BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JUDY LOUGHRY,  
 
                      
 
                 Claimant, 
 
                                             File No. 956513
 
            vs.       
 
                                          A B R I T R A T I O N
 
            K-MART CORPORATION, 
 
                                             D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
                               INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Judy 
 
            Loughry, claimant, against K-Mart Corporation, employer, for 
 
            benefits as the result of an injury which occurred on July 
 
            30, 1990.  A hearing was held in Des Moines, Iowa, on 
 
            September 30, 1993, and the case was fully submitted at the 
 
            time of the hearing.  The hearing was scheduled for five 
 
            hours but actually consumed eight hours, from 8:30 a.m. 
 
            until 4:30 p.m.  Claimant initially presented more than 50 
 
            pages of exhibits and was requested to eliminate irrelevant 
 
            and immaterial exhibits prior to hearing.  Both parties 
 
            introduced a number of the same exhibits and this could have 
 
            been eliminated if the attorneys or their legal assistants 
 
            had conversed about the exhibits shortly before the hearing.  
 
            The record consists of the testimony of Judy Loughry, 
 
            claimant, Barbara Wosmansky, loss control district manager, 
 
            and Brenda Martin, personnel manager, claimant's exhibits A, 
 
            B, C, E, and J, and defendant's exhibit 1, pages 1-33.  The 
 
            deputy ordered a transcript of the hearing.  
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated that claimant did sustain an 
 
            injury on July 30, 1990, which arose out of and in the 
 
            course of employment and that the injury was the cause of 
 
            temporary disability during a period of recovery.
 
            
 
                 The parties further stipulated that claimant's gross 
 
            earnings were $230.00 per week and that she was married, but 
 
            the number of exemptions was in dispute.  It was stipulated 
 
            that the rate of compensation would be $165.01 if claimant 
 
            was entitled to four exemptions.  It was further stipulated 
 
            that in the event of an award of benefits that defendant is 
 
            entitled to a credit for two weeks of workers' compensation 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            $163.34 per week.  
 
            
 
                                     ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to temporary disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits, and if so, the nature and extent of benefits to 
 
            which she is entitled.  
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability, 
 
            and if so, the nature and extent of benefits to which she is 
 
            entitled.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 Whether claimant is entitled to penalty benefits.
 
            
 
                 What is the proper rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                   ENTITLEMENT TO TEMPORARY DISABILITY BENEFITS
 
            
 
                 It is determined that claimant is entitled to two weeks 
 
            of temporary total disability benefits for the period from 
 
            July 30, 1990, the date of the injury, until August 13, 
 
            1990, the date on which the authorized treating physician 
 
            released claimant to return to work and the date on which 
 
            claimant did in fact return to work at her regular pay even 
 
            though she was on light duty to only attend meetings between 
 
            August 13, 1990 and August 20, 1990.  She returned to full 
 
            duty on August 20, 1990 (Claimant's Exhibit A, pp. 16 & 17; 
 
            Defendant's Exhibit 1, pp. 13 & 14; Iowa Code sections 85.32 
 
            and 85.33).
 
            
 
                CAUSAL CONNECITON-ENTITLEMENT-PERMANENT DISABILITY
 
            
 
                 It is determined that the injury of July 30, 1990 was 
 
            not the cause of permanent disability and that claimant is 
 
            not entitled to permanent disability benefits.  
 
            
 
                 Claimant, born January 14, 1948 was 42 years old at the 
 
            time of the injury and 45 years old at the time of the 
 
            hearing.  She started to work for employer part-time in June 
 
            of 1989, then became a full-time employee.  Claimant was 
 
            still employed with employer at the time of the hearing 
 
            (Transcript pages 34-39, 40, & 45; Ex. 1, p. 2).  Claimant 
 
            is a well respected employee and has received good reviews 
 
            (Tran. pp. 43, 141, 143, 154, & 158; Ex. C, p. 46).  
 
            
 
                 As a loss prevention manager it was claimant's duty to 
 
            watch for and apprehend shoplifters (Tran. pp. 38 & 41).
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on July 30, 1990, that arose out of and in the course 
 
            of employment with employer when claimant was thrown to the 
 
            pavement on the parking lot while attempting to apprehend a 
 
            shoplifter (Tran. p. 47).  Claimant testified that she 
 
            landed on her chest and left shoulder (Tran. pp. 47 & 48).  
 
            
 
                 The assistant manager took claimant to the Mercy 
 
            Medical Clinic in Ankeny, Iowa, where she was seen by Kevin 
 
            L. Moore, M.D., one of several doctors at the clinic.  Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Moore treated claimant for pulled muscles in the chest area 
 
            around the sternum.  Claimant testified that the most 
 
            excruciating pain was the chest pain (Tran. p. 49).  
 
            
 
                 Dr. Moore recorded on July 30, 1990 that the chief 
 
            complaint was left sided chest wall pain with shortness of 
 
            breath.  His physical examination disclosed (1) diminished 
 
            bilateral breath sounds, (2) mild swelling and tenderness 
 
            over the left pectoral chest wall, (3) tenderness to 
 
            palpations of the left shoulder, and (4) full range of 
 
            motion of the neck without crepitus or tenderness (Ex. 7; 
 
            Ex. A, p. 16).
 
            
 
                 Plain x-rays revealed no pneumothorax nor appreciable 
 
            rib fractures.  Dr. Moore's diagnosis was "Left chest wall 
 
            contusion." (Ex. 1, p. 7; Ex. A, p. 16).  Dr. Moore took 
 
            claimant off work that same day on July 30, 1990.
 
            
 
                 On August 1, 1990, the doctor recorded that there was 
 
            slight improvement but because of continuing symptoms he 
 
            ordered detailed x-rays of the ribs and these were read as 
 
            being unremarkable (Ex. 1, p. 6; Ex. A, p. 17).  On August 
 
            6, 1990, the doctor said claimant felt somewhat better but 
 
            because of continued discomfort she was continued off work 
 
            (Ex. 1, p. 6; Ex. A, p. 17).  On August 13, 1990, claimant 
 
            was not in acute distress, her lungs were clear and she had 
 
            a full range of motion in both shoulders without tenderness.  
 
            There was moderate tenderness to palpation of the anterior 
 
            sternum.  Claimant was released to return to work on August 
 
            13, 1990, with the limitation that she was only to attend 
 
            meetings that week and that she was released to full duty as 
 
            of August 20, 1990 (Tran. p. 50).  Also on August 13, 1990, 
 
            Dr. Moore ordered two more x-rays and a bone scan and 
 
            scheduled a follow-up appointment for a recheck of her 
 
            condition in one week (Ex. 1, p. 6; Ex. A, p. 17).
 
            
 
                 Claimant said that she did not go back to Dr. Moore 
 
            after August 13, 1990, "Because he said I was a big baby and 
 
            I needed to get back to work." (Tran. p. 51).  There is no 
 
            evidence that the bone scan or x-rays that Dr. Moore ordered 
 
            were ever taken.  Claimant also contended that she was not 
 
            happy with what Dr. Moore's nurse told her about a bone 
 
            infarct that had occurred previously in January of 1990, 
 
            when her stepdaughter struck her in the upper left arm in 
 
            the course of a domestic dispute (Tran. pp. 67, 68 & 98).  
 
            Claimant clarified that she was not claiming an injury or 
 
            any disability from the infarct.  She related that she was 
 
            not claiming that the infarct was caused or aggravated by 
 
            this injury (Tran. p. 52).
 
            
 
                 Thus, although defendant was offering continued care 
 
            and treatment as well as additional objective tests, 
 
            claimant, nevertheless, elected to refuse this care and to 
 
            seek care from her own choice of physicians, Ronald A. 
 
            Shirk, D.O., Kelly S. Bast, M.D., and Paul R. Holzworth, 
 
            M.D. (Tran. pp. 52 & 53).  Claimant was previously employed 
 
            by Dr. Shirk as his office nurse from January of 1966 until 
 
            June of 1985, a period of approximately nine and one-half 
 
            years (Ex. 1, p. 1).  Claimant was also employed as the 
 
            office nurse for Dr. Holzworth from the Fall of 1985 until 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the Spring of 1988, a period of approximately two and 
 
            one-half years, when she quit in order to work fewer and 
 
            more flexible hours (Ex. 1, p. 2; Tran. pp. 27, 28, 30, 86 & 
 
            87).  
 
            
 
                 The records of the Holzworth, Bell, Shirk, Bast firm 
 
            show that an appointment was made with Kirk D. Green, D.O., 
 
            an orthopedic surgeon, on September 13.  On September 15, 
 
            1990, Dr. Shirk saw claimant for an infected eye and 
 
            diagnosed acute conjunctivitis.  No mention is made of the 
 
            injury of July 30, 1990 at this time.  An office note from 
 
            Dr. Shirk's clinic dated October 11, 1990 records that 
 
            claimant complained of (1) chest pain and discomfort from 
 
            the accident of July 30, 1990 after being thrown on the 
 
            parking lot and (2) left arm pain from an injury of January 
 
            2, 1990, when she was hit by her stepdaughter.  This is in 
 
            handwriting and is probably the nurse's note that was 
 
            presented to the doctor.  On that same date Dr. Bast 
 
            diagnosed (1) depression, (2) osteoarthritis, (3) left 
 
            humeral bone infarct and (4) post-valium irritative 
 
            phlebitis of the right arm vein.  There is no evidence that 
 
            any of these four diagnoses were attributable to the injury 
 
            of July 30, 1990, according to his records (Ex. A, p. 11). 
 
            
 
                 Dr. Shirk's notes for October 26, 1990 and November 6, 
 
            1990, indicated left sternum pain.  On October 26, 1990, a 
 
            clinic note said claimant had multiple rib fractures which 
 
            was diagnosed costochondritis.  On May 6, 1991, Dr. Shirk 
 
            said that claimant had ten ribs broken and complained of 
 
            chest pain, back pain, rib pain, sore knees and hip 
 
            discomfort.  His impression was (1) multiple old fractures 
 
            and (2) chronic pain syndrome with degenerative arthritis.  
 
            He prescribed Prednisone, Amitriptyline and Prozac.  On 
 
            March 13, 1991, Dr. Shirk sent claimant to see Lawrence 
 
            Rettenmeier, M.D., a rheumatologist at Mercy Arthritis 
 
            Center (Ex. A, pp. 9-11; Tran. p. 57).
 
            
 
                 On May 14, 1991, Dr. Rettenmeier reported to Dr. Shirk 
 
            that claimant had polyarthralgias in all of her extremities 
 
            with no indication that they were related to this injury.  
 
            With respect to this injury Dr. Rettenmeier reported that 
 
            claimant believed, "That the chest pain related to the rib 
 
            fractures has improved some over time." (Ex. A, p. 25).
 
            
 
                 On February 18, 1992, Dr. Rettenmeier wrote to Dr. 
 
            Shirk that his impression was that claimant had (1) 
 
            periarthritis of the left shoulder, (2) polyarthralgias 
 
            which is resolved, (3) myofascial neck and shoulder girdle 
 
            pain and (4) granuloma.  This injury of July 30, 1990 was 
 
            mentioned in the letter, but Dr. Rettenmeier did not make a 
 
            specific statement of causal connection about any one of 
 
            these four impressions (Ex. 1, p. 22).
 
            
 
                 Radiology ordered by Dr. Shirk on July 16, 1991, showed 
 
            only the bone infarct, otherwise the left shoulder was 
 
            negative (Ex. 1, p. 20).  Radiology ordered by Dr. Shirk on 
 
            March 3, 1992, by way of a bone scan for claimant's 
 
            complaints of back pain showed only (1) a normal spine and 
 
            (2) an enchondroma as a result of the bone infarct (Ex. 1, 
 
            p. 21).  On March 16, 1992, Dr. Rettenmeier reported the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            same diagnosis to Dr. Shirk of periarthritis, 
 
            polyarthralgias, myofascial neck and shoulder pain, and 
 
            granuloma.  Dr. Rettenmeier does not give any statement of 
 
            causal connection of these conditions to the injury of July 
 
            30, 1990 (Ex. 1, p. 24).  
 
            
 
                 Claimant was examined by Scott Neff, D.O., an 
 
            orthopedic surgeon, who wrote to Dr. Shirk on July 14, 1991, 
 
            that the infarct predated this injury.  He also said the 
 
            radiologist felt that the significantly increased uptake on 
 
            the bone scan represented fractured ribs.  Dr. Neff added, 
 
            "She says that since her injury, she has now begun to hurt 
 
            all over, and she has pain in her knees, ribs, neck, 
 
            shoulder, and even her wrist." (Ex. 1, p. 26; Ex. A, p. 11).
 
            
 
                 Dr. Neff was unable to causally connect all of these 
 
            complaints to this injury.  Dr. Neff wrote, "I am not 
 
            certain what direct relationship might be between her injury 
 
            which, apparently, was confined to the chest wall and her 
 
            left shoulder, and the symptoms she is having all over her 
 
            body.  She has gone back to work, and, apparently, was off 
 
            work for only 2 to 3 weeks." (Ex. 1, p. 27; Ex. A, p. 19).  
 
            Dr. Neff thought she might have a mildly unstable shoulder 
 
            due to deconditioning.  Dr. Neff concluded, "At this time, I 
 
            do not believe she is in definite need of any type of 
 
            orthopaedic surgical treatment.  I would recommend a 
 
            rheumatological evaluation." (Ex. 1, p. 27; Ex. A, p. 19).
 
            
 
                 Claimant testified that she was evaluated by William 
 
            Koenig, M.D., a rehabilitation doctor, on one occasion 
 
            (Tran. p. 58).  His records show that he reported on March 
 
            10, 1992, that "Her main complaints, however, are 
 
            significant difficulties with pain between the shoulder 
 
            blades and in the cervical region, and at times extending 
 
            nearly down to the hip region." (Ex. 1, p. 38).  Dr. Koenig 
 
            diagnosed, "Post-traumatic myofascial pain syndrome." (Ex. 
 
            A, p. 38).
 
            
 
                 On April 24, 1992, employer denied claimant's medical 
 
            treatment that was performed after she discontinued seeing 
 
            Dr. Moore with the following letter to claimant's attorney.
 
            
 
                    Our records indicate that Ms. Loughry was 
 
                 injured on July 30, 1990 at our Kmart store in Des 
 
                 Moines, IA.  She was provided with medical care at 
 
                 that time.  On August 13, 1990, she was released 
 
                 to return to work.  Our records indicate no 
 
                 fracture of any ribs, no mention of any other 
 
                 injuries.
 
            
 
                    Since August, we have received no further 
 
                 medical reports, bills or communication that Ms. 
 
                 Loughry was still treating or having any 
 
                 continuing problems related to her injuries 
 
                 sustained on July 30, 1990.
 
            
 
                    From your attached medical report, it would 
 
                 appear that Ms. Loughry has continued to treat for 
 
                 a condition that pre dated her work accident.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    At this time, I am respectively declining to 
 
                 accept liability for this treatment and condition 
 
                 (Ex. B, p. 40).  
 
            
 
                 At the request of Dr. Holzworth claimant was examined 
 
            by James L. Blessman, M.D., director of the Mercy Hospital 
 
            Medical Pain Center for intractable pain in her posterior 
 
            thorax and right hip.  He reported on May 20, 1992, that her 
 
            chest and thorax pain have improved considerably but her low 
 
            back pain and right hip pain were getting worse.  In the 
 
            course of his examination Dr. Blessman found that her 
 
            ability to perform physically was inconsistent.  On a number 
 
            of his examination tests he found that she exhibited symptom 
 
            magnification.  Dr. Blessman concluded, "My diagnostic 
 
            opinion is that she has chronic myofascial pain syndrome 
 
            with some components of symptom magnification." (Ex. 1, p. 
 
            17; Ex. A, p. 30).
 
            
 
                 Claimant testified that she was examined and evaluated 
 
            by John H. Kelley, M.D., an orthopedic surgeon, who gave her 
 
            a very complete examination.  The purpose of Dr. Kelley's 
 
            examination was to determine whether her continuing 
 
            complaints, after Dr. Moore's treatment, were caused by this 
 
            injury and were therefore entitled to coverage under 
 
            workers' compensation, or whether they were unrelated to 
 
            this injury and that she was entitled to coverage under the 
 
            group health insurance policy with Travelers Insurance 
 
            Company.  Claimant testified that Dr. Kelley determined that 
 
            her symptoms were not work-related (Tran. p. 61). 
 
            
 
                 Dr. Kelley examined claimant on August 6, 1992, as well 
 
            as her medical records and he reported on the same date (Ex. 
 
            1, p. 20; Ex. A, p. 31).  Dr. Kelley accurately reviewed 
 
            claimant's injury and subsequent treatment and examination 
 
            by the several practitioners summarized above.  He said that 
 
            her current complaints were in her thoracic spine and lumbar 
 
            spine extending into her right buttock which was aggravated 
 
            by working and relieved by rest.  His impression was (1) 
 
            myofascial strain of the left shoulder, (2) contusion of the 
 
            left chest wall, (3) status post biopsy enchondroma of the 
 
            left humerous and (4) chronic myofascial pain of the lumbar 
 
            dorsal spine.
 
            
 
                 Dr. Kelley questioned whether the bone scan represented 
 
            fractured ribs.  He said the increased bone uptake may 
 
            represent some evidence of injury at the costochondral 
 
            region, however, increased uptake in this area was not 
 
            uncommon.  Dr. Kelley stated, "Since the uptake was noted in 
 
            both the left and right anterior ribs, and is not associated 
 
            with x-ray findings of rib fractures; I am not certain of 
 
            its significance.  X-rays at this time show no evidence of 
 
            callus formation in the ribs indicating an old healed 
 
            fracture. (Ex. A, p. 34, Ex. 1, p. 23).  
 
            
 
                 Moreover, it is noted that the injury that occurred on 
 
            July 30, 1990 injured only the left chest and that claimant 
 
            had a previous injury to both her right and left ribs on May 
 
            5, 1986, when her husband gave her a hug and there was a pop 
 
            and Dr. Holzworth thought she had a separation or a cracked 
 
            rib on the right costochondral area (Tran. p. 67; Ex. J, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Dep. Ex. 2).  
 
            
 
                 With respect to claimant's first numbered diagnosis, 
 
            myofascial strain of the left shoulder, he found that 
 
            claimant did not have any permanent impairment or disability 
 
            in her left shoulder.  He made no comment about his second 
 
            numbered diagnosis, contusion of the left chest wall, and in 
 
            all probability the contusion of the left chest wall had 
 
            cleared up three years later.  With respect to his third 
 
            diagnosis the enchondroma of the left humerous, the parties 
 
            are in agreement that this was not caused by this injury, 
 
            but rather was caused when claimant was struck by her 
 
            stepdaughter.  
 
            
 
                 With respect to his fourth numbered impression, chronic 
 
            myofascial pain of the lumbar dorsal area, Dr. Kelley 
 
            stated, 
 
            
 
                    In reviewing her records, it seems that the 
 
                 thoracic and lumbar back pain is of recent origin 
 
                 and is probably not related to her injury.  She is 
 
                 not in good physical condition and does not get 
 
                 very much exercise other than what she does at 
 
                 work.  It is my opinion that most of her back pain 
 
                 is secondary to poor conditioning and overweight.  
 
                 Since complaints of low back and low thoracic pain 
 
                 do not appear in the record until 1-1/2 years 
 
                 after her injury, I doubt there is any 
 
                 relationship (Ex. 1, p. 24; Ex. A, p. 35).
 
            
 
                 Dr. Holzworth referred claimant to S. Randy Winston, 
 
            M.D., a neurosurgeon, for evaluation.  He saw claimant and 
 
            reported on September 30, 1992.  He said her chief complaint 
 
            to him was low back pain and pain/numbness to the right foot 
 
            which she experienced in March and August of 1992.  Dr. 
 
            Winston responded to Dr. Holzworth as follows.
 
            
 
                    I think most of her problems seem to be 
 
                 musculature but she does have some complaints of 
 
                 numbness in the entire limb and so forth.  I 
 
                 understand this dates and she has had intermittent 
 
                 difficulty since she was assaulted during an 
 
                 attempted shoplifting incident in 1990.
 
            
 
                    For the most part, she has good reflexes with 
 
                 no pathologic signs and I have reassured her that 
 
                 her MRI shows no evidence of any surgical problem 
 
                 that we would need to be treating (Ex. A, p. 36; 
 
                 Ex. 1, p. 27)
 
            
 
                 Dr. Winston gave his understanding that someone had 
 
            related to him that these problems dated to the time she was 
 
            assaulted.  However, Dr. Winston did not give his own 
 
            independent, professional medical opinion that the injury of 
 
            July 30, 1990 was the cause of her current complaints.
 
            
 
                 On December 22, 1992, it appears in another office note 
 
            of Dr. Winston that claimant had a hobbled gait in her right 
 
            lower extremity, discomfort on raising her right leg, and 
 
            give-away weakness in all of her major muscle groups in her 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            right lower extremity.  He said, objectively, however, 
 
            straight leg raising was negative, her reflexes were 
 
            symmetric, there were no pathologic or neurlogic signs.  His 
 
            impression was lumbar pain syndrome, chronic recurrent.  He 
 
            reviewed an MRI and it was negative for surgical pathology.
 
            
 
                 Thus, Dr. Winston could not find an injury problem that 
 
            warranted surgery nor did he specifically relate any of 
 
            these symptoms, which were quite remote from the original 
 
            chest wall pain and left shoulder tenderness, to the injury 
 
            of July 30, 1990.
 
            
 
                 On June 7, 1993, Dr. Holzworth wrote to claimant's 
 
            attorney as follows:
 
            
 
                    Her final diagnosis is:
 
                   
 
                   (1)  Costochrondritis post traumatic to the chest.
 
                   (2)  Multiple rib fractures.
 
                   (3)  Myositis of the left shoulder.
 
                   (4)  Cervical myositis.
 
                   (5)  Muscle tension cephalgia.
 
                   (6)  Lumbosacral myositis.
 
                   (7)  Tennis elbow bilateral.
 
                   (8)  Right sciatic neuritis. 
 
            
 
                    * * *
 
            
 
                    All of these conditions were caused by the 
 
                 accident of 7-30-90 or represent aggravations of 
 
                 pre-existing conditions.
 
            
 
                    * * *
 
            
 
                    Due to long duration and persistency of her 
 
                 injuries Judi Loughry will be unable to engage in 
 
                 any full time gainful employment.  She will have 
 
                 to avoid lifting over 20 lbs.  No sitting, 
 
                 standing or lifting for periods of over one-half 
 
                 hour duration.  This patient will need physical 
 
                 therapy, medication and examinations and treatment 
 
                 on a regular basis.  If her symptoms increase in 
 
                 nature she will need surgical consultation and 
 
                 corrective surgery.
 
            
 
                    I have taken care of this patient since 1973.  
 
                 I have also had her as a nursing assistant in my 
 
                 office.  I found her to be honest and reliable 
 
                 (Ex. A, p. 2 & 3)
 
            
 
                 On August 30, 1993, Dr. Holzworth provided an 
 
            impairment rating to claimant's attorney, "This patient has 
 
            on a functional basis a sixty percent disability.  She will 
 
            be seen in my office for a disability rating according to 
 
            the A.M.A. guidelines." (Ex. A, p. 1).
 
            
 
                 On August 31, 1993, Dr. Holzworth gave a more detailed 
 
            breakdown of his evaluation and it resulted in a 53 percent 
 
            impairment (Ex. A, pp. 4 & 5).
 
            
 

 
            
 
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                 Dr. Holzworth gave a deposition on September 27, 1993, 
 
            three days prior to hearing, in which he gave the background 
 
            for his opinions, explained them in more detail and in which 
 
            he reaffirmed these opinions (Ex. J).
 
            
 
                 In conclusion, in reviewing the foregoing medical 
 
            evidence and testimony of claimant, it is determined that 
 
            the opinion of Dr. Moore, the authorized treating physician 
 
            is preferred over the opinion of Dr. Holzworth, the 
 
            unauthorized treating physician, who has treated claimant 
 
            since 1973 and he or his firm was her employer for 
 
            approximately 13 years.  Rockwell Graphics Systems, Inc. v. 
 
            Prince, 366 N.W.2d 187, 192 (Iowa 1985).  Likewise, the 
 
            opinion of Dr. Kelley is preferred over the opinion of Dr. 
 
            Holzworth for the reason that it appears to be more 
 
            objective and comports best with claimant's original 
 
            diagnosis and treatment by Dr. Moore.  Rockwell Graphics 
 
            Systems, Inc., 366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 The opinions of Dr. Green, Dr. Neff, Dr. Blessman, Dr. 
 
            Koenig, and Dr. Winston failed to specifically causal 
 
            connect claimant's myriad symptoms to this injury.
 
            
 
                 Furthermore, it is noted that claimant has had multiple 
 
            health problems and symptoms prior to this injury, 
 
            especially osteoarthoritis, and she continues to have the 
 
            same symptoms after this injury.
 
            
 
                 Claimant testified at the hearing that her left 
 
            shoulder pain was "nearly gone" (Tran. p. 57).
 
            
 
                 Claimant admitted that she was diagnosed with having 
 
            osteoarthoritis in March of 1989 (Tran. p. 97).  Claimant 
 
            also admitted that Dr. Holzworth records showed that she was 
 
            complaining of arthritis and an ache in the wrist, knees and 
 
            the back in April of 1990 (Tran. p. 99).
 
            
 
                 Wherefore, based upon the foregoing evidence it is 
 
            determined that the injury of July 30, 1990 was not the 
 
            cause of permanent disability based upon the reports of Dr. 
 
            Moore, Dr. Kelley, Dr. Green, Dr. Neff, Dr. Blessman, Dr. 
 
            Koenig, and Dr. Winston.  Neither did any of these doctors 
 
            find that claimant had sustained any permanent impairment or 
 
            permanent disability and none of these doctors issued a 
 
            permanent impairment rating.  Therefore, it is determined 
 
            that the injury of July 30, 1990 was not the cause of 
 
            permanent disability and claimant is not entitled to any 
 
            permanent disability benefits.
 
            
 
                                 PENALTY BENEFITS
 
            
 
                 It is determined that (1) since claimant was paid 
 
            temporary total disability benefits promptly and (2) that 
 
            she is not entitled to any permanent partial disability 
 
            benefits, that no penalty benefits are due to claimant for a 
 
            delay in the commencement or in the termination of benefits 
 
            without reasonable or probable cause or excuse.  Iowa Code 
 
            section 86.13 unnumbered paragraph 4.
 
            
 
                                 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
                                  MEDICAL BENEFITS
 
            
 
                 Claimant has attached a statement of medical expenses 
 
            to the prehearing report dated September 27, 1993.  
 
            Defendant is liable for the $209.00 of medical expenses 
 
            charged by the Mercy Ankeny Medical Clinic for treatment on 
 
            July 30, 1990, August 1, 1990, August 6, 1990 and August 15, 
 
            1990.  
 
            
 
                 Defendant is also liable for the $665.00 charged by Dr. 
 
            John Kelley, M.D., on August 6, 1992 because defendant 
 
            ordered this examination. 
 
            
 
                 Claimant has not demonstrated that the remaining 
 
            expenses were caused by this injury.  Therefore, claimant is 
 
            not entitled to payment of the charges of the Iowa 
 
            Orthopaedic Center in the amount of $467.00, the charges of 
 
            Mercy Hospital in the amount of $3,934.52, the charges of 
 
            Drs. Holzworth, Bell, Shirk & Bast in the total amount of 
 
            $1,179.00, the charges of the Therapy Center in the amount 
 
            of $721.25, the Lab charges in the amount of $65.00, the 
 
            charges of the Mercy Arthritis Center in the amount of 
 
            $406.00, the charges of Dr. Neff in the amount of $217.00, 
 
            the charges of South Des Moines Sports Medicine in the 
 
            amount of $916.00, the charge of Dr. Winston in the amount 
 
            of $90.00 and the charges of Gregory Norton, D.C., a 
 
            chiropractor in the amount of $368.00.
 
            
 
                 According to claimant all of these expenses total 
 
            $9,237.37.  However, claimant is only entitled to be paid 
 
            for the Mercy Ankeny Medical Clinic in the amount of $209.00 
 
            and the charge of Dr. Kelly in the amount of $665.00.  
 
            
 
                 Furthermore, the physicians that claimant retained 
 
            after Dr. Moore were not authorized treating physicians.  
 
            Iowa Code section 85.27.  Dr. Kelley admittedly was not 
 
            employed by claimant, but rather by defendant, and therefore 
 
            they owe for his charges.
 
            
 
                 Brenda Martin, personnel manager, testified that Dr. 
 
            Moore was the only authorized treating physician (Tran. p. 
 
            151).  Martin also testified that Dr. Holzworth or his group 
 
            who gave claimant medical attention were not authorized by 
 
            employer (Tran. p. 152).
 
            
 
                 That fact that defendant may have erroneously shown in 
 
            an interrogatory that Dr. Holzworth was an authorized 
 
            treating physician and may have erroneously made one payment 
 
            to Dr. Holzworth does not in fact, or in law, make Dr. 
 
            Holzworth an authorized treating physician (Ex. A, p. 48).  
 
            Claimant knew that Dr. Holzworth was not an authorized 
 
            treating physician.
 
            
 
                               RATE OF COMPENSATION
 
            
 
                 It is determined that the proper rate of compensation 
 
            is $165.01 based upon a married person with four exemptions 
 
            whose gross earnings were $230.00 per week at the time of 
 
            this injury. 
 
            
 
                 Claimant has two children.  Lucas was adopted by her 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            and her first husband.  Kari is her stepdaughter, who is 
 
            apparently the daughter of her current husband (Tran. p. 20 
 
            & 81).  Both children were living with claimant and her 
 
            husband at the time of this injury (Tran. pp. 81 & 83).  
 
            Claimant admitted that she and her first husband were under 
 
            a decree where they would alternate on who would take a 
 
            deduction for Lucas on their tax returns (Tran. p. 83).  
 
            Defendant contended that claimant was not entitled to an 
 
            exemption or deduction for Kari because as a stepdaughter, 
 
            claimant was not legally obligated to provide her support 
 
            (Tran. p. 85).  However, defendant's contention is not 
 
            correct.
 
            
 
                 The dependency exemption depends upon whether claimant 
 
            was eligible to claim both children as an exemption for 
 
            actual dependency on her income tax return at the time of 
 
            the injury.  Iowa Code section 85.61(6).  Hootman v. Mercy 
 
            Hospital, file no. 903234 (Appeal Decn. March 9, 1994).
 
            
 
                 Claimant did not actually prove, as a matter of fact, 
 
            that she and her husband were entitled to claim both 
 
            children as dependents and take an income tax deduction at 
 
            the time of the injury.  However, defendant's counsel in his 
 
            closing statement stipulated that the stepdaughter was 
 
            always claimed as a dependent and an exemption was taken for 
 
            that dependency (Tran. p. 175).  
 
            
 
                 Wherefore, it is determined that claimant was married 
 
            and was entitled to four exemptions, herself, her husband, 
 
            Lucas and Kari at the time of the injury.
 
            
 
                 The Guide to Iowa Workers' Compensation Claim Handling, 
 
            in effect on July 30, 1990 at page 23 shows that the proper 
 
            rate for a person earning $230.00 per week who is married 
 
            and entitled to four exemptions is $165.01.  The income tax 
 
            rules do not require a person to have a support obligation 
 
            under the law in order to claim that person as an exemption 
 
            and take a deduction.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant is entitled to two weeks of temporary 
 
            total disability benefits for the period from July 30, 1990 
 
            to August 13, 1990, a period of two weeks.  Iowa Code 
 
            sections 85.32 and 85.33.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of July 30, 
 
            1990 was the cause of permanent disability and therefore she 
 
            is not entitled to permanent disability benefits.  Iowa Code 
 
            section 85.34; Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).  
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 
 
            penalty benefits.  Iowa Code section 85.13(4).  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she is entitled to the 
 
            medical expenses of Mercy Ankeny Medical Clinic in the 
 
            amount of $209.00 and the expense of the examination by Dr. 
 
            Kelley in the amount of $665.00.  Iowa Code sections 85.27 
 
            and 85.39.  
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that any of the other 
 
            physicians were authorized physicians nor did claimant prove 
 
            that their treatment was caused by this injury.  Iowa Code 
 
            section 85.27; Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); 
 
            Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945).  
 
            
 
                 That defendant stipulated that claimant's stepdaughter, 
 
            Kari, was taken as a dependency exemption on claimant's 
 
            income tax return at the time of this injury and therefore 
 
            claimant is entitled to a rate based upon married and four 
 
            exemptions which resulted in a rate of $165.01 per week.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant two weeks of temporary 
 
            total disability benefits at the rate of one hundred 
 
            sixty-five and 01/100 dollars ($165.01) per week commencing 
 
            on July 30, 1990, in the total amount of three hundred 
 
            thirty and 02/100 dollars ($330.02).
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That defendant is entitled to a credit for two weeks of 
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing at the rate of one hundred sixty-three and 34/100 
 
            dollars ($163.34) per week in the total amount of three 
 
            hundred twenty-six and 68/100 dollars ($326.68). 
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendant pay to claimant or the provider of 
 
            medical services two hundred nine dollars ($209.00) for the 
 
            charges of Mercy Ankeny Medical Clinic and six hundred 
 
            sixty-five dollars ($665.00) for the charges of Dr. Kelley.
 
            
 
                 That each party is to pay their own separate costs of 
 
            this action, except that defendant is to pay the cost of the 
 
            attendance of the court reporter at hearing and the cost of 
 
            the transcript of hearing, pursuant to rule 343 IAC 4.33 and 
 
            Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Kent M. Peterson
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, IA  50265
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            112 West Church Street
 
            Marshalltown, IA  50158
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                    1108.50, 1401, 1402.40, 1803,
 
                                    1802, 2500, 2503, 2700, 4000.22
 
                                    3002, 3003
 
                                    Filed May 3, 1994
 
                                    Walter R. McManus, Jr.
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JUDY LOUGHRY,  
 
                      
 
                 Claimant, 
 
                                               File No. 956513
 
            vs.       
 
                                            A B R I T R A T I O N
 
            K-MART CORPORATION, 
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
            1802
 
            
 
                 Claimant, a loss prevention manager, was thrown to the 
 
            pavement while attempting to apprehend a shoplifter.  She 
 
            suffered a chest contusion and tenderness of the left 
 
            shoulder.
 
            
 
                 Claimant was awarded two weeks of temporary total 
 
            disability for two weeks that she was taken off work by the 
 
            authorized treating physician.
 
            
 
                 Claimant was not allowed temporary total disability for 
 
            her first week back to work when she was only allowed to 
 
            attend meetings because she received full pay for this 
 
            period of time.
 
            
 
            1108.50, 1401, 1402.40, 1803
 
            
 
                 It was determined that the injury was not the cause of 
 
            permanent disability and that claimant was not entitled to 
 
            permanent disability benefits.
 
            
 
                 Claimant abandoned her authorized treating physician 
 
            and sought care from the medical clinic doctors for whom she 
 
            had worked for 13 years in the past.  The leading doctor in 
 
            this firm diagnosed eight conditions either caused or 
 
            aggravated by this injury.  He made these determinations 
 
            about three years after the injury and just a short time 
 
            before hearing.  This firm also referred claimant out to 
 
            five other specialists for myriad health conditions, mostly 
 
            arthritic in nature.  None of these five doctors provided 
 
            any specific causal connection to this injury even though 
 
            they mentioned it by way of history.  
 
            
 
                 Claimant was evaluated, for defendant, by an 
 
            independent orthopedic surgeon to determine if workers' 
 
            compensation was liable for certain benefits or whether the 
 
            group health policy was liable for certain benefits.  This 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            doctor determined that her complaints were not work-related.  
 
            He and the original authorized treating physician were 
 
            preferred as more objective and reliable than the firm for 
 
            which she previously had worked.  
 
            
 
            2500, 2503, 2700
 
            
 
                 Claimant was awarded the medical expense of the 
 
            authorized treating physician and the independent evaluation 
 
            ordered by defendant.  The other approximately $9,000 in 
 
            medical expenses were not allowed.  It was determined that 
 
            these physicians were unauthorized and also that their 
 
            examination, care and treatment was not for a condition 
 
            caused by this injury.
 
            
 
                 The fact that defendant erroneously stated in a 
 
            deposition that an unauthorized physician was an authorized 
 
            physician, and may have even paid one of his bills 
 
            erroneously, did not in law or in fact constitute an 
 
            unauthorized physician as an authorized physician, when 
 
            claimant knew he was not authorized.
 
            
 
            4000.22
 
            
 
                 No penalty benefits were awarded.  The temporary 
 
            benefits were paid promptly.  Claimant was not entitled to 
 
            permanent benefits.
 
            
 
            3002, 3003
 
            
 
                 There was not enough evidence to accurately determine 
 
            the rate issue of dependency of a stepdaughter.  In closing 
 
            argument, defendant's counsel stated that he stipulated that 
 
            in her tax returns that claimant had taken a dependency 
 
            deduction for her stepdaughter.  This was determined to be 
 
            sufficient to allow claimant to be entitled to count the 
 
            stepdaughter as a dependent for workers' compensation 
 
            purposes.
 
            
 
                 Defendant's counsel argued that a legal obligation to 
 
            support the stepdaughter was required.  It was determined 
 
            that the test is whether claimant was eligible to claim the 
 
            stepdaughter as a dependent on her income tax return.  The 
 
            latter test depends on income tax rules and not support 
 
            obligation rules.  The fact claimant had taken an income tax 
 
            exemption and deduction for dependency supported a workers' 
 
            compensation allowance for the stepdaughter as an exemption.  
 
            Hootman v. Mercy Hospital, file no. 902234 (Appeal Decn. 
 
            March 9, 1994).
 
            
 
 
            
 
         
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            ELKE STEAHR,    
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                    File No. 956526
 
            PACIFIC COAST FEATHER COMPANY, 
 
                                                A R B I T R A T I O N
 
                 Employer,  
 
                                                    D E C I S I O N
 
            and        
 
                       
 
            INSURANCE COMPANY OF NORTH     
 
            AMERICA,   
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Elke Steahr, against her former employer, Pacific 
 
            Coast Feather Company and its insurance carrier, Insurance 
 
            Company of North America, both as defendants.  Claimant has 
 
            alleged that she sustained a work-related injury on July 20, 
 
            1990.  
 
            
 
                 The evidence in this case consists of testimony from 
 
            the claimant; and, joint exhibits 1-14.  The case came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on June 2, 1993 at Davenport, Iowa.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on July 20, 
 
            1990 which arose out of and in the course of her employment; 
 
            and
 
            
 
                 2.  Whether claimant is entitled to temporary 
 
            disability benefits or permanent partial disability 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Elke Steahr was born in Germany on April 26, 
 
            1940.  At the time of the hearing, she was 53 years of age.  
 
            She is married, and has one grown child who is 32 years old.
 
            
 
                 Claimant has limited formal education, but completed 
 
            the seventh grade while in Germany, quitting school at an 
 
            early age.  She described her course work as general 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            studies, and she did not attend college.
 
            
 
                 Mrs. Steahr began working once she quit school, and her 
 
            first job in Germany was with a paper bag manufacturer.  She 
 
            worked on the production line emptying and mounting machines 
 
            and packing the bags. 
 
            
 
                 She moved to the United States, specifically to North 
 
            Carolina, in 1963.  When she first arrived in the States, 
 
            she could not speak any English, but started watching 
 
            television, and learned English from soap operas.  Today, 
 
            claimant can read some English, but is able to write only 
 
            German.  She relies upon her husband to write things in 
 
            English.  
 
            
 
                 Claimant's first job in the States was ironing men's 
 
            shirts for a laundry service located in Muscatine, Iowa.  
 
            This position required some twisting and bending movements, 
 
            but no lifting.  
 
            
 
                 Next, Mrs. Steahr worked for Thatcher Glass and 
 
            Plastics, a company which manufactured plastic tubes for 
 
            Avon.  Claimant's position involved removing the empty tubes 
 
            from the machines and packing them for shipment.  The 
 
            products were not heavy as the items weighed two or three 
 
            pounds, but the shipping boxes weighed much more.  She was 
 
            required to stand to perform this job, and quit when she was 
 
            injured by a box that fell on her head.
 
            
 
                 Claimant returned to the laundry service in Muscatine 
 
            for a short time, and then secured employment with the Heinz 
 
            plant where she "poked pickles and vegetables," deboned 
 
            meats and sorted tomatoes.  This position required her to 
 
            stand all day, and perform an extensive amount of twisting 
 
            and bending.  Most of the heavy lifting was done by the men 
 
            at the plant.  She worked at the plant for three years, and 
 
            eventually moved to Maquoketa, Iowa, where she has lived for 
 
            the past 17 years.  
 
            
 
                 Claimant worked for a short time at the hospital in 
 
            Maquoketa, and then began working for Wady Welding.  Wady's, 
 
            now defunct, manufactured and built steel baskets used by 
 
            crews in road construction.  Claimant performed labor 
 
            intensive activities at Wady's, including welding, cutting 
 
            steel, sawing steel bars and running a forklift.  She 
 
            sustained a work-related injury, and was fired when she went 
 
            to see a physician about her injuries.  Later, she was 
 
            rehired by the company.  Claimant testified that she fully 
 
            recovered from the injury sustained at Wady's.
 
            
 
                 After a period of unemployment lasting two or three 
 
            years, Mrs. Steahr's next job was with the defendant in the 
 
            case, Pacific Coast Feather Company, a company which 
 
            manufactures bedding.  Initially, claimant made pillows, as 
 
            she filled the cases while they were on the pillow machine, 
 
            and then took the stuffed products off of the bats.  This 
 
            position required standing, stooping, bending and twisting 
 
            activities.  After three months, claimant was placed on a 
 
            job making sheets used for waterbeds.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Next, claimant became a quilter for the employer, a job 
 
            she began sometime in 1983.  As a quilter, her job duties 
 
            included operating a scroller machine that made different 
 
            sizes and types of comforters and other bedding.  The steel 
 
            tables and aluminum frames used needed to be taken apart and 
 
            adjusted to accommodate the size of bedding being made, 
 
            twin, double, queen or king.  The tables used were very 
 
            heavy, and the frames were quite bulky.  Once the tables and 
 
            frames were adjusted and set to the proper size, claimant 
 
            would stretch the fabric over the frame and prepare it for 
 
            the stitching.  Some of the work required her to crawl under 
 
            the table to obtain the necessary settings.  Once the 
 
            machines were set properly, the sewing machines would stitch 
 
            the patterns on the top portion of the bedding, and 
 
            hydraulic arms would move the frames down the table.  At the 
 
            time of her injury, she was earning $4.75 per hour, with a 
 
            $.20 increase for working second shift.    
 
            
 
                 In 1985, claimant underwent a laminectomy at the L4-5 
 
            level.  She was off of work for approximately three months, 
 
            but she returned to her position as a quilter on the 
 
            scrolling machine.  She indicated that from 1985 until July 
 
            20, 1990, she did not encounter any difficulties performing 
 
            her job duties, and did not miss any work. 
 
            
 
                 On July 20, 1990, claimant was working on comforters 
 
            which were filled with feathers.  Her quota was to complete 
 
            37 comforters in one hour, but claimant's machine was in 
 
            very bad condition and was not working properly.  
 
            Apparently, the hydraulic component was ineffective and 
 
            claimant was forced to manually turn the frame in order for 
 
            the comforters to be sewn correctly.  This required her to 
 
            push and pull on the frame, and in four hours, claimant had 
 
            not yet completed one comforter.  
 
            
 
                 At some point during her evening shift, and while 
 
            claimant was "yanking" the frame, she slipped, fell 
 
            backwards and hit her lower back and head on a pole which 
 
            was located close or within her work station.  She told her 
 
            supervisor what had happened, but was told to return to her 
 
            machine.  Claimant continued to push, pull and "yank" on the 
 
            machine in order to complete her work, and finished her 
 
            Friday night shift. 
 
            
 
                 When she arrived at her home, she continued to feel 
 
            pain in her back.  Her husband told her to take a bath, 
 
            which claimant did, hoping that it would relieve her pain.  
 
            She continued to feel pain throughout the weekend, and on 
 
            Monday called her supervisor, Robin and told her she was 
 
            going to see a physician, Raymond Hamilton, D.O., at Medical 
 
            Associates of Maquoketa, P.C.  The initial report states 
 
            that claimant was complaining of pain in her cervical spine, 
 
            shoulder and low back.  An examination revealed that the 
 
            range of motion in her neck was normal, but noted tenderness 
 
            in both the cervical and lumbar areas of the spine.  
 
            Straight leg raising tests were negative.  She was given 
 
            Motrin, and taken off of work.  She was to return to Dr. 
 
            Hamilton in two days.  (Joint Exhibit 3, pp. 1-2; 19).
 
            
 
                 On July 25, 1990, claimant returned to the clinic and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            met with John K. Meyer, D.O., who diagnosed an acute dorsal 
 
            and cervical myositis.  He administered an injection, 
 
            prescribed propoxyphene for pain and kept claimant off of 
 
            work.  (Jt. Ex. 1, pp. 3, 19).
 
            
 
                 Claimant returned to Dr. Meyers on several occasions 
 
            during July of 1990.  She continued to complain of pain in 
 
            the upper and midback, and limited range of motion in the 
 
            neck.  He detected muscle spasms in the cervical and dorsal 
 
            spine, and continued to prescribe analgesic and 
 
            anti-inflammatory medications.   He also diagnosed 
 
            thrombophlebitis in the right lower leg, and claimant was 
 
            eventually referred to Byron Rovine, M.D., for a 
 
            neurological evaluation.   (Jt. Ex. 3, pp. 4-6; 19-21).
 
            
 
                 Dr. Rovine's report is dated August 6, 1990.  He was 
 
            the surgeon who had performed the laminectomy in 1985, and 
 
            after a review of her history and examination, Dr. Rovine 
 
            believed claimant was suffering from a severe muscle strain 
 
            involving the paravertebral muscles in the neck and upper 
 
            back.  He suspected a substrate of degenerative arthritis of 
 
            the cervical and thoracic spine as well.  He recommended 
 
            continued rest, analgesics and Valium for muscle relaxation.  
 
            He also recommended additional x-rays, which were taken at 
 
            the Jackson County Public Hospital.  The x-ray report 
 
            concludes that claimant had a normal cervical spine, and 
 
            generalized osteoporosis and spurring in the thoracic spine.  
 
            There was no evidence of an acute injury.  (Jt. Ex. 4, pp. 
 
            1-2; Jt. Ex. 5, p. 1).  
 
            
 
                 Claimant returned to Dr. Hamilton on August 10, 1990.  
 
            After an examination, he noted dorsal and cervical syositis, 
 
            improvement of the thrombophlebitis of the right leg, and 
 
            referred claimant to an orthopedist, John Hoffman, M.D.  His 
 
            examination revealed a popliteal cyst, with tenderness and 
 
            swelling about the knee.   He reviewed the x-rays, and sent 
 
            claimant for an MRI to better define the pathology of 
 
            claimant's problem.  The MRI of the right knee showed an 
 
            extensive horizontal tear of the lateral meniscus and 
 
            probable thrombosis of the popliteal vein.  (Jt. Ex. 6, p. 
 
            1; Jt. Ex. 5, p. 4; Jt. Ex. 7).  
 
            
 
                 Claimant returned to Dr. Hoffman on September 6, 1990, 
 
            and underwent a right knee arthroscopy, meniscectomy and 
 
            chondroplasty on September 12, 1990.  (Jt. Ex. 9).  
 
            Afterwards, she was sent to physical therapy for straight 
 
            leg raising and quad sitting exercises.  She was to return 
 
            for a follow-up examination in two weeks.   (Jt. Ex. 6, pp. 
 
            2-3; Jt. Ex. 3, p. 12).  After several other follow-up 
 
            examinations, Dr. Hoffman, in April of 1991, released 
 
            claimant from his care, and assigned a 10 percent permanent 
 
            partial impairment of the lower extremity due to the 
 
            surgery, loss of motion and decrease in "quad bulk."  (Jt. 
 
            Ex. 6, pp. 4-7).
 
            
 
                 It should be noted that during August, September and 
 
            October  of 1990, in addition to receiving treatment from 
 
            Dr. Hoffman, claimant was also visiting various physicians 
 
            at the Maquoketa clinic for aches and pains in her back, 
 
            right shoulder, right knee and other ailments, such as 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            stomach aches and chest pains.  (Jt. Ex. 3, pp. 11-15; pp. 
 
            22-24).  On September 26, 1990, claimant underwent a right 
 
            leg venogram, but no thrombi or obstructive diseases were 
 
            noted.  Several days later, claimant underwent an upper G.I. 
 
            examination due to nausea.  (Jt. Ex. 5, pp. 6-7).
 
            
 
                 Dr. Rovine reevaluated claimant on October 26, 1990.  
 
            After his examination, which showed no evidence of muscular 
 
            weakness of sensory deficit, he believed that claimant was 
 
            suffering from musculature pain.  He referred her to 
 
            Fareedudin Ahmed, M.D., a physiatrist.  (Jt. Ex. 3, p. 15, 
 
            p. 24, pp. 26a-27; Jt. Ex. 4, pp. 3-3a).  His first 
 
            consultation with claimant was on October 30, 1990, and 
 
            after an examination, he believed claimant sustained a 
 
            paraspinal muscle strain in the neck and mid thoracic 
 
            region.  He recommended physical therapy three times per 
 
            week at Mercy Hospital.  (Jt. Ex. 10, pp. 1-7).
 
            
 
                 She was evaluated at the hospital in November of 1990.  
 
            Objective findings included some limited range of motion in 
 
            her cervical spin, tenderness and trigger points in the left 
 
            upper trapezius muscle, as well as muscle spasms throughout 
 
            the mid thoracic area.  While the undersigned in unable to 
 
            locate the discharge notes, it is shown by the evidence that 
 
            claimant underwent a three-four month physical therapy 
 
            program.  Final notes from the hospital indicate that 
 
            claimant underwent an EMG of the lower extremities, the 
 
            results of which appear to be within normal limits.  Final 
 
            notations from the therapist show that claimant was able to 
 
            tolerate occasional lifting of 40 pounds, and that her 
 
            physical condition was improving.  Apparently, she was to 
 
            return to work at the end of February.  (Jt. Ex. 2, pp. 3-9; 
 
            Jt. Ex. 10, pp. 10-11).  
 
            
 
                 Claimant returned to the clinic to see Dr. Meyer on 
 
            April 4, 1991.  She was complaining of pain in her back and 
 
            down her arms and fingers.  Her right hand felt numb.  
 
            Claimant was also complaining of pain in her right leg.  Dr. 
 
            Meyer still believed that claimant had a musculoskeletal 
 
            problem and was unable to offer any relief.  He suggested 
 
            she return to Dr. Rovine or get a second opinion from the 
 
            University of Iowa or Mayo Clinic.  Dr. Meyer also states 
 
            that he was unable to objectively reproduce or define 
 
            claimant's complaints of pain, and he wondered whether all 
 
            of the complaints were due to the work injury.  (Jt. Ex. 3,     
 
            p. 25).
 
            
 
                 According to Dr. Ahmed's records, claimant was finally 
 
            released to return to work in March of 1991, but after three 
 
            or four hours at work, claimant left because she was in a 
 
            great amount of pain.  His last appointment with claimant 
 
            was on April 12, 1991, and he states in his notes that after 
 
            claimant's rigorous and extensive physical therapy program, 
 
            she had almost completely, yet after all the work, she 
 
            returned to him with all of her original complaints.  He 
 
            advised an alternate occupation, and referred claimant to a 
 
            Gerald Hale, M.D., for an epidural block used for pain 
 
            management.  Eventually, claimant cancelled this 
 
            appointment.  (Jt. Ex. 10, p. 12).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 On April 30, 1991, at the request of Intracorp, J. R.. 
 
            Lee, M.D., a physician at the Franciscan Medical Center, in 
 
            Rock Island, Illinois, evaluated claimant.  He reviewed her 
 
            history and medical records, and conducted a physical 
 
            examination.  Dr. Lee noted tenderness in the dorsal and 
 
            lumbar area, with restricted range of motion.  Additional 
 
            x-rays revealed degenerative disc disease at the L5-S1 
 
            level, with some traction spur at the L3-4 level.  He 
 
            diagnosed thoracic arthritis, degenerative disc disease at 
 
            the L5-S1 level of the lumbar spine, dorsal and lumbar spine 
 
            strain and preexisting arthritis at the dorsal and lumbar 
 
            areas of the spine.  He believed that the back strain was 
 
            most likely a provoking factor, with the arthritis a 
 
            preexisting condition.  He recommended a work hardening 
 
            program to evaluate her residual function.  (Jt. Ex. 11, pp. 
 
            1-3).
 
            
 
                 Finally, Dr. Ahmed indicates in a report dated May 24, 
 
            1991, that claimant had achieved maximum benefits from the 
 
            rehabilitative services, and that physically, there was no 
 
            apparent limitation to the performance of her job.  His 
 
            final diagnosis was degenerative arthritis of the thoraco 
 
            lumbar spine with periodic strain of the thoraco lumbar 
 
            paraspinals.  Based on the AMA Guides, there was no 
 
            impairment rating to correlate with this diagnosis.  (Jt. 
 
            Ex. 10, p. 13).  
 
            
 
                 In January of 1992, Dr. Ahmed was called upon by the 
 
            Disability Determination Services Bureau to render an 
 
            opinion about claimant's condition.  He offered that he had 
 
            not seen claimant since April 12, 1991, and that during his 
 
            examination, he was unable to detect any clinical findings 
 
            that would substantiate her complaints of physical 
 
            discomfort.  (Jt. Ex. 10, p. 14).
 
            
 
                 In June of 1992, Dr. Meyer reviewed claimant's medical 
 
            records, and recalled his own past treatment rendered to 
 
            claimant.  He agreed with Dr. Ahmed's opinion that she 
 
            suffered from degenerative arthritis of the thoracic and 
 
            lumbar spine, and occasionally suffered periodic strains of 
 
            the thoracic and lumbar spinal muscles.  These conditions 
 
            caused great pain, brought on by the type of work she had 
 
            been performing.  Dr. Meyer limited claimant's activities to 
 
            occasional lifting and carrying of no more than 20 pounds, 
 
            and occasional stooping, pushing, pulling and reaching 
 
            overhead.  He believed he was not qualified to assign a 
 
            percentage of impairment.  (Jt. Ex. 3, p. 26).
 
            
 
                 In June of 1992, claimant underwent a functional 
 
            capacity evaluation at the Spine Diagnostic and Treatment 
 
            Center at the University of Iowa Hospitals and Clinics in 
 
            Iowa City, Iowa.  It is noted that she had undergone testing 
 
            in April of 1992 at the University of Iowa as well.  She was 
 
            evaluated by various members of the spine team, including 
 
            Karen Drake and Deb Parrott, physical therapists; Hutha 
 
            Sayre, a  clinical coordinator; and, Tom Lanes, a vocational 
 
            consultant.  The overall evaluation indicates that claimant 
 
            was self-limiting and showed severe pain behavior.  Various 
 
            test results showed that claimant's current physical 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conditioning and endurance levels were weak, and she would 
 
            be suitable to perform only sedentary-light work tasks.  The 
 
            team recommended that claimant perform daily light exercise 
 
            program, take personal responsibility for a recovery, and 
 
            "grasp the concept of hurt vs. harm, accept that your back 
 
            is solid, stable and healed and have faith in your own 
 
            ability to manage your situation.  Good recovery is 
 
            definitely possible with appropriate efforts."  (Jt. Ex. 13, 
 
            pp. 2-3).  
 
            
 
                 Some individual assessments performed at the University 
 
            of Iowa are worth mentioning.  Mr. Lanes, the vocational 
 
            rehabilitation consultant, was unable to discuss any 
 
            vocational options with claimant due to her belief that she 
 
            was unemployable.  (Jt. Ex. 13, pp. 4-5).  Ernest Found, Jr. 
 
            M.D., was of the opinion that claimant suffered from chronic 
 
            pain syndrome and multiple incongruities.  No surgical 
 
            treatment or further investigatory studies were warranted, 
 
            because claimant's physical examination was basically 
 
            normal.  (Jt. Ex. 13, pp. 12-13). 
 
            
 
                 Dr. Ahmed was deposed on September 1, 1992.  His 
 
            deposition testimony is consistent with the opinions he 
 
            expressed in his medical records.  (Jt. Ex. 12).  Dr. Ahmed 
 
            confirmed during his deposition, taken September 1, 1992, 
 
            that when claimant returned to her job with the defendant, 
 
            her physical condition became worse.  (Jt. Ex. 12, p. 25).  
 
            He again opined that claimant had a preexisting arthritic 
 
            condition that was aggravated by the work injury.  (Jt. Ex. 
 
            12, pp. 30-31).
 
            
 
                 A job analysis of the scrolling job, the job which 
 
            claimant was performing at the time of her injury was 
 
            documented by Intracorp.  It states that the worker must be 
 
            able to lift 40 to 50 pounds, carry 40 pounds three feet, 
 
            bend and reach frequently, push, pull and twist from the 
 
            waist and rotate the shoulders.  (Jt. Ex. 8, p. 5).  *
 
            
 
                 Presently, claimant finds it difficult to perform most 
 
            housework duties, getting dressed, carrying things and 
 
            sleeping.  While her hobbies include knitting, crocheting, 
 
            gardening and fishing, whenever she participates in these 
 
            activities, she feels pain.  Claimant testified that because 
 
            she did not feel ready, willing and able to work, she did 
 
            not apply for unemployment.  Currently, she works at a 
 
            thrift store, attaching prices for items and waiting on 
 
            customers.  She enjoys working at the shop, and apparently 
 
            is able to perform the majority of her work sitting down.  
 
            The shop is a nonprofit organization, and she does not earn 
 
            wages for work performed.  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on July 20, 1990 which arose out of and 
 
            in the course of her employment.  
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Defendants argue that claimant has been inconsistent 
 
            with her version as to how the injury occurred.  They offer 
 
            that none of the medical records are consistent with her 
 
            testimony, and that due to the time lapse between the injury 
 
            and claimant's first recognition of pain.  
 
            
 
                 Claimant testified that she was working on a machine 
 
            which was malfunctioning.  Apparently, the machine had not 
 
            been repaired for some time, and claimant was forced to do 
 
            manually work that was normally done by a hydraulics system 
 
            on the machine.  She indicated that during one hour, more 
 
            than 35 comforters were to have been sewn, yet in four 
 
            hours, claimant had not completed one comforter.  While the 
 
            undersigned, who also presided at the hearing, at times 
 
            found it difficult to understand the claimant, she was able 
 
            to explain how her work was completed, and how the injury 
 
            occurred.  July 20, 1990, was a Friday, and she visited the 
 
            doctor on the following Monday.  There is no evidence in the 
 
            record that indicated claimant hurt herself at home, and 
 
            given the circumstances at work, including the condition of 
 
            the machine on which claimant was working, it appears more 
 
            likely than not that claimant injured herself while on the 
 
            job.  While some of the medical records differ in the 
 
            written comments about the incident, the undersigned  
 
            believes claimant does have difficulty in expressing 
 
            herself, and is somewhat unsophisticated in her ability to 
 
            describe events.  This was certainly evident during the 
 
            hearing.  
 
            
 
                 Likewise, claimant had been working on a very regular 
 
            basis for more than five years prior to this incident.  It 
 
            appears that she was a dependable, conscientious employee 
 
            who, despite her attempts at having the machine fixed or 
 
            repaired by qualified people at the plant, continued to try 
 
            and reach her quota during the evening shift.  She displayed 
 
            much effort for $4.85 per hour.
 
            
 
                 This is no serious argument to dispute her story, and 
 
            claimant was working during her assigned shift, performing 
 
            her duties in a manner consistent with completing her tasks 
 
            and necessitated by the work conditions. 
 
            
 
                 As a result, the record supports a finding that 
 
            claimant sustained an injury to her back on July 20, 1990 
 
            which arose out of and in the course of her employment.  
 
            
 
                 The next issue is whether there is a causal connection 
 
            between the injury and claimant's disability.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 While the parties were able to stipulate that claimant 
 
            had sustained a 10 percent impairment to the right leg in 
 
            the event a work-related injury is found, and the defendants 
 
            have paid certain amounts of healing period and permanent 
 
            partial disability benefits, there is a dispute as to 
 
            whether claimant sustained an injury to the body as a whole 
 
            due to the July 20, 1990 incident at work. If she did, of 
 
            course, an analysis of her industrial disability would be 
 
            warranted. 
 
            
 
                 Once again, the medical records are replete with 
 
            notations regarding claimant's complaints of pain and 
 
            discomfort in her back.  There is no documentation regarding 
 
            any intervening incidents to claimant's back.  Several  
 
            physicians provided the requisite opinions regarding the 
 
            causal connection between claimant's work accident and the 
 
            flare-up of her arthritic condition.  Both Drs. Ahmed and 
 
            Meyer, who were claimant's treating physicians, believed 
 
            that she had underlying arthritis that was aggravated by the 
 
            work injury.  She has been assigned permanent work 
 
            restrictions and has undergone numerous physical therapy 
 
            treatments.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Again, claimant has shown by a preponderance of the 
 
            evidence that she sustained a work-related injury to her 
 
            back on July 20, 1990.  
 
            
 
                 Therefore, an analysis of her industrial disability, or 
 
            reduction in earning capacity, is proper.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 At the time of the hearing, claimant was 53 years of 
 
            age.  She has not been gainfully employed for the past three 
 
            years.  
 
            
 
                 Her educational level is very limited, although she 
 
            appeared to be of average intellect.  Retraining, however at 
 
            this stage of her life, would probably be very difficult and 
 
            would probably yield less than desirable results.  
 
            
 
                 Claimant's transferable skills are negligible.  She has 
 
            worked in very physical labor positions in the past, and has 
 
            for the majority of her life worked for minimum wages.  She 
 
            has shown herself to be a very dependable, hard-working 
 
            employee.  
 
            
 
                 Claimant has had a difficult time accepting that she 
 
            must assume responsibility for her own well-being and 
 
            recovery.  Pills and therapy will not in and of themselves 
 
            help her, but merely provide the backdrop in order to make 
 
            her recovery plausible.  Her motivation to return to any 
 
            type of work is questionable, although she does work for the 
 
            thrift shop.  The record is devoid of any attempts by the 
 
            claimant to secure suitable work for which she will be paid.  
 
            And, while claimant is not able to return to the type of 
 
            work she once did, she should be able to find some type of 
 
            job which will accommodate her restrictions and limitations 
 
            and still pay minimum wage, which is the same wage category 
 
            she was in when she was injured. 
 
            
 
                 She has had a variety of medical treatments and 
 
            modalities.  Her effort has been questioned several times.  
 
            No physician associated with the case has been able to 
 
            assign a percentage of permanent impairment, although 
 
            functional ratings are merely one component of an industrial 
 
            disability.  The healing period has been substantial, as she 
 
            treated with Dr. Ahmed until May 24, 1991, almost one year 
 
            after the incident. 
 
            
 
                 After considering all of the factors, especially 
 
            claimant's work restrictions of limited bending, twisting, 
 
            stooping and turning; lifting of not more than 40 pounds on 
 
            a regular basis; claimant's age; the severity of the injury 
 
            to the back; her overall physical condition including the 10 
 
            percent impairment to her knee; and, claimant's motivation 
 
            to get well and return to a job, the undersigned finds she 
 
            has sustained a 25 percent industrial disability. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 That due to the impairment to her right lower 
 
            extremity, defendants shall pay claimant permanent partial 
 
            disability benefits totaling twenty-two (22) weeks at the 
 
            rate of $145.74 per week beginning April 4, 1991.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred twenty-five (125) 
 
            weeks at the rate of one hundred forty-five and 74/100 
 
            dollars ($145.74) per week commencing May 24, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa 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 the agency pursuant to 
 
            rule 343 IAC 3.1. 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven Berger
 
            Attorney at Law
 
            Kahl Bldg, Ste. 900
 
            326 Third St.
 
            Davenport, IA  52801-1280
 
            
 
            Ms. Deborah Dubik
 
            Mr. Craig A. Levien
 
            Attorneys at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, IA  52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed July 23, 1993
 
                                                Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            ELKE STEAHR,    
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                   File No. 956526
 
            PACIFIC COAST FEATHER COMPANY, 
 
                                               A R B I T R A T I O N
 
                 Employer,  
 
                                                   D E C I S I O N
 
            and        
 
                       
 
            INSURANCE COMPANY OF NORTH     
 
            AMERICA,   
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Extent of industrial disability.  Claimant awarded 25 
 
            percent based on age (53); ability to undergo retraining 
 
            (minimal); motivation (very little); and 
 
            defendant-employer's efforts to accommodate (minimal).  She 
 
            had suffered a back strain, but was saddled with permanent 
 
            work restrictions of no lifting of more than 40 pounds, and 
 
            limited bending, lifting and stooping.  All jobs she had 
 
            held in the past required these activities.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            ELKE STEAHR,    
 
                       
 
                 Claimant,                       File No. 956526
 
                       
 
            vs.        
 
                                                    N U N C
 
            PACIFIC COAST FEATHER COMPANY, 
 
                                                     P R O
 
                 Employer,  
 
                                                    T U N C
 
            and        
 
                                                   O R D E R
 
            INSURANCE COMPANY OF NORTH     
 
            AMERICA,   
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            The undersigned filed an arbitration decision for this case 
 
            on July 23, 1993.
 
            Due to a scriveners error, the order was incorrect, and is 
 
            modified to read as follows:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred twenty-five (125) 
 
            weeks at the rate of one hundred forty-five and 74/100 
 
            dollars ($145.74) per week commencing May 24, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa 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 the agency pursuant to 
 
            rule 343 IAC 3.1. 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven Berger
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            Kahl Bldg, Ste. 900
 
            326 Third St.
 
            Davenport, IA  52801-1280
 
            
 
            Ms. Deborah Dubik
 
            Mr. Craig A. Levien
 
            Attorneys at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, IA  52801-1596
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SCOTT COOPS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 956627
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Scott 
 
            Coops, claimant, against Hy-Vee, employer, and Employers 
 
            Mutual Companies, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on August 3, 1990.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on November 15, 1993, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying was Sheila Sadler.  
 
            The documentary evidence identified in the record consists 
 
            of exhibits 1 through 9 and claimant's exhibits I through V.  
 
            
 
                                      ISSUE
 
            
 
                 The parties have presented the following issue for 
 
            resolution:
 
            
 
                 Whether claimant's injury on August 3, 1990, has caused 
 
            permanent disability and, if so, the extent thereof.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on December 23, 1964, and completed 
 
            the twelfth grade of school.  He commenced working for 
 
            employer on July 16, 1990, and was terminated on October 26, 
 
            1990, when he failed to report to work after being released 
 
            to do so by David Berg, D.O., his treating physician.  Prior 
 
            to commencing work for employer, claimant worked as a 
 
            bicycle mechanic, bicycle sales person, small cabinet 
 
            carpenter and machinist.  After his dis-charge in October 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1990, claimant worked full time as a sales clerk and 
 
            part-time as a restaurant order taker and bicycle mechanic.  
 
            Since September 1992, claimant has been enrolled full time 
 
            at Hawkeye Community College in the photography program.  He 
 
            receives financial assistance in the form of room, board and 
 
            tuition while attending school.  
 
            
 
                 The parties do not dispute that claimant was injured on 
 
            August 3, 1990, while performing his job as a part-time 
 
            order selector in employer's grocery warehouse.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant reported to the Chariton Medical Center on August 
 
            3, 1990, with complaints of low back pain.  He saw Lawrence 
 
            Rasmussen, M.D., who referred him for x-rays at Lucas County 
 
            Health Center on August 7, 1990.  The x-rays revealed a 
 
            grade I spondylolisthesis at L-5 upon S-1.  Dr. Rasmussen 
 
            authorized three days of physical therapy at the hospital.  
 
            He diagnosed claimant lumbosacral strain with preexisting 
 
            spondylolisthesis.  A referral was made to Dr. Berg (ex. A-4 
 
            & 6).  
 
            
 
                 Dr. Berg initially saw claimant on August 14, 1990.  On 
 
            examination he reported some tenderness over the L5-S1 disc 
 
            space with very minor soft tissue tenderness surrounding the 
 
            area.  Passive and active range of motion of the spine, both 
 
            sitting and standing, was normal.  There was no spasm or 
 
            trigger points noted.  Straight leg raising was negative.  
 
            He was able to easily walk on his heals and toes.  There was 
 
            no neuromotor or vascular deficits noted.  At the time, Dr. 
 
            Berg indicated that claimant had a high risk of recurrence 
 
            of back injury due to the bony changes noted on x-ray and 
 
            advised him to seek a different type of job, specifically 
 
            one not requiring heavy lifting (ex. A-5).
 
            
 
                 After failing to keep an August 28, 1990 appointment 
 
            with Dr. Berg, claimant next saw him on September 6, 1990.  
 
            This visit was after claimant had started a stabilization 
 
            physical therapy program with Thomas Bower and Thomas 
 
            Wheatley.  Dr. Berg kept claimant off work pending 
 
            completion of physical therapy (ex. A-5 & 7).
 
            
 
                 On October 3, 1990, claimant commenced a work hardening 
 
            program with Wheatley and Bower.  On October 26, 1990, 
 
            claimant reported to Dr. Berg.  He stated that he was not 
 
            working or taking any medications.  He appeared vastly 
 
            improved over the past two weeks.  He indicated that he was 
 
            looking for a different job and had some prospects.  On 
 
            examination, he had some tenderness in his low back but no 
 
            evidence of radiculopathy or neuromotor or vascular 
 
            deficits.  He had excellent range of motion.  Claimant saw 
 
            Mr. Bower the same day and he told Dr. Berg that claimant 
 
            was capable of lifting and carrying 50 pounds without 
 
            difficulty.  At this time, Dr. Berg and Bower and Wheatley 
 
            discharged claimant from their care (ex. A-5, page 26; and 
 
            7, page 37).
 
            
 
                 Claimant saw Dr. Berg on November 26, 1990.  He stated 
 
            he has gotten worse since his last visit.  However, he 
 
            denied any reinjury.  On examination of the low back there 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was no tenderness or deformity present.  There was no 
 
            tenderness over the disc spaces.  He had normal passive and 
 
            active range of motion of the lumbar spine.  Straight leg 
 
            raising was negative.  A notation indicates that he was 
 
            scheduled for a CT scan of the lumbosacral spine (ex. A-5, 
 
            p. 25).
 
            
 
                 Claimant returned to Dr. Berg on December 6, 1990.  
 
            There is no indication that a CT scan was ever performed.  
 
            At this time, claimant indicated that he as moving back to 
 
            California and was advised to find a job which did not 
 
            require significant heavy repetitive lifting (ex. A-5, p. 
 
            24).
 
            
 
                 Claimant testified that he returned to California in 
 
            late 1990.  He obtained a full-time job as a sales clerk in 
 
            early 1991.  He worked 40 hours per week and earned $350 per 
 
            week.  After two months, the store closed and he obtained a 
 
            part-time job as a restaurant order taker and in his off 
 
            hours worked as a bicycle mechanic.  After one year in 
 
            California, he returned to the state of Iowa in December 
 
            1991.  He testified that while in California he received no 
 
            medical treatment for his back condition.  In January 1992 
 
            he again procured employment as a restaurant order taker and 
 
            also worked as a telephone salesman.  As previously stated 
 
            in September 1992 he enrolled at Hawkeye Community College.
 
            
 
                 While in California, claimant was evaluated by Gerald 
 
            P. Keane, M.D.  This evaluation was done on July 8, 1991.  
 
            Based on this examination, Dr. Keane recommended diagnostic 
 
            evaluation specifically a CT scan and lumbar 
 
            flexion/extension x-rays (ex. A-8).
 
            
 
                 Claimant testified that when he returned to Iowa, he 
 
            sought, on his own, an evaluation from Arnold E. Delbridge, 
 
            M.D.  This occurred on November 17, 1992.  X-rays of the 
 
            lumbosacral spine were taken and revealed grade I 
 
            spondylolisthesis of L5 on S1 and spina bifida of L5.  Dr. 
 
            Delbridge imposed physical limitations and restrictions (ex. 
 
            A-2).
 
            
 
                 Defendants referred claimant to Daniel J. McGuire, 
 
            M.D., for evaluation on April 14, 1993.  On examination, he 
 
            appeared in no acute distress.  His shoulders and pelvis 
 
            were level while in a standing position.  No spasms or 
 
            deformities were noted.  No scoliosis was noted.  In fact, 
 
            he had no complaints of pain during the course of 
 
            examination.  He was able to forward flex 70 degrees, extend 
 
            20 degrees and rotate 50 degrees.  Neurologically, he was 
 
            intact to sensation in the lower extremity and intact to 
 
            reflexes and motors also.  In a supine position, lifting his 
 
            left leg up to 60 degrees caused some lower back pain but no 
 
            radicular complaints.  X-rays (flexion/extension views) 
 
            showed no instability.  The pars defect at L5 was evident.  
 
            It was Dr. McGuire's assessment that claimant's atypical 
 
            radicular complaints were very difficult to relate to the 
 
            radiographic findings of spondylolisthesis (ex. A-2).
 
            
 
                 On August 31, 1993, Dr. Berg responded to a letter from 
 
            defendants' attorney.  He stated that "I do concur with Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            McGuire's evaluation and agree that Mr. Coops [sic] back 
 
            pain was a temporary aggravation of a preexisting condition, 
 
            namely Grade I spondylolisthesis in the lumbar spine."  He 
 
            also stated that he returned claimant to work on October 26, 
 
            1990 (ex. A-5, p. 22).
 
            
 
                 On September 1, 1993, Dr. McGuire indicated that the 
 
            restrictions imposed by Dr. Delbridge were excessive.  In 
 
            any event, he felt that such restrictions were not a result 
 
            of the work incident but a result of his examination and 
 
            review of some x-rays.  He indicated that the work incident 
 
            resulted in no permanent impairment as the findings on the 
 
            x-rays predated the incident (ex. A-3, pp. 13-14).
 
            
 
                 On September 14, 1993, Dr. Berg again wrote to 
 
            defendants' attorney and stated "...I agree that I did tell 
 
            Mr. Coops that he was to return to work on October 26, 1990.  
 
            On that date I did give him a written statement outlining 
 
            restrictions of no lifting over 40 pounds, no pushing or 
 
            pulling over 50 pounds, and no work requiring repetitive 
 
            bending."  (ex. A-5, p. 20).
 
            
 
                 In that same letter dated September 14, 1990, Dr. Berg 
 
            indicated that he was enclosing a copy of the restriction 
 
            sheet that he gave to Mr. Coops.  However, there is a 
 
            dispute between the parties as to whether exhibit A-5, page 
 
            21 is an exact replica of what Dr. Berg gave claimant.  
 
            Claimant contends that page 21 was altered and does not 
 
            reflect Dr. Berg's restrictions or return to work date.  
 
            Claimant then introduced a pink slip which was given to him 
 
            on October 26, 1990.  This slip clearly indicates that 
 
            claimant was released to return to work on October 26 with 
 
            restricted lifting of no more than 40 pounds and restricted 
 
            pushing or pulling of no more than 50 pounds, as well as a 
 
            prohibition on work requiring repetitive bending (ex. I).  
 
            The pink slip appears to correlate exactly with exhibit A-5, 
 
            page 21.  Claimant's protestation that he was uninformed 
 
            regarding a release to return to work by Dr. Berg is not 
 
            credible.  
 
            
 
                 The record indicates that claimant was terminated by 
 
            employer due to a failure to return to work after he was 
 
            released to do so on October 26, 1990.  Claimant testified 
 
            that he called employer on Monday, October 29, 1990, 
 
            inquiring as to the whereabouts of his workers' compensation 
 
            check.  He stated that he spoke with Sheila Sadler and was 
 
            told that he was fired for abandoning his job.  Sheila 
 
            Sadler testified that claimant called on Friday, November 2, 
 
            1990.  She stated that she spoke with him but made no 
 
            mention that he was fired.  On November 4, 1990, a letter 
 
            was sent to claimant regarding his termination.  Ms. Sadler 
 
            explained that employer has a absentee policy which she 
 
            developed stating that after an injured worked is released 
 
            to return to work, contact must be made with employer within 
 
            three days to discuss job prospects in conformity with 
 
            medical restrictions.  She stated that since claimant did 
 
            not contact employer until November 2 he was terminated for 
 
            violating the policy.  Since there is no written record of 
 
            claimant's communication with employer either on October 29 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            or November 2, 1990, the undersigned must determine who is 
 
            telling the truth in this regard.  Since the record 
 
            indicates that claimant told Dr. Berg on October 26, 1990, 
 
            that he was looking for other work, it appears that he had 
 
            no intention of ever returning to Hy-Vee.  It appears that 
 
            claimant's contact with employer concerned the whereabouts 
 
            of his check, rather than prospective employment.  
 
            Accordingly, it is determined that claimant contacted 
 
            employer on October 29 rather than November 2.  
 
            
 
                 Claimant was referred by his attorney to Karen Kienker, 
 
            M.D., for evaluation on September 17, 1993.  After reviewing 
 
            claimant's medical history and noting his complaints, Dr. 
 
            Kienker conducted a physical examination.  She concluded 
 
            that claimant has a grade I spondyloysis at L5-S1, with 
 
            chronic back pain and possible left L5 radiculopathy.  She 
 
            gave him a 15 percent impairment of the whole person and a 
 
            40-pound lifting restriction.  She stated without 
 
            explanation, that his current back pain is the result of his 
 
            August 3, 1990 work injury (ex. A-1).  
 
            
 
                 After reviewing Dr. Kienker's report, Dr. McGuire 
 
            reported on October 29, 1993, that the decreased range of 
 
            motion which claimant exhibited on September 17, 1993, 
 
            cannot be related to a work incident of August 1990 in view 
 
            of his activities during the intervening three years.  He 
 
            again reiterated that the changes of spondylolisthesis 
 
            predate the work incident and the restrictions imposed by 
 
            Dr. Kienker are the result of the spondylolisthesis and not 
 
            the result of the work incident.  He reaffirmed his prior 
 
            assessment that the work incident did not cause the 
 
            spondylolisthesis (ex. A-3).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of August 3, 1990, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The issue to be determined by the undersigned is 
 
            whether claimant's current symptoms and physical 
 
            restrictions are causally related the injury suffered on 
 
            August 3, 1990.  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that the greater weight of 
 
            the evidence supports the finding that claimant's current 
 
            low back pain and other symptoms are due to a condition 
 
            which preexisted his work injury on August 3, 1990, namely 
 
            grade I spondylolisthesis in the lumbar spine.  This opinion 
 
            was rendered by Dr. Berg, claimant's treating physician and 
 
            Dr. McGuire, an orthopedic specialist.  Contrary opinion was 
 
            rendered by Dr. Kienker, an evaluating physician, on 
 
            September 17, 1993, more than three years after the work 
 
            injury.  Dr. Berg opined on August 31, 1993, that claimant's 
 
            back pain was a temporary aggravation of a preexisting 
 
            condition.  He gave claimant no permanent impairment rating.  
 
            The physical restrictions he imposed were due to his grade I 
 
            spondylolisthesis.  This assessment is consistent with the 
 
            opinion rendered by the spine specialist on April 14, 1993, 
 
            when he stated that claimant's atypical radicular complaints 
 
            are very difficult to relate to the radiographic findings of 
 
            spondylolisthesis.  The changes of spondylolisthesis predate 
 
            claimant's work incident.  Dr. McGuire emphatically states 
 
            that claimant's physical restrictions are the result of the 
 
            spondylolisthesis and not the result of the work incident.  
 
            The opinions rendered by Dr. Berg and Dr. McGuire are 
 
            entitled to more significant weight and consideration that 
 
            the opinion rendered by Dr. Kienker.
 
            
 
                 Claimant was paid workers' compensation benefits during 
 
            the time he was off work from Hy-Vee until the time he was 
 
            released to return to work by Dr. Berg.  Claimant is not 
 
            entitled to any other workers' compensation benefits as a 
 
            result of this claim.  The determination is dispositive of 
 
            the entire case and further analysis is unnecessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Ave STE 200
 
            Des Moines, Iowa  50309
 
            
 
            Mr. E.J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                           51803
 
                                           Filed December 7, 1993
 
                                           Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SCOTT COOPS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 956627
 
            HY-VEE FOOD STORES, INC.,     
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            Accordingly to claimant's treating physician, on August 3, 
 
            1990, he experienced back pain and temporarily aggravated a 
 
            preexisting condition, namely, Grade I spondylolisthesis in 
 
            the lumbar spine.  Claimant's current symptoms and the 
 
            disability on which he now bases his claim are not the 
 
            result of his work incident but rather the result of his 
 
            preexisting condition which predate the work incident.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN A. PENDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 956773
 
                                          :
 
            SIVYER STEEL CORP.,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by John A. 
 
            Pender against his former employer, Sivyer Steel 
 
            Corporation, and its insurance carrier, Employers Mutual 
 
            Companies, based upon an injury that occurred on November 
 
            20, 1989.  Pender seeks compensation for healing period, 
 
            permanent partial disability (if the same can presently be 
 
            determined), and payment of medical expenses.  The issues to 
 
            be determined include whether Pender sustained an injury 
 
            which arose out of and in the course of his employment with 
 
            the employer and causation.
 
            
 
                 The case was heard at Davenport, Iowa, on October 9, 
 
            1991.  The evidence consists of testimony from John A. 
 
            Pender, Lance Frye and Jack Armstrong.  The record also 
 
            contains joint exhibits A through I and claimant's exhibits 
 
            1 through 3).
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 John A. Pender is a 37-year-old man who injured his 
 
            back on November 20, 1989, while lifting castings as part of 
 
            the duties of his employment at Sivyer Steel Corporation.  
 
            He was seen by C. R. Fesenmeyer, M.D., on that date and was 
 
            taken off work.  He did not return for a follow-up visit 
 
            with Dr. Fesenmeyer but resumed working for the employer in 
 
            approximately two days.
 
            
 
                 Pender's employment with Sivyer Steel commenced in the 
 
            spring of 1989.  During much of 1989, he treated with 
 
            Mitchell R. Mally, D.C., for problems involving his hands 
 
            (joint exhibit D, pages 3-8).  An office note dated November 
 
            22, 1989, makes reference to Pender having injured his back 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at work.  No further comment regarding Pender's back appears 
 
            until an undeterminable date in 1990.  The entries show some 
 
            improvement and worsening and then eventual improvement of 
 
            his back.  At one point, reference is made to questioning 
 
            whether his back was sore because of his waterbed.  The last 
 
            entries from 1990 do not indicate any back complaints (joint 
 
            exhibit D, pages 1 and 2).  A record which appears to be 
 
            dated January 30, 1990, shows a history of low back pain 
 
            with the condition having begun approximately one week 
 
            before Thanksgiving 1989.  It goes on to state "woke up with 
 
            pain" and is followed by a statement which indicates that he 
 
            saw the company physician on November 20, 1989.  These 
 
            entries could be interpreted as stating that the back pain 
 
            was something which Pender awoke with on either November 20, 
 
            1989 or January 28, 1990.  At the top of the page, it is 
 
            indicated that the symptoms were present on November 20, 
 
            1989, left, and then returned on January 28, 1990 (joint 
 
            exhibit D, page 10).
 
            
 
                 The employer's notes show an ongoing course of 
 
            treatment for Pender's hands and wrists.  He took a 
 
            voluntary layoff April 27, 1990, apparently due to his hand 
 
            problems (joint exhibit F, page 14).  The records show him 
 
            to have had back complaints during January and February of 
 
            1990 (joint exhibit F, pages 15 and 16).  The records 
 
            indicate that he was released to perform regular work 
 
            starting February 26, 1990.  Subsequent to that date, the 
 
            employer's notes do not show any back complaints (joint 
 
            exhibit F, page 15).
 
            
 
                 In August 1990, Pender sought treatment from William D. 
 
            Reinwein, M.D.  At that time, Pender gave a history of 
 
            having back pain which started November 20, 1989, and had 
 
            been ongoing since that date.  The history indicates that he 
 
            left work in April due to back symptoms (joint exhibit C, 
 
            page 1).  At hearing, Pender related that, when he returned 
 
            to work following Thanksgiving of 1989, he resumed regular 
 
            duty and worked all through December 1989 and most of 
 
            January 1990 but awoke on or about January 30, 1990, with 
 
            the exact same symptoms as he had experienced on November 
 
            20, 1989.  He related that, following Thanksgiving of 1989, 
 
            his back always bothered him on most days and that he had a 
 
            sharp pain shoot down his right leg.  He stated that, on 
 
            almost every day, he went to the company nurse and asked for 
 
            pain medications.
 
            
 
                 After drawing unemployment for six months, Pender 
 
            obtained a job with IBP.  Prior to being hired, he was 
 
            administered a physical examination which he passed (joint 
 
            exhibit G, page 7).  When applying, he denied having any 
 
            prior problems with his back or carpal tunnel syndrome 
 
            (joint exhibit G, page 4).  He was terminated from that 
 
            employment due to his failing to call in or show up for work 
 
            (joint exhibit G, pages 14-16 and 19-21).  Pender stated at 
 
            hearing that his reason for leaving IBP was that he was 
 
            required to pick up slabs of beef and was unable to perform 
 
            that job due to his back condition.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Pender obtained employment with Seven Cities Sod 
 
            Corporation and began work shortly after being hired on 
 
            April 1, 1991.  He remained so employed until August 12, 
 
            1991, a span of more than four months.  During some of those 
 
            weeks, he worked in excess of 50 hours per week (joint 
 
            exhibit H, pages 3 and 4).  Pender worked as a laborer and 
 
            handled rolls of sod which weighed in the range of 25 
 
            pounds.  During breaks he sometimes engaged in basketball 
 
            games with his coemployees.  His supervisors at Seven Cities 
 
            Sod, Lance Frye and Jack Armstrong, did not notice any 
 
            indication of Pender having back problems during the time he 
 
            was in their employ.
 
            
 
                 Pender is a three-time convicted felon (joint exhibit 
 
            E, interrogatory number 6).  Pender's credibility in this 
 
            case is impaired by the conflicts between his testimony and 
 
            the physicians' records, the testimony from Lance Frye and 
 
            Jack Armstrong, and his three felony convictions.
 
            
 
                 Dr. Fesenmeyer, who originally treated Pender, stated 
 
            in a report dated August 27, 1990, that he was unable to 
 
            connect Pender's back complaints which were made in August 
 
            of 1990 with the November 20, 1989 injury (joint exhibit B, 
 
            pages 1 and 2).  Dr. Reinwein, who also saw claimant in 
 
            August of 1990, felt that the back complaints voiced at that 
 
            time were causally connected to the November 20, 1989 injury 
 
            (joint exhibit C, pages 1 and 2).  The difference in the 
 
            opinions expressed by the two physicians appears to hinge 
 
            upon the medical history which they were provided.  Dr. 
 
            Fesenmeyer had a medical history which showed a recovery 
 
            from the November 20, 1989 incident, while Dr. Reinwein 
 
            expressed his opinion based upon a history which included 
 
            continuing complaints commencing November 20, 1989.  The 
 
            history given to Dr. Reinwein showed pain that continued and 
 
            became radiating to the right lower extremity despite 
 
            treatment by the company physician.  That same history 
 
            indicates that Pender received chiropractic treatments which 
 
            failed to improve his symptoms and that he had not worked 
 
            since April due to those symptoms.
 
            
 
                 The result of this case hinges upon which medical 
 
            history is to be found to be correct.  The history relied 
 
            upon by Dr. Reinwein is not corroborated by the treatment 
 
            notes from Dr. Mally or notes from Dr. Fesenmeyer.  To the 
 
            contrary, the records from Dr. Fesenmeyer and Dr. Mally show 
 
            claimant to have improved with treatment and resumed 
 
            working.  When he left Sivyer Steel on April 27, 1990, it 
 
            appeared to be over a dispute concerning use of his hands.  
 
            The work which Pender subsequently performed at Seven Cities 
 
            Sod is totally inconsistent with him having a serious back 
 
            problem during the time he performed that work.  In this 
 
            case, the claimant's testimony is not sufficiently strong to 
 
            establish by a preponderance of the evidence that it is 
 
            probable that his symptoms had their onset and continued as 
 
            shown in the history relied upon by Dr. Reinwein.  The 
 
            claimant's testimony is contradicted by the records from Dr. 
 
            Fesenmeyer and Dr. Mally.  It is therefore found that the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            medical history relied upon by Dr. Fesenmeyer when 
 
            expressing his opinion in the August 27, 1990 report is 
 
            probably correct.  It is therefore found that the evidence 
 
            in this case fails to show, by a preponderance of the 
 
            evidence, that it is probable that whatever back condition 
 
            or complaint John A. Pender might currently have resulted in 
 
            any manner from the November 20, 1989 injury he sustained at 
 
            Sivyer Steel Corporation.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 20, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            20, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 John A. Pender has proven, by a preponderance of the 
 
            evidence, that he injured his back on November 20, 1989, and 
 
            that the injury arose out of and in the course of his 
 
            employment.  The evidence shows he was disabled for a period 
 
            of two days and then resumed his employment with the 
 
            employer.  Thereafter, he worked and was essentially 
 
            asymptomatic during the month of December 1989 and most of 
 
            January 1990 until waking up with back problems on or about 
 
            January 30, 1990.  He then obtained treatment and his back 
 
            problems resolved.  He resumed working on February 26, 1990, 
 
            and continued working without any record of back complaint 
 
            until leaving his employment due to a dispute over being 
 
            assigned to perform grinding.
 
            
 
                 In this case, the medical history relied upon by Dr. 
 
            Reinwein is not shown to be correct.  It must be remembered 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that the claimant has the burden of proving probability, not 
 
            mere possibility.  The employer does not have a burden of 
 
            disproving the claimant's allegations.  It is therefore 
 
            concluded that John A. Pender has failed to prove, by a 
 
            preponderance of the evidence, that any permanent disability 
 
            or the current condition of his back, whatever that may be, 
 
            was proximately caused by the November 20, 1989 injury that 
 
            he sustained while employed at Sivyer Steel Corporation.
 
            
 
                 Two days is an insufficient amount of time to warrant 
 
            any award of temporary total disability compensation under 
 
            section 85.33.  Since the injury has not been shown to have 
 
            produced any permanent disability, Pender is not entitled to 
 
            recover any compensation for permanent disability.
 
            
 
                 Pender has likewise failed to demonstrate that his 
 
            expenses incurred with Dr. Mally or Dr. Reinwein were 
 
            proximately caused by the November 20, 1989 injury.  It is 
 
            therefore concluded that he is not entitled to recover those 
 
            expenses from his employer.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            4th Floor, Rock Island Bank Bldg.
 
            P.O. Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            Mr. Jeffrey M. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30
 
                           Filed November 12, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN A. PENDER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 956773
 
                      :
 
            SIVYER STEEL CORP., :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant was a three-time convicted felon.  His testimony of 
 
            continuing symptoms following an apparently minor injury was 
 
            contradicted by the physicians' records and testimony 
 
            regarding strenuous exertion performed subsequent to that 
 
            injury.  It was held that he failed to prove that any 
 
            present back problem was proximately caused by that initial 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            
 
            VERNETTA LUTHI,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 956963
 
            LAKESHORE COUNTRY CLUB,       :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            USF & G,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Vernetta 
 
            Luthi against Lakeshore Country Club on account of an 
 
            alleged injury of October 26, 1989.  Vernetta seeks 
 
            compensation for healing period and permanent partial 
 
            disability.  Defendants deny liability and in the event that 
 
            they are held liable they seek to apportion the disability 
 
            between the alleged injury in this case and an injury that 
 
            occurred on June 15, 1988, while in the employ of this same 
 
            employer.  It is noted that defendants have voluntarily paid 
 
            37.5 weeks of compensation at the rate of $373.63 
 
            representing a 7.5 percent permanent partial disability on 
 
            account of that 1988 injury.  (exhibits 7 and 8).
 
            
 
                 The case was heard at Council Bluffs, Iowa, on January 
 
            5, 1994.  The evidence consists of testimony from Vernetta 
 
            Luthi, Hans Luthi and Paulette Freeman.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The appearance and demeanor of the witnesses was 
 
            observed as they testified and those observations have been 
 
            considered in determining their credibility.  
 
            
 
                 Vernetta Luthi is a 49-year-old woman who graduated 
 
            from high school in 1962.  She has been employed in the food 
 
            service industry since 1967.  She began as a waitress and 
 
            over the years received a series of promotions taking her 
 
            through positions such as hostess and dining room manager 
 
            for a large Holiday Inn motel in Omaha, Nebraska.  She then 
 
            became employed by the Omaha Press Club as a dining room 
 
            hostess.  She was promoted to dining room manager, then to 
 
            office manager and finally was promoted to become assistant 
 
            manager of the Omaha Press Club. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On March 1, 1988, Vernetta became manager of the 
 
            Lakeshore Country Club in Council Bluffs, Iowa.  The work of 
 
            a club manager commonly involves many hours of work and 
 
            considerable responsibility.  Vernetta was responsible for 
 
            the entire operation of the country club, other than the 
 
            golf course and pro shop.  Her duties included the kitchen, 
 
            dining room, pool, tennis court and the grounds surrounding 
 
            the clubhouse building.  
 
            
 
                 On June 15, 1988, Vernetta fell on a wet concrete floor 
 
            in the kitchen.  She entered into a course of medical care.  
 
            Her predominate treating physician was Michael J. Morrison, 
 
            M.D.  Diagnostic testing conducted on August 18, 1988, 
 
            showed no evidence of disc herniation although disc 
 
            degeneration at the L4-5 level was noted.  (ex. 3).  
 
            Approximately two months later an MRI scan again showed 
 
            degeneration at the L4-5 level with mild bulging of the disc 
 
            to the left and right.  Bulging at the L3-4 level was also 
 
            identified.  (ex. 5).  Claimant's active treatment with Dr. 
 
            Morrison ended on April 18, 1989.  In his report Dr. 
 
            Morrison states that she still had periodic pain in her 
 
            lower back with radiation into her right leg.  He assigned a 
 
            permanent impairment of 5 to 10 percent of the whole person.  
 
            (ex. 6).  In September 1989 claimant saw David W. Minard, 
 
            M.D., for her back complaints.  He treated her with 
 
            injections.  (ex. 1-3).  It is recognized that claimant and 
 
            her husband denied seeing Dr. Minard and having injections 
 
            at that time.  Their testimony in that regard is found to be 
 
            incorrect.  Particular significance is given to the fact 
 
            that the note dated November 3, 1989, indicates that she had 
 
            fallen at work and was again treated with injections at the 
 
            facet joint area.  (ex. 1-4).
 
            
 
                 It is found that Vernetta did fall and injure herself 
 
            at work on October 26, 1989, as she described at hearing.  
 
            The record shows that ever since that incident she has been 
 
            under a continuing course of medical care for her back.  
 
            (exs. 1-4 through 1-9).  An MRI scan was conducted on August 
 
            27, 1990.  It showed disc degeneration at the L3-4 and L4-5 
 
            levels of claimant's spine with a small focal protrusion on 
 
            the left at the L3 level.  When compared to the previous MRI 
 
            scan of October 1988 there was little change, with perhaps 
 
            some slight improvement.  (ex. 17).  The records show that 
 
            on September 7, 1990, Douglas J. Long, M.D., claimant's 
 
            principle treating neurosurgeon, suggested that she take a 
 
            leave of absence from work.  At that point in time Dr. 
 
            Minard had recommended surgery for Vernetta but Dr. Long 
 
            recommended additional conservative care.  As a result of 
 
            being off work, claimant's employment with Lakeshore Country 
 
            Club ended.
 
            
 
                 Claimant continued to treat conservatively until 
 
            January 1991.  On January 15, 1991, she underwent 
 
            microlumbar diskectomy at the L3-4 level of her spine.  A 
 
            bulging disc was found.  Dr. Long's notes of March 18, 1991, 
 
            stated that an obvious subannular disc fragment was found 
 
            during the surgery.  (exs. 29-33).  The notes go on to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            indicate that claimant experienced a resolution of her low 
 
            back and left leg pain following the surgery but that her 
 
            right hip pain had returned.  
 
            
 
                 At the time of hearing, claimant testified that her 
 
            right hip pain was pretty well resolved.  It is found that 
 
            the right hip pain was not a permanent part of her injury 
 
            that resulted from the fall on October 26, 1989.  It is 
 
            debatable with regard to whether or not the right hip pain 
 
            was a part of that injury though it appears that it likely 
 
            was in some manner effected.  The serious portion of the 
 
            October 26, 1989 injury was the herniated disc on the left 
 
            which was eventually treated surgically.  In making this 
 
            determination it is recognized that the 1988 MRI scan showed 
 
            essentially the same anatomical defect as was found in 1990.  
 
            
 
                 It is recognized that this finding is totally 
 
            inconsistent with the opinions of John C. Goldner, M.D.  
 
            This finding is somewhat consistent with the opinions from 
 
            Dr. Morrison found in exhibit 24 even though it also appears 
 
            as though his interpretation or understanding of the disc 
 
            abnormalities shown by the series of MRI scans is not 
 
            necessarily accurate.  This finding is consistent with the 
 
            opinions of Lonnie Mercier, M.D.  While Dr. Mercier might 
 
            not have had each and every page of records which relate to 
 
            Vernetta Luthi, there is nothing in the record of this case 
 
            which indicates that the contents of any records which were 
 
            not provided to him would have altered his opinions or 
 
            assessment of the case.  (exs. 38 and 42).  In fact, Dr. 
 
            Mercier's finding that claimant had reached maximum medical 
 
            recuperation at the time of his May 2, 1991 report is 
 
            adopted and found to be correct.  When considering the 
 
            testimony from John C. Goldner, M.D., a very significant 
 
            question arises with regard to the level or degree of 
 
            certainty that Dr. Goldner feels is necessary in order to 
 
            fall within a reasonable degree of medical certainty.  Of 
 
            particular import is the statement found at page 37 of 
 
            exhibit 61 when he states, "...there is no way that one can 
 
            be certain that absent that fall of 1989, she wouldn't have 
 
            had the same problem."  Dr. Goldner at pages 16 through 18 
 
            of his deposition appears to indicate that chronic 
 
            degenerative disc disease is the cause for the disc surgery 
 
            and that therefore the surgery was not causally related to 
 
            the fall of October 26, 1989.  Dr. Goldner's deposition does 
 
            not show that either of the attorneys ever provided him with 
 
            the legal definition regarding aggravation of a preexisting 
 
            condition.  
 
            
 
                 Dr. Long did not state that the injury caused the need 
 
            for the surgery which he performed but he was likewise 
 
            unwilling to say that it did not.  (ex. 23-25).  It must be 
 
            noted that claimant was taken off work at the recommendation 
 
            of Dr. Long, the authorized treating physician.  Dr. Long 
 
            was the physician to whom defendants directed claimant.  He 
 
            was not the physician of her choice.  It was not 
 
            unreasonable for her to follow his recommendations.  
 
            
 
                 It is therefore found that the injury of October 26, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1989, clearly was an aggravation of a preexisting condition.  
 
            It was a substantial factor in producing the medical care 
 
            which Vernetta has received, including the surgery performed 
 
            on January 15, 1991.
 
            
 
                 Defendants have previously paid Vernetta weekly 
 
            compensation for the June 15, 1988 injury.  The amount paid 
 
            voluntarily, as shown in exhibits 7 and 8, does not appear 
 
            to be unreasonable in view of the fact that she was able to 
 
            resume her employment and continue to be employed following 
 
            that earlier injury.  It does not appear as though that 
 
            injury had any substantial impact on Vernetta's earning 
 
            capacity.  It likely had a small amount commensurate with 
 
            the benefits which were voluntarily paid.  
 
            
 
                 Since the recuperation from the surgery in this case 
 
            has been completed, Vernetta's efforts to obtain employment 
 
            in her customary field of work appear to have been somewhat 
 
            lackluster.  She is clearly under employed in her current 
 
            position.  It is also recognized, however, that the 
 
            opportunities for employment in her customary field are 
 
            somewhat limited.  In the area of western Iowa and eastern 
 
            Nebraska, where claimant has resided throughout her lifetime 
 
            and customarily been employed throughout her lifetime, the 
 
            number of clubs available to be managed is relatively few.  
 
            There is likely a country club of some sort in each county 
 
            seat, though many might not have a full-time club manager.  
 
            The major hotels would be concentrated in the Omaha and 
 
            Council Bluffs area.  The business clubs with a full-time 
 
            manager would likely also be limited to only a handful in 
 
            the Omaha and Council Bluffs area.  Summarily stated, the 
 
            number of job openings for which she could apply is quite 
 
            limited.  When she applies there is likely considerable 
 
            competition from individuals who are currently employed in 
 
            such positions as well as individuals who are seeking a 
 
            higher level of responsibility.  A number of applicants are 
 
            likely from geographical areas other than the Omaha-Council 
 
            Bluffs region.  It is not unreasonable for Vernetta to 
 
            restrict her job search to the Omaha-Council Bluffs region 
 
            since, prior to this injury, she was consistently able to be 
 
            gainfully employed in that region in her chosen field of 
 
            work.  
 
            
 
                 The evidence from Dave Weakland wherein he states the 
 
            general manager of a club can pretty much do as they want 
 
            regarding physical exertion of the job is found to be 
 
            correct.  (ex. 55, page 15).  While it is likely true that 
 
            Vernetta engaged in some fairly strenuous physical activity 
 
            at the Lakeshore Country Club it is also found to be true 
 
            that there is nothing which would prohibit her from limiting 
 
            her physical activities if she held such a position.  Her 
 
            physical activity restrictions should not constitute a large 
 
            impediment to obtaining employment or performing in her 
 
            customary field of work.  A major portion for her loss of 
 
            earnings appears to be the limited number of job openings in 
 
            that field.  The fact that this injury caused her to lose 
 
            the job at Lakeshore Country Club is an important factor.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            The fact that she is not currently employed detracts from 
 
            her employability when seeking other jobs.  It is noted that 
 
            as far as Vernetta's previous jobs of relatively high 
 
            responsibility she was always employed at the time she was 
 
            hired into another position.  It is found that she has 
 
            experienced a 25 percent reduction in earning capacity as a 
 
            result of the injury sustained in this case.  This is in 
 
            addition to the extent of permanent disability caused by the 
 
            June 15, 1988 injury.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Though the allegation of injury arising out of and in 
 
            the course of employment was denied by defendants, there is 
 
            no contrary evidence in the record.  The claimant appears 
 
            credible.  Her testimony regarding falling at work is well 
 
            corroborated by the medical records.  Accordingly, it is 
 
            determined that Vernetta Luthi has carried the burden of 
 
            proving by a preponderance of the evidence that she 
 
            sustained an injury which arose out of and in the course of 
 
            her employment on October 26, 1989, as she alleges.  That 
 
            injury was an aggravation of a preexisting condition.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 This is a case in which the expert testimony clearly 
 
            indicates a possibility that the surgery was related to the 
 
            fall, particularly if it is considered in light of the fact 
 
            that physicians often express opinions of causation in 
 
            medical terminology, rather than in legal terminology.  The 
 
            principle difference is that in medical terminology the 
 
            concept of aggravation of a preexisting condition as being 
 
            the cause is not uniformly held.  The fact that claimant may 
 
            have eventually needed this surgery absent the fall is not 
 
            material to the issue of whether defendants are liable.  An 
 
            aggravation is compensable if it accelerates the underlying 
 
            condition.  In this case it is clear that the disc problem 
 
            has its underlying basis in the degenerative disc disease 
 
            condition which afflicts claimant.  The greater likelihood 
 
            or probability is that the fall of October 26, 1989, was a 
 
            substantial factor in producing a need for the surgery which 
 
            was performed by Dr. Long.  When the actual facts of what 
 
            occurred in this case are considered in light of the expert 
 
            testimony the overall picture is one that shows it is 
 
            probable that the fall was a substantial factor in producing 
 
            the need for the surgery.  Claimant has therefore carried 
 
            her burden of proof of showing that the fall was a proximate 
 
            cause of the surgery and its results.  Giere v. Aase Haugen 
 
            Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 In accordance with the assessment from Dr. Mercier it 
 
            is determined that Vernetta's healing period ended May 2, 
 
            1991.  This entitles her to 30 4/7 weeks of healing period 
 
            compensation.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Likewise, an employer's refusal to give any sort of 
 
            work may justify an award.  McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 When all the material factors of industrial disability 
 
            are considered, it is determined that Vernetta Luthi has 
 
            experienced a 25 percent permanent partial disability as a 
 
            result of the injury sustained in this case.  This entitles 
 
            her to receive 125 weeks of permanent partial disability 
 
            compensation payable commencing May 3, 1991.
 
            
 
                 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 Corp., 
 
            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 how much of the 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.
 
            
 
                 Apportionment is not appropriate in this case for at 
 
            least two reasons.  First, there is no evidence in the 
 
            record of this case to support a finding that claimant had 
 
            any preexisting loss of earning capacity prior to the time 
 
            she commenced employment at Lakeshore Country Club.  There 
 
            is some indication that a small amount of loss resulted from 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the June 15, 1988 injury, but any such amount was indeed 
 
            small since claimant continued in the same job and appears 
 
            to have experienced an increase in her actual earnings as 
 
            evidenced by the difference in the rate of compensation for 
 
            the 1988 injury and the rate of compensation for this 
 
            injury.  Second, the preexisting disability must not have 
 
            been caused by the same employer.  Clearly, any preexisting 
 
            disability from the June 15, 1988 injury, which was not 
 
            adequately compensated, cannot be the basis for 
 
            apportionment since it resulted from an injury with this 
 
            same employer.  Finally, the finding of the extent of 
 
            industrial disability in this case is based solely upon the 
 
            disability caused by the October 26, 1989 injury.  The 
 
            baseline from which that disability was evaluated is the 
 
            claimant's condition, as it existed, immediately before the 
 
            October 26, 1989 injury.  Using that date as a baseline 
 
            takes into account whatever preexisting losses or 
 
            preexisting disabilities may have existed.  Accordingly, 
 
            defendants' request for further apportionment beyond that 
 
            which is inherent in the award is denied.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Vernetta 
 
            Luthi thirty and four-sevenths (30 4/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            four hundred fifty-one and 41/100 dollars ($451.41) per week 
 
            payable commencing October 1, 1990.
 
            
 
                 It is further ordered that defendants pay Vernetta 
 
            Luthi one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability at the stipulated rate of 
 
            four hundred fifty-one and 41/100 dollars ($451.41) per week 
 
            payable commencing May 3, 1991.  Defendants are entitled to 
 
            credit for the one hundred thirty point five (130.5) weeks 
 
            of benefits paid.  Any past due accrued amounts shall be 
 
            paid to claimant in a lump sum together with interest 
 
            pursuant to section 85.30.
 
            
 
                 It is further ordered that defendants pay the costs of 
 
            this proceeding pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Signed and filed this __________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Richard Crotty
 
            Attorney at Law
 
            311 Metropolitan Federal Bank Bldg
 
            Council Bluffs, Iowa  51503
 
            
 
            Mr. Lyle W. Ditmars
 
            Attorney at Law
 
            233 Pearl St
 
            PO Box 1078
 
            Council Bluffs, Iowa  51502-1078
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                         1402.30 1402.40 1802 1803 
 
                                         1806 2206
 
                                         Filed March 9, 1994
 
                                         Micheal G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            
 
            VERNETTA LUTHI,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 956963
 
            LAKESHORE COUNTRY CLUB,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            USF & G,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            1402.30 1402.40 1802 1803 1806 2206
 
            Claimant fell at work.  Her injury was found to be an 
 
            aggravation of a preexisting degenerative condition.  The 
 
            course of medical care led her to surgery.  The medical 
 
            evidence was somewhat equivocal although it appeared that at 
 
            least one of the physicians implied an improper standard 
 
            when considering the issue of causation.  
 
            Claimant, a club manager was awarded 25 percent permanent 
 
            partial disability based primarily upon her difficulty in 
 
            obtaining re-employment.