
 
            28, May 29 of 1990.  None of these dates given in the 
 
            medical evidence support an injury on May 18, 1990.  
 
            Therefore, it is determined as a matter of fact that 
 
            claimant did not sustain an injury to her lumbar spine on 
 
            May 18, 1990, which arose out of and in the course of her 
 
            employment with employer based on the evidence of record in 
 
            this case.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that she sustained an injury 
 
            to her lumbar spine on May 18, 1990, performing landscaping 
 
            work for her employer which arose out of and in the course 
 
            of her employment with employer.  Section 85.3(1).  McDowell 
 
            v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 In view of this finding, all other issues in the case 
 
            become moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are owned by defendant to claimant for 
 
            workers' compensation benefits.
 
            
 
                 That each party is to pay their own respective costs, 
 
            but that employer is to pay the cost of the attendance of 
 
            the court reporter at hearing and for the transcript of the 
 
            hearing.  Iowa Code sections 86.19(1) and 86.40 and rule 343 
 
            IAC 4.33.
 
            
 
                 That defendant return to claimant the headset placed in 
 
            its  custody at the hearing at the expiration of all 
 
            appellate periods.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            Suite 202, 10101 University
 
            Des Moines, IA  50325
 
            
 
            Mr. Robert L. Rausch
 
            Attorney at Law
 
            P.O. Box 905
 
            Waterloo, IA  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      51106, 51401, 51402.20, 51402.30,
 
                      52902
 
                      Filed January 27, 1993
 
                      Walter M. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DONNA P. SPURBECK,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 954462
 
            CITY BUILDERS & SUPPLY, INC., :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                 Defendant.     :      D E C I S I O N
 
                      :
 
            ___________________________________________________________
 
            
 
            51106, 51401, 51402.20, 51402.30, 52902
 
            Claimant failed to prove a work injury.
 
            Practically all of her evidence was controverted.
 
            There was reason to suspect the credibility of all 
 
            witnesses.  
 
            Claimant had a serious back problem that involved three 
 
            hospitalizations, two major surgeries, much time lost from 
 
            work and serious limitations on her ability to work which 
 
            constituted a large and serious workers' compensation claim.  
 
            Employer had no workers' compensation insurance and it was 
 
            asserted that an award would wipe out employer financially 
 
            and all of the witnesses who worked for employer would lose 
 
            their jobs.
 
            claimant denied that she shoveled dirt at home on the 
 
            Memorial Day weekend or that she hurt her back at home.  A 
 
            neighbor, with whom claimant and her husband had a great 
 
            deal of bitter controversy, testified that claimant did 
 
            shovel dirt on the Memorial Day weekend and that she told 
 
            him that she hurt her back doing it.
 
            In the final analysis, claimant's testimony about the date 
 
            of the injury was controverted by the medical records in the 
 
            case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEO C. POTTEBAUM,             :
 
                                          :      File No. 954480
 
                 Claimant,                :
 
                                          :        A P P E A L
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed December 11, 1991 is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 The instant case can be distinguished from Furry v. 
 
            John Deere Dubuque Works of Deere & Co., File No. 760430 
 
            (Appeal Decision November 12, 1986).  In Furry, the 
 
            audiograms showed a steady increase of binaural hearing loss 
 
            from 1976 to 1984.  Also, in that case there was an 
 
            audiogram conducted by Dr. Harrison prior to Furry's 
 
            retirement which indicated a binaural hearing loss of 29.04 
 
            percent.  Furthermore, there was evidence that Furry 
 
            consistently worked at noise levels of 82 and 85 dba.  Also, 
 
            none of Furry's audiograms were conducted after 1984.  (All 
 
            employees were required to wear hearing protective devices 
 
            at all times after 1984.)  The instant case can also be 
 
            distinguished from the facts of John Deere Dubuque Works v. 
 
            Meyers, 410 N.W.2d 255 (Iowa 1987).  In Meyers there was 
 
            evidence of noise exposure as high as 90-105 dba and later 
 
            78-89 dba.  Also, in Meyers the court at 410 N.W.2d 255, 256 
 
            stated:  "At Deere's referral, he was examined by an 
 
            otolaryngologist on March 18, 1982, who diagnosed 
 
            high-frequency sensorineural hearing loss related to noise 
 
            exposure at work."  (Emphasis added)
 
            
 
                 In the instant case, the audiograms show hearing loss 
 
            which apparently continued to increase after claimant's 
 
            retirement and then decreased.  There was no audiogram 
 
            conducted by anyone other than the employer prior to 
 
            claimant's retirement.  Importantly, it was the medical 
 
            opinion of Dr. McClenahan that noise in the employer's plant 
 
            was not sufficient to have caused claimant's hearing loss.  
 
            There is no contrary medical opinion.  The only medical 
 
            opinion on causal connection is that there was not a causal 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            connection.
 
            
 
                 Evidence in this case cannot be reconciled with 
 
            claimant's burden of proving entitlement to benefits.  The 
 
            audiogram conducted by the employer in 1988 approximately 
 
            2-3 months prior to claimant's retirement showed a hearing 
 
            loss of 28.125 percent.  In his final months of employment 
 
            it appears claimant may have worked in a relatively low 
 
            level of noise.  (See Exhibit 7, Transcript pages 34-35, and 
 
            the fact that hearing protection devices were used beginning 
 
            in 1984).  An audiogram also conducted by the employer in 
 
            1990 approximately two years after claimant's retirement 
 
            showed a hearing loss of 45.5625 percent.  The difference in 
 
            the results of the two tests can be characterized as a 
 
            significant increase.  There is no adequate explanation for 
 
            this increase.  Claimant's work exposure and duration just 
 
            noted (2-3 months) is, at best, a possible cause of the 
 
            increase.
 
            
 
                 It is not the responsibility of the industrial 
 
            commissioner to rule out all possible causes of compensable 
 
            injury other than employment.  It is claimant's 
 
            responsibility to prove that his work was the probable cause 
 
            of his alleged disability.  Claimant has failed to meet his 
 
            burden of proof in this case.
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Building
 
            P O Box 239
 
            Dubuque, Iowa  52004
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30; 2208
 
                                                 Filed July 13, 1992
 
                                                 BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEO C. POTTEBAUM,             :
 
                                          :      File No. 954480
 
                 Claimant,                :
 
                                          :        A P P E A L
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1402.30; 2208
 
            Uncontroverted expert testimony was relied upon in finding 
 
            that the claimant's hearing loss might possibly have been 
 
            work related, but the evidence failed to show any such 
 
            relationship to be probable.  Worsening of hearing after 
 
            retirement relied upon to corroborate expert opinion that 
 
            hearing loss was not work related.  The instant case was 
 
            distinguished from the facts in Furry v. John Deere Dubuque 
 
            Works, File No. 760430 (Appeal Decision November 12, 1986) 
 
            and John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa 
 
            1987).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEO C. POTTEBAUM,             :
 
                                          :
 
                 Claimant,                :         File No. 954480
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS OF   :         D E C I S I O N
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Leo C. 
 
            Pottebaum against his former employer, John Deere Dubuque 
 
            Works of Deere & Company, seeking compensation for hearing 
 
            loss under chapter 85B of The Code of Iowa.  The primary 
 
            issues to be determined are whether the claimant's hearing 
 
            loss is an occupational hearing loss for which compensation 
 
            is payable under chapter 85B and, in particular, whether the 
 
            hearing loss was caused by or arose out of his employment.
 
            
 
                 The case was heard at Dubuque, Iowa, on November 22, 
 
            1991.  The evidence in the case consists of exhibits 1 
 
            through 16 and testimony from Mervin Lee McClenahan, M.D., 
 
            Leo C. Pottebaum, Thomas Robson, Karl Rigdon, John D. Cook 
 
            and Bernard M. Boland.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Leo C. Pottebaum is a 59-year-old man who retired from 
 
            the John Deere Dubuque Works on October 31, 1988, after 32 
 
            years of employment.  During the first year of his 
 
            employment with John Deere, he was a turret lathe operator.  
 
            He next worked in the foundry on the clean-up crew for 
 
            approximately a year.  He then resumed work as a turret 
 
            lathe operator for approximately one year.  In 1960, he 
 
            obtained employment in the tool room, which has been 
 
            referred to as Department 31.  He remained in Department 31 
 
            throughout the remainder of his career.
 
            
 
                 There are basically two functions performed by 
 
            employees in Department 31.  One function is to perform 
 
            fabrication, grinding and other machine work on metal in the 
 
            tool room area itself.  The other function is repairing and 
 
            maintaining industrial machines throughout the John Deere 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            plant.
 
            
 
                 The noise exposure experienced by an employee in 
 
            Department 31 can vary according to the machines the 
 
            employee operates, the machines which are operating in close 
 
            proximity to the employee and the portion of the plant in 
 
            which the employee is working.  The claimant testified at 
 
            length to having experienced a great deal of noise exposure 
 
            in each of the positions he has held with John Deere.  The 
 
            employer's noise exposure testing data shows that 
 
            individuals in Department 31, the department in which the 
 
            claimant was employed, typically have noise exposures which 
 
            have been measured in the range of the high-70's to the 
 
            mid-80's in dBA.  Some of the test results show some of the 
 
            employees to have been exposed to noise in excess of 115 dBA 
 
            for unstated periods of time during which the testing was 
 
            conducted (exhibits 7 and 10; exhibit 12, interrogatory 
 
            number 9).  This claimant's individual noise exposure was 
 
            never tested.
 
            
 
                 Commencing in 1984, all employees in the John Deere 
 
            plant were required to wear hearing protective devices at 
 
            all times.
 
            
 
                 When originally employed, Pottebaum was administered a 
 
            preemployment physical which identified no hearing problems 
 
            (exhibit 16).  The claimant's hearing has been tested on 
 
            four different occasions.  The first test was conducted in 
 
            1975 and showed a 17.1875 percent binaural hearing loss 
 
            (exhibit 3).  The second test was conducted in October of 
 
            1988, only ten days prior to the claimant's retirement, and 
 
            showed a 28.125 percent binaural hearing loss.  The third 
 
            test was conducted on August 15, 1990, nearly two years 
 
            after the claimant had been removed from whatever noise 
 
            exposure the John Deere plant had provided to him, and his 
 
            hearing loss was shown to be 45.5625 percent.  Approximately 
 
            two weeks later, the fourth test was administered by the 
 
            personnel at Dubuque Otolaryngology and showed a 36.25 
 
            percent binaural hearing loss.  According to the plant 
 
            physician, Mervin Lee McClenahan, M.D., the last hearing 
 
            test is the most accurate (exhibit 11, page 3).  The three 
 
            previous tests were all conducted by John Deere's own 
 
            personnel.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Otolaryngologist James W. White, M.D., has reported that 
 
            claimant has a moderate sensorineural hearing loss which is 
 
            compatible with noise-induced hearing difficulty (exhibit 
 
            6).  That opinion was expressed based upon the examination 
 
            and testing performed by his office on or about August 27, 
 
            1990.  Dr. McClenahan agreed that the claimant's hearing 
 
            loss is attributable to noise (exhibit 11, page 4).
 
            
 
                 It is found that Drs. White and McClenahan are probably 
 
            correct in their assessments that the hearing loss which 
 
            afflicts Leo C. Pottebaum was probably induced by noise.
 
            
 
                 Dr. White does not express any opinion with regard to 
 
            the source of the noise which was likely to have caused the 
 
            hearing problem.  Dr. McClenahan stated that, in his 
 
            opinion, based on the industrial hygiene reports of noise 
 
            levels in the plant, the noise which Leo Pottebaum was 
 
            subjected to in the John Deere plant was not sufficient to 
 
            have caused his hearing loss (exhibit 11, pages 4 and 5).
 
            
 
                 The record in this case suggests no source of continued 
 
            or long-term high noise level exposure to which the hearing 
 
            loss can be attributed other than the John Deere plant.  
 
            While the record does show some other incidents of high 
 
            noise level exposure, those incidents appear to be 
 
            relatively infrequent in duration in comparison to the 
 
            duration to which this claimant was exposed to noise in the 
 
            John Deere plant.  Those incidents likewise appear to have 
 
            not necessarily produced a level of noise which would have 
 
            been higher or more injurious to the claimant than the level 
 
            which was present in the plant.  It is particularly noted 
 
            that the chain saw use does not appear to have begun until 
 
            well after 1975 when this claimant's hearing loss was first 
 
            identified.
 
            
 
                 On the other hand, this claimant's hearing loss appears 
 
            to have progressed and worsened markedly after he retired 
 
            and was no longer exposed to whatever noise was present in 
 
            the employer's plant.  The fact of post-retirement worsening 
 
            of the hearing loss is a very strong indication that the 
 
            hearing loss was not necessarily caused by the employment.  
 
            That fact strongly corroborates the opinion expressed by Dr. 
 
            McClenahan.  There is no evidence in the record of this case 
 
            from any health care professional which attributes the 
 
            hearing loss to the noise exposure at John Deere.  The only 
 
            expert opinion is that of Dr. McClenahan which states that 
 
            it probably is not related to the employment at John Deere.  
 
            Under the state of this record, it can be fairly stated that 
 
            it is certainly possible that Leo C. Pottebaum has a hearing 
 
            loss which is noise induced and that the hearing loss is
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            attributable to his employment at John Deere.  The state of 
 
            this record does not, however, show it to be probable that 
 
            the hearing loss is attributable to noise exposure at the 
 
            John Deere plant.  The cause of claimant's hearing loss is 
 
            probably noise.  The source of that noise cannot, however, 
 
            be identified.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury which arose out 
 
            of and in the course of his employment. McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. 
 
            Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Section 85B.8 provides for a delay of six months following 
 
            removal from the noisy employment setting before filing a 
 
            claim.  The primary reason for that delay is in order to 
 
            allow the hearing loss to be evaluated without the influence 
 
            of fatigue.  1B Larson Workmen's Compensation Law, section 
 
            41.50 et seq.  Typically, the hearing improves somewhat upon 
 
            removal from the noisy environment.  That portion of the 
 
            hearing loss is generally attributed to fatigue from the 
 
            immediate effects of recent noise.  In this case, not only 
 
            was there no improvement in the hearing following removal 
 
            from the noisy environment, there was in fact a marked 
 
            worsening.  That marked worsening is highly inconsistent 
 
            with noise at the John Deere plant being a substantial 
 
            factor in producing the hearing loss.  It greatly 
 
            corroborates the opinion expressed by Dr. McClenahan which 
 
            states that the employment at John Deere is probably not the 
 
            cause of the hearing loss.  There is no expert opinion 
 
            evidence in this record which contradicts that from Dr. 
 
            McClenahan.  The claimant's burden of proof is a 
 
            preponderance of the evidence or a probability.  While the 
 
            evidence in this case certainly shows a possibility that the 
 
            hearing loss is work related, it fails to rise to the level 
 
            of probability.
 
            
 
                 It is therefore concluded that Leo C. Pottebaum has 
 
            failed to prove, by a preponderance of the evidence, that 
 
            his hearing loss, or any substantial part thereof, was 
 
            proximately caused by his employment at the John Deere 
 
            Dubuque Works.  The claimant is therefore not entitled to 
 
            receive any recovery in this proceeding.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Building
 
            P.O. Box 239
 
            Dubuque, Iowa  52004-0239
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30; 2208
 
                                               Filed December 11, 1991
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEO C. POTTEBAUM,             :
 
                                          :
 
                 Claimant,                :         File No. 954480
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS OF   :         D E C I S I O N
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.30; 2208
 
            Uncontroverted expert testimony was relied upon in finding 
 
            that the claimant's hearing loss might possibly have been 
 
            work related, but the evidence failed to show any such 
 
            relationship to be probable.  Worsening of hearing after 
 
            retirement relied upon to corroborate expert opinion that 
 
            hearing loss was not work related.
 
            
 
 
         
 
 
 
                      
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DENNIS SCHLEGEL,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 954481
 
         UNITED PARCEL SERVICE,     
 
                                                A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INS. CO.,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 14, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         135 South LaSalle St., #1527
 
         Chicago, IL  60603
 
         
 
         Mr. Greg A. Egbers
 
         Mr. Mark Woollums
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801-1596
 
         
 
 
            
 
 
 
 
 
                        
 
                                                 5-1803
 
                                                 Filed March 29, 1993
 
                                                 Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            DENNIS SCHLEGEL,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 954481
 
            UNITED PARCEL SERVICE,     
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INS. CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1803
 
            
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            DENNIS SCHLEGEL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954481
 
            UNITED PARCEL SERVICE,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            M. Schlegel, claimant, against United Parcel Service, 
 
            employer, hereinafter referred to as UPS, and Liberty 
 
            Mutual, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of an alleged injury on November 
 
            11, 1988.  On August 31, 1992 a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated  to the following matters:
 
            
 
                 1.  On November 11, 1988 claimant received an injury 
 
            arising out of and in the course of  employment with UPS.
 
            
 
                 2. Claimant is not seeking additional temporary total 
 
            or healing period benefits beyond what has been paid in this 
 
            proceeding.
 
            
 
                 3. If the injury is found to have caused permanent dis
 
            ability, the type of disability is an industrial disability 
 
            to the body as a whole.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of May 19, 1992.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $629.60;  he was married;  and he 
 
            was entitled to four exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $389.82 according to the 
 
            Industrial Commissioner's published rate booklet for this 
 
            injury.
 
            
 
                 6.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their reason
 
            ableness and defendants are not offering contrary evidence.  
 
            Also it was agreed that the medical expenses requested in 
 
            the prehearing report are causally connected to the medical 
 
            condition upon which the claim herein is based but that the 
 
            issue of this condition to a work injury remains an issue to 
 
            be decided herein.
 
            
 
                                          ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is unnecessary to this decision.  
 
            Defendant did not refute claimant's symptomatology.  The 
 
            fighting issue was the cause of these symptoms.
 
            
 
                 Claimant, age 42, has worked for UPS since 1978 and 
 
            continues to do so at the present time.  Claimant started as 
 
            a package car driver unloading semi trucks, loading cars and 
 
            delivering the loads.  In 1982, he moved to night washer 
 
            cleaning package cars with a cleaning wand and brush 
 
            attached to a hose.  This required a considerable amount of 
 
            overhead work using both arms as the vehicles were tall.  In 
 
            1985, he moved to the day shift as a washer, cleaning semi 
 
            tractors.  This required more use of the arms and hands as 
 
            the trucks needed to be hand washed.  He was also assigned 
 
            janitorial duties consisting of cleaning floors, offices and 
 
            bathrooms;  emptying trash receptacles;  and, scrubbing and 
 
            waxing floors.  In addition, the UPS union contract provides 
 
            for "work as directed."   This provision allows management 
 
            to assigned work to employees that is not usually assigned 
 
            to their jobs.  In the case of claimant, this was driving a 
 
            semi tractor trailer truck because he was a licensed commer
 
            cial driver.  Claimant received additional pay whenever he 
 
            performed this special duty.   Claimant continues as a day 
 
            washer today.  His current weekly earnings are more than at 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            the time of injury due to negotiated union pay increases.
 
            
 
                 The injury of November 11, 1988 involved numbness of 
 
            the hands and arms along with back & shoulder strain.  
 
            Claimant filed two reports of injury for the same approxi
 
            mate time period.  The first report involved back and shoul
 
            der strain after lifting at work on November 10, 1988.  The 
 
            second occurred on December 8, 1988 referring back to an 
 
            injury of November 1, 1988.  There is no specific instance 
 
            of injury. Claimant explains that his arm and hand difficul
 
            ties began when he was assigned to special truck driving 
 
            duty in November 1988 which required him to do heavy lifting 
 
            of UPS packages weighing from 1-70 pounds.  
 
            
 
                 Initially claimant was treated for the hand and arm 
 
            numbness by Jerome Hughes, M.D.  Dr. Hughes felt that 
 
            claimant's problems  stemmed from epicondylitis (tennis 
 
            elbow).  After a couple of years of  conservative treatment 
 
            by Dr. Hughes and others, claimant continued to experience 
 
            sore elbows and hand numbness but he continued to work at 
 
            UPS.  He then was referred  to Douglas Schmid, M.D.  Dr. 
 
            Schmid felt claimant's problems may be due to thoracic 
 
            outlet syndrome (TOS) and he referred claimant  to the Uni
 
            versity of Iowa Hospitals and Clinics for evaluation.  
 
            University doctors concluded that claimant's difficulties 
 
            were not TOS but a herniated disc in the cervical portion of 
 
            the back.  Surgery to fuse this area of the back was per
 
            formed by University physicians.  Claimant returned to his 
 
            regular job in April 1991.  Claimant states that the surgery 
 
            corrected  his hand numbness but that his elbows continued 
 
            to hurt.  Claimant's physicians state that he should mini
 
            mize bumpy rides, heavy lifting and frequent bending  but 
 
            they have not imposed formal work restrictions.  
 
            
 
                 There is little question that the herniated disc and 
 
            fusion surgery is a cause of permanent impairment from 7-20 
 
            percent according to the physicians in this case.  With ref
 
            erence to causation of this impairment,  Christopher Loftus, 
 
            M.D., professor of neurology at University Hospitals, states 
 
            that claimant's condition treated by him was due to degener
 
            ative disc disease with a "long history of bilateral arm, 
 
            elbow and lateral hand tingling and numbness."  But upon 
 
            inquiry he states that it is "likely" that claimant's heavy 
 
            work "could" have caused or aggravated the disc problem sur
 
            gically corrected by University staff.  Dr. Schmidt states 
 
            that claimant's degenerative disc and tennis elbow  "could 
 
            be related to his work."  A one time evaluator and neurosur
 
            geon who never actually examined claimant opines that 
 
            claimant's work was not the cause of his cervical and degen
 
            erative disc problems.  Dr. Hughes states that he has diffi
 
            culty relating claimant's symptoms to his work.  Obviously, 
 
            there is little medical opinion support in this record for 
 
            this claim.
 
            
 
                 Looking at the lay evidence, claimant does indeed have 
 
            a long history of upper extremity  problems.  In 1980, 
 
            claimant injured his  right shoulder when a box fell on it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and was treated with a cortisone injection.  In July 1986, 
 
            claimant complained of left shoulder pain which was eventu
 
            ally teated with a surgical resection of the clavicle.  In 
 
            February 1988,  six months before the claimed injury herein, 
 
            claimant was treated for bilateral epicondylitis upon com
 
            plaints of numbness and aching in his arms and night pain.
 
            
 
                 Given the above, the undersigned is unable to find that 
 
            claimant's work activity in November 1988 was a cause of 
 
            claimant's current permanent impairment.   Although the 
 
            absence of medical expert opinion alone would preclude a 
 
            favorable finding, in this case the evidence of pre-existing 
 
            similar problems necessitates reliance upon medical opinion 
 
            which was clearly quite nebulous.
 
            
 
                 As the degenerative disc disease condition precipitat
 
            ing the cervical disc surgery could not be found 
 
            work-related, the medical treatment claimant received to 
 
            treat the disc problems cannot be found work-related.
 
            
 
                                     CONCLUSIONS OF LAW
 
            
 
                  I.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of  the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination  of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  How
 
            ever, in some instances, such as a job transfer caused by a 
 
            work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974). The weight to be given to such an opinion is for the 
 
            finder of fact to determine from the completeness of the 
 
            premise given the expert or other surrounding circumstances.  
 
            Bodish v. Fischer, Inc.,  257 Iowa 516, 133 N.W.2d 867 
 
            (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with non-expert testi
 
            mony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966) Such evidence does not, however, com
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            pel an award as a matter of law.  Anderson v. Oscar Mayer & 
 
            Co., 217 N.W.2d 531, 536 (1974)  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith 
 
            at 354.  In the case of a preexisting condition, an  
 
            employee is not entitled to recover for the results of a 
 
            preexisting injury or disease but can recover for an aggra
 
            vation thereof which resulted in the disability found to 
 
            exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant contends that he has 
 
            suffered  disability as a result of the work injury due to 
 
            additional permanent impairment to the body as a whole.  The 
 
            evidence established that he suffered a permanent impair
 
            ment.  However, the evidence failed to show the requisite 
 
            causal connection between the work injury and the permanent 
 
            impairment.
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of  reasonable medical expenses incurred 
 
            for treatment of a work injury.  As the requested expenses 
 
            involved treatment of a condition which could not be found 
 
            work-related, claimant is not entitled to the expenses 
 
            requested.
 
            
 
                 However, claimant appeared credible at hearing and his 
 
            claim was arguable and in good faith.  He will be awarded 
 
            costs.
 
            
 
                                          ORDER
 
            
 
                 1.  Claimant's petition is dismissed.
 
            
 
                 2.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            La Salle Bank Building
 
            Suite 1527
 
            135 South La Salle Street
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Chicago, Illinois  60603
 
            
 
            Mr. Greg A. Egbers
 
            Mr. Mark Woollums
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed October 14, 1992
 
                                               LARRY P. WALSHIRE
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DENNIS SCHLEGEL,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 954481
 
            UNITED PARCEL SERVICE,   
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INS. CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
                      
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDRIES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954483
 
            KASER CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Andries, claimant, against Kaser Corporation, employer 
 
            (hereinafter referred to as Kaser), and United States 
 
            Fidelity and Guaranty Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on November 14, 1988.  On January 17, 1992, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations contained herein which were 
 
            approved and accepted as a part of the record of this case 
 
            at the time of hearing.  The oral testimony and written 
 
            exhibits received during the hearing are set forth in the 
 
            hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On November 14, 1988, claimant received an injury 
 
            arising out of and in the course of employment with Kaser.
 
            
 
                 2.  The injury is a cause of absences from work during 
 
            recovery from the injury and some degree of permanent 
 
            disability.
 
            
 
                 3.  The parties only dispute with reference to healing 
 
            period involves the time period from August 16, 1989 through 
 
            January 22, 1990.
 
            
 
                 4. The type of permanent disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 5.  Claimant's rate of weekly compensation shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $227.47. 
 
            
 
                 6.  The medical bills submitted by claimant at the 
 
            hearing are fair and reasonable and causally connected to 
 
            the medical condition upon which the claim herein is based, 
 
            but that the issue of their causal connection to any work 
 
            injury remains an issue to be decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 II. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is credible.
 
            
 
                 Kaser operates a rock quarry in southeast Iowa. 
 
            Claimant worked for Kaser from 1984 until March 1990 as a 
 
            truck driver at this quarry.  Initially, he was assigned to 
 
            the job of stockpile driver hauling crushed rock from the 
 
            plant to the yard.  Later on, he was given the job of pit 
 
            truck driver.  Claimant was performing this pit truck driver 
 
            job when he was injured.  Pit truck driving involves the 
 
            hauling of "shot rock" or large pieces of rock (up to 6 feet 
 
            in diameter) from the quarry to the crusher machine.  
 
            Claimant states that there is a great deal of vibration 
 
            while driving the pit truck especially during loading when 
 
            large rocks are dropped into the truck bed.  Occasionally, 
 
            he was assigned to other work such as scooping rock which 
 
            required heavy repetitive bending and lifting.  Claimant's 
 
            description of his job at Kaser is uncontroverted and found 
 
            to be true.
 
            
 
                 On or about November 14, 1988, claimant injured his low 
 
            back when he attempted to throw a 20-30 pound rock from a 
 
            road in the quarry.  Claimant slipped and fell and experi
 
            enced the immediate onset of sharp low back pain radiating 
 
            into his legs.  Again, claimant's testimony is uncontro
 
            verted as to the nature of the injury.  Claimant informed 
 
            management at the quarry of his injury but continued working 
 
            thinking the pain would subside. However, the next day, 
 
            claimant could not get out of bed and felt "lightning bolts" 
 
            in his leg along with continued sharp back pain.  Claimant 
 
            first sought care from a chiropractor, James Miller, D.C.  
 
            He had been treated by Dr. Miller since a 1978 motorcycle 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            accident for arm and shoulder pain.  Dr. Miller stated that 
 
            claimant had aggravated a prior existing low back weakness.  
 
            Claimant's low back problems continued despite Dr. Miller's 
 
            adjustments.
 
            
 
                 Although he continued to experience symptoms, claimant 
 
            returned to work at the quarry on November 21, 1988 and 
 
            worked until December 24, 1988, at which time he was laid 
 
            off.  Claimant and his fellow quarry employees were custom
 
            arily laid off over the winter months each year.  As in 
 
            prior years, claimant drew unemployment compensation bene
 
            fits over the winter months.  According to claimant, he 
 
            improved over this lay off period but continued to be 
 
            treated for low back pain by Dr. Miller.
 
            
 
                 Claimant returned to work at the quarry the next spring 
 
            on March 16, 1989 and worked continuously over the next 
 
            several weeks.  At times he worked over nine hours a day.  
 
            This work still involved the job pit truck driving.  
 
            Claimant then experienced an increase in low back pain and 
 
            returned to Dr. Miller for additional treatment on April 24, 
 
            1989.  The next day claimant left work at the quarry and 
 
            began treating with Robert Carleton, D.O.  This medical 
 
            treatment initially remained conservative with rest and 
 
            medication.  In May 1989, Dr. Carleton referred claimant to 
 
            an orthopedic clinic in Iowa City due to continued low back 
 
            and leg pain.  Mark Mysnyk, M.D., from this clinic, opined 
 
            in July 1989 that claimant's problems were most likely due 
 
            to a herniated disc at L5-S1 spinal level of the low back.  
 
            Dr. Mysnyk recommended that claimant undergo an epidural 
 
            steroid injection for diagnostic and therapeutic benefits.  
 
            At that time, claimant was seeing a vocational rehabilita
 
            tion counselor retained by defendants from InterCorp, 
 
            Annette Tribble, RSW.  Claimant stated that she advised him 
 
            to question such treatment.  Claimant also received some 
 
            advice from family members to forego this treatment as 
 
            unduly risky.  Claimant then refused this treatment despite 
 
            agreement to such a procedure by Dr. Carleton.
 
            
 
                 Over the next several months, claimant continued to 
 
            seek chiropractic care during flare-ups and Dr. Carleton 
 
            continued his conservative care.  On August 16, 1989, 
 
            claimant was evaluated by another orthopedic surgeon, Keith 
 
            Riggins, M.D.  His diagnosis was two herniated discs in the 
 
            lower spine stating that claimant was not a candidate for 
 
            surgery.  He agreed that claimant should undergo the steroid 
 
            injection.  However, Dr. Riggins opined a very dismal prog
 
            nosis stating that claimant should not return to manual 
 
            labor which requires repetitive bending or lifting or seden
 
            tary work which would not allow claimant to move about.  In 
 
            September 1989, Dr. Riggins opined that claimant suffers 
 
            from a 33 percent whole man impairment and that he did not 
 
            consider claimant employable due to his inability to sit for 
 
            more than brief periods of time or repetitively bend or 
 
            lift.  The doctor also opined that based upon claimant's 
 
            history of the onset of pain, claimant's current low back 
 
            symptoms are secondary to the November 14, 1988 injury at 
 
            work.
 
            
 
                 In November 1989, claimant was evaluated by the Spinal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Diagnostic and Treatment Center operated by the orthopedic 
 
            department of the University of Iowa Hospitals and Clinics.  
 
            Physicians at this clinic recommended that claimant attend 
 
            its two week low back rehabilitation program, a rigorous 
 
            program of evaluation, physical therapy, work hardening and 
 
            vocational counseling.  Claimant agreed and completed this 
 
            program on January 19, 1990.
 
            
 
                 At that time, the staff in this clinic found that 
 
            claimant was a motivated person; that he is suffering from 
 
            disc protrusions of the low back and back spasms; and, that 
 
            his work restrictions consisted of no lifting over 35 
 
            pounds, no repetitive lifting over 18 pounds and sitting of 
 
            only 30 minutes if a back rest is provided.  The clinic 
 
            recommended that he continue his home exercises and that the 
 
            employer should provide occasional chiropractic care during 
 
            flare-ups.  The clinic did not recommend the epidural 
 
            steroid injections.  Finally, the clinic stated that 
 
            claimant's symptoms are consistent with the November 14, 
 
            1988 injury at Kaser.
 
            
 
                 With reference to claimant's ability to return to work, 
 
            the clinic staff concurred with a plan that claimant start 
 
            his own painting business but stated that he could return to 
 
            work at the quarry but only to driving and not the operation 
 
            of dozers.
 
            
 
                 Claimant then returned to the quarry on February 22, 
 
            1990, but was told by the quarry manager that claimant had 
 
            to have a full release to duty with no restrictions before 
 
            he could return to work.  Apparently after discussions with 
 
            claimant's counselor at InterCorp, this decision on 
 
            claimant's return to work was changed if claimant could work 
 
            eight hours a day and if a new seat was provided for the pit 
 
            truck.  Claimant stated that this new seat was needed to 
 
            correct a tilt in the seat rather than to reduce or elimi
 
            nate any vibrations.  Claimant's testimony on this point was 
 
            uncontroverted.  However, a new seat was not readily avail
 
            able and had to be ordered.
 
            
 
                 During his wait for a new pit truck seat, claimant 
 
            returned on March 1, 1990, for a one month follow-up to the 
 
            University of Iowa Spine Clinic.  At that time, his restric
 
            tions were changed to no lifting over 30 pounds and no 
 
            repetitive lifting over 15 pounds and specifically to "no 
 
            exposure to vibration more than two hours per day."  
 
            Claimant then had a telephone conversation with Kaser's man
 
            ager in Des Moines, Ernest Myers, on March 21, 1990, when 
 
            claimant was informed that the new seat arrived and that he 
 
            should now return to work.  Myers testified in his deposi
 
            tion that claimant voluntarily resigned stating that he was 
 
            going after other employment.  Claimant's version at hearing 
 
            differed.  Claimant said that he discussed with Myers 
 
            whether or not Kaser could accommodate for the restriction 
 
            against vibrations and was told that such an accommodation 
 
            was not possible.  Whatever was said in this conversation, 
 
            it is found that only pit truck driving was offered to 
 
            claimant by Kaser and the performance of such a job is 
 
            inconsistent with claimant's most recent activity restric
 
            tions imposed by the physicians at the spine clinic.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Claimant will probably never return to the type of truck 
 
            driving work he performed at Kaser.
 
            
 
                 About the same time he was released to return to Kaser, 
 
            claimant began his own painting business.  This business 
 
            involves residential, commercial and industrial painting 
 
            projects. Claimant must stay within his work restrictions in 
 
            his business to avoid severe back pain flare-ups.  Claimant 
 
            intermittently hires a few persons on an ad hoc basis to 
 
            help him in this operation.  On one occasion he successfully 
 
            bid on a major job in the state of California but sold his 
 
            interests in the contract when he felt that he could not 
 
            physically handle the job.
 
            
 
                 With reference to the disputed healing period, claimant 
 
            was not working and absent from his job at Kaser from August  
 
            16, 1989 through January 19, 1990, upon the advice of his 
 
            physicians.  It is found that claimant did not reach maximum 
 
            healing until his completion of the spine clinic program on 
 
            January 19, 1990.  Certainly, Dr. Riggins gave an impairment 
 
            rating earlier in September 1989, but physicians at the 
 
            University of Iowa obviously felt that further physical 
 
            therapy was warranted.  This therapy proved to be of benefit 
 
            to claimant as his condition improved to the point of being 
 
            released to light duty type of work.  Dr. Riggins had opined 
 
            in August 1989, that claimant would not be able to return to 
 
            work.
 
            
 
                 The work injury of November 14, 1988, was a cause of a 
 
            seven percent permanent impairment to the body as a whole.  
 
            Also, claimant is unable to perform physical activities set 
 
            forth by the spine clinic on March 1, 1990.  The views of 
 
            the spine clinic as the most recent evaluator after its 
 
            therapy program is given the greater weight as to the extent 
 
            of claimant's abilities.  The causal connection between the 
 
            November 1988 incident and claimant's current impairment is 
 
            based upon the causal connection views of Dr. Riggins and 
 
            those of the physicians at the spine clinic.  The chiroprac
 
            tor, Dr. Miller, felt that claimant's problems were prior 
 
            existing and unrelated to his work.  His views cannot be 
 
            given greater weight than those of specialists in the field 
 
            of orthopedic surgery.  The above findings are also based 
 
            upon claimant's demeanor at hearing when he testified that 
 
            he had no severe low back pain until the November 14, 1988 
 
            incident.
 
            
 
                 Finally, due to resulting permanent impairment and pri
 
            marily the physician imposed work restrictions, the work 
 
            injury of November 14, 1988, is a cause of a 75 percent loss 
 
            of earning capacity.  To date, claimant's earnings have 
 
            fallen from over $18,000 to approximately $5,000 annually.  
 
            Claimant's only employment history has been in manual labor 
 
            occupations of farming and painting.  He has had supervisory 
 
            experience with a painting contractor but he still was 
 
            required to perform physical work in conjunctions with such 
 
            duties.  Claimant is only able to work as a painter on a 
 
            part-time basis.  He is unable to return to the quarry work 
 
            he was performing at the time of the injury.  Kaser has not 
 
            offered suitable employment to claimant within his work 
 
            restrictions.  Claimant is relatively young at age 34 but he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            is a high school dropout with only a ninth grade education.  
 
            He has had no opportunity to obtain his GED.  Retraining at 
 
            this stage in claimant's life appears unlikely and not fea
 
            sible without major financial assistance.  Although he 
 
            started his painting business, he has no experience in the 
 
            operation of a business.  The success of this venture is 
 
            impossible to predict at this time.  According to his testi
 
            mony at hearing, his earnings in 1991 are not significantly 
 
            different than 1990.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  Examination of several factors deter
 
            mines the extent to which a work injury and a resulting med
 
            ical condition caused an industrial disability.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc. (Appeal Decision, Feb. 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 75 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 375 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 75 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 In this case, a determination of loss of earning capac
 
            ity was made based upon the current earnings of claimant 
 
            from his painting business.  Obviously, if this business 
 
            proves more successful, this agency is available to review 
 
            and reopening this award.
 
            
 
                 Claimant's entitlement to permanent partial disability 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  As it was found 
 
            that claimant was off work and did not reach maximum healing 
 
            until January 19, 1990, healing period benefits will be 
 
            awarded accordingly to claimant.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  As claimant's current back condition was found work 
 
            related and compensable, the parties stipulation as to the 
 
            causal connection of the requested medical expenses is 
 
            applicable.  Such expenses will be awarded accordingly. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at a rate of two hundred twenty-seven and 47/l00 
 
            dollars ($227.47) per week from January 20, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from August 16, 1989 through January 19, 1990, at 
 
            the rate of two hundred twenty-seven and 47/l00 dollars 
 
            ($227.47) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            100 Valley St
 
            P O Box 517
 
            Burlington  IA  52601
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed February 12, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDRIES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954483
 
            KASER CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                  Non-precedential, extent of disability case.