Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STELLA ODOM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 960752
 
            FIELDSTONE CABINETRY, INC.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRANBROOK AGENCY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Stella 
 
            Odom, claimant, against Fieldstone Cabinetry, Inc., 
 
            employer, and Cranbrook Agency, insurance carrier, as 
 
            defendants.  Claimant seeks to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an alleged 
 
            work injury occurring on April 26, 1990.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant, Leona Martin, and Michael Odom; joint exhibits 
 
            1 through 44; and, defendants' exhibits 1 through 7.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on March 23, 1992, at Mason City, 
 
            Iowa.
 
            
 
                                      issues
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on April 26, 
 
            1990, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's alleged injury and her permanent disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits;
 
            
 
                 4.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 5.  Claimant's workers' compensation rate.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
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            evidence received, finds the following facts:
 
            
 
                 Claimant, Stella Odom, was born on April 12, 1956.  In 
 
            1974, she graduated from high school in Mason City, Iowa.  
 
            Claimant described herself as an average student.  
 
            Additional education consists of two years at the Northern 
 
            Iowa Community College and a twelve month course in 
 
            practical nursing for which claimant received a degree.  
 
            Claimant secured a license as a practical nurse.
 
            
 
                 Claimant's work history includes two years in positions 
 
            as a supervising LPN at several nursing homes in Mason City 
 
            and Rockwell, Iowa.  In these positions, claimant not only 
 
            supervised the activities of LPN's and nurses aides, but 
 
            also monitored patient medications and charted patient 
 
            activities.  Claimant earned $3.65 per hour to $4.05 per 
 
            hour.
 
            
 
                 Claimant became dissatisfied with the nursing 
 
            profession and elected to attend Hamilton Business College 
 
            in Mason City.  In April of 1976, she completed a one year 
 
            program and received a degree in the medical/secretarial 
 
            field.
 
            
 
                 For the next several months, claimant secured a 
 
            position with the Northern Iowa Medical Center where her job 
 
            duties included transcribing and filing medical reports and 
 
            records.  She earned $4.00 per hour.
 
            
 
                 After several other jobs, including positions as a 
 
            photograph developer, production worker at Land O Lakes 
 
            plant and as a business monitor for the North Central School 
 
            District, claimant began working for defendant employer, 
 
            Fieldstone Cabinetry, Inc.
 
            
 
                 From August of 1987 through February of 1989, claimant 
 
            worked as a panel and door sander.
 
            
 
                 Taken off of work for injuries unrelated to this claim, 
 
            Ms. Odom was eventually placed in a temporary assignment 
 
            duty position from February of 1989 through August of 1989.  
 
            This position was a part-time office job, and involved 
 
            collating books, preparing mailings and performing some 
 
            computer-data entry operations.  Claimant was able to use 
 
            the skills she learned at Hamilton Business College in this 
 
            position.
 
            
 
                 In August of 1989, claimant became the benefits 
 
            specialist, and the assistant to Mark Evers, the personnel 
 
            manager and Lynn Kirchgatter.  As benefits specialist, 
 
            claimant was involved with health insurance and workers' 
 
            compensation claims.  Mr. Evers indicated in his deposition 
 
            that claimant also acted as the office secretary/clerk.  
 
            Claimant's main responsibilities included filing, typing and 
 
            computer work (Evers Deposition, page 5).
 
            
 
                 In late April of 1990, claimant returned to the 
 
            production area on the night shift.  Patricia Holmgaard 
 
            replaced claimant as benefits specialist.  Mr. Evers 
 
            indicated that claimant was replaced because the benefits 
 

 
            
 
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            specialist position required someone with more experience 
 
            and more advanced skills in computers (Evers Dep., pp. 8-9).
 
            
 
                 On May 2, 1990, while working at a job claimant 
 
            described as "catching door," she developed cramping in her 
 
            neck and shoulder area.  She told her supervisor, and 
 
            reported to Diane Frakes, a physician's assistant to the 
 
            company doctor, Kenneth Washburn, M.D.  Claimant underwent 
 
            nerve conduction studies, which revealed right carpal tunnel 
 
            syndrome, right medial epicondylitis, right bicepital 
 
            tendinitis and right neck pain (Joint Exhibit 3, pages 3-4).
 
            
 
                 Claimant was restricted to one arm duty and was 
 
            instructed to undergo physical therapy with iontophoresis to 
 
            the right elbow and shoulder.  She was also given wrist 
 
            splints (Jt. Ex. 3, pp. 3-4).
 
            
 
                 Claimant returned to Dr. Washburn and Ms. Frakes on May 
 
            9, 1990.  She underwent additional physical therapy, 
 
            cervical traction and continued to be off of work (Jt. Ex. 
 
            3, p. 4).
 
            
 
                 During the next month, claimant continued with physical 
 
            therapy and was off of work (Jt. Exs. 4 and 9).  On June 4, 
 
            1990, Dr. Washburn ordered an EMG for the right upper 
 
            extremity.  He suspected AC joint arthritis in the right 
 
            shoulder, and recommended an orthopedic and rheumatic 
 
            consultation for the same (Jt. Ex. 10).  A Dr. Trimble, a 
 
            rheumatologist, saw her for a possible arthritic condition, 
 
            found none, and felt her problem was a "localized 
 
            musculoskeletal problem" and did not "find evidence of true 
 
            connective tissue disease."  (Jt. Ex. 12, p. 13).   She was 
 
            then referred to a Dr. Wolbrink, an orthopedic specialist.  
 
            After an examination noting near normal range of motion of 
 
            the neck and a positive impingement test of the right 
 
            shoulder, Dr. Wolbrink diagnosed mild to moderate rotator 
 
            cuff tendinitis and possible cervical osteoarthropathy.  He 
 
            offered an injection to the right shoulder which claimant 
 
            declined.  She returned to Dr. Washburn who prescribed 
 
            physical therapy for the range of motion problems and 
 
            theraband exercises for strengthening (Jt. Ex. 12).
 
            
 
                 Throughout July and August of 1990, claimant continued 
 
            to undergo physical therapy and strengthening programs.  On 
 
            August 31, claimant was released to return to work in a 
 
            light duty capacity with a five pound lifting restriction.  
 
            She was not allowed to, or was unable to return to work at 
 
            Fieldstone Cabinetry with these restrictions (Jt. Ex. 27).
 
            
 
                 Claimant was sent to Scott B. Neff, D.O., an orthopedic 
 
            specialist in Des Moines, for an evaluation.  He performed a 
 
            series of orthopedic tests, and recommended an EMG and an 
 
            MRI of the right shoulder.  Dr. Neff recommended that 
 
            claimant performed no repetitive lifting, reaching, pulling 
 
            or pushing activities with her right shoulder (Jt. Ex. 34, 
 
            pp. 35-39).
 
            
 
                 The test results of the MRI dated October 15, 1990, 
 
            showed a small area of tendinitis, but no rotator cuff tear 
 
            in the right shoulder area (Jt. Ex. 35).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Carpal tunnel release surgery was recommended for 
 
            claimant's right wrist problems, and surgery was performed 
 
            in November of 1990.  Dr. Neff released claimant to return 
 
            to work in November of 1990, and recommended she perform 
 
            clerical duties, but no heavy lifting or machinery work (Jt. 
 
            Ex. 37).
 
            
 
                 In January of 1991, claimant received her final 
 
            permanent medical restrictions which restricted work duties 
 
            to at or below shoulder height.  She was to undergo an 
 
            evaluation regarding her impairment on March 25, 1991.  Dr. 
 
            Neff found no impairment (Jt. Ex. 40).  Claimant was unable 
 
            to return to work at Fieldstone Cabinetry.
 
            
 
                 Martin S. Rosenfeld, D.O., an orthopedic surgeon, 
 
            performed an independent medical evaluation on January 20, 
 
            1992.  He was of the opinion that claimant had sustained an 
 
            8 percent permanent partial disability, and attributed 5 
 
            percent impairment due to right shoulder pain and motion 
 
            complaints, and 3 percent due to carpal tunnel residuals 
 
            (Jt. Ex. 41).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury to her neck and/or shoulder on April 26, 
 
            1990, which arose out of and in the course of her employment 
 
            with Fieldstone Cabinetry.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 26, 
 
            1990, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Claimant's position as a "door catcher" required that 
 
            she catch or grab the doors as they were coming off of an 
 
            overhead conveyor belt.  She estimated that she caught or 
 
            grabbed approximately thirty doors per minute.  Weights of 
 
            the doors varied.  Claimant has been consistent in her 
 
            description of she reported the injury to her supervisor, 
 
            and was sent to the company physician.  As she described her 
 
            job duties, it seems highly probable that claimant could 
 
            have sustained an injury while performing her duties.  
 
            Claimant has shown by a preponderance of the evidence that 
 
            she was performing her duties as required, and she was 
 
            performing them in the appropriate time, place and manner.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal connection to claimant's disability and the work 
 
            injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 26, 
 
            1990, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Several physicians have made the requisite causal 
 
            connection between claimant's condition and her work-related 
 
            injury.  Specifically, Dr. Neff, who was deposed for the 
 
            case, states at page 11 of his deposition that claimant's 
 
            diagnosis of mild tendinitis was related to her work injury 
 
            of April 28 [sic], 1990.  Claimant was treated by a number 
 
            of physicians, and Dr. Neff guided her care between October 
 
            1990 and January 1991.  He is an orthopedic specialist and 
 
            was able to review all of claimant's medical records and 
 
            test results regarding the right shoulder.  He is found to 
 
            be claimant's treating physician, and his opinion is relied 
 
            upon in finding that claimant's condition, that of 
 
            tendinitis in the right shoulder, was caused by her work 
 
            activities on April 26, 1990.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to temporary total or permanent partial disability 
 
            benefits.  As a general rule, claimants are to be awarded 
 
            temporary total disability benefits for time off of work 
 
            when they have not sustained a permanent injury.  
 
            Conversely, healing period benefits are awarded for time off 
 
            of work in the event claimant has sustained a permanent 
 
            injury.  The question then becomes, has claimant sustained a 
 
            permanent injury?
 
            
 
                 Claimant has been evaluated by two physicians, her 
 
            treating physician, Dr. Neff, and Dr. Rosenfeld.  Dr. 
 
            Rosenfeld's final diagnosis was that of mild AC arthritis, 
 
            and he thought that claimant had an overuse syndrome of the 
 
            right upper extremity.  He assessed a 5 percent impairment 
 
            rating based on shoulder pain and motion complaints 
 
            (Rosenfeld Deposition).  Dr. Neff, while not assigning any 
 
            impairment rating to claimant's right upper extremity, did 
 
            impose medical restrictions of no work requiring the use of 
 
            her upper extremity above shoulder level (Neff Deposition, 
 
            page 12).
 
            
 
                 There is no evidence in the record which suggests that 
 
            claimant had any work restrictions prior to the injury she 
 
            sustained on April 26, 1990.  Therefore, it is found that 
 
            claimant has sustained a permanent impairment, and she is to 
 
            be awarded healing period benefits for the time she was off 
 
            work.
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an evaluation of her industrial disability is 
 
            warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 At the time of the hearing, claimant was almost 36 
 
            years of age.  She is a high school graduate, and has 
 
            obtained two advanced degrees, one in practical nursing and 
 
            the other in the medical/secretarial field.  Although she 
 
            has not continued to keep her license as a practical nurse, 
 
            she is still eligible for the same.  However, claimant 
 
            expressed that she has no desire to continue any type of 
 
            work in the nursing field.
 
            
 
                 Claimant's employment has focused on jobs that have 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            paid a little more than minimum wage.  Her best paying job 
 
            has been with the defendant.  At the time she had left 
 
            employment with Fieldstone Cabinetry, claimant was earning 
 
            $6.52 per hour.  She worked an average of 40 hours per week.
 
            
 
                 Although claimant has had carpal tunnel release surgery 
 
            performed on both her left and right wrists, her physical 
 
            condition appears to be stable and solid, including the 
 
            continuing soreness she has with her right shoulder.  She 
 
            has a good work record, and enjoyed the benefits specialist 
 
            position she held for a limited time while recovering from 
 
            the left carpal tunnel release surgery.  In fact, claimant 
 
            appeared to be somewhat resentful that she no longer held 
 
            the position.
 
            
 
                 Claimant is certainly employable and she made clear at 
 
            the hearing that she wanted the benefits specialist position 
 
            at Fieldstone.  Although defendants are not obligated to 
 
            offer her that particular position, it is unfortunate that a 
 
            company with approximately 400 positions is unable to 
 
            re-employ claimant in a job which accommodates her 
 
            restrictions.
 
            
 
                 Claimant has a substantial number of years of 
 
            experience in the nursing field, and that she chooses not to 
 
            re-enter the field is her choice does not increase her 
 
            industrial disability for workers' compensation purposes.  
 
            Likewise, claimant's office and secretarial skills are 
 
            transferable to many other types of businesses, and although 
 
            claimant has engaged in a limited job search, the 
 
            undersigned finds that she needs to increase her efforts in 
 
            trying to find suitable employment.  Additionally, claimant 
 
            stated that she tried not to lift more than 20 pounds on a 
 
            repetitive basis, although this restriction was phrased as a 
 
            "probable" lifting restriction imposed by Dr. Rosenfeld. 
 
            Likewise, she stated that repetitive work hurts her neck and 
 
            shoulder area, but again repetitive work is not a restricted 
 
            activity.
 
            
 
                 Defendants argue that Dr. Rosenfeld's evaluation should 
 
            be discounted, as he saw claimant only once.  This writer 
 
            rejects the argument as to accept it would circumvent the 
 
            purpose of an independent medical evaluation.  As a result, 
 
            Dr. Rosenfeld's evaluation was considered in arriving at 
 
            claimant's entitlement to permanent partial disability 
 
            benefits.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 10 percent industrial disability.
 
            
 
                 Finally, the parties were unable to agree upon the 
 
            number of exemptions to which claimant is entitled for 
 
            purposes of calculating her workers' compensation rate.
 
            
 
                 During her testimony, claimant explained that she was 
 
            married, her two stepsons and her biological son wee 
 
            dependants, living in her household on April 26, 1990.  
 
            Therefore, claimant is entitled to five exemptions, and her 
 
            workers' compensation rate, based on $260.80 gross weekly 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            earnings, is $186.78.  See Guide to Iowa Workers' 
 
            Compensation Claim Handling, July 1, 1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is awarded healing period benefits from 
 
            April 26, 1990 through January 20, 1991, at the rate of one 
 
            hundred eighty-six and 78/100 dollars ($186.78) per week.
 
            
 
                 That claimant is awarded fifty (50) weeks of permanent 
 
            partial disability benefits at the rate of one hundred 
 
            eighty-six and 78/100 dollars ($186.78) per week, commencing 
 
            on January 21, 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 Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            Mr Brendan T Quann
 
            Attorney at Law
 
            200 Cyrcare Bldg
 
            Dubuque IA 52001
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 23, 1992
 
                                               Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STELLA ODOM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 960752
 
            FIELDSTONE CABINETRY, INC.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRANBROOK AGENCY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant worked for several years at Fieldstone Cabinetry on 
 
            the assembly/production line.
 
            She sustained various injuries to both wrists and to her 
 
            shoulder.
 
            This claim pertained to claimant's shoulder problem.  She 
 
            was given impairment ratings of 0% and 5% with restrictions 
 
            of no repetitive work at or above shoulder level.  
 
            Claimant's primary past employment was in the secretarial 
 
            field and nursing field.
 
            Claimant awarded 10% industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         WILLIAM E. ADAMS, JR.
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 960977
 
         MICRO-SPECIALTIES CO., INC.,    
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         HAWKEYE SECURITY INSURANCE      
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 30, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                  ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Ned A. Stockdale
 
         Attorney at Law
 
         P.O. Box 496
 
         Estherville, Iowa 51334
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         P.O. Box 188
 
         Storm Lake, Iowa 50588
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 28, 1992
 
                                               Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            WILLIAM E. ADAMS, JR.
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 960977
 
            MICRO-SPECIALTIES CO., INC.,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            HAWKEYE SECURITY INSURANCE      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 30, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. ADAMS, JR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 960977
 
            MICRO-SPECIALTIES CO., INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Adams, Jr., claimant, against his former employer, 
 
            Micro-Specialties Co., Inc., and its insurance carrier, 
 
            Hawkeye Security Insurance Company, defendants.  The matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on April 14, 1992, at Storm Lake, Iowa.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant; Jayline Adams, claimant's wife; Justina 
 
            Cejka; Jerry Howland; James Sandig; and Stephen Mefferd; 
 
            and, claimant's exhibits 2 through 19.  Claimant's exhibit 
 
            20, to which defendants objected, is admitted.
 
            
 
                                      issues
 
            
 
                 According to the prehearing report, the parties submit 
 
            the following issues:
 
            
 
                 1.  Whether claimant sustained an injury on September 
 
            10, 1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal connection to claimant's 
 
            disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial disability 
 
            benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27; and,
 
            
 
                 5.  Whether claimant is entitled to penalty benefits, 
 
            as provided for under Iowa Code section 86.13(4).
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, William Adams, Jr., was born on July 20, 
 
            1964, and was 27 years old at the time of the hearing.  He 
 
            is married and has one child.
 
            
 
                 Mr. Adams has a severe loss of hearing.  He attended 
 
            the Iowa School For The Deaf, and graduated with a high 
 
            school in 1984.  His course work consisted of general 
 
            subjects, and claimant stated that he maintained a B 
 
            average.
 
            
 
                 After graduation, claimant worked as a carpet layer for 
 
            one year, and then attended Iowa Western Community College 
 
            in Council Bluffs, Iowa, for one quarter of a semester.  
 
            Claimant dropped out of school due to poor grades he 
 
            received in his drafting/engineering and computer aided 
 
            design courses.
 
            
 
                 Claimant then went to live with his parents and helped 
 
            them raise hogs after several months, claimant went to work 
 
            for Northwood Meats, where he worked as a machine operator.
 
            
 
                 One year later, claimant decided to return to Iowa 
 
            Western Community College, and enrolled in graphic art 
 
            courses.  Claimant stayed in school for approximately one 
 
            year, and then withdrew because he did not want to undertake 
 
            additional student loans.
 
            
 
                 During the next five years, claimant held eight 
 
            different jobs including positions as a production worker 
 
            for a plastics manufacturer; assembly line work for a meat 
 
            packing company; a machine operator for a company which 
 
            manufactured hydraulic cylinders; and, as a welder for 
 
            C.E.I. Trucking Company.  Claimant's employment was somewhat 
 
            sporadic, as he held these positions for two weeks up to 
 
            five months.
 
            
 
                 The only physical problem claimant encountered in any 
 
            of these positions was a hernia he developed after he lifted 
 
            some equipment.  Claimant's hourly earnings ranged from 
 
            $4.25 per hour to $7.50 per hour.
 
            
 
                 In May 1990, claimant began working for defendant 
 
            employer, Micro-Specialties Co., Inc., a company that 
 
            produces various sizes of liners for different machine 
 
            parts.  Claimant obtained his position as a machine operator 
 
            through the Job Training Partnership Act.  He began as a 
 
            machinist, which included operating lathes; assembly drill 
 
            presses; glue machines; and, burnishers.  These duties 
 
            required claimant to lift frequently steel cylinders 
 
            weighing between 25 to 30 pounds up to more than 100 pounds.
 
            
 
                 In August 1990, claimant developed low back pain.  He 
 
            sought treatment from his family physician, John Rhodes, 
 
            M.D., whose notes indicate that the low back pain "has been 
 
            going on for some time." (Claimant's Exhibit 8, page 3).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 On September 10, 1990, claimant was assigned to a job 
 
            which required him to lift from the ground to waist or chest 
 
            level liners, weighing in excess of 100 pounds, and 
 
            approximately 36 inches in length.  Claimant testified that 
 
            he was bending over an oil pan, started to lift the liner, 
 
            and felt pain when his back "went out."  Claimant reported 
 
            to his coworker that his back was sore, but he continued to 
 
            work.  He lifted three to four more linings, and could not 
 
            continue due to the pain.  He reported the incident to Dale 
 
            Mefferd, and was escorted to A.W. Samuelson, a chiropractor 
 
            in Laurens, Iowa.  Dr. Samuelson diagnosed a severe muscle 
 
            spasm.  He was unable to fully examine claimant and sent him 
 
            home to rest and gave claimant ice packs (Cl. Ex. 7, p. 3).
 
            
 
                 Later that day, claimant went back to the employer with 
 
            continued complaints of pain in the low back, and was 
 
            admitted to the Pocahontas County Memorial Hospital for 24 
 
            hour observation.  Dr, Rhodes attended to claimant, ordered 
 
            an x-ray of the lumbar spine (which was normal) and 
 
            diagnosed an acute muscle strain of the low back.  Claimant 
 
            was released from the hospital on September 11, 1990, with 
 
            instructions to seek physical therapy (Cl. Ex. 9, pp. 1-4).
 
            
 
                 After one week of physical therapy, claimant returned 
 
            to work on light duty assignment, and continued physical 
 
            therapy through September 21, 1990 (Cl. Ex. 9, pp. 4-5).
 
            
 
                 Claimant continued to treat with Dr. Rhodes, who 
 
            referred him to Samir R. Wahby, M.D., an orthopedic 
 
            specialist in Fort Dodge, Iowa.  An examination performed by 
 
            Dr. Wahby revealed pain and tenderness over the lower lumbar 
 
            region, but claimant displayed normal range of motion of the 
 
            back.  Straight leg raising tests were negative, and Dr. 
 
            Wahby recommended against heavy lifting (Cl. Ex. 10, pp. 
 
            2-3).  Dr. Rhodes eventually released claimant to return to 
 
            work without restrictions on October 22, 1990 (Cl. Ex. 8, p. 
 
            6).
 
            
 
                 When claimant returned to his job, he was assigned 
 
            light duty for two weeks.  According to Stephen Mefferd, 
 
            this assignment was to allow claimant to ease back into the 
 
            work environment.  Then, claimant was placed on regular job 
 
            duties.  On October 31, 1990, claimant aggravated his back 
 
            condition, left work at noon and called Dr. Rhodes, who 
 
            advised claimant to take medication, not return to work for 
 
            the rest of the day, and bed rest.  This telephone 
 
            conversation with Dr. Rhodes is not found in Dr. Rhodes' 
 
            notes.  Claimant's wife called Stephen Mefferd, who stated 
 
            that claimant would be terminated due to absenteeism.
 
            
 
                 After the termination, claimant declined to continue 
 
            his insurance company through the COBRA program and applied 
 
            for Title XIX.
 
            
 
                 In January 1991, claimant returned to Dr. Rhodes 
 
            seeking treatment for pain he felt while picking up 
 
            something from the floor.  Again, Dr. Rhodes diagnosed a 
 
            marked muscle spasm in the left lower paraspinal muscle.  He 
 
            stated that claimant "will not be able to do any work that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            requires heavy lifting or bending over repeatedly.  He also 
 
            has difficulty doing a job that requires long-term 
 
            standing."  Dr. Rhodes also recommended physical therapy 
 
            (Cl. Ex. 8, pp. 3-5).
 
            
 
                 Claimant returned to Micro-Specialties requesting a 
 
            job.  Stephen Mefferd indicated that the company would have 
 
            been willing to re-employ claimant but that the company did 
 
            not have enough work to justify hiring another worker.
 
            
 
                 By this time, claimant felt very frustrated, and sought 
 
            help from a vocational rehabilitationist from the State of 
 
            Iowa.
 
            
 
                 In July 1991, claimant sought treatment from William 
 
            Follows, M.D., an orthopedic surgeon in Spencer, Iowa.  Dr. 
 
            Follows' notes indicate that claimant had been experiencing 
 
            "a great deal of pain" for four days, after he tried to lift 
 
            a bucket of bait while fishing (Cl. Ex. 11, p. 5).  Claimant 
 
            was to rest and was to return in four days.  An MRI was 
 
            ordered, and the results showed a juvenile discogenic 
 
            disease called Scheuermann's Disease.  This condition is an 
 
            inflammatory disease of bone and cartilage in the spine.  
 
            The MRI test results revealed disc degeneration and 
 
            circumferential bulging at the low back area, L4-5 and L5-
 
            S1.  Some nerve root impingement was shown at the right S1 
 
            level, but claimant did not display "right sided signs." 
 
            (Cl. Ex. 11, p. 5)  Dr. Follows recommended vocational 
 
            rehabilitation, with particular concentration in the areas 
 
            that do not require heavy use of claimant's back, and 
 
            specifically recommended the drafting field (Cl. Ex. 11, p. 
 
            5).
 
            
 
                 In July 1991, Dr. Follows expressed the opinion:
 
            
 
                    It is difficult for me to say with any degree 
 
                 of assurance that Mr. Adams' back problem is job 
 
                 related.  According to his history, it began at 
 
                 the same time as he was working for this company 
 
                 and doing heavy lifting but the only time I have 
 
                 seen him is July 19 and the symptoms started a 
 
                 year ago.  It is, therefore, very difficult for me 
 
                 to implicate a causal relationship
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            with any degree of certainty.  However, it is 
 
            certainly possible that his problems could have 
 
            stemmed from his lifting.
 
            
 
            (Cl. Ex. 11, p. 4)
 
            
 
                 In November 1991, Dr. Follows was of the opinion that 
 
            claimant had a 5 percent functional impairment (Cl. Ex. 11, 
 
            p. 2).
 
            
 
                 In November 1991, claimant sought help from the 
 
            University of Iowa Hospitals and Clinics Spine Diagnostic 
 
            and Treatment Center.  After a thorough evaluation and 
 
            examination, it was determined that claimant's physical 
 
            condition was "absolutely solid, stable and healed from 
 
            previously injuries...."  It was recommended that claimant 
 
            undertake a two week low back pain rehabilitation program; 
 
            cardiovascular/exercise program; and, resolve certain 
 
            financial and personal problems that were contributing to 
 
            his stress (Cl. Ex. 12, pp. 1-4).  The rehabilitation notes 
 
            indicate that claimant's spine was non-tender; he 
 
            demonstrated full range of motion and full motor strength in 
 
            the lower extremities; he had symmetric, bilateral deep 
 
            tendon reflexes in the lower extremities; and, negative 
 
            straight leg raising tests.  The overall assessment was that 
 
            claimant had chronic low back pain with no surgery 
 
            indicated.
 
            
 
                 Work restrictions included a 50 pound one time lift, 
 
            not to be performed more than four times per hour, with no 
 
            repetitive lifting of more than 25 pounds.  It was also 
 
            determined that "with a positive, aggressive rehabilitation 
 
            approach, these lifting strengths can be significantly 
 
            improved."  (Cl. Ex. 12, p. 2)
 
            
 
                 Presently, claimant is working at a full-time temporary 
 
            position for General Foods in Mason City, Iowa.  He earns $5 
 
            per hour and works on the assembly line.  The job does not 
 
            require any heavy lifting or prolonged standing.
 
            
 
                 Claimant stated that he enjoys fishing, and that he 
 
            desires to return to school to further his education.
 
            
 
                 It should be noted that claimant has never earned more 
 
            than $5,000 per year in any year since graduating from high 
 
            school.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on September 10, 1990, which arose out of 
 
            and in the course of his employment with Micro-Specialties 
 
            Co., Inc.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 10, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 The medical records substantiate claimant's position 
 
            that he was lifting a heavy piece of equipment while at work 
 
            on September 10, 1990.  There is no dispute that claimant 
 
            was performing his job duties as required, in a time, place 
 
            and manner suitable to his employment.  Therefore, it is 
 
            found that claimant received an injury which arose out of 
 
            and in the course of his employment with the employer.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            10, 1990, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Although claimant sought medical treatment immediately 
 
            following the accident and several months thereafter, there 
 
            is a six month time frame in which claimant was not under 
 
            any medical care.  Although claimant testified that he did 
 
            not seek medical treatment because he was unable to afford 
 
            the same, claimant also admitted that he had applied for and 
 
            obtained Title XIX insurance.  Claimant's failure to secure 
 
            medical treatment indicates that his physical condition did 
 
            not warrant a visit to the doctor.
 
            
 
                 Additionally, claimant's physical condition was most 
 
            closely followed by Dr. Rhodes.  His notes indicate that 
 
            claimant had sustained muscle strain while lifting at work 
 
            in September 1990.  Dr. Rhodes saw claimant throughout 
 
            September and October of 1990, and then in January of 1991.  
 
            Dr. Rhodes released claimant to return to work without 
 
            restrictions in October of 1990.
 
            
 
                 Although claimant testified that due to an exacerbation 
 
            of pain in his low back, he or his wife called Dr. Rhodes on 
 
            or about October 31, 1990, this phone call is not documented 
 
            in Dr. Rhodes' medical records.  It has been this writer's 
 
            experience that when a patient calls a doctor's office and 
 
            is given instructions to curtail work activities, the doctor 
 
            or the doctor's office personnel makes a notation in the 
 
            medical records.
 
            
 
                 Dr. Rhodes has rendered no opinion regarding whether 
 
            claimant's condition was related to his work injury.  
 
            Furthermore, Dr. Rhodes did not assess any impairment 
 
            rating.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Even if the undersigned was convinced that Dr. Follows 
 
            was claimant's treatment physician, his opinion regarding 
 
            the causal relationship between claimant's injury in 
 
            September of 1990 and his permanent disability of 5 percent 
 
            is insufficient to prove by a preponderance of the evidence 
 
            that claimant sustained a permanent disability due to the 
 
            work injury.
 
            
 
                 As a result, it is found that claimant has failed to 
 
            carry his burden of proof to show by a preponderance of the 
 
            evidence that there is a causal connection between 
 
            claimant's injury and his disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits as provided for under Iowa Code 
 
            section 85.27.
 
            
 
                 Iowa Code section 85.27 states, in relevant part:
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                 As it has been determined that claimant did sustain a 
 
            compensable injury, it is found that defendants are 
 
            obligated to pay for claimant's care up until October 22, 
 
            1990, when claimant was released without restrictions to 
 
            return to work.
 
            
 
                 Although defendants raise the defense of authorization, 
 
            the undersigned finds this an invalid defense, particularly 
 
            with respect to the charges made prior to October 22, 1990.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant sustained an injury on September 10, 
 
            1990, which arose out of and in the course of his 
 
            employment.
 
            
 
                 That defendants shall pay claimant temporary total 
 
            disability benefits from September 13, 1990 through October 
 
            22, 1990, at the rate of one hundred thirty-seven and 64/100 
 
            dollars ($137.64) per week.
 
            
 
                 That defendants shall pay medical expenses incurred 
 
            from September 10, 1990 through October 22, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Ned A Stockdale
 
            Attorney at Law
 
            108 N 7th St
 
            Estherville IA 51334
 
            
 
            Mr Willis J Hamilton
 
            Attorney at Law
 
            606 Ontario St
 
            P O Box 188
 
            Storm Lake IA 50588
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1801
 
                                          Filed April 30, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. ADAMS, JR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 960977
 
            MICRO-SPECIALTIES CO., INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant sustained a work-related injury, but failed to 
 
            prove by a preponderance of the evidence that he had a 
 
            permanent disability.
 
            Claimant awarded temporary total disability  and medical 
 
            benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MOE ALYASSIN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 961315
 
            UNITED TECHNOLOGY             :
 
            CORPORATION,                  :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE   :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Moe 
 
            Alyassin, claimant, against his former employer, United 
 
            Technology Corporation, and its insurance carrier, Pacific 
 
            Employers Insurance Company. 
 
            
 
                 The case was heard before the undersigned deputy 
 
            industrial commissioner on March 22, 1994.  The evidence 
 
            consists of testimony from claimant, Susan Alyassin 
 
            (claimant's wife), Rick Innis (human resources manager for 
 
            United Technology), Byron Robison (private investigator), 
 
            Candice Kaelber (vocational rehabilitation specialist), and 
 
            Frederick Shimon (health and safety coordinator for United 
 
            Technology); claimant's exhibits 1-7; and, defendants' 
 
            exhibits 1a-b, 2b, and 6-10.  Defendants' exhibit 4 was 
 
            excluded from the evidence, and an offer of proof was made.
 
            
 
                                       ISSUE
 
            
 
                 The parties have submitted the following issue for 
 
            resolution:
 
            
 
                 1.  The extent of claimant's industrial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, at the time of the hearing, was 42 years of 
 
            age.  He graduated from high school in Iran.  After 
 
            graduation, he spent 13 months in the Iranian air force, 
 
            basic terrain duty.  He was forced to leave the air force 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            because he could not pass a requisite test, and then went 
 
            into the army for two years.  He was stationed at the top of 
 
            a mountain to perform guard duty. 
 
            
 
                 In late 1976 or early 1977, he obtained a student visa 
 
            to pursue education in the United States.  For one month, he 
 
            studied English in Chicago, and eventually pursued a degree 
 
            in art from Iowa Community College in Fort Dodge, Iowa.  
 
            Claimant did not have a work permit, but worked in 
 
            restaurants while attending school.  
 
            
 
                 In 1980, claimant began working for Sheller Globe, now 
 
            known as United Technologies Automotive.  
 
            
 
                 Claimant has held a variety of positions with the 
 
            company, including jobs as a finish operator, injection 
 
            operator and receiving clerk.  All jobs can be considered 
 
            manual labor, and have required claimant to lift, twist, 
 
            bend, pull and work on production lines.  Heavy lifting was 
 
            aided by hoists provided by the employer. 
 
            
 
                 Claimant was injured while he was working as a fork 
 
            truck driver in the receiving area of the plant.  In this 
 
            job, he was required to load and unload boxes with a fork 
 
            truck or forklift.  Sometimes, claimant was required to 
 
            manually lift the boxes.  The packages housed a variety of 
 
            items, weighed a variety of pounds, and came in all sizes.  
 
            
 
                 Claimant became a crew leader in 1986 or 1987.  He 
 
            received a $.40/hour pay increase, and his responsibilities 
 
            included assigning work and dividing job duties among 
 
            workers.  He continued to do the same work as the other 
 
            workers.  After approximately one year, claimant was 
 
            relieved of his duties as crew leader. 
 
            
 
                 On September 12, 1990, claimant was working in the 
 
            receiving area.  He lifted a box, and felt pain in his low 
 
            back and legs.  He went to the nurses' station, but no nurse 
 
            was available.  He spoke to his supervisor, and was sent to 
 
            Mercy Hospital in Iowa City, Iowa.  (Claimant's Exhibit 1)  
 
            After visiting the company doctor, claimant was referred to 
 
            Richard Berge, M.D., who diagnosed a herniated disc.  (Cl. 
 
            Ex. 4)  Evidently, Dr. Berge referred claimant to Edward 
 
            Law, who performed the surgery and followed claimant's 
 
            treatment after the surgery. (Cl. Ex. 5).   The records 
 
            indicate that claimant received several releases to return 
 
            to work in light duty capacities, apparently these returns 
 
            never panned out.  The final note from Dr. Law (although it 
 
            is difficult to tell as claimant's exhibits are not in 
 
            chronological order) indicates that claimant could return to 
 
            work 4 hours per day on August 5, 1991.  He was able to lift 
 
            20 pounds, and in two weeks, was to work 6 hours per day.  
 
            He was to take a 10 minute break every two hours.  (Cl. Ex. 
 
            4)  Later, Dr. Law's restriction were no lifting of greater 
 
            than 25 pounds, no repetitive bending, twisting or stooping, 
 
            and no sitting beyond one hour without taking a break.  
 
            Claimant was able to work eight hours per day.  He believed 
 
            claimant had a 10 percent impairment to the body as a whole.  
 
            (Cl. Ex. 6)
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Records from W. John Robb, M.D., are dated July 19, 
 
            1991.  His examination revealed some symptoms on straight 
 
            leg raising tests, but the final diagnoses was "status 
 
            postoperative L4-5 discectomy left [and] moderate pain 
 
            behavior with functional overlay."  (Cl. Ex. 2).  Dr. Robb 
 
            believed claimant could return to various job assignments 
 
            within the plant.  He suggested claimant undergo an MMPI to 
 
            assess the functional component within claimant's symptoms.  
 
            (Cl. Ex. 2)
 
            
 
                 In March of 1992, claimant underwent an independent 
 
            medical evaluation, performed by Marc Hines, M.D., a 
 
            neurologist.  He offered that claimant had sustained a 25 
 
            percent permanent impairment to the body as a whole due to 
 
            loss of function, nerve root involvement, and loss of range 
 
            of motion.  (Cl. Ex. 3)
 
            
 
                 Defendants employed the services of a vocational 
 
            rehabilitation specialist, Candice Kaelber.  In addition to 
 
            testifying at the hearing, her notes are included in the 
 
            evidence as defendants' exhibits 2b and 3.  They reiterate 
 
            that claimant underwent numerous programs of physical 
 
            therapy and work hardening programs, but was still 
 
            unsuccessful at a return to work at the employer's plant.  
 
            
 
                 Claimant stated that he tried to find suitable 
 
            employment while still in Iowa, but to no avail.  
 
            Eventually, claimant moved to Gainesville, Florida and 
 
            secured employment with a company that manufactures fire 
 
            engines.  He works in the detail department, and polishes 
 
            the completed trucks.  His job is within his restrictions, 
 
            and claimant currently earns $10.00 per hour.  From his 
 
            wages, he pays $1.50 per hour for health care insurance.  At 
 
            United Technology Corporation, he was making $10.45 per 
 
            hour, and did not pay for health insurance.  
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The sole issue to address is claimant's industrial 
 
            disability. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 42 years old.  
 
            He has a degree in art, but has never pursued a career in 
 
            this area.
 
            
 
                 Claimant worked for approximately ten years for the 
 
            defendant.  He worked as a laborer in a variety of unskilled 
 
            or semi-skilled positions.
 
            
 
                 While claimant's motivation to return to suitable 
 
            employment with the employer is questionable, so is 
 
            defendant's actions to provide claimant with appropriate 
 
            work options.
 
            
 
                 Claimant has undergone a discectomy and still feels 
 
            pain.  It has been suggested that he is magnifying his pain.
 
            
 
                 Claimant has found suitable employment, and earns $10 
 
            per hour.  His fringe benefits are not as attractive as 
 
            those he enjoyed while working for the defendant.
 
            
 
                 After considering all of the factors enumerated above, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            it is determined that claimant has sustained a 20 percent 
 
            industrial disability .
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred eighty-six and 16/100 dollars ($286.16) per 
 
            week commencing August 28, 1991.
 
            
 
                 That accrued weekly benefits shall be paid in a lump, 
 
            with credit awarded for benefits previously paid.
 
            
 
                 That defendants shall pay interest on the award, 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs associated with 
 
            this action.
 
            
 
                 That defendants shall file a claims activity report 
 
            upon payment of this award.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert F Wilson
 
            Attorney at Law
 
            210 Second St
 
            810 Dows Bldg
 
            Cedar Rapids IA 52401
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Des Moines IA 50312
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed April 12, 1994
 
                                            Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MOE ALYASSIN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 961315
 
            UNITED TECHNOLOGY             :
 
            CORPORATION,                  :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE   :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            5-1803
 
            Claimant awarded 20% industrial disability.