Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA J. WOLVER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954492
 
            FRIENDSHIP MANOR CARE CENTER, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Pamela Wolver, against her former employer, 
 
            Friendship Manor Care Center, and its insurance carrier, 
 
            Liberty Mutual Insurance Company.  Claimant has alleged a 
 
            work-related injury occurring on February 16, 1990.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on October 30, 1991, at Des 
 
            Moines, Iowa.
 
            
 
                 The evidence in the case consists of joint exhibits 1 
 
            through 9; claimant's exhibits A and B; and, testimony from 
 
            the claimant; claimant's mother, Darlene Davis; claimant's 
 
            husband; Raymond Wolver; the former director of nursing, 
 
            Jackie Cochran; certified nurse's aide, Camella Ent; 
 
            rehabilitation assistant Laura Bergman; certified 
 
            medications aide, Charlotte Fleming; staff nurse Kathleen 
 
            Herman; secretary Patty Gasper; and, the health care 
 
            administrator, Patrick Luft.
 
            
 
                                      issues
 
            
 
                 The prehearing report indicates the following issues 
 
            were presented for resolution:
 
            
 
                 1.  Whether claimant received an injury on February 16, 
 
            1990, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disabilities;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            or total disability benefits;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27; and,
 
            
 
                 5.  Whether claimant is an odd-lot employee.
 
            
 
                 Defendants have raised the affirmative defense of lack 
 
            of timely notice of the injury as provided for under Iowa 
 
            Code section 85.23.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Pamela Wolver was born on July 6, 1959.  At the time of 
 
            the hearing, she was 32 years of age.
 
            
 
                 She is a 1977 graduate of Grinnell High School, in 
 
            Grinnell, Iowa.  She continued her education by taking night 
 
            courses at the Marshalltown Community College through 
 
            employment with GTE.  She received certificates in 
 
            information, data and word processing.  She also has 
 
            obtained a nurse's aide certificate.
 
            
 
                 During high school, claimant worked as a waitress.  
 
            Upon graduation, she worked for her GTE in the automation 
 
            department.
 
            
 
                 In March of 1989, claimant began working for Friendship 
 
            Manor Care Center, beginning as a nurse's aide and in 
 
            October 1989, a certified nurse's aide.  Her job duties 
 
            consisted of the overall care of patients.
 
            
 
                 Claimant testified that on February 16, 1990, as she 
 
            was leaning over a bed trying to change the sheets and 
 
            undergarments of a resident, Velma Burnham, the resident hit 
 
            her several times on the lower back.  Claimant testified 
 
            that she heard a "crack" in her low back.  Claimant 
 
            proceeded to finish her work, and reported the incident to 
 
            Jackie Cochran, director of nursing at the facility.  
 
            According to the claimant, Ms. Cochran told her to report to 
 
            the head nurse, Kathy Herman, to fill out an incident 
 
            report.
 
            
 
                 Claimant testified that she told numerous co-employees 
 
            about the incident, including:  Cam Ent; Laura Bergman; 
 
            Patty Gasper; and, Jackie Cochran.  Claimant also stated 
 
            that when she spoke to Jackie Cochran regarding the 
 
            incident, she also showed Ms. Cochran her back which, 
 
            according to claimant, had red spots which were due to the 
 
            incident with the resident.
 
            
 
                 Next, claimant went to her mother's house at 
 
            approximately 1:00 p.m.  Darlene Davis, claimant's mother, 
 
            stated that she observed welts on claimant's back, which 
 
            were red, white and blue in color.  Ms. Davis stated that 
 
            when claimant entered the house, she could barely walk and 
 
            told her mother that she had been hit at work.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Mrs. Davis called Jerome Wehr, M.D., a family 
 
            practitioner, in Grinnell, Iowa.  Although claimant stated 
 
            that she told both the nurse and Dr. Wehr of the incident at 
 
            work, Dr. Wehr's notes, dated February 16, 1990, indicate:  
 
            "Low back pain secondary to strain with radiation of pain 
 
            into the legs with negative neurologic exam.  Negative 
 
            straight leg raise." (Joint Exhibit 1, page 96)
 
            
 
                 In his deposition, Dr. Wehr indicated that if claimant 
 
            had told him of a work-related incident, he would have 
 
            documented the information in his notes (Jt. Ex. 7, pp. 23-
 
            24, 33).
 
            
 
                 Apparently, claimant's husband, Raymond Wolver, also 
 
            accompanied claimant to the doctor.  He testified that he 
 
            did not see any marks on claimant's back prior to or during 
 
            Dr. Wehr's examination.
 
            
 
                 Claimant was given a prescription for Voltaren and was 
 
            to return to Dr. Wehr if the symptoms persisted.
 
            
 
                 Claimant returned to work and on February 17, 18, 19 
 
            and 21, 1990, and worked seven and one-half hour shifts on 
 
            each day.  Her last day of work at the facility was March 1, 
 
            1990, when she worked one hour and subsequently took a 
 
            medical leave of absence (Jt. Ex. 4).
 
            
 
                 Claimant continued to see Dr. Wehr and underwent a CT 
 
            scan on March 6, 1990.  The results of the CT scan revealed 
 
            a bulging disc at the L4-L5 level, with possible lateral 
 
            herniation at the L5-S1 level.  She was referred to R.P. 
 
            Reschly, M.D., for further treatment.  She was initially 
 
            treated on March 16, 1990, and Dr. Reschly's notes indicate:  
 
            "This 30-year-old female is referred by Dr. Wehr regarding a 
 
            back problem.  The patient works as a certified nurse aide 
 
            at Friendship Manor.  She has had no previous problems, and 
 
            she had the gradual onset of low back pain on March 1st.  
 
            She has no known injuries that she can recall at the present 
 
            time." (Jt. Ex. 1, p. 92)
 
            
 
                 Upon examination, claimant displayed pain in the low 
 
            back, left buttock and down the lateral side of the left 
 
            thigh.  Objective findings were "equivocal," but Dr. Reschly 
 
            contemplated an MRI scan or a myelogram (Jt. Ex. 1, p. 92).
 
            
 
                 Claimant returned to Dr. Reschly one week later, and 
 
            his notes indicate the following:
 
            
 
                    This patient simply does not strike me as being 
 
                 as painful as apparently is true, but it may be 
 
                 one of those failures of communication between the 
 
                 doctor and the patient.  I am going to go ahead 
 
                 and get an epidural injection for the patient, and 
 
                 I have asked her back in ten days.  We will get an 
 
                 MRI scan in the future if she has no relief from 
 
                 the epidural injection.  Obviously the patient 
 
                 needs to stay off work.
 
            
 
            (Jt. Ex. 1, p. 92)
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant continued to treat with Dr. Reschly, and on 
 
            follow-up visits, he noted that she had gained some 
 
            additional mobility in her low back following the epidural 
 
            injections.  His notes indicate that claimant continued to 
 
            complain of pain around both ankles, although he indicated 
 
            that this pain was independent of the back pain.  In May of 
 
            1990, claimant was released from Dr. Reschly's care with a 
 
            lifting restriction of not more than 30 pounds (Jt. Ex. 1, 
 
            pp. 90-92).
 
            
 
                 In August of 1990, claimant returned to Dr. Wehr, 
 
            apparently requesting a disability impairment rating.  Dr. 
 
            Wehr recommended physical therapy and that she see an 
 
            orthopedic surgeon for the rating (Jt. Ex. 1, p. 82).
 
            
 
                 Claimant underwent physical therapy at Grinnell General 
 
            Hospital for approximately one month (Jt. Ex. 1, pp. 7-79).
 
            
 
                 In September of 1990, claimant saw Robert Hayne, M.D., 
 
            a neurological specialist.  Upon his review of the CT scan, 
 
            he recommended surgical treatment for a herniated disc at 
 
            the fifth lumbar interspace on the right side (Jt. Ex. 1, p. 
 
            76).
 
            
 
                 She was scheduled for surgery on November 13, 1990, and 
 
            on October 17, 1990, again visited Dr. Hayne having 
 
            encountered another episode of low back pain which radiated 
 
            into both lower extremities (Jt. Ex. 1, pp. 74-75).
 
            
 
                 Although no hospital records were offered into 
 
            evidence, apparently claimant underwent a successful 
 
            laminectomy performed by Dr. Hayne, who later on felt that 
 
            claimant had sustained an 8 percent impairment to the body 
 
            as a whole "as a result of the symptomatology requiring a 
 
            laminectomy on December 13, 1990." (Jt. Ex. 2)
 
            
 
                 Claimant has a history of mental illness, including two 
 
            hospitalizations for a chemical imbalance which produces 
 
            schizophrenia.  Symptoms displayed by claimant have been 
 
            visual and auditory hallucinations (Jt. Ex. 1, pp. 97-135).
 
            
 
                 Physically, claimant's past history is unremarkable, al
 
            though she was involved in an automobile accident at the age 
 
            of 16 or 17.  For the injury sustained, she underwent 
 
            physical therapy for approximately three years following the 
 
            accident.  However, there is no evidence that claimant 
 
            sustained any type of permanent injury in the automobile 
 
            accident.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on February 16, 1990, which arose out of 
 
            and in the course of her employment with the defendant 
 
            employer, Friendship Manner Care Center.
 
            
 
                 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).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that the injury arose out of and in the 
 
            course of the employment.  McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976).
 
            
 
                 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).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Defendants' case included testimony from Jackie 
 
            Cochran, who held the position of director of nursing at the 
 
            time of the alleged incident.  As director of nursing, she 
 
            was familiar with the claimant and stated that she 
 
            thoroughly reviewed with the claimant the procedures to 
 
            follow in case of a workers' compensation injury.  Ms. 
 
            Cochran said that claimant told her she had been hit and 
 
            hurt by the resident, Velma Burnham.  The witness also 
 
            denied that claimant contacted her in the office on February 
 
            16, 1990, and Ms. Cochran denied that she told claimant to 
 
            report to Nancy Herman, the charge nurse on duty.  
 
            Additionally, the witness offered that she specifically 
 
            asked the claimant if she had been injured at work, and 
 
            claimant stated she did not remember getting hurt at work.
 
            
 
                 Also testifying on behalf of the defendants was Camella 
 
            Ent, a certified nurse's aide at the Friendship Manor Care 
 
            Center.  She was familiar with claimant, and had worked with 
 
            her for approximately two years.  Ms. Ent testified that 
 
            claimant never told her about the episode with Velma Burnham 
 
            or any other residents, and that she was unaware that 
 
            claimant had sustained an injury to her low back while at 
 
            work.  The witness was also familiar with the resident, 
 
            Velma Burnham, and described her as being approximately four 
 
            feet four inches tall and weighing 130 pounds.  She did 
 
            indicate that the resident had a reputation of trying to hit 
 
            or slap people.
 
            
 
                 Laura Bergman also testified for the defendants.  She 
 
            is a rehabilitation assistant with the Friendship Manor Care 
 
            Center.  She is familiar with the claimant, and testified 
 
            that claimant never told her about the incident with Velma, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and was unaware that claimant had been hurt or injured while 
 
            at work.  Ms. Bergman was also familiar with Velma Burnham 
 
            and stated that this resident would try to swat at people, 
 
            but was unable to hit hard.  Although she described the 
 
            resident as at times being difficult, she stated that it was 
 
            not so much as to fear safety.  This witness described Velma 
 
            as weighing approximately 100 pounds.
 
            
 
                 Another witness and employee of the Friendship Manor 
 
            Care Center was Charlotte Fleming who works as a certified 
 
            medications aide.  She also offered that she was never told 
 
            by the claimant that claimant was injured while at work, and 
 
            was unaware of any low back injury claimant had sustained.  
 
            She also was aware that the resident, Velma Burnham, had a 
 
            reputation of trying to swat people, but would never hurt 
 
            anyone.  She described the resident as being approximately 
 
            four feet tall, and weighing 124 pounds.
 
            
 
                 The staff nurse, Kathleen Herman, also testified at the 
 
            hearing.  She was claimant's supervisor in February of 1990.  
 
            She testified that claimant did not report the injury to 
 
            her, and she did not remember any incident involving the 
 
            claimant and the resident.  She stated that incident reports 
 
            are filled out for even the most minor incident, and that 
 
            the report is then given to the director of nursing.
 
            
 
                 Patty Gasper, a secretary and bookkeeper for defendant 
 
            Center, also testified.  She indicated that she was familiar 
 
            with the claimant, and stated that the claimant did not 
 
            report any work-related injury.  She did state that a first 
 
            report was filled out in July of 1990, which she stated was 
 
            the first she knew of any incident regarding the claimant 
 
            and a work-related injury.  She described the resident as 
 
            being approximately four feet tall, and weighing between 115 
 
            to 120 pounds.  The witness stated she had no knowledge of 
 
            the incident.
 
            
 
                 Finally, Patrick Luft, the health care administrator at 
 
            the facility, also testified on behalf of the defendants.  
 
            He remembers that on March 1, 1990, he was involved in a 
 
            discussion with Jackie Cochran and the claimant and 
 
            discussed a medical leave of absence.  He stated that 
 
            claimant was asked whether the injury was work related, and 
 
            claimant stated that it was not.  He also remembered a 
 
            meeting with the claimant and her husband in his office on 
 
            or about March 15, 1990, and that both the claimant and her 
 
            husband both asked whether the injury would be covered by 
 
            workers' compensation.  He testified that he told them to 
 
            proceed to the nurse's station to fill out an incident 
 
            report if claimant believed it was work related.  He further 
 
            stated that claimant never returned to the center after 
 
            March 15, 1990, and at no time explained to him the incident 
 
            with Velma Burnham, the resident accused of striking and 
 
            hurting claimant.  Mr. Luft stated that the first time he 
 
            knew a claim was being made was in July of 1990 when he 
 
            received a letter from claimant's attorney.
 
            
 
                 As is many times the case, claimant presents a 
 
            completely different version of the incident than what is 
 
            remembered by the defendant.  Initially, claimant's own 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            attorney was unsure of the date claimant was injured, as he 
 
            sent a notice to the employer that claimant was injured on 
 
            April 24, 1990.  It would seem logical that the attorney 
 
            received this information from the claimant herself.  
 
            Likewise, claimant applied for unemployment benefits in May 
 
            of 1990, and stated that she sustained a ruptured disc in 
 
            her back, and went on to state that "the lifting aggravated 
 
            the condition."  Claimant wrote on the unemployment appli
 
            cation that "on February 16, [1990], I started having back 
 
            pain.  On February 22, 1990, [I] started seeing doctor." 
 
            (Cl. Ex. B, pp. 36-37)
 
            
 
                 Patty Gasper also testified that during the 
 
            unemployment hearing, claimant did not mention the attack by 
 
            the resident, Velma Burnham.
 
            
 
                 In determining whether claimant has sustained her 
 
            burden of proof, it is necessary for the undersigned to look 
 
            at both the consistency and credibility of claimant's 
 
            rendition of the facts.  
 
            
 
                 Both Dr. Reschly's and Dr. Wehr's notes are in direct 
 
            conflict with claimant's recollection and testimony 
 
            regarding the events that led to her physical problems and 
 
            medical treatment.  As stated under the Facts section of 
 
            this decision, Dr. Wehr's notes make no reference to a work-
 
            related incident which caused the back pain.  Likewise, Dr. 
 
            Reschly's notes indicate that claimant was unable to 
 
            remember an injury which caused a "gradual" onset of low 
 
            back pain.  If claimant had sustained an injury while at 
 
            work on February 16, 1990, it seems reasonable that she 
 
            would remember the incident one month later, when she first 
 
            visited Dr. Reschly.
 
            
 
                 Likewise, his notes are inconsistent with claimant's 
 
            description of the injury, which she stated produced 
 
            immediate pain and necessitated medical treatment.
 
            
 
                 Although the descriptions of the resident, Velma 
 
            Burnham, were varied, it seems that the resident would be 
 
            unable to seriously hurt someone while in a prone position 
 
            having her undergarments changed.  Likewise, claimant's 
 
            story has several versions, and although it would be 
 
            acceptable to the undersigned to have a variance of several 
 
            days of when an incident actually occurred, it seems 
 
            unfortunate that claimant testified that she told a group of 
 
            co-employees who later testified at the hearing stating that 
 
            she did not tell any of them that she had been injured by 
 
            the resident.  Although it has been the experience of the 
 
            undersigned deputy that nurses' assistants are likely to 
 
            injure their lower backs while working, unfortunately, 
 
            claimant has failed to sustain her burden of proof and show 
 
            that she was injured while working at the care center.  As a 
 
            result, claimant takes nothing from these proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this proceeding.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Joel Greer
 
            Attorney at Law
 
            112 W Church St
 
            Marshalltown IA 50158
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            Mr John C Heinicke
 
            Attorney at Law
 
            920 Main St
 
            Grinnell IA 50112
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100
 
                                          Filed December 5, 1991
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA J. WOLVER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954492
 
            FRIENDSHIP MANOR CARE CENTER, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to sustain her burden of proof to show that 
 
            she sustained an injury which arose out of and in the course 
 
            of her employment.  The history given to several doctors 
 
            made no mention of a work-related injury, and claimant's 
 
            testimony was inconsistent with the documentary evidence 
 
            presented.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            JOANN SEVERINO,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                 File No. 954502
 
                        
 
            RUAN TRANSPORTATION CORP.,            A P P E A L
 
                         
 
                 Employer,                      D E C I S I O N
 
                        
 
            and         
 
                        
 
            RELIANCE INSURANCE COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 10, 1994 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 July, 1994.
 
            
 
            
 
                                     ________________________________
 
                                     BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, Sr.
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            P.O. Box 10434
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                      1803; 1802; 2701; 4100; 5-1700
 
                                      Filed July 20, 1994
 
                                      Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            JOANN SEVERINO,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                     File No. 954502
 
                        
 
            RUAN TRANSPORTATION CORP.,                 A P P E A L
 
                         
 
                 Employer,                          D E C I S I O N
 
                        
 
            and         
 
                        
 
            RELIANCE INSURANCE COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1803; 1802
 
            Found claimant incurred a 40 percent industrial disability 
 
            and a healing period of June 8, 1990 through March 10, 1992 
 
            except for a period beginning July 22, 1991 through October 
 
            6, 1991, as a result of her June 7, 1990 work injury.
 
            
 
            2701
 
            Found claimant is entitled to go to inpatient or outpatient 
 
            pain clinic recommended by Dr. Friedgood.  The employer may 
 
            choose one of the pain clinics recommended by the doctor and 
 
            defendants shall pay the costs.
 
            
 
            4100
 
            Found claimant is not an odd-lot candidate.
 
            
 
            5-1700
 
            Found defendants are entitled to credit for the long-term 
 
            disability benefits claimant received from a policy solely 
 
            paid for by the defendants.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            JOANN K. SEVERINO,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 954502
 
            RUAN TRANSPORTATION CORP.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 28, 1993 at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on June 7, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant and Jack Reynolds; 
 
            claimant's exhibits 1, 2(a) through 2(s), 3, 4, 5, 6; and, 
 
            defendants' exhibits A through K.  There are two additional 
 
            defendants' exhibits 1 and 2 which were offered in evidence 
 
            concerning the argument on the hearing report filed in this 
 
            case.  Those two exhibits strictly have to do with said 
 
            hearing report issue that was ruled upon at the hearing.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits and the 
 
            commencement of any benefits, awarded;
 
            
 
                 2.  An 85.27 alternate care issue;
 
            
 
                 3.  Under 85.38(2( whether defendants are entitled to 
 
            credit for payments made to claimant under a disability 
 
            policy; and,
 
            
 
                 4.  Whether claimant is an odd-lot candidate.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified in person and through her deposition 
 
            (Defendants' Exhibit B) taken March 23, 1992.  Claimant is a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            44-year-old high school graduate.  She related her work 
 
            history up to the time she began working for defendant 
 
            employer in November of 1979, where she is still employed.  
 
            Her past history involved working in a discount chain doing 
 
            bookkeeping and accounting, working for Bankers Life, which 
 
            is now Principal, in the group insurance department.  She 
 
            also worked at a lounge which was owned by an individual 
 
            whom she later married and worked there until her husband 
 
            closed it and went out of business.
 
            
 
                 Claimant described what her eight hour day was 
 
            comprised of in connection with her job with defendant 
 
            employer in the accounts receivable department.
 
            
 
                 On June 7, 1990, claimant was putting a large box on 
 
            the desk and filling it and was to set it on the floor near 
 
            her desk.  Someone indicated to her that she couldn't leave 
 
            it there so she carried it 20 feet.  When she picked it up 
 
            she felt a pain in her lower back.  She called her husband 
 
            to come and get her.  Claimant then related the medical 
 
            services she sought.  Claimant indicated that Thomas 
 
            Carlstrom, M.D., performed surgery on her in December of 
 
            1990.  Claimant related that she had back surgery in 1987 
 
            from which she said she received good results and that she 
 
            had gotten over it and had no restrictions except she had a 
 
            work weight limit of 25 to 40 pounds.  She said normally 
 
            nothing at work exceeded that limit.
 
            
 
                 Claimant said that her problems were different from her 
 
            December 1990 surgery and that her left leg was like it was 
 
            dead and she drags it.  Claimant had her first surgery in 
 
            July 1990 as a result of this June 7, 1990 injury and after 
 
            that she was still having low back pain.
 
            
 
                 Dr. Carlstrom referred claimant to Craig DuBois, M.D., 
 
            who did various tests and prescribed certain therapy.
 
            
 
                 Becky Johnson, from Principal Financial, a 
 
            rehabilitation individual, talked to claimant on December 
 
            23, 1990, and she had no job or suggestions for claimant but 
 
            indicated she was still trying to find something claimant 
 
            could do.  Claimant said she has had no contact with the 
 
            rehabilitation person since June 1992 and was given no job 
 
            prospects.  Claimant said she knows of no job opportunities 
 
            but would like to do a job at home.
 
            
 
                 Claimant said David L. Friedgood, D.O., a neurologist, 
 
            wanted claimant to get into a pain management program.  
 
            Claimant indicated she never did go through this type of 
 
            program.
 
            
 
                 Claimant acknowledged she received long-term disability 
 
            from an insurance policy with Principal Insurance Company 
 
            that was totally contributed to by the employer and was a 
 
            benefit provided for her.  She indicated that she originally 
 
            was getting $755.04 per month until June of 1993, at which 
 
            time it was ultimately reduced to $600.04 net as the 
 
            insurance company began taking the required tax withholding, 
 
            etc., out of the gross amount.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 It appears claimant was receiving workers' compensation 
 
            benefits in a weekly amount of $198.82 to and including 
 
            October 11, 1991, and since that time the long-term 
 
            disability referred to above began.
 
            
 
                 Claimant acknowledged that in February 1987 she had a 
 
            low back injury at defendant employer and received workers' 
 
            compensation weekly benefits and 10 percent permanent 
 
            partial disability.  She said Dr. Carlstrom was the treating 
 
            physician and surgeon.  She had surgery in March 1987.  
 
            Claimant said she returned to work in June 1987 and kept 
 
            treating with the doctor but does not know how long 
 
            thereafter but acknowledged that if the medical records show 
 
            that she saw the doctor until January 1988 she would not 
 
            dispute that.  Claimant acknowledged that she had a weight 
 
            lifting restriction of 25 to 40 pounds as a result of that 
 
            injury.
 
            
 
                 Claimant indicated that when she was released to return 
 
            to work after her June 7, 1990 injury, she intended to work 
 
            full-time eight hours a day but could only do four hours and 
 
            she said the doctor agreed to that.  Claimant acknowledged 
 
            that in 1992 she flew to visit her husband's brother.
 
            
 
                 Claimant said her husband is currently disabled.  
 
            Claimant said she has never had a driver's license so she 
 
            took the bus to her work.
 
            
 
                 David L. Friedgood, D.O., testified through his 
 
            deposition on December 21, 1993, that he is a neurologist 
 
            and that he first saw claimant in November of 1992.  He 
 
            understood at that time that claimant had had two additional 
 
            low back surgeries at L4-5 performed by Dr. Carlstrom 
 
            pursuant to an injury  on June 7, 1990.
 
            
 
                 The doctor agreed with Dr. Carlstrom that claimant's 
 
            two surgical procedures in 1990 were precipitated by a 
 
            lifting incident in June of 1990 at claimant's place of 
 
            employment.  He also indicated that claimant had a 
 
            preexisting injury to her back which made it more likely 
 
            that she would injure it a second time.  He again emphasized 
 
            that the cause of the second surgery and the ultimate third 
 
            surgery was caused by the claimant's injury in 1990. 
 
            (Claimant's Exhibit 4, pages 6-7)  He acknowledged that the 
 
            claimant indicated to him that she had good results from the 
 
            1987 L4-5 surgery with a return to work but that the 
 
            subsequent two surgeries were not as successful.
 
            
 
                 His examination indicated claimant had decreased 
 
            sensation in the left leg and no left ankle reflex.  He 
 
            concluded that she had damage to the left fifth and lumbar 
 
            fifth and first sacral nerve roots.  He opined that claimant 
 
            did have pain resulting from the June 1990 injury and 
 
            subsequent surgery.
 
            
 
                 He was referred to his November 20, 1992 report (page 
 
            2) in which he indicated claimant was in quite a bit of 
 
            difficulty functioning anywhere at normal level because of 
 
            her pain.  He prescribed the pain center but he understood 
 
            it was not provided to her.  The doctor said he is very 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            familiar with the pain center and works with them on a 
 
            regular basis.  He indicated they do work in a general 
 
            sense.  He said they don't cure people but they give a 
 
            patient understanding of their problem and work with them to 
 
            get them more functional in teaching him to deal with their 
 
            incurable symptoms.  The doctor opined that claimant is a 
 
            candidate for the pain center and that she should get 
 
            involved with it.
 
            
 
                 The doctor then described subsequent visits with 
 
            claimant.  He indicated that on her next visit she was 
 
            having right-sided pain which she indicated likely resulted 
 
            from her overcompensating and using her right leg a little 
 
            differently due to her left leg problem.
 
            
 
                 The doctor described the various other visits and exams 
 
            claimant had with him, the last being November 22, 1993.  He 
 
            indicated claimant continued to have pain in her low back 
 
            and down her left leg and that she was still getting 
 
            residuals of her 1990 injury and two resulting surgeries.  
 
            The doctor opined that claimant cannot work because of her 
 
            severe pain and that he was still recommending a pain clinic 
 
            in which she would also get a vocational counselor and 
 
            psychological counselor, therapy and exercise in connection 
 
            with said program.   He further stated that if his 
 
            recommendation for treatment was carried out claimant should 
 
            expect a lot less pain and discomfort and that she would be 
 
            more functional and he would expect her to get back to a 
 
            point where she would be able to work on a part-time basis 
 
            and hopefully eventually a full-time basis.  He saw nothing 
 
            on her physical examination that would preclude that.  The 
 
            doctor indicated that claimant cannot work because of her 
 
            severe pain.  He indicated he did not believe Dr. Carlstrom 
 
            assumed any of claimant's pain in his evaluation but based 
 
            his permanent impairment strictly on a functional 
 
            impairment.  The doctor emphasized again that he did not 
 
            think everything has been done for this woman that could be 
 
            done and he mentioned several places in which there are good 
 
            pain clinics.
 
            
 
                 The doctor indicated he had given claimant the 
 
            restriction of 25 pounds and no repetitive lifting.  He 
 
            further indicated that claimant's job as an accounting clerk 
 
            at defendant employer fell within these restrictions and 
 
            there is nothing functionally that prevents claimant from 
 
            returning to her employment but that it is her complaints of 
 
            pain.  He further indicated that his recommendation of a 
 
            pain clinic to deal with claimant's chronic pain helped 
 
            people get back to work in employment whereas if they are 
 
            unable to deal with their pain they tend not to be 
 
            functional. (Cl. Ex. 4, pp. 21-23)
 
            
 
                 John M. Severino, claimant's husband, testified through 
 
            his deposition taken January 7, 1993.  (Def. Ex. A)   Mr. 
 
            Severino indicated that he and his wife watch their 
 
            grandchildren on occasion but that his wife will not watch 
 
            them alone if he is not there because they want to be picked 
 
            up.  Two of the grandchildren are ages 4 and 2 and she has 
 
            not picked them up since her injury.  He also indicted they 
 
            have another grandchild who is less than a year old and she 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            has carried that child.  He said his wife has a concern 
 
            regarding her back in relation to picking up the kids.  He 
 
            said she walks with a limp, dragging motion, and sometimes 
 
            walks with a cane.  He said she performs very few activities 
 
            around the home.  Mr Severino said that claimant has not 
 
            worked since her injury other than trying to go back to 
 
            defendant employer on one occasion and she applied at a 
 
            telemarketing job.
 
            
 
                 Randy J. Sackett testified through his deposition taken 
 
            June 28, 1993. (Def. Ex. C)  Mr. Sackett is the director of 
 
            human resources for defendant employer and has held this 
 
            position approximately three and one-half years at the time 
 
            of his deposition.  He indicated he had nothing that 
 
            indicated claimant should not return to employment and that 
 
            if she was released to return to work he would make every 
 
            effort to find a position for claimant and it wouldn't 
 
            necessarily be the same position she had at the time of her 
 
            injury but would be comparable.  He acknowledged that the 
 
            wages would be the same.  He acknowledged that he attempted 
 
            to bring claimant back at shorter hours per day in 1991 and 
 
            it was to be for approximately four hours per day and would 
 
            gradually increase.  He indicated that in fact claimant's 
 
            hours decreased to the point that they were not getting in 
 
            the hours so he understood it was suggested claimant go back 
 
            for some more rehabilitation.  She then went back on 
 
            workers' compensation leave.  He understood there was 
 
            nothing derogatory as to claimant's work or employment 
 
            history with defendant employer.
 
            
 
                 Linda Cornell testified through her deposition on June 
 
            20, 1993, that she is employed with defendant employer as 
 
            accounts receivable supervisor and has worked there for 19 
 
            1/2 years.  She was acquainted with the claimant as a fellow 
 
            employee and worked in the same area as claimant.  She 
 
            described the nature of claimant's business which was 
 
            working basically with Avis Rental Agreements.  This job 
 
            required her to take files from the file cabinet, put then 
 
            in a box, box them up and send them over to the annex once a 
 
            month.  She further described the size of the boxes, 
 
            approximate number of files, etc.
 
            
 
                 She said claimant did a good job and was very 
 
            knowledgeable about the job as she had been at it for 
 
            several years.
 
            
 
                 When claimant came back to work to try initially four 
 
            hours a day, Ms. Cornell indicated the jobs were sort of 
 
            make work for the claimant and Ms. Cornell knew claimant 
 
            couldn't lift and understood that was the instruction from 
 
            the doctor.  She said claimant was slower at moving.  She 
 
            said the claimant did the work fine and didn't notice any 
 
            difference on the way she did the work before the injury 
 
            complaint.  
 
            
 
                 Defendants' exhibit I, page 9, is the department of 
 
            radiology report of Iowa Methodist which indicates that in 
 
            February of 1987 claimant had a disc herniation protruding 
 
            centrally and on the left side at the 4-5 interspace.  It 
 
            would appear to the undersigned from the evidence that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant recovered at least from this event as far as Dr. 
 
            Carlstrom's February 18, 1988 opinion in which he indicated 
 
            claimant had a 10 percent body as a whole impairment.  The 
 
            evidence seems to indicate that claimant got along well and 
 
            this condition that existed at that time up through the 
 
            February 1988 letter of Dr. Carlstrom was not bothering 
 
            claimant at the time of her June 7, 1990 injury.
 
            
 
                 The reports of Dr. Carlstrom are confusing and there 
 
            are some of the same but also different correspondence from 
 
            Dr. Carlstrom that is presented by the defendants and the 
 
            claimant.
 
            
 
                 An October 10, 1991 report of Dr. Carlstrom shows he 
 
            opined a 20 percent body as a whole impairment.  On March 
 
            10, 1992, he opined a 20 percent body as a whole impairment.  
 
            On April 30, 1992, he opined a 10 to 12 percent body as a 
 
            whole impairment.  On June 18, 1992, he opined a 10 to 12 
 
            percent body as a whole impairment and indicated there was 
 
            no change since April 1992.  In October 1992, he indicated 
 
            in his report that he thought that part-time light duty 
 
            activity would be in order and he recommended it.  The 
 
            undersigned did not see anything in the record to show any 
 
            noticeable change between the March 10 and April 30 reports 
 
            in which he went from 20 percent down to 10 to 12 percent.
 
            
 
                 In Dr. Friedgood's December 19, 1993 deposition 
 
            (Claimant's exhibit 4), he referred to Dr. Carlstrom's 
 
            October 1991 impairment rating of 20 percent of the body as 
 
            a whole.  There is no indication that the doctor disagreed 
 
            with that.  In the doctor's April 1992 letter (Cl. Ex. 2(L), 
 
            p. 117) he went on to indicate that claimant also sustained 
 
            an impairment due to other procedures and he considered 
 
            those separately.  This seems to indicate that there would 
 
            be additional impairment to the 10 to 12 percent or 20 
 
            percent body as a whole but there is no further indication 
 
            of that being specifically set out as an add-on.
 
            
 
                 Page 22 of defendants' exhibit H (answers to 
 
            interrogatories), the claimant answered interrogatory number 
 
            24 by indicating that Dr. Carlstrom opined that claimant had 
 
            sustained a 10 to 12 percent permanent partial disability to 
 
            the body as a whole and that she sustained a 20 percent 
 
            permanent partial disability rating to the body as a whole 
 
            which is separate and above from the leg injury rating.  The 
 
            undersigned wonders if the doctor was trying to take the 
 
            place of the deputy and determine claimant's industrial 
 
            disability or was he confusing disability with impairment 
 
            which is often done by the medical profession.  There is 
 
            still nowhere in the record that indicates two separate 
 
            impairments, one 10 to 12 and another add-on which would 
 
            reach a 20 percent permanent partial impairment.  Where the 
 
            claimant is getting the idea that there is two separate 
 
            impairment ratings on two different parts of the body is 
 
            unknown to the undersigned.
 
            
 
                 It does appear to the undersigned that Dr. Carlstrom in 
 
            his impairment opinions is not taking into consideration 
 
            claimant's pain which it appears from the evidence is real 
 
            and that he was strictly relying on the impairments 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            resulting from the two surgeries in 1990 which has clearly 
 
            been indicated by the record to have resulted from the June 
 
            1990 work injury.
 
            
 
                 The doctor did in his March 1992 letter indicate that 
 
            future work activity of the claimant will need to be 
 
            significantly restricted with avoidance of heavy lifting, 20 
 
            pounds being about the maximum, and avoidance of forward 
 
            bending, twisting, prolonged sitting, or standing an hour in 
 
            any one position being considered about maximum.
 
            
 
                 Claimant's exhibit 1 is Dr. Friedgood's reports and 
 
            notes to which is referred to in his deposition and the 
 
            undersigned sees no reason to further set them out herein.  
 
            The undersigned is surprised that with the number of reports 
 
            Dr. Friedgood wrote, he did not give his own individual 
 
            impairment rating.  It is clear that he strongly suggested 
 
            claimant enter a structured pain clinic program and that she 
 
            will need regular physical therapy support and psychological 
 
            care and vocational rehabilitation counseling.  (Cl. Ex. 1, 
 
            June 16, 1993 report, page 2)
 
            
 
                 Jerome B. Bashara, M.D., made an evaluation on August 
 
            5, 1993, and opined that claimant had a 17 percent permanent 
 
            partial impairment of the body as a whole related to her 
 
            injury at work in June of 1990, and recommended a permanent 
 
            lifting restriction but no excessive repetitive bending, 
 
            stooping or twisting of her lower back.  (Cl. Ex. 2(A))
 
            
 
                 Claimant's exhibit 2(B) is the records from the Iowa 
 
            Methodist Hospital and the Pain Management Center.  It 
 
            appears to the undersigned that this is not the pain clinic 
 
            or type of treatment Dr. Friedgood was recommending.  It 
 
            appears claimant was getting more or less consulting-type 
 
            recommendations and guidance as a result of going to this 
 
            Iowa Methodist Pain Management Center under the care of Dr. 
 
            DuBois.
 
            
 
                 Claimant's exhibit 2(D) is a report of the Crawford 
 
            Health and Rehabilitation Services.  It would appear on page 
 
            31 of said report that they opine that claimant may have 
 
            benefit from a formal rehabilitation/pain management 
 
            program, however, they said she was currently enrolled with 
 
            Dr. DuBois.  It would appear to the undersigned that they 
 
            are recommending something similar to Dr. Friedgood and not 
 
            necessarily what she was having done through Iowa Methodist 
 
            Pain Management or Dr. DuBois.  This opinion was reiterated 
 
            in later reports (Cl. Ex. 2(D), pp. 34 and 39).  In that 
 
            same February 10, 1992 report, they refer to Dr. Carlstrom's 
 
            20 percent permanent partial disability rating to the body 
 
            as a whole.  The undersigned believes they mean permanent 
 
            impairment rating.
 
            
 
                 Defendants' Exhibit K is the disability policy and it 
 
            is obvious to the undersigned this is a policy totally paid 
 
            for by the employer.
 
            
 
                 There is no dispute that claimant incurred a work 
 
            injury on June 7, 1990 which arose out of and in the course 
 
            of her employment and there is a dispute as to the extent of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            any temporary total disability or healing period.  
 
            Defendants agree that there is some permanent disability and 
 
            it is the extent of said disability which is one of the 
 
            issues in dispute.
 
            
 
                 The undersigned finds that claimant has a permanent 
 
            impairment and permanent restrictions.  As indicated 
 
            earlier, there is a question as to the extent of that 
 
            impairment but it appears to the undersigned to be as high 
 
            as 20 percent and under no circumstances less than 10 
 
            percent of claimant's body as a whole.  Claimant has had two 
 
            back surgeries resulting from her June 7, 1990 injury.  
 
            Claimant has worked very little since her injury, having 
 
            gone back to work and attempted to work initially four hours 
 
            a day and hoping to work up to full employment but never 
 
            reached that goal.  In fact, she was unable to comply with 
 
            the four hours per day.  It appears the defendant employer 
 
            tried to accommodate the claimant.  It appears that the 
 
            nature of the work the employer provided to accommodate the 
 
            claimant was within her restrictions but the pain claimant 
 
            was having affected her concentration and affected her 
 
            ability to actually do the work that was otherwise within 
 
            her restrictions.
 
            
 
                 Dr. Friedgood recommended some qualified pain clinics 
 
            that claimant should go to.  He emphasized this would not 
 
            cure claimant but would and could very well help her in her 
 
            pain management and with the proper counseling, that would 
 
            enable her to go back to full-time employment.  It appears 
 
            this had been recommended by another doctor but never 
 
            approved by defendants.  Dr. Carlstrom seemed to indicate 
 
            that claimant did have some pain management but it is 
 
            obvious to the undersigned that the type of pain management 
 
            was ineffective and was not the type that could be effective 
 
            and as the type recommended by Dr. Friedgood who had special 
 
            knowledge in working with the proper type of pain clinic 
 
            that would fit within his idea of a qualified pain clinic.  
 
            It appears the pain management that claimant may have had at 
 
            Iowa Methodist was more on a consulting and 
 
            recommending-type of situation and was not the type of pain 
 
            clinic that claimant needed or would benefit from.
 
            
 
                 The employer, of course, can reduce the industrial 
 
            disability if in fact a proper pain clinic inpatient or 
 
            outpatient program was used.  Defendants apparently felt it 
 
            was not necessary or took risks that they would rather take 
 
            their chances with the extent of claimant's industrial 
 
            disability without making an attempt.  This must have been 
 
            an economic decision and yet at this stage it is yet to be 
 
            seen whether it was a good economic decision on behalf of 
 
            defendants.
 
            
 
                 The undersigned finds that in regard to the issue of 
 
            alternate care, claimant is entitled to go to one of the 
 
            pain clinics recommended by Dr. Friedgood and that 
 
            defendants shall have the right to pick one of those 
 
            suggested by Dr. Friedgood.  It appears to the undersigned 
 
            that with claimant not being employed, an inpatient program 
 
            would be the best under the circumstances.  Therefore, if 
 
            Dr. Friedgood suggests that an inpatient pain clinic under 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the circumstances would be the best, then claimant is 
 
            entitled to have an inpatient pain clinic program versus an 
 
            outpatient program set up and she shall have the right to go 
 
            to it.  Of course, hopefully, this will help claimant and 
 
            may reduce claimant's ultimate industrial disability and may 
 
            result in a reopening of this matter.  Claimant shall comply 
 
            with the requirements and dictates of the pain clinic and 
 
            follow the procedures without fail and without missing any 
 
            sessions.
 
            
 
                 The undersigned finds that the claimant has a severe 
 
            permanent impairment and restrictions and that she also has 
 
            a loss of income and earning capacity.  The undersigned 
 
            further finds that claimant is not an odd-lot candidate and 
 
            is not totally permanently disabled and that claimant has 
 
            not made a strong effort to find employment or make 
 
            application or inquire as to employment.  The undersigned 
 
            believes that claimant is feeling more at ease now at home, 
 
            particularly with her husband being disabled and that it is 
 
            more convenient for her to stay at home and not seek 
 
            employment and continue to be on long-term disability and/or 
 
            workers' compensation.  The undersigned believes that 
 
            claimant needs more motivation and more effort to try to 
 
            help improve herself.
 
            
 
                 There is an investigative report and two surveillance 
 
            videos represented by defendants' exhibit G.  Those do raise 
 
            a question as to the extent of claimant's ability to do 
 
            things and yet claimant is not totally disabled and should 
 
            be expected to carry on certain normal life functions and 
 
            should be able to do those same functions even though she 
 
            may be in pain in doing them.  Claimant is not an invalid.  
 
            The undersigned is concerned that claimant may convince 
 
            herself eventually that she is totally disabled if she does 
 
            not motivate herself and make further attempts for 
 
            employment or to improving herself.
 
            
 
                 Taking into consideration claimant's medical history 
 
            prior to and after her injury; her work experience; her 
 
            transferable skills; the extent of her permanent impairment; 
 
            her age and education; the location and severity of her 
 
            injury; the extent of her healing period; her motivation; 
 
            and the employer's attempt to accommodate her and inability 
 
            to accommodate her due to her injury, the undersigned finds 
 
            that claimant has incurred a 40 percent industrial 
 
            disability.  The undersigned further finds that any 
 
            preexisting condition claimant had was not affecting her at 
 
            the time of her injury and that under Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Ia. App. 1991), there is no 
 
            offsetting of any prior permanent impairment against any 
 
            ultimate impairment and its effect on the ultimate 
 
            conclusion and determination of claimant's industrial 
 
            disability.
 
            
 
                 There is a dispute regarding claimant's healing period 
 
            to the extent that claimant contends if claimant is not 
 
            totally disabled her healing period ended June 16, 1993.  
 
            Defendants contend it ended on October 10, 1991, at which 
 
            time the doctor opined claimant had a 20 percent permanent 
 
            impairment.  The undersigned notes that on claimant's 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            exhibit 2(L), page 119, the doctor also indicates in the 
 
            October 11, 1991 report that he did think her symptoms might 
 
            improve somewhat.  The undersigned does not believe that 
 
            claimant in fact had reached maximum healing on October 10, 
 
            1991.   As indicated earlier, Dr. Carlstrom's reports are 
 
            somewhat confusing as to what in fact he finally concluded 
 
            claimant's permanent impairment is and what made him change 
 
            in certain letters the extent of claimant's permanent 
 
            impairment to her body as a whole.
 
            
 
                 The undersigned finds that the March 10, 1992 letter 
 
            (Cl. Ex. 2(L), p. 118) is a better date to determine that 
 
            claimant reached maximum healing.  In that same letter, he 
 
            indicated that claimant was to begin vocational 
 
            rehabilitation in October 1991 and he hadn't seen her since.  
 
            It would appear that he thought it might help claimant and, 
 
            therefore, the undersigned finds that claimant's healing 
 
            period ended on March 10, 1992.  The undersigned further 
 
            finds that claimant did attempt to return to work part-time 
 
            and was unable to continue.  Therefore, said healing period 
 
            was interrupted July 22, 1991 through October 6, 1991.
 
            
 
                 As to the 85.38(2) issue, the evidence is clear that 
 
            the long-term disability policy was paid for by the 
 
            defendants and there was no contribution to the premium by 
 
            the claimant.  Defendants are therefore to be given credit 
 
            for any benefits paid under the group plan.  Any credit to 
 
            be given shall be the net long-term disability payments.  In 
 
            other words, the undersigned understands that the gross 
 
            payment was $755.04 and that after deducting the required 
 
            withholding taxes and social security, the claimant's net 
 
            amount she was to receive is $600.04.  The evidence 
 
            indicates that claimant was receiving the gross amount at 
 
            one time until later it was determined that these benefits 
 
            were taxable and subject to the normal withholding of taxes.  
 
            There was a discussion at the hearing and the undersigned 
 
            emphasizes that it is the net amount that is the offset 
 
            against any workers' compensation benefits as a credit and 
 
            the parties are responsible for determining the amount that 
 
            has been paid and the extent of the credit following the 
 
            guidelines of decision set out herein.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, 
 
            Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where 
 
            employment is maintained and earnings are not reduced on 
 
            account of a preexisting condition, that condition may not 
 
            have produced any apportionable loss of earning capacity.  
 
            Bearce, 465 N.W.2d at 531.  Likewise, to be apportionable, 
 
            the preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's work injury on June 7, 1990, caused claimant 
 
            to incur a 40 percent industrial disability.
 
            
 
                 Claimant is entitled to alternate care.
 
            
 
                 Defendants shall pay for claimant to go through a pain 
 
            clinic and defendants have the right to choose the pain 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            clinic from those recommended by Dr. Friedgood and claimant 
 
            is entitled to an inpatient or outpatient clinic.
 
            
 
                 Defendants shall receive credit under the provisions of 
 
            Iowa Code section 85.38(2) for the disability benefits paid 
 
            by the defendant employer's long-term disability plan and 
 
            that said credit shall be the net amount of said disability 
 
            payments after the required taxes are deducted.
 
            
 
                 Claimant's healing period began on June 8, 1990 through 
 
            April 10, 1992, except for a period of time beginning July 
 
            22, 1991 through October 6, 1991.
 
            
 
                 Claimant is not an odd-lot candidate.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred ninety-eight and 82/100 
 
            dollars ($198.82) per week for the period beginning June 8, 
 
            1990 up to July 21, 1991, and October 7, 1991 up through 
 
            March 10, 1992, totaling eighty point two eight six (80.286) 
 
            weeks.
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            (200) weeks of permanent partial disability benefits at the 
 
            rate of one hundred ninety-eight and 82/100 dollars 
 
            ($198.82) beginning March  11, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  It appears the defendants 
 
            paid one hundred point two eighty-six (100.286) weeks of 
 
            benefits.  Also, as indicated in said decision, there would 
 
            be credit to be determined by the parties for the net 
 
            long-term disability benefits that have been paid to 
 
            claimant that may be within the one hundred point two eight 
 
            six (100.286) weeks of benefits referred to herein.
 
            
 
                 That defendant shall provide alternate care as provided 
 
            herein.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 

 
            
 
            Page  14
 
            
 
            
 
                                          
 
                                          
 
                                          
 
                                          ------------------------------
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Virgil Moore
 
            Attorney at Law
 
            2454 SW Ninth St
 
            Des Moines IA 50315
 
            
 
            Mr Harry W Dahl III
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Ms Iris J Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 
            Des Moines IA 50306
 
            
 
 
 
 
 
 
 
 
                                              1803; 1802; 2701
 
                                              4100; 5-1700
 
                                              Filed February 10, 1994
 
                                              Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            JOANN K. SEVERINO,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954502
 
            RUAN TRANSPORTATION CORP.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 1802
 
            Found claimant incurred a 40 percent industrial disability 
 
            and a healing period of June 8, 1990 through March 10, 1992 
 
            except for a period beginning July 22, 1991 through October 
 
            6, 1991, as a result of her June 7, 1990 work injury.
 
            
 
            2701
 
            Found claimant is entitled to go to inpatient or outpatient 
 
            pain clinic recommended by Dr. Friedgood.  The employer may 
 
            choose one of the pain clinics recommended by the doctor and 
 
            defendants shall pay the costs.
 
            
 
            4100
 
            Found claimant is not an odd-lot candidate.
 
            
 
            5-1700
 
            Found defendants are entitled to credit for the long-term 
 
            disability benefits claimant received from a policy solely 
 
            paid for by the defendants.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PHYLLIS SMITH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 991514
 
            vs.                           :                954626
 
                                          :
 
            PAMIDA,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on February 23, 1993, at 
 
            Fort Dodge, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of two alleged injuries, one 
 
            occurring on May 30, 1990 (file No. 954626), and another on 
 
            July 8, 1991 (file No. 991514.  The record in the proceeding 
 
            consists of the testimony of the claimant and claimant's 
 
            husband, Jerry Smith; joint exhibits 1 through 10; and, 
 
            claimant's exhibits I and II, and defendants' exhibits A, B 
 
            and C.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution as to the May 30, 1990 claim 
 
            are:
 
            
 
                 1.  Whether claimant incurred a permanent disability 
 
            which is causally related to the May 30, 1990 injury; and,
 
            
 
                 2.  Claimant's entitlement to 85.27 medical benefits, 
 
            the issue being whether there is a causal connection as to 
 
            the medical incurred.
 
            
 
                 The issues for resolution as to the alleged July 8, 
 
            1991 injury are:
 
            
 
                 1.  Whether claimant incurred an injury that arose out 
 
            of and in the course of her employment on July 8, 1991;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's alleged disability and her July 8, 1991 alleged 
 
            work injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 4.  Claimant's entitlement to 85.27 medical benefits, 
 
            the issue being authorization and causal connection.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds:
 
            
 
                 Claimant is a 37-year-old high school graduate who has 
 
            no other post high school education other than she took a 
 
            medical assistant class at a community college.
 
            
 
                 Claimant testified as to her work history prior to 
 
            beginning employment with the defendant employer on August 
 
            20, 1981.  None of these prior jobs helped her develop any 
 
            particular skill but they did involve claimant having to do 
 
            certain lifting and various manual labor jobs.  Claimant 
 
            said she also played basketball in high school from which 
 
            she graduated in 1975.
 
            
 
                 Claimant testified as to an August 14, 1987 back injury 
 
            which she incurred as a result of lifting, carrying and 
 
            stacking cases of oil that were delivered to defendant 
 
            employer.  Claimant testified that from September 1987 to 
 
            June 1990, she had no medical treatment for her back and her 
 
            condition had cleared up by September 1987.
 
            
 
                 Claimant indicated that she did not have a problem with 
 
            her back on the jobs she had done prior to beginning work 
 
            for the defendant employer.
 
            
 
                 Claimant described her various jobs at defendant 
 
            employer and indicated that her present job as an area 
 
            leader is the same job she has had since 1982.  This job 
 
            involves taking care of the automotive, sporting goods, 
 
            toys, holiday items, artificial flowers and the pet 
 
            departments.  She ordered the supplies, stocked shelves, set 
 
            up ads, etc.
 
            
 
                 Claimant described what occurred on May 30, 1990, when 
 
            she incurred her alleged injury.  Claimant stated that at 
 
            that time they had a greenhouse outside of the store.  She 
 
            was requested by the manager to pick over and sort certain 
 
            plants, trees and shrubs, condense them together on certain 
 
            pallets, coordinate them in a certain place and water them 
 
            sufficiently.  After the claimant had done this for two or 
 
            three hours the manager changed his mind and told her to 
 
            bring all the plants up to the front of the building which 
 
            was a distance of approximately 50 to 60 feet from where she 
 
            had just finished organizing them.  Claimant indicated that 
 
            the plants were in certain groupings and that the trees were 
 
            in one, two or five gallon buckets and some were in burlap 
 
            balls.  She indicated that she would drag the burlap ball 
 
            trees one by one and those items on pallets she would pull 
 
            by tying a rope and taking turns pulling backwards and 
 
            forwards.
 
            
 
                 Claimant said that she had moved eight or ten of these 
 
            pallets plus moving some other items when her back started 
 
            to hurt.  She indicated that the weather was hot and that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            she worked all day outside from 9:00 to 5:00 p.m.  Claimant 
 
            said that just before 5:00 she went inside and her back 
 
            still ached and she was hurting from her shoulders to her 
 
            hips so she went home and used a heating pad.  She indicated 
 
            she saw a chiropractor the next day and went for three or 
 
            four treatments.  Claimant then saw Maurice L. Northup, 
 
            M.D., on June 14, 1990, and was taken off work and was off 
 
            work up to and not including October 17, 1990.  She was paid 
 
            workers' compensation benefits for this period of time which 
 
            involves 16.714 weeks plus $399.83 temporary partial 
 
            disability through November 2, 1990.  Claimant indicated 
 
            that Dr. Northup has been her family doctor since she was in 
 
            kindergarten.
 
            
 
                 Claimant then was asked questions and referred to 
 
            claimant's exhibit I which is a chronological list of events 
 
            from August 20, 1981 through October 21, 1992, and involves 
 
            visits to the doctor, etc.  Claimant was released to work on 
 
            October 18, 1990, and at first there was a 10 pound lifting 
 
            restriction but by November 14, 1990, the lifting limit was 
 
            20 pounds (Claimant's Exhibit II, pages 7-10).
 
            
 
                 Claimant testified that on a return to work in October 
 
            1990, she tried to follow the restrictions but was not 
 
            always able to do so.  She gave an example of an instance in 
 
            which on July 8, 1991, her assistant manager at the time 
 
            requested her to move some oil cases that were in the back 
 
            of the store and to fill the aisle as there was apparently 
 
            another shipment of oil coming in.  Claimant related that 
 
            her restrictions were still in place and that there were 
 
            other high school boys there to help but that she was told 
 
            to move this oil, so she did what the employer told her.  
 
            She indicated it took her about an hour or an hour and a 
 
            half to move the cases of oil.  She indicated that her back 
 
            began aching that evening.
 
            
 
                 Claimant indicated that when she got home she went to 
 
            the bedroom and attempted to plug in the alarm clock.  She 
 
            was not able to reach the electric cord so she got down on 
 
            the floor on all fours and felt a sudden pain in her back 
 
            and fell completely to the floor.  She then got back on her 
 
            hands and knees and her back began tightening up.
 
            
 
                 Claimant indicated that between October 1990 and July 
 
            8, 1991, she had felt good and back to her old routine of 
 
            house duties and doing her job at work despite her 
 
            restrictions.  She said that during these nine months she 
 
            was doing okay within her restrictions and that the manager 
 
            would have someone else do the lifting for her so she could 
 
            keep within her restrictions.  She basically indicated that 
 
            she was having no back trouble until the July 8, 1991 
 
            incident.  She said the pain occurred in the same place in 
 
            July 1991 as it did in May 1990.
 
            
 
                 Claimant said she went back to work the following 
 
            Monday (one week later) and the employer told her that it 
 
            was too much of a risk for her to work until she saw a 
 
            doctor so she was sent home.  She next saw William A. 
 
            Roberts, M.D., on August 7, 1991.  Claimant was asked why 
 
            Dr. Roberts' records reflect that she told him she had an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            incident involving her back one week previously.  Claimant 
 
            did not know but emphasized that the incident the doctor had 
 
            to be talking about was the alarm clock incident which was 
 
            one month earlier.
 
            
 
                 Claimant indicated that surgery was necessary and 
 
            called defendant insurance company as to setting up this 
 
            surgery.  She indicated she heard nothing from the insurance 
 
            company by a return reply so she went through the one week 
 
            of blood workup and two or three days before surgery was to 
 
            occur she received notice from the insurance company that 
 
            workers' compensation would not pay for her surgery (Cl. Ex. 
 
            I, p. 16).  Claimant referred to the fact that said 
 
            September 3, 1991 letter and exhibit referred to a May 30, 
 
            1990 injury and not the July 8, 1991 incident.  Claimant 
 
            said she went ahead with the surgery anyway as she couldn't 
 
            take the pain any longer.
 
            
 
                 Claimant described the nature of her surgery which 
 
            involved putting rods and plates in her back and fusing bone 
 
            in the L5-S1 area.  She said the rods and anchors are still 
 
            in her back and pelvis.  Claimant referred to joint exhibit 
 
            6, page 4, as to the description of the surgery.  Said 
 
            exhibit describes the procedure performed as a spinal 
 
            decompression of the L5-S1 nerve roots with reduction of 
 
            spondylolisthesis and stabilization utilizing pedicular 
 
            screws and isola rods utilizing the Lugac Galveston 
 
            technique for pelvic fixation (Jt. Ex. 6, p. 4)  Claimant 
 
            referred to joint exhibit 7, page 19, as to her 
 
            restrictions, one which is lifting no more than 20 pounds.  
 
            She indicated her restrictions were the same in 1992 as they 
 
            were before her surgery and that she is working today with 
 
            the same restrictions.  Claimant indicates that the 
 
            defendant employer provides her with help in lifting and any 
 
            repetitiveness but her area of responsibility at work is the 
 
            same.  She likes her current manager and if defendant 
 
            employer continues its present situation concerning her she 
 
            could continue to work without problems.
 
            
 
                 Claimant then asked about her appointment with Daniel 
 
            J. McGuire, M.D., an orthopedic surgeon, on December 22, 
 
            1992.  She related that she had her meeting with him and the 
 
            exam recorded and had asked ahead of time whether it was 
 
            okay and she got permission.  She was then alarmed when the 
 
            doctor mentioned in his notes, page 5 of defendants' exhibit 
 
            B, that he was incredibly despondent because the claimant 
 
            tape recorded the process that day.  The undersigned finds 
 
            that comment rather amusing and strange, since on page 3 of 
 
            said notes he stated that claimant was taping that office 
 
            interview.  On page 1 of defendants' exhibit B, the doctor 
 
            indicated he was about ready to cry because he was 
 
            embarrassed concerning the story that he obtained from the 
 
            claimant.  Such comment is rather startling.  Page 7 of 
 
            defendants' exhibit B, which is the transcript of the 
 
            recorded meeting with the doctor on December 22, 1992, 
 
            specifically shows that Dr. McGuire at the very beginning of 
 
            the meeting said it was fine to tape record the 
 
            conversations.  The undersigned gives no weight to Dr. 
 
            McGuire's report as he leaves the impression he is too 
 
            emotionally involved with the patient's exam.  He appears 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            despondent and in a crying mood when dealing with this case 
 
            for no logical reasonable medical reason.
 
            
 
                 Claimant said that she continued her activities of 
 
            bowling, playing softball and water-skiing after the 1987 
 
            incident but that she has not bowled now for several years, 
 
            has played no softball since 1990.  She has not skied since 
 
            1987 nor played any softball after 1987  She then indicated 
 
            that she and her husband owned a boat and she has skied one 
 
            or two times but not in 1990.
 
            
 
                 On cross-examination, claimant was asked as to her 
 
            testimony that she had no back problems prior to 1987.  She 
 
            said no and hesitated for some time and indicated she was 
 
            confused and does not remember.  She was then asked about a 
 
            July 20, 1978 record of Dr. Roberts (Jt. Ex. 6, p. 10) in 
 
            which she referred to a low back pain.  Claimant was also 
 
            referred to joint exhibit 2, page 31, in which she marked 
 
            that she had received workers' compensation for small back 
 
            injury.  This document is dated March 12, 1981.  When asked 
 
            again whether she had ever had back injury prior to 1981, 
 
            she indicated she didn't remember and then indicated she 
 
            possibly saw a chiropractor one or two times for her 
 
            shoulder.  Claimant appeared very confused.  Claimant did 
 
            not ever recall receiving workers' compensation.  When asked 
 
            about a back brace and if she ever wore one, she was very 
 
            confused and initially seemed to indicate that she had never 
 
            worn a back brace but eventually upon questioning and 
 
            because there was a reference to a brace in her medical 
 
            records which would involve a period prior to 1990, claimant 
 
            seemed to indicate that there was a type of brace or cloth 
 
            corset that she had worn but she could not recall any 
 
            particulars concerning it.  The undersigned is alarmed at 
 
            the lack of recall and the claimant's inability to recall 
 
            certain events, particularly since there are other events 
 
            that she can recall.  Claimant did not admit to any memory 
 
            or mental problems.
 
            
 
                 Claimant indicated that she then could recall a 
 
            workers' compensation matter in which she hurt her finger in 
 
            a door but again had no recollection of her having stated on 
 
            a document that she had received workers' compensation for 
 
            an injury to her lower back in 1978.  It is hard to believe 
 
            that claimant mixed up a finger injury with a back injury.  
 
            Basically, claimant does not remember a 1978 back problem.
 
            
 
                 Claimant then was questioned concerning Dr. Roberts' 
 
            July 1991 visit in which there is nothing in his record 
 
            showing a history as to claimant loading an aisle with oil 
 
            (Jt. Ex. 6, pp. 3 and 4).  She indicated she remembered 
 
            telling him about it but it is obvious he didn't write it 
 
            down.  The undersigned notes that she had a difficult time 
 
            remembering many things that may be important and yet seems 
 
            to remember that she told him this even though the doctor 
 
            didn't write it down.  Claimant again seemed very confused.
 
            
 
                 Claimant's husband, Jerry Smith, testified that he knew 
 
            claimant for the last seven or eight years and that after 
 
            living together approximately two years, they married in 
 
            1988.  He said that claimant played volleyball, softball and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            they also bought a Tri-Hull boat in the summer of 1988.  He 
 
            indicated that they had purchased a Torpedo to ride on and 
 
            also skis.
 
            
 
                 He said claimant water-skied in July and August of 1989 
 
            but did not play softball after 1988 season because the city 
 
            league dissolved.
 
            
 
                 He recalled claimant's 1987 back problems but indicated 
 
            that after seeing the doctor a couple of time he doesn't 
 
            remember claimant having more physical problems until June 
 
            of 1990 after she was moving the trees at her employer's 
 
            place of business.
 
            
 
                 He recalled that claimant wore a canvas-type corset 
 
            prior to 1987 but never wore it more than one week at a 
 
            time.  He said he didn't know anything about a brace and 
 
            didn't know that one had been prescribed.
 
            
 
                 William A. Roberts, M.D., an orthopedic surgeon, 
 
            testified through his deposition on January 25, 1993 
 
            (Defendants' Ex. A).  He indicated that he specializes in 
 
            spine surgery and 75 percent of his practice deals with 
 
            spinal disorders.
 
            
 
                 His first contact with claimant was on September 26, 
 
            1990, and the referral to him was through a relative of 
 
            claimant's and not through another doctor.
 
            
 
                 He related the history that claimant gave him and 
 
            indicated that by the time she had come to see him at the 
 
            office her symptoms had improved and were minimal at the 
 
            time.  He indicated the various tests and the nature of the 
 
            examination he gave her and it appears that her examination 
 
            was normal and he felt her symptoms at the time of the 
 
            initial evaluation were those of mechanical low back pain 
 
            secondary to her Grade II isthmic spondylolisthesis of the 
 
            lumbosacral junction (Def. Ex. A, p. 8).
 
            
 
                 The doctor was asked concerning the history he had 
 
            written down that claimant indicated she had low back 
 
            discomfort over the past 12 years.  He was not able to tell 
 
            when the spondylolisthesis came into existence in claimant's 
 
            low back and indicated pain is not a determining factor when 
 
            it begins.  He said the vast majority occurs during the 
 
            person's teen years but may not develop until the patients 
 
            are in their 20's or 30's.
 
            
 
                 In September 1990, he did not consider claimant a 
 
            surgical candidate and it would be the patient determining 
 
            whether she wanted the ultimate surgery and not the doctor 
 
            in this type of situation.
 
            
 
                 He related that her functional capacity assessment was 
 
            done around October 1990 at a self limiting lifting weight 
 
            of 20 pounds.  He indicated that claimant's threshold of 
 
            pain was such that at the 20 pound limit she was no longer 
 
            able to lift because of her pain (Def. Ex. A, p. 10).
 
            
 
                 The doctor indicated he next saw claimant in May of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1991, at which time he told the claimant that if she became 
 
            incapacitated she could see him on an as-needed basis.  
 
            Other than that, it appeared he could do nothing for her.
 
            
 
                 The doctor then testified he saw claimant next time 
 
            around August 7, 1991, at which time she related to him that 
 
            she had an episode approximately one week earlier in which 
 
            she had extreme pain and could not get up off the floor and 
 
            needed assistance of two or three individuals in order to 
 
            get up.  It is obvious this is the event that occurred when 
 
            she was down on all fours trying to plug in an alarm clock.  
 
            It is also reflected in the doctor's office notes of August 
 
            7, 1991, on joint exhibit 6, page 3.  There is nothing in 
 
            the doctor's notes that would indicate the work injury or 
 
            event earlier that day at defendant employer's in which 
 
            claimant testified that she was moving cases of oil and felt 
 
            some discomfort.  Claimant indicated on this August date 
 
            that she was desirous of surgery and on September 17, 1991, 
 
            the doctor performed a decompression and fusion of L4 to the 
 
            sacrum with isola rods.  The procedure performed was 
 
            described as spinal decompression of the L5-S1 nerve roots 
 
            with reduction of spondylolisthesis and stabilization 
 
            utilizing pedicular screws and isola rods utilizing the 
 
            Lugac Galveston fixation (Jt. Ex. 6, p. 4). In March of 
 
            1992, the doctor  put a weight restriction of 30 pounds and 
 
            also opined on August 21, 1992, that claimant had a 10 
 
            percent impairment as a result of the two level fusion for 
 
            spondylolisthesis without residual symptoms and an 
 
            additional 7 percent due to the limitation of the lumbar 
 
            motion which resulted in a total of 17 percent permanent 
 
            functional impairment (Jt. Ex. 6, pp, 6; Def. Ex. A, p. 15).
 
            
 
                 The doctor indicated that a person going through the 
 
            surgical procedure usually desires such when the situation 
 
            gets so bad that the claimant can no longer stand the pain.  
 
            The doctor indicated that with this type of 
 
            spondylolisthesis, a particular mechanical problem with the 
 
            back results because of or as a reflection of cumulative 
 
            trauma.  The repetitive loading of soft tissue would 
 
            eventually lead to in certain patients soft tissue failure 
 
            and increasing pain, decreasing function and subsequent 
 
            incapacitation.  The doctor wasn't surprised that claimant 
 
            ended up with a surgical procedure.  The doctor could not 
 
            say it was this particular incident or that particular 
 
            incident that resulted in the procedure but that each 
 
            episode has a role to play that only results in a person's 
 
            decision to have surgery.  The doctor could not apportion it 
 
            out to say one had a greater impact than another.
 
            
 
                 The doctor was asked and emphasized again that the only 
 
            history he had of an incident that was away from the work 
 
            place was when he saw claimant on August 7, 1991, and the 
 
            claimant had given him her history update.  He has no other 
 
            record of an incident.  The undersigned might note the 
 
            record shows that this one incident the doctor noted had to 
 
            be the incident in which claimant was attempting to plug in 
 
            an alarm clock.  It appears the letter of October 3, 1991 
 
            (Jt. Ex. 6, p. 17) sums up the problem and difficulty in 
 
            this case as to trying to determine a causation of 
 
            claimant's difficulty.  The doctor related that it was 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            indeed difficult to determine what particular event has led 
 
            to the fact that claimant has decided to undergo surgical 
 
            stabilization.  He believed that it was a culmination of 
 
            repeated loading and stress across the lumbosacral junction, 
 
            some which has occurred at work and some which has not.  He 
 
            indicated it was impossible for him to clearly tell what 
 
            percent of her symptoms are a reflection of aggravation due 
 
            to work and which are a reflection of aggravation of 
 
            activities not performed at work.
 
            
 
                 Claimant's exhibit C is a transcript of a telephone 
 
            conversation on July 10, 1990 between the claimant and a 
 
            representative of the defendant insurance company.  There 
 
            had been questions asked of the claimant concerning whether 
 
            she ever wore a back brace.  There has been some mention of 
 
            this earlier in this decision.  Claimant basically could not 
 
            recall of any back brace and this exhibit was then offered 
 
            into evidence.  On page 4 of said exhibit claimant 
 
            specifically referred to the fact that she was fitted for a 
 
            back brace and wore it for several years.  She then lost it 
 
            but then was later fitted with another brace and wore it for 
 
            awhile.  The undersigned has a hard time believing that the 
 
            claimant could not recall having a brace and particularly 
 
            could not recall wearing anything until this exhibit was 
 
            brought forth.  She later acknowledged that she had a 
 
            corset-type brace made of canvas-like material.  She was 
 
            also asked if she had any other injuries to her back at any 
 
            other time and she indicated on page 7 that she was not 
 
            aware of any even though it was obvious she had a back 
 
            injury from a trauma in 1987 besides having her other back 
 
            problems from her back condition.  In the same telephone 
 
            conversation, she indicated that she does very little 
 
            swimming and hardly any water-skiing.  In her testimony in 
 
            court, she indicated she had not water-skied after 1987 
 
            (Def. Ex. C, p. 8).
 
            
 
                 Joint exhibit 2, page 9, reflects an answer to 
 
            interrogatory in which the defendant employer related two 
 
            incident in 1991 in which they were notified that claimant 
 
            was having problems with her back.  One was on June 24, 
 
            1991, in which claimant called the employer that her back 
 
            was bothering her as a result of a long drive coming back 
 
            from a vacation in Minnesota.  Testimony during the trial 
 
            indicated that claimant was on a several day fishing trip in 
 
            Minnesota and when she came back she asked to take off four 
 
            days as vacation because of her back being stiff and pain 
 
            after her trip.  The other incident in the answer to 
 
            interrogatory reflects claimant called defendant employer on 
 
            July 8, 1991, informing them that she had injured her back 
 
            while attempting to put a plug into an outlet at home.  
 
            There is nothing concerning notifying the employer that she 
 
            was injured moving cases of oil.
 
            
 
                 Joint exhibit 4, page 4, is a September 10, 1987 x-ray 
 
            report that shows claimant had a stage I spondylolisthesis 
 
            and a spondylosis of L5 and osteoarthritis involving both 
 
            sacroiliac joints.  X-rays done on June 4, 1990, represented 
 
            by joint exhibit 4, page 5, show that at that time claimant 
 
            had a grade II spondylolisthesis of L5 on S1 and there 
 
            appears to be bilateral spondylolysis at the pars 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            interarticularis of L5 and the disc space of the L4-5 level 
 
            is narrowed.  Page 8 of said exhibit reflects that on June 
 
            14, 1990, claimant gave a history of only a July 28, 1978 
 
            low back pain but mentioned nothing of her prior back 
 
            history or her 1987 injury.
 
            
 
                 Joint exhibit 5, page 2, reflects that on July 13, 
 
            1990, Edwin A. Crowell, M.D., who officed with Dr. Northup, 
 
            indicated that claimant has had back trouble off and on for 
 
            many years and that she has an obvious spondylolisthesis 
 
            with a big step-off.  His notes further indicate that 
 
            claimant's spine is unstable and that she has had trouble 
 
            for many years and will probably not do well.
 
            
 
                 As to claimant's May 30, 1990 injury, the parties 
 
            stipulated that claimant incurred an injury that arose out 
 
            of and in the course of her employment and paid 16.714 weeks 
 
            of healing period or temporary total disability benefits.  
 
            These were paid at a rate of $129.90 but the parties agreed 
 
            that they should have been paid at $145.99 and defendants 
 
            agreed that the difference will be paid.
 
            
 
                 Claimant contends that she incurred another injury on 
 
            July 8, 1991.  It appears in both cases claimant contends 
 
            permanent disability was incurred.
 
            
 
                 Claimant has had a long history of back problems 
 
            extending for several years before her May 30, 1990 injury.  
 
            Claimant is currently 37 years of age and at age 32 she 
 
            already had a diagnosed grade I spondylolisthesis condition.  
 
            By June of 1990, she had reached a grade II.  
 
            Spondylolisthesis is not caused by a trauma.  It is a 
 
            condition that is hereditary and usually begins at least by 
 
            the time a person is in their teens and often starts 
 
            developing in their 20's and 30's.  The medical history and 
 
            record in this case shows that claimant was sitting on a 
 
            medical condition that could be aggravated by even a small 
 
            amount of activity whether it be work or nonwork.  The 
 
            restrictions that claimant ultimately was given pursuant to 
 
            her injuries or alleged injuries were actually restrictions 
 
            that would have been advisable for claimant to follow even 
 
            prior to any real showing of symptoms because of her back 
 
            condition which was gradually developing and worsening.  
 
            Claimant has been involved in various activities, both work 
 
            and nonwork, that could have an aggravating effect on her 
 
            spondylolisthesis condition.  Claimant has been active in 
 
            various athletic events and nonwork situations.  As Dr. 
 
            Roberts has mentioned, there are many things that could be 
 
            causing claimant's problems and he could not pinpoint any 
 
            one thing.  There is no doctor or medical record that 
 
            specifically causally connects any permanent condition that 
 
            claimant may have to either the May 30, 1989 or the July 8, 
 
            1991 alleged injuries.
 
            
 
                 The parties agree that claimant did incur an injury on 
 
            May 30, 1990, and payments for temporary total disability or 
 
            healing period was paid.  There is no evidence or medical 
 
            record that indicates claimant incurred a permanent injury 
 
            or disability as a result of that injury.  Claimant had 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            returned to work.  She had a 20 pound restriction but this 
 
            restriction was advisable because of claimant's condition 
 
            which the undersigned also finds to be spondylolisthesis and 
 
            finds was not caused by any injury.  The undersigned finds 
 
            that on May 30, 1990, she had a temporary aggravation of her 
 
            preexisting back condition but that no permanency resulted 
 
            therefrom.
 
            
 
                 The undersigned finds that the claimant has not carried 
 
            her burden to show there was a causal connection as to a 
 
            permanent disability.  The undersigned finds, therefore, 
 
            that there is no industrial disability incurred because of 
 
            the May 30, 1990 low back injury.
 
            
 
                 As an additional issue, claimant seeks medical 
 
            benefits, as represented on joint exhibit 9.  Joint exhibit 
 
            9 is an itemization of certain bills which includes bills 
 
            represented for both alleged injuries.  Although no separate 
 
            bills were enclosed and the defendants have not specifically 
 
            challenged those bills incurred from May 1, 1991, 
 
            inclusively back to June 1, 1990, they acknowledged that 
 
            they were authorized but contend there is no causal 
 
            connection.  The undersigned finds that the defendants are 
 
            responsible for those bills represented on joint exhibit 9 
 
            beginning June 1, 1990 through May 1, 1991.
 
            
 
                 The undersigned finds that claimant takes nothing 
 
            further regarding the May 30, 1990 low back injury.
 
            
 
                 As to the July 8, 1991 alleged injury, the undersigned 
 
            has considerable concern based on the medical record as to 
 
            whether an injury occurred that arose out of and in the 
 
            course of claimant's employment.  Just prior to that date, 
 
            claimant had returned from a fishing vacation and requested 
 
            four additional days before returning to work after said 
 
            vacation because she had back pain and stiffness in her 
 
            back.  Claimant is known to water ski.  Even though the 
 
            record is contradictory as to when she last skied it appears 
 
            she skied more recently than what she testified to.  There 
 
            were several areas in her testimony and in a telephone 
 
            conversation in which she did not appear to honestly state 
 
            the same or similar facts, depending on to whom she was 
 
            talking to or giving a history to, and also her lack of 
 
            memory in certain areas is suspicious.
 
            
 
                 Claimant contends that on July 8, 1991, she injured her 
 
            back at work while moving cases of oil.  Yet, when she saw 
 
            the doctor on August 7, 1991, she indicated she was having 
 
            increased discomfort and referred to an episode a week 
 
            earlier in which she could not get up off the floor and 
 
            needed the assistance of two individuals to help her get up.  
 
            It is obvious the incident that was referred to one week 
 
            earlier had to have been the incident that claimant 
 
            testified to in which she was crawling on the floor in order 
 
            to plug an alarm into the wall socket.  In claimant's 
 
            testimony in court, she seemed to indicate that the incident 
 
            of crawling on the floor occurred the evening of the same 
 
            day at work that she claimed she moved cases of oil.  The 
 
            undersigned believes that taking the record as a whole and 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            other things concerning claimant's testimony that the 
 
            doctor's record is accurate and reflects the fact that 
 
            claimant was in there on August 7, 1991 because of this 
 
            alarm clock incident in which she felt sharp pain in her 
 
            back and had to be helped to get up off the floor and that 
 
            it wasn't as a result of moving cases of oil.  One would 
 
            think that she would have mentioned that to the doctor.  
 
            Claimant's next visit to the doctor was in September 1991 
 
            and she shortly thereafter had her surgery.
 
            
 
                 It appears to the undersigned that this surgery was 
 
            something that stabilized her increasing, damaging 
 
            spondylolisthesis condition and that this condition needed 
 
            to be stabilized because of claimant's preexisting condition 
 
            and that this preexisting condition was not substantially or 
 
            materially aggravated or lighted up by a July 8, 1991 
 
            alleged injury.
 
            
 
                 Claimant now has 30 pound restrictions.  As indicated 
 
            earlier, this would not be an unreasonable restriction 
 
            taking into consideration claimant's condition prior to May 
 
            30, 1990, due to her back condition.
 
            
 
                 There is no medical doctor or report that specifically 
 
            causally connects claimant's current condition or need for 
 
            surgery to a specific injury on July 8, 1991.  The record 
 
            indicates that there could be one or more of several causes 
 
            for claimant's problems.  In addition thereto, claimant did 
 
            not fully disclose her true medical history to some of the 
 
            doctors.  These could have been important in the ultimate 
 
            decision or conclusion or opinion by the doctor.  We do not 
 
            have here a latent, inactive preexisting condition.  We have 
 
            a situation which one could describe as a time bomb ready to 
 
            explode and that there were just as many nonwork activities 
 
            or incidents that could cause claimant's problems as there 
 
            is work activities.  Again, it is clear from Dr. Roberts' 
 
            notes that claimant was in to see him because of the 
 
            incident in which she was attempting to plug in the alarm 
 
            clock, the incident she was referring to as happening one 
 
            week before August 7, 1991.
 
            
 
                 Claimant requested medical bills to be paid by 
 
            defendants.  Said bills are represented on joint exhibit 9 
 
            and those particularly related to this July 8, 1991 alleged 
 
            injury would begin July 24, 1991 through September 29, 1991.
 
            
 
                 The undersigned finds that claimant has failed in her 
 
            burden to prove that she incurred an injury that arose out 
 
            of and in the course of her employment on July 8, 1991, and 
 
            further failed to prove any causal connection as to 
 
            claimant's alleged medical condition and ultimate surgery 
 
            and any July 8, 1991 alleged injury.
 
            
 
                 In light of the above ruling, the undersigned therefore 
 
            finds that defendants are not responsible for any of 
 
            claimant's medical bills incurred as a result of an alleged 
 
            July 8, 1991 injury and are not responsible for any of those 
 
            bills on joint exhibit 9 beginning July 24, 1991 to the 
 
            present.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 It is therefore found that claimant takes nothing as a 
 
            result of an alleged injury on July 8, 1991, and that 
 
            claimant pays the costs as to file No. 991514.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 8, 1991, 
 
            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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of May 30, 
 
            1990 and July 8, 1991, are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 As to the May 30, 1990 injury, it is further concluded 
 
            that claimant was temporary totally disabled and as 
 
            stipulated by the parties received 16.714 weeks of 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            compensation at the rate of $129.90, plus claimant received 
 
            $399.82 in temporary partial disability benefits through 
 
            November 2, 1990.  Defendants will pay as agreed the 
 
            additional amount between $129.90 and the actual rate of 
 
            $145.99.
 
            
 
                 It is further concluded that defendants are to pay 
 
            claimant's medical expenses as shown on joint exhibit 9 
 
            beginning June 1, 1990 through May 1, 1991, and that 
 
            claimant did not incur any permanent disability or 
 
            industrial disability as a result of a May 30, 1990 work 
 
            injury.
 
            
 
                 Claimant takes nothing further from this proceeding.
 
            
 
                 As to the July 8, 1991 alleged injury, represented by 
 
            file No. 991514, it is further concluded that claimant did 
 
            not incur  a low back injury which arose out of and in the 
 
            course of her employment on July 8, 1991, and that there was 
 
            no causal connection between claimant's alleged permanent 
 
            disability and her ultimate surgery in September 1991 to any 
 
            July 8, 1991 alleged work injury.
 
            
 
                 Claimant did not incur any permanent or industrial 
 
            disability as a result of her alleged July 8, 1991 work 
 
            injury.
 
            
 
                 Defendants are not responsible for claimant's medical 
 
            bills represented by joint exhibit 9 concerning bills 
 
            beginning July 24, 1991 to the present.
 
            
 
                 Claimant lacked credibility.
 
            
 
                 Claimant takes nothing in this proceeding.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That regarding the May 30, 1990 alleged injury (file 
 
            No. 954626), claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That regarding the July 8, 1991 alleged injury (file 
 
            No. 991514), claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 1680
 
            Fort Dodge IA 50501
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
                            
 
 
 
                                      5-1108; 5-1400; 5-2503; 5-1100
 
                                      Filed March 5, 1993
 
                                      Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PHYLLIS SMITH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 991514
 
            vs.                           :                954626
 
                                          :
 
            PAMIDA,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1404
 
            Found claimant failed to prove she incurred an industrial 
 
            disability as a result of her May 30, 1990 low back injury.  
 
            Claimant was paid temporary total disability and some 
 
            temporary partial disability benefits but took nothing 
 
            further from proceedings.
 
            
 
            5-2503
 
            Found defendants responsible for some medical expenses 
 
            resulting from May 30, 1990 work injury.
 
            
 
            5-1100; 5-1108; 5-1400
 
            Found claimant did not prove she incurred an injury that 
 
            arose out of and in the course of her employment on July 8, 
 
            1991, nor did she prove any causal connection between the 
 
            alleged injury and her low back condition.
 
            
 
            5-2503
 
             Claimant denied recovery for medical benefits and surgery 
 
            as to the alleged July 8, 1991 injury.