BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BEVERLY BOLDRA,       
 
                        
 
                 Claimant,                 File No. 966057
 
                        
 
            vs.                             A P P E A L
 
                        
 
            ARATEX SERVICES,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 27, 1993 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 April, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis M. McElwain
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1402.40
 
                                              Filed April 27, 1994
 
                                              BYRON K. ORTON
 
                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BEVERLY BOLDRA,     
 
                      
 
                 Claimant, 
 
                                               File No. 966057
 
            vs.       
 
                                                A P P E A L 
 
            ARATEX SERVICES,    
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove onset of radicular symptoms some 
 
            four months after back incident were causally related.
 
            
 
 
            
 
        
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BEVERLY BOLDRA,     
 
                      
 
                 Claimant, 
 
                                               File no. 966057
 
            vs.       
 
                                           A R B I T R A T I O N 
 
            ARATEX SERVICES,    
 
                                              D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This proceeding is upon the petition in arbitration of 
 
            claimant Beverly Boldra against her self-insured employer, 
 
            Aratex Services.  Ms. Boldra asserts that she sustained a 
 
            back injury arising out of her employment on or about May 3 
 
            or May 8, 1990.  Accordingly, a hearing was held in Sioux 
 
            City, Iowa on May 20, 1993.  The record consists of 
 
            claimant's exhibits 1 through 10, 12 through 50 and 54, 
 
            defendant's exhibits A and B and the testimony of claimant, 
 
            Charles Griffin and David Dersheimer. 
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that: 
 
            
 
                    1.  An employment relationship existed at the 
 
                 time of the alleged injury;
 
            
 
                    2.  If defendants are liable for the injury, 
 
                 claimant is entitled to healing period/temporary 
 
                 total disability benefits from April 5, 1991 
 
                 through August 8, 1991;
 
            
 
                    3.  Any disability is an industrial disability;
 
            
 
                    4.  The rate of compensation is $192.61;
 
            
 
                    5.  Medical benefits are no longer in dispute;
 
            
 
                    6.  Defendants paid voluntary benefits totaling 
 
                 $4,965.43 prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant sustained injury arising 
 
                 out of and in the course of employment;
 
            
 
                    2.  Whether the injury caused temporary or 
 
                 permanent disability;
 
            
 
                    3.  The extent of permanent disability, if any; 
 
            
 
                    4.  Whether penalty benefits should be assessed 
 
                 under Iowa Code section 86.13;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                    5.  Whether claimant is entitled to vocational 
 
                 rehabilitation benefits under Iowa Code section 
 
                 85.70.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Beverly Boldra was employed from 1984 to 1991 by Aratex 
 
            Services, a commercial laundry operation.  Claimant worked a 
 
            number of jobs consistent with that business, specially 
 
            including towel skeining (bundling for laundry).  
 
            
 
                 On or about May 3, 1990, claimant was assigned to 
 
            operate a large commercial clothes dryer.  The tumbler of 
 
            this device is large enough for an adult to stand inside.  
 
            Ordinarily, men had been assigned this job, claimant being 
 
            the first woman.  While unloading rugs from the dryer 
 
            (assorted sizes such as 3' x 5', 8' x 10'), a number of rugs 
 
            had tangled into a heavy mass.  While manipulating these, 
 
            claimant heard an audible "snap" in her lower back and 
 
            developed a dull ache; however, she continued to work.  
 
            Several days later, production manager David Dersheimer 
 
            authorized her to see a physician.  Claimant first visited 
 
            her regular family doctor, T. H. Mitchell, M.D., on May 11.  
 
            Dr. Mitchell's chart notes reflect complaints of nonspecific 
 
            low back discomfort without radiation.
 
            
 
                 Prior to this, claimant's only medical treatment for 
 
            back discomfort had been during the last trimester of a 
 
            pregnancy in 1983.  Dr. Mitchell noted no spasm or 
 
            fasciculation.  Straight leg raising, gait and station and 
 
            deep tendon reflexes were normal.  
 
            
 
                 Claimant testified that she saw Dr. Mitchell on three 
 
            occasions, each visit two weeks apart.  She further 
 
            testified that after the third visit, the dull ache was only 
 
            intermittent.  She continued to work in the same job, 
 
            including the large tumbler dryer.  
 
            
 
                 In August, claimant vacationed in South Dakota.  She 
 
            noticed numbness in one toe on one morning upon awaking.  
 
            
 
                 In mid-September, claimant began developing numbness 
 
            and radiating pain in both legs, symptoms that gradually 
 
            worsened.  
 
            
 
                 In December 1990, claimant commenced a course of 
 
            treatment with William O. Samuelson, M.D..  Dr. Samuelson is 
 
            an orthopedic specialist.  His initial chart notes reflect 
 
            positive straight leg raising with complaints of 
 
            intermittent bilateral radiating leg pain which had become 
 
            significantly worse over the past several weeks.  Dr. 
 
            Samuelson's initial assessment was of a herniated disc, 
 
            probably at L5-S1.  However, both EMG testing and a magnetic 
 
            residence imaging scan were normal.  Claimant was given 
 
            light duty restrictions and physical therapy.  An epidural 
 
            steroid injection provided pain relief for a few weeks, but 
 
            wore off.  A second injection was of no help.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 In April 1991, claimant was referred to Quentin 
 
            Durward, M.D..  Dr. Durward is a neurosurgeon who testified 
 
            by deposition on March 18, 1993.  
 
            
 
                 Dr. Durward was given the following history:
 
            
 
                    She gave me the history that she had a work 
 
                 injury that had occurred in May of '90 and she 
 
                 basically has had pain since that time.  She said 
 
                 she injured her back while she was pulling rugs 
 
                 out of a tumbler.  She heard a, quote, pop, quote, 
 
                 in her back.  There was not too much pain at that 
 
                 time.  However, the pain gradually worsened until 
 
                 in September it began to go into her legs as a, 
 
                 quote, shooting pain in the center, quote.
 
            
 
                    There was no particular precipitator for this.  
 
                 Usually this pain would come on when she was 
 
                 standing or walking.  She also complained of a, 
 
                 quote popping and  grinding, quote, in her back.  
 
                 She said, quote, if I squat my legs throb for 
 
                 several minutes afterwards.  I often have a 
 
                 sensation of my spine being compressed, quote 
 
                 (Durward Deposition, pp. 5, 1, 10-25).
 
            
 
                 Dr. Durward also testified he found nothing abnormal on 
 
            evaluation, including tests available to him at that time 
 
            (plain x-rays, MRI and EMG).  Dr. Durward accordingly caused 
 
            a myelogram to be performed, but this also proved normal.
 
            
 
                 During a lengthy course of treatment, Dr. Durward at no 
 
            time noticed muscle spasm or any other objective sign of 
 
            injury.  He eventually ordered permanent work restrictions 
 
            and rated impairment at 5 percent of the body as a whole.  
 
            Both were entirely due to subjective complaints of pain.  
 
            Dr. Durward has never noted any restricted range of motion 
 
            or rigidity in the spine and admitted that he was unable to 
 
            explain why claimant had pain in the right leg and that he 
 
            could find no nerve condition to explain the pain.  However, 
 
            he also testified that he believed the pain to be genuine.  
 
            He causally related both the impairment rating and activity 
 
            restrictions to the subject injury.
 
            
 
                 Claimant was also seen for evaluation by Charles D. 
 
            Ray, M.D., of the Institute for Low Back Care in 
 
            Minneapolis, Minnesota.  Dr. Ray believed that claimant had 
 
            a mechanical low back pain syndrome very likely of facet 
 
            joint origin, which he described as a very common problem 
 
            which is capable of producing significant localized and 
 
            radiating buttock and thigh pain.  Dr. Ray noted that 
 
            claimant had episodic paraspinal muscle spasm, although it 
 
            is unclear whether he obtained this information from any 
 
            source other than the history given him by claimant.  He 
 
            found her to be in satisfactory condition as of June 17, 
 
            1991.  Dr. Ray further sent claimant for physical therapy.  
 
            On July 16, 1992, Dr. Samuelson wrote separately to both 
 
            attorneys in this case.  
 
            
 
                 Dr. Samuelson's letter to defense counsel contained the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            following passage:
 
            
 
                    On April 5, 1991 she requested to be seen by 
 
                 Dr. Durward and was referred for evaluation and 
 
                 follow-up care.  She did have normal EMG's and 
 
                 normal nerve conduction studies, and at the 
 
                 present time, I would not give her a permanent 
 
                 impairment rating.  
 
            
 
                 In his letter to claimant's attorney, Dr. Samuelson 
 
            noted that he had reviewed the letter from Dr. Durward and 
 
            "would agree with his letter."  The attorney's letter, to 
 
            which Dr. Samuelson was responding, enclosed Dr. Durward's 
 
            letter of June 8, 1992.  That letter itself noted Dr. 
 
            Durward's opinion that claimant's permanent partial 
 
            impairment rating was related to pulling damp rags out of 
 
            industrial tumblers at Aratex.  
 
            
 
                 Since Dr. Durward had earlier rated a 5 percent whole 
 
            body impairment, it is most difficult to reconcile Dr. 
 
            Samuelson's two letters.  It appears that he simultaneously 
 
            refused to give any impairment rating while agreeing with a 
 
            5 percent impairment rating causally connected to the 
 
            original injury.
 
            
 
                 Due to the medical restrictions imposed by Dr. Durward, 
 
            defendant was unable to return claimant to work.  She was 
 
            eventually discharged in 1992, after last working in April 
 
            1991.  
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant's testimony that she suffered a "snap" in the 
 
            low back on May 3, 1990 is credible and undisputed.  Her 
 
            symptoms at that time necessitated medical treatment from 
 
            Dr. Samuelson.  Thus, claimant did sustain a compensable 
 
            work injury arising out of and in the course of employment.
 
            
 
                 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).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 Causation is the key issue in this case.  According to 
 
            the parties' stipulation, disputed healing period or 
 
            temporary total disability began on April 5, 1991.  Both 
 
            temporary and any permanent disability relate to claimant's 
 
            condition subsequent to September 1990, when she began 
 
            developing radicular symptoms.  The crucial issue in this 
 
            case is whether those symptoms are causally related to the 
 
            original work injury.  
 
            
 
                 Dr. Durward is the only physician in this record to 
 
            directly address that question, although Dr. Ray may have 
 
            indirectly done so by pointing out that mechanical low back 
 
            syndrome of facet joint origin is a "very common problem."  
 
            
 
                 It is clear from the record that Dr. Durward's opinion 
 
            is based on an incorrect history.  He believed, as shown by 
 
            his testimony, that claimant's symptoms were gradually 
 
            progressive from the date of injury ("the pain gradually 
 
            worsened until in September it began to go into her legs").  
 
            Claimant's testimony, both in her trial testimony and in her 
 
            deposition of May 28, 1992, is that the dull ache gradually 
 
            became intermittent, so that it bothered her only on some 
 
            days.  It will be recalled that the onset of radicular pain 
 
            was at least four months after the original injury 
 
            (mid-September in claimant's trial testimony, early 
 
            September in her deposition testimony).  It will be recalled 
 
            that a number of doctors and sophisticated testing have 
 
            utterly failed to find objective cause for claimant's 
 
            symptoms.  Dr. Ray has pointed out that facet joint pain is 
 
            very common and can produce a significant amount of 
 
            radiating pain with a typically recurrent history.  No 
 
            mechanism has been described to explain the onset of 
 
            radicular symptoms at least four months after an initial 
 
            trauma which had, in the meantime, improved.
 
            
 
                 For these reasons, it must be concluded that claimant 
 
            has failed to carry her burden of proof in establishing the 
 
            necessary causal nexus between her current symptoms and the 
 
            initial work injury.  Accordingly, defendants prevail.  
 
            Other issues are thereby rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from these 
 
            proceedings.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis McElwain
 
            Attorney at Law
 
            632 Badgerow Bldg.
 
            Sioux City, IA  51102
 
            
 
            Mr. Stephen M. Spencer
 
            Attorney at Law
 
            300 Fleming Bldg.
 
            218 Sixth Ave.
 
            Des Moines, IA  50306-9130
 
            
 
            
 
 
            
 
        
 
            
 
            
 
            
 
                                            5-1402.40
 
                                            Filed September 27, 1993
 
                                            David R. Rasey
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BEVERLY BOLDRA,     
 
                      
 
                 Claimant, 
 
                                                 File no. 966057
 
            vs.       
 
                                            A R B I T R A T I O N 
 
            ARATEX SERVICES,    
 
                                                 D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove onset of radicular symptoms some 
 
            four months after back incident were causally related.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       JANE ROGERS,   
 
                 
 
          Claimant,                          File No. 966126
 
                 
 
       vs.                                     A P P E A L
 
                 
 
       COVENANT MEDICAL CENTER,              D E C I S I O N
 
                 
 
          Employer,   
 
          Self-Insured,    
 
          Defendant.       
 
       _________________________________________________________________
 
       
 
          The record, including the transcript of the hearing before 
 
       the deputy and all exhibits admitted into the record, has been 
 
       reviewed de novo on appeal.
 
       
 
                                 ISSUES
 
       
 
          Defendant states the following issues on appeal:
 
       
 
            
 
            I.  The deputy erred in determining that the claimant's 
 
            healing period ended on April 3, 1991, as opposed to 
 
            February 13, 1990, or sometime in the interim period.
 
            
 
            II. The deputy erred in determining that the claimant 
 
            has suffered a 40% industrial disability as a result of 
 
            the 9/23/89 work injury.
 
       
 
                              FINDINGS OF FACT
 
       
 
          Claimant, Jane Rogers, was born September 6, 1957.  She was 
 
       36 years of age at the time of hearing, 32 years of age at the 
 
       time of injury.  (Transcript, page 31)
 
       
 
          Claimant graduated from high school in 1976, worked in 
 
       retail sales from 1976-79, and the attended Hawkeye Tech in 1979-
 
       80 earning an LPN certificate in 1980.  (Tr., p. 32)
 
       
 
          Since earning her LPN certificate in 1980 claimant has 
 
       worked continuously at Covenant Medical Center.  Claimant began 
 
       employment with defendant employer in 1980 as an LPN working on a 
 
       full-time basis in the Department of Orthopaedics.  (Full-time 
 
       employment for defendant employer is defined as 80 hours per bi-
 
       weekly pay period.)  In this position the claimant provided 
 
       patient care including lifting.  The claimant remained in this 
 
       position until approximately 1984 when she transferred to a full-
 
       time LPN position in defendant employer's Rehabilitation 
 
       Department.  Claimant's work in the Rehabilitation Department was 
 
       even more physically demanding than her work in the Department of 
 
       Orthopaedics.  (Tr., pp. 33-35)
 
       
 
          Claimant worked in the Rehabilitation Department from 1984 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       until she sustained an injury arising out of and in the course of 
 
       her employment on September 23, 1989.  (Tr., pp. 36-37, 45)  
 
       Claimant sustained a mid-back strain while attempting to restrain 
 
       a patient who had become combative.  (Tr., p. 37)  At the time of 
 
       injury the claimant was paid $9.22 per hour. (Tr., p. 63; Exhibit 
 
       F-8 to Joint Ex. 8)
 
       
 
          Prior to the injury claimant had no difficulty handling the 
 
       physical requirements of patient care and her medical condition 
 
       was excellent.  She had no preexisting back condition.  (Tr., pp. 
 
       16-17, 35)  Pre-injury the claimant had always been a full-time 
 
       employee at Covenant Medical Center and worked some overtime 
 
       hours.  (Tr., pp. 35-36; Claimant's Ex. 1)
 
       
 
          After sustaining the work-related injury the claimant was 
 
       first seen in the emergency room at Covenant Medical Center on 
 
       September 26, 1989.  (Jt. Ex. 2, p. 1)  Claimant was instructed 
 
       to take Motrin and Tylenol 3, have bedrest, and follow-up if 
 
       still painful.  (Jt. Ex. 2, p. 2; Tr., p. 38)  The pain worsened 
 
       and claimant returned to Covenant Medical Center on September 28, 
 
       1989.  (Jt. Ex. 2, pp. 3-5; Tr., p. 38)  The claimant was 
 
       referred to Orthopaedic Surgeon Arnold Delbridge, M.D., and an 
 
       appointment was set for October 6, 1989.  (Jt. Ex. 1, p. 7; Jt. 
 
       Ex. 2, p. 5; Tr., p. 38)  Claimant's thoracic spine was x-rayed 
 
       at Covenant Medical Center on October 3, 1989.  The x-rays showed 
 
       minimal scoliosis, but otherwise were negative.  (Jt. Ex. 2, p. 
 
       6)  On June 17, 1991 Dr. Delbridge ordered a CT scan from T4-T11 
 
       which was within normal limits.  (Jt. Ex. 1, p. 5)
 
       
 
          Dr. Delbridge treated the claimant from October 6, 1989 
 
       through December 26, 1991.  (Jt. Ex. 1, pp. 7-12)  Dr. 
 
       Delbridge's treatment of claimant was conservative.  (Tr., p. 38)  
 
       There was no surgical intervention.  Dr. Delbridge opined that 
 
       claimant had suffered a two percent functional impairment to the 
 
       body as a whole as a result of the thoracic strain.  (Jt. Ex. 1, 
 
       p. 5)
 
       
 
          After being released by Dr. Delbridge on December 26, 1991, 
 
       the claimant did not seek any additional medical treatment until 
 
       November 1993 when she was seen by "Covenant At Work," an in-
 
       house therapy group provided by defendant employer for its 
 
       employees.  The claimant was seen briefly in November 1993 for a 
 
       short course of physical therapy and again in April 1994, again 
 
       for a short course of physical therapy.  (Tr., pp. 43-44, 70-73)
 
       
 
          Dr. Delbridge has released claimant to work with the 
 
       restriction that she not lift more than 20 pounds maximally and 
 
       15 pounds on a repetitive basis.  (Jt. Ex. 1, p. 6; Tr., p. 42)  
 
       Dr. Delbridge has not released claimant for full duty LPN work.  
 
       (Tr., p. 39)  Other than the lifting restriction, there are no 
 
       other restrictions on claimant's employability.  (Tr., p. 73)
 
       
 
          Claimant experiences pain on a daily basis in the mid to 
 
       upper back area as well as headaches two or three times a week.  
 
       (Tr., p. 41)  Currently, the claimant takes Tylenol Extra 
 
       Strength, but no prescription medication.  (Tr., pp. 41-42)  
 
       
 
          Due to claimant's work injury, Dr. Delbridge would not allow 
 
       her to work from October 6, 1989 through October 31, 1989.  Dr. 
 
       Delbridge released the claimant for light duty work effective 
 
       November 1, 1989.  (Jt. Ex. 1, p. 7; Tr., p. 39)
 
       
 
          Claimant returned to light duty work at defendant employer 
 
       on November 1, 1989.  The claimant returned to light duty work in 
 
       what is known as the "project pool."  Claimant's work included 
 
       passing medicine and giving drinks to patients.  The work did not 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       involve any lifting.  (Tr., pp. 39, 59-60; Jt. Ex. 8, pp. 2-3)  
 
       Dr. Delbridge would periodically increase the number of hours and 
 
       days the claimant could work.  (Tr., p. 39; Jt. Ex. 1)  The 
 
       claimant continued on light duty through the project pool until 
 
       December 16, 1991.  When the claimant first returned to light 
 
       duty work in the project pool she was paid $9.22 per hour, the 
 
       same hourly rate she was paid at the time of injury.  While 
 
       working in the project pool the claimant received two pay raises, 
 
       first to $9.50 per hour effective September 11, 1990 and then to 
 
       $9.88 per hour effective October 7, 1991.  (Ex. F-8 of Jt. Ex. 8)
 
       
 
          As previously stated, the claimant was continuously employed 
 
       in light duty work in the project pool from November 1, 1989 
 
       until December 16, 1991.  Effective December 16, 1991 claimant 
 
       took a job as ambulatory resource coordinator for defendant 
 
       employer.  (Tr., p. 50; Ex. F-2 of Jt. Ex. 8)  As ambulatory 
 
       resource coordinator the claimant's duties included scheduling 
 
       outpatient testing and teaching patients regarding how to prepare 
 
       for various tests.  (Tr., p. 65)  The claimant is not required to 
 
       do any lifting.  (Tr., p. 50)  The claimant can fulfill all of 
 
       the job functions of this position.  (Tr., p. 74)  The claimant 
 
       enjoys her work.  (Tr., p. 66)
 
       
 
          The claimant is currently paid $10.89 per hour.  (Tr., p. 
 
       64)  The claimant, through the date of hearing, has received 
 
       three pay raises since taking the position of ambulatory resource 
 
       coordinator.  Effective October 5, 1992 the claimant's pay was 
 
       raised from $9.88 per hour to $10.37 per hour; effective October 
 
       6, 1992 claimant's pay was raised to $10.57 per hour; and 
 
       effective October 3, 1993 the claimant's pay was raised to its 
 
       current level of $10.89 per hour.  (Ex. F-8 of Jt. Ex. 8)  The 
 
       claimant has received each and every pay raise for which she has 
 
       been eligible.  (Tr., p. 62)
 
       
 
          While the claimant's post-injury hourly rate of pay is 
 
       higher than her hourly pay at the time of injury, post-injury she 
 
       normally works fewer hours per pay period than at the time of 
 
       injury.  As previously found, pre-injury the claimant worked 80 
 
       hours per bi-weekly pay period with some overtime hours.  When 
 
       the claimant began her job as ambulatory resource coordinator on 
 
       December 16, 1991 she was scheduled to work 40 hours per bi-
 
       weekly pay period.  (Tr., p. 85)  In October 1993 the claimant's 
 
       hours, even though still not full-time, were substantially 
 
       increased.  For the fifteen consecutive pay periods from October 
 
       1993 through April 1994 the claimant's hours per pay period have 
 
       ranged from a low of 62.5 hours to a high of 87 hours.  During 
 
       these fifteen pay periods the claimant has averaged 70.6 hours 
 
       per pay period.  (Ex. F-7 of Jt. Ex. 8)  In fact, a few days 
 
       prior to the contested case evidentiary hearing the claimant was 
 
       put on a schedule that has her working a scheduled 72 hours per 
 
       pay period.  (Tr., p. 54)  The schedule for the last pay period 
 
       before the contested case evidentiary hearing, i.e., the pay 
 
       period beginning May 29, 1994, has the claimant scheduled to work 
 
       80 hours.  (Tr., p. 86)
 
       
 
          Even though currently the claimant normally works fewer 
 
       hours per pay period than at the time of injury, her increased 
 
       hourly rate of pay has kept her current total earnings higher 
 
       than her total earnings at the time of injury.  The claimant's 
 
       total wages on a calendar year basis from defendant employer are:
 
       
 
          1986      $17,049.55     (Tr., pp. 49-50)
 
          1987      $16,668.43     (Tr., p. 49)
 
          1988      $17,723.59     (Tr., p. 49)
 
          1989      $ 9,940.94     (Jt. Ex. 4, p. 1)
 
          1990      $ 9,246.00     (Jt. Ex. 5, p. 1)
 

 
 
 
 
 
 
 
 
 
 
 
 
 
          1991      $15,298.00     (Jt. Ex. 6, p. 1)
 
          1992      $14,082.47     (Jt. Ex. 7, p. 2)
 
          1993      $18,417.91     (Tr., p. 63)
 
       
 
          Calendar year 1988 is the most representative year of those 
 
       in the record reflecting claimant's pre-injury earnings.  
 
       Calendar year 1993 is the most representative of claimant's 
 
       current situation as it most clearly reflects the number of hours 
 
       per pay period she is scheduled to work.  Both on an hourly rate 
 
       of pay basis and a yearly earnings basis, the claimant is 
 
       currently earning more wages than at the time of injury.  
 
       Calendar years 1990-1992 reflect the claimant's post-injury loss 
 
       of actual earnings during the time she was working in the project 
 
       pool and during the time she was working as ambulatory resource 
 
       coordinator for 40 hours per pay period.  Again, tax year 1993 
 
       most accurately reflects the current status of claimant's actual 
 
       earnings with defendant employer.
 
       
 
          On April 3, 1991 Dr. Delbridge felt claimant's condition had 
 
       stabilized to the point of being able to be rated for permanency.  
 
       For purposes of the healing period/temporary partial disability 
 
       issue, Dr. Delbridge's clinical notes from November 7, 1989 
 
       through April 3, 1991 are relevant.  (See Jt. Ex. 1, pp. 7-11)  
 
       The industrial commissioner will not reproduce those relevant 
 
       clinical notes in these findings of fact, but suffice it to say 
 
       those clinical notes are a part of these findings of fact just as 
 
       if laid out verbatim herein.
 
       
 
                      REASONING AND CONCLUSIONS OF LAW
 
       
 
          The industrial commissioner first addresses the healing 
 
       period/temporary partial disability issue.
 
       
 
          Iowa Code 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 from the disabling condition.  See Armstrong Tire & 
 
       Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).  Healing 
 
       period benefits can be interrupted or intermittent.  Teel v. 
 
       McCord, 394 N.W.2d 405 (Iowa 1986).
 
       
 
          In the instant case the claimant sustained an injury on 
 
       September 23, 1989, which resulted in permanent partial 
 
       disability.  She returned to part-time, light duty work on 
 
       November 1, 1989.  Pursuant to Iowa Code section 85.34 claimant 
 
       is entitled to healing period benefits from September 23, 1989 
 
       through October 31, 1989.  Thereafter, claimant is entitled to 
 
       temporary partial disability benefits until April 3, 1991.  At 
 
       that time claimant's treating physician, Dr. Delbridge, indicated 
 
       claimant had reached a stable state and could be rated for 
 
       permanency.  Prior to April 3, 1991, Dr. Delbridge's clinical 
 
       notes indicate numerous modalities of physical therapy attempted, 
 
       along with setbacks in her progress which required slow increases 
 
       in her activities and hours of employment.  In other words, prior 
 
       to April 3, 1991 Dr. Delbridge's clinical notes show there was a 
 
       reasonable expectation of improvement from claimant's disabling 
 
       condition.  As claimant reached maximum recovery on April 3, 1991 
 
       her temporary partial disability benefits end on that date.
 
       
 
          The final issue to be addressed by the industrial 
 
       commissioner is the extent of claimant's industrial disability.
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
          Factors to be considered in determining industrial dis
 
       ability include the employee's medical condition prior to the 
 
       injury, immediately after the injury, and presently; the situs of 
 
       the injury, its severity and the length of the healing period; 
 
       the work experience of the employee prior to the injury and after 
 
       the injury and the potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; and 
 
       inability because of the injury to engage in employment for which 
 
       the employee is fitted.  Loss of earnings caused by a job 
 
       transfer for reasons related to the injury is also relevant.  
 
       Likewise, an employer's refusal to give any sort of work to an 
 
       impaired employee may justify an award of disability.  McSpadden 
 
       v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
       matters which the finder of fact considers collectively in 
 
       arriving at the determination of the degree of industrial 
 
       disability.
 
       
 
          There are no weighting guidelines that indicate how each of 
 
       the factors are to be considered.  Neither does a rating of 
 
       functional impairment directly correlate to a degree of 
 
       industrial disability to the body as a whole.  In other words, 
 
       there are no formulae which can be applied and then added up to 
 
       determine the degree of industrial disability.  It therefore 
 
       becomes necessary for the deputy or commissioner to draw upon 
 
       prior experience as well as general and specialized knowledge to 
 
       make the finding with regard to degree of industrial disability.  
 
       See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
       Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
       
 
          Compensation for permanent partial disability shall begin at 
 
       the termination of the healing period.  Compensation shall be 
 
       paid in relation to 500 weeks as the disability bears to the body 
 
       as a whole.  Iowa Code section 85.34.
 
       
 
          Claimant, a high school graduate with an LPN certificate, 
 
       sustained a work-related injury that now forecloses her from 
 
       employment as an LPN floor nurse.  While the claimant has a 
 
       functional impairment rating that is low (2%), she has a lifting 
 
       restriction of not more than 20 pounds maximally and 15 pounds on 
 
       a repetitive basis.  The work restriction imposed by Dr. 
 
       Delbridge effectively forecloses the claimant from working in the 
 
       profession she occupied for 10 years prior to her injury.  
 
       Clearly claimant is a motivated individual.  But for defendant 
 
       employer's willingness to accommodate claimant's work 
 
       restriction, the evidence causes the industrial commissioner to 
 
       conclude that due to claimant's work injury her prospects for 
 
       employment, without retraining, would not be good.  On the other 
 
       hand, the record establishes that claimant is in a stable 
 
       employment relationship with an employer that has continuously 
 
       employed her since 1980.  There is no evidence of record that 
 
       even remotely suggests claimant's continued employment with 
 
       defendant employer is in jeopardy.  To the contrary, there is an 
 
       abundance of evidence that shows claimant is in a stable 
 
       employment relationship with defendant employer.  Evidence of a 
 
       stable employment relationship includes:  Claimant has received a 
 
       total of five pay raises since her return to work; defendant 
 
       employer has provided the claimant with meaningful work (claimant 
 
       is not in a make work situation); claimant enjoys her work as 
 
       ambulatory resource coordinator; defendant employer has fully and 
 
       completely complied with claimant's work restrictions; and 
 
       claimant's bi-weekly hours of employment have steadily increased 
 
       to the point where they are now near full-time.  In the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       unforeseen event that claimant's employment with defendant 
 
       employer would cease, claimant's age and intelligence suggest she 
 
       is suited for retraining.  Claimant's injury did not require 
 
       surgical intervention and, with the exception of short periods of 
 
       physical therapy, the claimant's injury stabilized on April 3, 
 
       1991 and she has not been treated since her last visit with Dr. 
 
       Delbridge on December 26, 1991.
 
       
 
          The factor involving claimant's actual earnings is viewed by 
 
       the industrial commissioner as being neutral with the facts that 
 
       are present in this record.  Clearly, even though the claimant's 
 
       hourly rate of pay was higher post-injury than pre-injury, she 
 
       had a loss of actual earnings until calendar year 1993.  Just as 
 
       clear is the fact that, due to a steady increase in the 
 
       claimant's scheduled hours of employment coupled with numerous 
 
       pay raises, she earned more wages from defendant employer in 
 
       calendar year 1993 than she did in any pre-injury calendar year.  
 
       The claimant's 1994 earnings, up through the date of hearing, 
 
       certainly show the claimant is again on track to exceed her pre-
 
       injury earnings, both in terms of hourly rate of pay and calendar 
 
       year wages.
 
       
 
          After considering all of the factors used in determining 
 
       industrial disability, it is the decision of the industrial 
 
       commissioner that Jane Rogers has sustained a 15 percent 
 
       industrial disability.
 
       
 
          WHEREFORE, the decision of the deputy is affirmed and 
 
       modified.
 
       
 
                                  ORDER
 
       
 
          THEREFORE, it is ordered:
 
       
 
          That defendant shall pay to claimant seventy-five (75) weeks 
 
       of permanent partial disability benefits at a rate of two hundred 
 
       seventy and 02/100 dollars ($270.02) per week from April 4, 1991.
 
       
 
          That defendant shall pay to claimant healing period benefits 
 
       from September 23, 1989 through October 31, 1989, at the rate of 
 
       two hundred seventy and 02/100 dollars ($270.02) per week.
 
       
 
          That defendant shall pay to claimant temporary partial 
 
       disability benefits as set forth in Iowa Code section 85.33 from 
 
       November 1, 1989 through April 3, 1991.
 
       
 
          That defendant shall pay accrued weekly benefits in a lump 
 
       sum and shall receive credit against this award for all weekly 
 
       benefits previously paid.
 
       
 
          That defendant shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendant shall pay the costs of this matter including 
 
       transcription of the hearing and shall reimburse claimant for the 
 
       filing fee if previously paid by claimant.
 
       
 
          That defendant shall file claim activity reports as required 
 
       by this agency pursuant to rule 343 IAC 3.1(2).
 
       
 
            
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
       
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                 ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Fred L. Morris
 
       Attorney at Law
 
       P.O. Box 9130
 
       Des Moines, Iowa 50306-9130
 
       
 
       Mr. Mark W. Fransdal
 
       Attorney at Law
 
       P.O. Box 627
 
       Cedar Falls, Iowa 50613
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1801.1; 5-1803
 
                                       Filed November 18, 1994
 
                                       Byron K. Orton
 
                         
 
       
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       JANE ROGERS,   
 
                 
 
          Claimant,                         File No. 966126
 
                 
 
       vs.                                    A P P E A L
 
                 
 
       COVENANT MEDICAL CENTER,              D E C I S I O N
 
                 
 
          Employer,   
 
          Self-Insured,    
 
          Defendant.       
 
       _________________________________________________________________
 
       
 
       5-1801.1
 
       
 
          Claimant returned to part-time, light duty work.  Her 
 
       subsequent medical treatment resulted in slow increases in her 
 
       activities and hours of employment.  Claimant was entitled to 
 
       temporary partial disability benefits during the time the medical 
 
       evidence showed there was a reasonable expectation of improvement 
 
       from claimant's disabling condition.
 
       
 
       5-1803
 
       
 
          Claimant was 32 years of age at the time of the injury.  She 
 
       was a high school graduate with an LPN certificate.  She injured 
 
       her back and had a two percent functional impairment as a result 
 
       of the thoracic strain.  She had lifting restrictions which 
 
       foreclosed her from employment as an LPN floor nurse.  She was 
 
       motivated.  The employer accommodated claimant.  Her injury did 
 
       not necessitate surgical intervention.  Her post-injury earnings 
 
       were higher than her pre-injury earnings.  Claimant was awarded a 
 
       15 percent industrial disability.
 
 
         
 
         
 
         
 
         
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         _________________________________________________________________
 
                                       :
 
         JANE ROGERS,                  :
 
                                       :          File No. 966126
 
              Claimant,                :
 
                                       :       A R B I T R A T I O N
 
         vs.                           :
 
                                       :          D E C I S I O N
 
         COVENANT MEDICAL CENTER,      :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         _________________________________________________________________
 
         
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jane Rogers, 
 
         claimant, against Covenant Medical Center, employer, hereinafter 
 
         referred to as Covenant, a self-insured defendant, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         September 23, 1989.  On June 14, 1994 a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  On September 23, 1989, claimant received an injury 
 
         arising out of and in the course of employment with Covenant.
 
         
 
              2.  Claimant is seeking temporary total/partial or healing 
 
         period benefits from September 24, 1989 through April 3, 1991. 
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  At the time of injury claimant's gross rate of weekly 
 
         compensation was $414.55; she was married; and she was entitled 
 
         to four exemptions.  Therefore, claimant's weekly rate of 
 
         compensation is $270.02 according to the Industrial 
 
         Commissioner's published rate booklet for this injury. 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendant.       
 
         
 
         
 
                                       ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding was the extent of claimant's entitlement to 
 
         disability benefits.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendant placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the injury and 
 
         disability.  From her demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant has worked for Covenant, a medical center, since 
 
         1980 and continues to do so at the present time.  Until the work 
 
         injury, claimant was employed as a Licensed Practical Nurse (LPN) 
 
         performing floor nurse duties.  She first worked in the 
 
         osteopathic unit and later was transferred to the "rehab" unit.  
 
         The rehab unit was the most demanding physically for LPNs at 
 
         Covenant as the patients were extremely disabled and entirely 
 
         unable to care for themselves.  They were also more prone to be 
 
         combative and uncooperative.  It was while working in this rehab 
 
         unit that claimant suffered her work injury.  Prior to the work 
 
         injury claimant was full time, working usually approximately 44 
 
         hours per week.
 
         
 
              The work injury was a severe mid/lower back strain which 
 
         occurred while claimant was attempting to restrain an unruly male 
 
         patient.  Claimant's care was soon transferred to an orthopedic 
 
         surgeon, Arnold Delbridge, M.D.  Dr. Delbridge treated claimant 
 
         until November 1989.  This treatment remained conservative with 
 
         extensive physical therapy.  Based upon the uncontroverted views 
 
         of the treating physician, Dr. Delbridge, claimant reached 
 
         maximum healing on April 3, 1991.
 
         
 
              Claimant returned to part-time light duty work at Covenant 
 
         on November 1, 1989 but has not returned to full time regular 
 
         employment since.  Claimant first worked half-time and her hours 
 
         were later increased somewhat.  Despite a stated release to full 
 
         duty in the initial release slips prepared by Dr. Delbridge, 
 
         claimant credibly stated that she never returned to full duty and 
 
         remained in the light duty project pool until December 16, 1991 
 
         at which time she was transferred to another part-time job 
 
         entitled "ambulatory resource coordinator."  The light duty 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         project pool was only a temporary assignment for employees on 
 
         temporary work restrictions.  Claimant had no choice but to 
 
         accept reassignment to this part-time work or face discharge.
 
         
 
              Dr. Delbridge has imposed a permanent work restriction upon 
 
         claimant's activities consisting of no occassional lifting over 
 
         20 pounds and no repetitive lifting over 15 pounds.  Based upon 
 
         the uncontroverted views of Dr. Delbridge, the work injury is 
 
         found to have caused a two percent permanent partial impairment 
 
         to the body as a whole.
 
                   
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 
         involving heavy lifting; repetitive lifting, bending, twisting 
 
         and stooping.  Due to his physical limitations, claimant's 
 
         medical condition prevents her from returning to her former work 
 
         as an LPN or any other work requiring claimant to violate her 
 
         work restrictions.  Claimant is 36 years of age.  Claimant has a 
 
         high school education and certification as an LPN.  Claimant's 
 
         only past employment, experience and education has been for a 
 
         career as an LPN.  As admitted by Covenant at hearing, there are 
 
         very few jobs as an LPN that does not require lifting in excess 
 
         of claimant's permanent work restrictions.  Although her age and 
 
         experience suggest good potential for vocational rehabilitation, 
 
         at present this is unnecessary as defendant has reemployed 
 
         claimant in a job suitable to her disability which earns, at 
 
         least per hour, the same pay as an LPN.  However, claimant 
 
         remains only a part-time employee and only occasionally works 
 
         full time when needed to fill in during vacation time.  Although 
 
         her superiors have asked for more hours in the department, there 
 
         is no assurance that this will be granted or that claimant will 
 
         receive those additional hours.  At the present time, claimant 
 
         has suffered a 30-35 percent loss in actual earnings and benefits 
 
         as a result of the job transfer from LPN to her current job.  
 
         However, there is good potential in this current job as the 
 
         department is expanding due to increased use of outpatient 
 
         services and claimant expresses satisfaction with the job.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that the work injury of September 23, 
 
         1989 was a cause of a 40 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              As the claimant has shown that the work injury was a cause a 
 
         permanent physical impairment or limitation upon activity 
 
         involving the body as a whole, the degree of permanent disability 
 
         must be measured pursuant to Iowa Code section 85.34(2)(u).  
 
         However, unlike scheduled member disabilities, the degree of 
 
         disability under this provision is not measured solely by the 
 
         extent of a functional impairment or loss of use of a body 
 
         member.  A disability to the body as a whole or an "industrial 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 
 
         258 N.W. 899 (1935).  A physical impairment or restriction on 
 
         work activity may or may not result in such a loss of earning 
 
         capacity.  Examination of several factors determines the extent 
 
         to which a work injury and a resulting medical condition caused 
 
         an industrial disability.  These factors include the employee's 
 
         medical condition prior to the injury, immediately after the 
 
         injury and presently; the situs of the injury, its severity and 
 
         the length of healing period; the work experience of the employee 
 
         prior to the injury, after the injury and potential for 
 
         rehabilitation; the employee's qualifications intellectually, 
 
         emotionally and physically; earnings prior and subsequent to the 
 
         injury; age; education; motivation; functional impairment as a 
 
         result of the injury; and inability because of the injury to 
 
         engage in employment for which the employee is fitted.  Loss of 
 
         earnings caused by a job transfer for reasons related to the 
 
         injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              Claimant argues that this agency should consider the 
 
         possibility that claimant may lose her job at Covenant in 
 
         assessing disability.  Absent clear evidence that this will 
 
         happen, this agency is to assess current, not possible future 
 
         disability.  Umphress v. Armstrong Rubber Co., (Appeal Decision 
 
         Filed August 27, 1987).  Likewise, it would be speculation at 
 
         this time that claimant will receive more hours in the future.
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a 30 percent loss of her earning capacity as a result of the work 
 
         injury.  Such a finding entitles claimant to 200 weeks of 
 
         permanent partial disability benefits as a matter of law under 
 
         Iowa Code section 85.34(2)(u) which is 40 percent of 500 weeks, 
 
         the maximum allowable number of weeks for an injury to the body 
 
         as a whole in that subsection. 
 
         
 
               Claimant's entitlement to permanent partial disability also 
 
         entitles her to weekly benefits for healing period under Iowa 
 
         Code section 85.34 from the date of injury until claimant returns 
 
         to work; until claimant is medically capable of returning to 
 
         substantially similar work to the work she was performing at the 
 
         time of injury; or, until it is indicated that significant 
 
         improvement from the injury is not anticipated, whichever occurs 
 
         first.
 
         
 
              As claimant returned to work on November 1, 1989, she is 
 
         entitled to healing period benefits from the date of injury until 
 
         the time of her return to work.  After that claimant is entitled 
 
         to temporary partial disability until April 3, 1991, the time 
 
         when the primary treating physician felt that claimant's 
 
         condition stabilized to the point of being able to be rated for 
 
         permanency.  A specific award of temporary partial disability 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         under Iowa Code section 85.33 will not be made as it is assumed 
 
         the parties will be able to work out the numerical details.  If 
 
         this is not possible, the request for additional orders may be 
 
         made within the undersigned's 20 day jurisdiction following the 
 
         issuance of this decision.
 
         
 
         
 
                                       ORDER
 
         
 
              1.  Defendant shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at a rate of two hundred 
 
         seventy and 02/l00 dollars ($270.02) per week from April 4, 1991.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from September 23, 1989 through October 31, 1989, at the rate of 
 
         two hundred seventy and 02/l00 dollars ($270.02) per week.
 
         
 
              3.  Defendant shall pay to claimant temporary partial 
 
         disability benefits as set forth in Iowa Code section 85.33 from 
 
         November 1, 1989 through April 3, 1991.
 
         
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              5.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              6.  Defendant shall pay the costs of this action pursuant to 
 
         343 IAC 4.33, including reimbursement to claimant for any filing 
 
         fee paid in this matter.
 
         
 
              7.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to 343 IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of July, 1994.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Mark W. Fransdal
 
         Attorney at Law
 
         315 Clay Street
 
         PO Box 627
 
         Cedar Falls  IA  50613
 
         
 
         Mr. Fred L. Morris
 
         Attorney at Law
 
         405 Sixth Ave  STE 700
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 15, 1994
 
                                                 LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                      
 
            JANE ROGERS,   
 
                                                  File No. 966126
 
                 Claimant, 
 
                                                A R B I T R A T I O N
 
            vs.       
 
                                                   D E C I S I O N
 
            COVENANT MEDICAL CENTER, 
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
                      
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         _________________________________________________________________
 
                                       :
 
         JANE ROGERS,                  :
 
                                       :         File No. 966126
 
              Claimant,                :
 
                                       :            O R D E R
 
         vs.                           :
 
                                       :             N U N C
 
         COVENANT MEDICAL CENTER,      :
 
                                       :              P R O
 
              Employer,                :
 
              Self-Insured,            :             T U N C
 
              Defendant.               :
 
         _________________________________________________________________
 
         Due to typographical error, the first full unnumbered paragraph 
 
         on page 4 of the arbitration decision filed July 15, 1994 is 
 
         amended to read as follows:
 
         In the case sub judice, it was found that claimant suffered a 40 
 
         percent loss of her earning capacity as a result of the work 
 
         injury.
 
         The remaining portions of the decision remain unchanged.
 
         
 
         
 
              Signed and filed this ____ day of July, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark W. Fransdal
 
         Attorney at Law
 
         315 Clay Street
 
         PO Box 627
 
         Cedar Falls  IA  50613
 
         
 
         Mr. Fred L. Morris
 
         Attorney at Law
 
         405 Sixth Ave  STE 700
 
         Des Moines  IA  50309
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
MARY HUEBNER, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 966127
 
COVENANT MEDICAL CENTER,     
 
                                    A R B I T R A T I O N
 
     Employer, 
 
     Self-Insured,                    D E C I S I O N
 
     Defendant.     
 
          
 
________________________________________________________________
 
                  STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by the claimant, Mary 
 
Huebner, against her self-insured employer, Covenant Medical Center, to 
 
recover benefits under the Iowa Workers' Compensation Act as a result 
 
of an injury sustained on January 15, 1990.  This matter came on for 
 
hearing before the undersigned deputy industrial commissioner in 
 
Waterloo, Iowa, on May 24, 1994.  A first report of injury has been 
 
filed.  The record consists of the testimony of claimant, of Marilyn 
 
Millries, of Susan Kay Blake, of Julie Cook, R.N., of Edward F. 
 
Steiner, and of Julia Marcuzzo, as well as of claimant's exhibits 8 
 
through 15 and defendant's exhibits 1 and 2; 6 through 14; and 18 
 
through 21.
 
 
 
                            ISSUES
 
 
 
Pursuant to the hearing report and the oral stipulations of the parties 
 
at hearing, the parties agree to the following:
 
 
 
1.  An employer-employee relationship existed between claimant and 
 
Covenant Medical Center on January 15, 1990;
 
 
 
2.  Claimant did receive an injury to her right knee which injury arose 
 
out of and in the course of her employment on January 15, 1990;
 
 
 
3.  A causal relationship existed between claimant's January 15, 1990 
 
right knee injury and a period of temporary total disability and a 
 
degree of permanent partial disability;
 
 
 
4.  Claimant was off work from January 23, 1990 through February 11, 
 
1991, and from May 11, 1992 through September 7, 1993, and seeks 
 
temporary total or healing period benefits through those dates;
 
 
 
5.  The commencement date for permanent partial disability benefits, if 
 
awarded, is November 13, 1990, or September 8, 1993;
 
 
 
6.  Claimant had a gross weekly wage of $432.55, was married and 
 
entitled to three exemptions on January 15, 1990, resulting in a weekly 
 
rate of compensation of $275.74;
 
 
 
7.  Claimant has been paid 51.429 weeks of compensation at the 
 
stipulated rate; and,
 
 
 
8.  Defendant is entitled to a credit under section 85.38(2) for 
 
payment of medical and hospitalization expenses.
 
 
 
ISSUES REMAINING TO BE DECIDED ARE:
 
 
 
1.  Whether a causal relationship exists between claimant's January 15, 
 
1990 injury and claimed disability to her low back and claimed 
 
disability related to her psychiatric condition;
 
 
 
2.  The nature and extent of any temporary or permanent disability 
 
entitlement; and,
 

 
 
 
 
 
 
 
3.  Whether claimant is entitled to payment of certain medical expenses 
 
under section 85.27, specifically, whether treatment rendered was 
 
reasonable and necessary treatment causally related to the work injury 
 
and defendant authorized.
 
 
 
                        FINDINGS OF FACT
 
 
 
The deputy, having heard the testimony and considered the evidence, 
 
finds:
 
 
 
Claimant is a 56-year-old licensed practical nurse who has worked for 
 
the employer or its predecessors since October 1975.  Claimant's work 
 
history otherwise consists of childrearing and homemaking.
 
 
 
On January 15, 1990, claimant received an injury when she experienced 
 
pain in her right knee while kneeling to remove a catherizer.  Claimant 
 
initially sought emergency care.  On January 23, 1990, claimant saw 
 
Dale G. Phelps, M.D.  X_rays revealed an old osteochondritis dessicans. 
 
Dr. Phelps prescribed an immobilizer.
 
 
 
James E. Crouse, M.D., a board certified orthopedic surgeon, first saw 
 
claimant on January 30, 1990.  He performed arthroscopic surgery on 
 
February 5, 1990.  This confirmed loose fragments of the 
 
osteochondritis dessicans as well as cartilage wear in the medial 
 
compartment of the knee, degenerative changes of the tibia and a loose 
 
fragment broken loose from the medial femoral condyle.  Dr. Crouse 
 
removed the loose fragment of the osteochondritis and burr smoothed the 
 
crater in the medial femoral condyle.
 
 
 
In his deposition, Dr. Crouse characterized osteochondritis dessicans 
 
as a condition where a segment of the bone and cartilage at the knee 
 
does not form a complete bony union.  It usually involves the medial 
 
femoral condyle.  He stated that claimant's dessicans preexisted her 
 
January 15, 1990 date of injury and was probably present since claimant 
 
was an adolescent.  Both Dr. Cruse and Dr. Phelps opined that 
 
claimant's work incident of January 15, 1990, resulted in claimant's 
 
dessicans condition becoming symptomatic.  We note that the parties 
 
have stipulated as to the causal relationship between the work injury 
 
and claimant's right knee condition.
 
 
 
It is expressly found that claimant's knee was not symptomatic prior to 
 
her January 15, 1990 injury.  Apportionment of disability between 
 
claimant's preexisting knee condition and her injury and subsequent 
 
surgeries is, therefore, inappropriate as claimant had no actual loss 
 
of use of the knee prior to her January 15, 1990 injury.  See, Bearce 
 
v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991).
 
 
 
Dr. Crouse followed claimant through 1990.  On August 9, 1990, x_ray 
 
examination showed that the defect in the medial femoral condyle was 
 
healing.  Claimant then was restricted to moderate standing and walking 
 
and was not restricted as regards sitting.  She had good knee range of 
 
motion.  On a February 19, 1990 visit, claimant complained of 
 
experiencing back pain after falling when her knee gave out as she 
 
attempted to climb stairs in her home.  On October 11, 1990, a Dr. 
 
Johnson released claimant to return to work three days per week.  On 
 
November 12, 1990, Dr. Crouse advised that while claimant was not to 
 
increase her activities and continue restrictions, she was at maximum 
 
medical improvement.
 
 
 
On March 18, 1991, Dr. Crouse advised that claimant should not return 
 
to floor nursing as she would do better in a primarily sedentary job.  
 
On February 11, 1991, Dr. Crouse reported claimant as having a good 
 
deal of knee discomfort with substantial walking and as stating that 
 
favoring her knee aggravated her back soreness.  Dr. Crouse continued 
 
to treat claimant with anti-inflammatories and cortisone injections.  
 
 
 
He subsequently referred claimant to the Mayo Clinic for further 
 
evaluation.  On March 25, 1993, L.F.A. Peterson, M.D., diagnosed 
 
claimant as having right knee medial compartment osteoarthritis 
 
associated with a complex tear of the entire medial meniscus per an MRI 
 
performed on March 23, 1993.  On July 22, 1993, claimant underwent an 
 
arthroscopic partial meniscectomy and removal of the loose body in the 
 
right knee.  On August 2, 1993, claimant was released to return to work 
 
on a part-time basis as of September 1, 1993.  Dr. Crouse opined in his 
 
deposition that claimant's need for removal of the medial meniscus in 
 
July of 1993 resulted from the defect in the medial femoral condyle 
 

 
 
 
 
 
 
 
 
 
rubbing against the meniscus and causing it to deteriorate and tear.  
 
He stated that for that reason claimant's work injury was a material 
 
factor in bringing about the need for the July 1993 surgery.  It is 
 
expressly found that claimant is entitled to payment of costs including 
 
parking and mileage costs related to her treatment at the Mayo Clinic 
 
and Rochester Methodist Hospital.  Claimant's July 1993 surgery and 
 
medical care at Mayo preceding the surgery and subsequent to the 
 
surgery is found to be reasonable and necessary treatment related to 
 
the work-related knee condition and treatment received upon referral 
 
from an authorized treating physician.  It is further expressly found 
 
that claimant is entitled to payment of healing period disability 
 
benefits from July 22, 1993 through September 7, 1993.  For reasons to 
 
be discussed further below, the record does not reflect that claimant 
 
could not have been engaging in sedentary, income-producing activities 
 
from May 11, 1992 through July 21, 1993.
 
 
 
Dr. Crouse last saw claimant on March 30, 1990.  He believed she was 
 
getting along reasonably well at that time although she continued to 
 
have knee discomfort and swelling with increased activity and low back 
 
discomfort with standing, bending and lifting.  His diagnosis was 
 
chronic low back sprain and post-traumatic right knee degenerative 
 
arthritis.  Dr. Crouse opined that claimant likely would have 
 
persistent low back soreness and persistent right knee problems with 
 
both tibial osteotomy with realignment of the knee and total knee 
 
arthonoplasty likely in the future.
 
 
 
In his deposition, Dr. Crouse opined that claimant, as a combined 
 
result of both her knee and back condition, should not lift more than 
 
25 pounds occasionally and should not stoop or climb nor should she 
 
stand greater than six hours or walk greater than three hours in any 
 
work day.  He also stated that on account of the back alone claimant 
 
would be restricted from repetitive bending, stooping and heavy 
 
lifting.  He reported that, as regards the back, claimant was advised 
 
to move about intermittently throughout the day changing position every 
 
15 minutes, if possible, and taking 15 minute breaks and lunch breaks.  
 
Dr. Crouse opined that claimant's low back pain relates to her fall in 
 
September 1990.  He further stated that under the AMA Guides To The 
 
Evaluation of Permanent Impairment, fourth edition, claimant has a 9 
 
percent body as a whole impairment on account of her knee condition and 
 
5 percent body as a whole impairment on account of her back condition 
 
resulting in a combined value impairment of 14 percent of the body as a 
 
whole.
 
 
 
Dr. Crouse stated that with a good result from total knee replacement 
 
claimant would walk without a limp and would have more normal standing 
 
and walking.  He believed that while an abnormal gait would stress the 
 
back and aggravate claimant's back pain that claimant would continue to 
 
have low back soreness even with a "normal" knee.  He agreed that being 
 
overweight aggravates back pain and indicated that degenerative changes 
 
in the lumbosacral spine are not unusual for an individual of 
 
claimant's age.
 
 
 
Dr. Crouse's office notes reflect that claimant complained of back pain 
 
intermittently from September 1990 through March 30, 1994.  Apparently 
 
claimant did not have radicular pain.  The notes do not reflect any 
 
active treatment for claimant's back either by way of prescribed 
 
medications, prescribed diagnostic testing, or prescribed physical 
 
therapy or other rehabilitation programs.
 
 
 
W. John Robb, M.D., examined claimant's right knee on September 5, 
 
1991.  He then noted that her ligaments were intact and that she did 
 
not have joint effusion or joint tenderness along either the medial or 
 
lateral plateaus.  Knee range of motion was equal in both the left and 
 
right knee with flexion to 55 degrees and full extension without 
 
crepititus or patella grading.  Dr. Robb opined that February 21, 1990 
 
x_rays of the knee showed early degenerative changes in the medial 
 
joint and this represented early degenerative arthritis that preexisted 
 
claimant's January 15, 1990 injury.  He stated this condition would 
 
have progressed regardless of claimant's fragment loosening and that, 
 
therefore, her injury represented an aggravation of a preexisting 
 
condition.  Dr. Robb opined that claimant had a fourteen percent 
 

 
 
 
 
 
 
 
 
 
permanent partial impairment of the right lower extremity with seven 
 
percent of that impairment attributable to her January 15, 1990 
 
aggravation of her condition and subsequent surgery.
 
 
 
Arnold Delbridge, M.D., examined claimant on February 14, 1992.  
 
Claimant then reported back pain periodically when her knee flared up.  
 
Dr. Delbridge opined that claimant should expect some knee symptoms 
 
given her knee pathology.  He noted that on exam claimant had no 
 
effusion and had full extension and flexion and walked without a limp.  
 
Dr. Delbridge characterized claimant's prognosis as guarded and stated 
 
that claimant would have very gradual return to normal activities and 
 
would have gradual degenerative changes within the knee.  Dr. Delbridge 
 
opined that claimant had a ten percent permanent partial impairment of 
 
the right lower extremity.
 
 
 
John S. Koch, M.D., a board certified orthopedic surgeon, saw claimant 
 
for independent medical examination on December 17, 1992.  On 
 
examination claimant could bear her full weight while standing solely 
 
on the right lower extremity and had full range of motion of that knee. 
 
 
 
 Low back x_rays showed mild hypertrophic bone changes, that is, wear 
 
and tear changes, at the third and fourth intervertebral joint space.  
 
The doctor, in his deposition, opined that these preexisted the January 
 
13, 1990 date of injury.
 
 
 
On December 23, 1992, Dr. Koch stated that claimant's activity 
 
limitations would relate primarily to her knee and not her back 
 
condition.  He believed claimant's back complaints were consistent with 
 
claimant's size and age and could be handled medically with appropriate 
 
physical control.  On January 12, 1993, Dr. Koch opined that claimant's 
 
low back difficulties were temporary aggravations or flare-up of her 
 
preexisting degenerative condition.
 
 
 
In his deposition, Dr. Koch opined that he saw a number of ladies in 
 
their fifties with complaints of low back pain who had not had 
 
significant trauma.  He stated that he had assigned claimant a 5 
 
percent body as a whole permanent partial impairment of the lumbosacral 
 
spine as a result of her mild degenerative changes and her full back 
 
range of motion without neurologic or abnormality.  Dr. Koch opined 
 
that claimant's excess body weight was a factor in her degenerative 
 
spinal changes.  Dr. Koch reported he placed no permanent restrictions 
 
on claimant as a result of her low back complaints and would not have 
 
given her permanent restrictions by nature of her occupation.  He 
 
further opined that a tibial osteotomy/joint arthroplasty would likely 
 
reduce claimant's low back complaints but would not end them given 
 
claimant's degenerative changes and her weight, both of which would 
 
generate complaints of low back pain.  Dr. Koch opined that with the 
 
prescribed back program and weight loss claimant could maximize her 
 
back performance capacity.  Dr. Koch opined that a 25 pound lifting 
 
restriction on an intermittent basis was reasonable for claimant given 
 
the persistence of claimant's weight, further aging and her 
 
degenerative spinal condition.  He reported that he would consider 
 
claimant's low back impairment permanent and stated that complaints of 
 
back pain are almost universal with a depressive disorder.  He further 
 
stated that persistent difficulty with the knee would tend to allow 
 
continuing back complaints.  He would accept as a "possibility" that 
 
claimant sustained a low back strain in her September 1990 fall.
 
 
 
Dr. Koch further opined that claimant could perform the duties of a 
 
desk nurse stating that these are primarily secretarial.  He opined 
 
that sitting for six hours per day would cause problems for anyone.  
 
Given claimant's weight and physical condition, claimant would likely 
 
be more symptomatic or in more physical discomfort than would an 
 
individual with normal physical makeup.  Dr. Koch stated that claimant 
 
could bend from the back although she could not bend from the knee.
 
Dr. Koch opined that claimant had a 14 percent permanent partial 
 
impairment of the right lower extremity with 50 percent of such 
 
attributable to preexisting arthritis in the knee.
 
 
 
On May 17, 1992, Dr. Crouse assigned claimant a permanent partial 
 
impairment rating of 17 percent of the right lower extremity.
 
It is expressly found that claimant has permanent partial impairment of 
 
17 percent of right lower extremity on account of her knee condition.  
 

 
 
 
 
 
 
 
This finding reflects the opinion as to permanent partial impairment of 
 
claimant's knee of her treating physician, Dr. Crouse.  This is 
 
consistent with claimant's two surgeries on account of her condition 
 
and claimant's reported actual loss of use of the knee.  The record 
 
does not reflect that claimant had any additional impairment on account 
 
of her 1993 surgery.
 
 
 
It is expressly found that claimant has not established that her low 
 
back condition represents a permanent condition causally related to her 
 
January 15, 1990 injury to her right knee.  While claimant apparently 
 
did have a fall which produced back pain when her knee gave out in 
 
September 1990, continuing symptoms of back pain equally as likely 
 
related to her depressive disorder, her degenerative spinal changes and 
 
her weight as to that incident and continuing favoring of the knee.  It 
 
is expressly noted that claimant does not walk with an abnormal gait 
 
and appears, per Dr. Koch's examination, capable of full weight bearing 
 
on the right lower extremity alone.
 
 
 
Claimant has a depressive disorder not otherwise specified.  
 
Additionally, claimant has taken to self medicating with alcohol, 
 
especially wine in the evenings.  Claimant testified she does so for 
 
pain and to assist her in relieving her anxiety and attaining sleep.  
 
Claimant has not been diagnosed as having a substance abuse disorder.  
 
On September 25, 1991, claimant's spouse of 33 years died while 
 
undergoing cardiac surgery.
 
 
 
Mark L. Bickley, D.O., claimant's family physician, saw claimant on 
 
October 8, 1991.  He characterized claimant as having an anxiety 
 
reaction and being quite emotional during the exam.  He prescribed 
 
Xanax and noted that he and claimant had discussed her spouse's death.  
 
Dr. Bickley again saw claimant on October 18, 1991.  He characterized 
 
her as seeming quite "mad" and anxious about her husband's death.  On 
 
November 4, 1991, Dr. Bickley stated that claimant was unable to work 
 
from October 28 to November 10 due to her continued upset related to 
 
her spouse's death.  On November 12, 1991, Dr. Bickley stated claimant 
 
was unable to work due to her anxiety related to her spouse's death and 
 
on November 19, 1991, Dr. Bickley stated that claimant would be unable 
 
to work for the next two weeks due to her continued upset.  On December 
 
4, 1991, Dr. Bickley stated claimant would be off work until she saw a 
 
consultant for her anxiety problems.  Dr. Bickley on that date referred 
 
claimant to P.B. Raju, M.D., a board certified psychiatrist.  Dr. Raju 
 
first saw claimant on December 6, 1991.  Claimant gave a history of 
 
depression secondary to her husband's death and of having to give up 
 
her nursing job in 1990 on account of a right knee injury.  Claimant 
 
had a family history of depression.  As noted, Dr. Raju's diagnosis was 
 
of depression not otherwise specified.
 
 
 
In his deposition of April 27, 1994, Dr. Raju attributed claimant's 
 
depression to her husband's death on September 25, 1991; probably to 
 
losing her job; and to familial predisposition to depression which 
 
stressors brought to the surface.  On further examination, he stated 
 
that knee pain could also contribute to depression and that alcohol 
 
abuse could contribute to depression, although it would be difficult to 
 
opine that claimant's depressive symptomatology relates directly to 
 
alcohol consumption.
 
 
 
It is expressly found that claimant's work injury of January 15, 1990 
 
is not established as a causative factor in claimant's depression 
 
disorder.  Claimant's emotional disturbance had its onset is the 
 
immediate sequela of her spouse's death.  While claimant's emotional 
 
state after September 25, 1991 appears to have played a significant 
 
role in claimant's inability to continue vocationally rehabilitating 
 
with the employer from a position as a floor nurse to a more sedentary 
 
position, it cannot properly be said that unfortunate result was 
 
proximately caused by claimant's work injury or her knee condition.  
 
That result, including claimant's ultimate job termination, appears to 
 
have been a sequela of her nonwork-related depressive disorder and not 
 
a sequela of her work-related knee condition.  It is expressly found 
 
that claimant is not entitled to payment of costs with Dr. Raju in the 
 
amount of $509 nor is she entitled to prescription costs set forth in 
 
exhibit 10.  All appear to be for prescriptions which either Dr. Raju 
 

 
 
 
 
 
 
 
 
 
or Dr. Bickley issued and all appear to relate to claimant's emotional 
 
disorder.
 
 
 
It is also expressly found that claimant has not established 
 
entitlement to the payment of costs with L.C. Wright, D.C.  Any costs 
 
related to care for the knee were not authorized costs.  Any costs 
 
related to claimant's low back complaints have not been established as 
 
causally related to claimant's January 15, 1991 injury.
 
 
 
It is expressly found that claimant is entitled to costs for crutches 
 
in the amount of $15.59.
 
 
 
                     CONCLUSIONS OF LAW
 
 
 
We first consider the question of whether a causal relationship exists 
 
between claimant's January 15, 1990 work injury and claimed body as a 
 
whole disability to her back and her psyche.
 
 
 
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).
 
 
 
The right of an employee to receive compensation for injuries sustained 
 
is statutory. The statute conferring this right can also fix the amount 
 
of compensation payable for different specific injuries.  The employee 
 
is not entitled to compensation except as the statute provides.  Soukup 
 
v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
Compensation for permanent partial disability begins at termination of 
 
the healing period.  Section 85.34(2).  Permanent partial disabilities 
 
are classified as either scheduled or unscheduled.  A specific 
 
scheduled disability is evaluated by the functional method; the 
 
industrial method is used to evaluate an unscheduled disability. Simbro 
 
v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle 
 
Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 
 
Iowa 128, 106 N.W.2d 95 (1960).
 
 
 
An injury to a scheduled member may, because of after effects or 
 
compensatory change, result in permanent impairment of the body as a 
 
whole.  Such impairment may in turn be the basis for a rating of 
 
industrial disability.  It is the anatomical situs of the permanent 
 
injury or impairment which determines whether the schedules in section 
 
85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). 
 
 Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
Where psychological condition is caused or aggravated by a scheduled 
 
injury the injury is compensable as a nonscheduled injury.  Moritmor v. 
 
Purhoff Corp., N.W.2d  (Iowa 1993).
 
 
 
Claimant has not established a causal relationship between her January 
 

 
 
 
 
 
 
 
 
 
15, 1990 injury and claimed permanent disability to her low back.
 
Claimant has not established a causal relationship between her January 
 
15, 1990 injury and claimed disability as a result of her depression, 
 
not otherwise specified.
 
 
 
We reach the question of claimant's disability entitlement.
 
Iowa Code 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).
 
 
 
A worker is entitled to 220 weeks of permanent disability compensation 
 
for loss of use of the leg.
 
 
 
Claimant is entitled to healing period benefits from January 23, 1990 
 
through a stipulated medical improvement date of November 13, 1990.
 
Claimant is entitled to healing period benefits from July 22, 1993 
 
through September 7, 1993.
 
 
 
Claimant is entitled to permanent partial disability benefits of 17 
 
percent of the leg, representing a weekly benefit entitlement of 37.4 
 
weeks.
 
 
 
We consider the question of entitlement to payment of medical costs 
 
incurred.
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions 
 
compensable under the workers' compensation law.  The employer shall 
 
also allow reasonable and necessary transportation expenses incurred 
 
for those services.  The employer has the right to choose the provider 
 
of care, except where the employer has denied liability for the injury. 
 
 
 
 Iowa Code section 85.27.  Holbert v. Townsend Engineering Co., 
 
Thirty-second Biennial Report of the Industrial Commissioner 78 
 
(Review-reopen 1975).
 
 
 
Claimant is entitled to payment of medical expenses as follows:
 
 
 
     Mayo Clinic                               $1,665.60
 
                                                4,051.70
 
     Rochester Methodist Hospital                 886.75
 
     Crutch rental                                 15.59
 
 
 
Claimant is entitled to parking expenses in the amount of $14.00 
 
related to her treatment at Mayo Clinic.
 
 
 
Claimant is entitled to mileage reimbursement at the rate of $.21 per 
 
mile related to treatment or examination with Dr. Crouse, Dr. 
 
Delbridge, Dr. Robb, Dr. Koch and the Mayo Clinic.  These amounts total 
 
$356.79 (1,699 x $.21).
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
Defendants pay claimant permanent partial disability benefits for 
 
thirty_seven point four (37.4) weeks at the rate of two hundred 
 
seventy_five and 74/100 dollars ($275.74) with those payments to 
 
commence on November 13, 1990.
 
 
 
Defendants pay claimant healing period benefits at the rate of two 
 
hundred seventy_five and 74/100 dollars ($275.74) from January 23, 1990 
 
through November 12, 1990, and from July 22, 1993 through September 7, 
 
1993.
 
 
 
Defendants receive credit for benefits previously paid.
 
 
 
Defendants pay any accrued amounts in a lump sum.
 
 
 
Defendants pay claimant mileage and parking expenses as set forth in 
 
the above conclusions of law.
 
 
 
Defendants pay medical costs as set forth in the above conclusions of 
 

 
 
 
 
 
 
 
 
 
law.
 
 
 
Defendants pay any accrued interest pursuant to Iowa Code section 
 
85.30.
 
 
 
Defendants pay costs pursuant to rule 343 IAC 4.33.
 
 
 
Defendants file claim activity reports as the agency orders.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
                           ________________________________        
 
                           HELENJEAN M. WALLESER         
 
                           DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr Robert C Andres
 
Attorney at Law
 
616 Lafayette St
 
P O Box 2634
 
Waterloo IA 50703
 
 
 
Mr Fred L Morris
 
Attorney at Law
 
405 Sixth Ave  Ste 700
 
Des Moines IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
                                 1108; 1108.20; 1108.50;
 
                                 1803.1; 1806; 2501
 
                                 Filed December 8, 1994
 
                                 Helenjean M. Walleser
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MARY HUEBNER, 
 
          
 
     Claimant,                    File No. 966127
 
          
 
vs.                            A R B I T R A T I O N
 
 
 
COVENANT MEDICAL CENTER,         D E C I S I O N     
 
                               
 
     Employer, 
 
     Self-Insured,                 
 
     Defendant.     
 
________________________________________________________________
 
1108; 1108.20; 1108.50; 1803.1; 1806
 
Claimant did not establish that depressive order not otherwise 
 
specified resulted from a work-related knee injury.  Claimant's 
 
depressive disorder had its onset in her spouse's untimely death.  
 
While claimant's depressive disorder made it difficult for claimant to 
 
work with the employer in vocational rehabilitation to a less sedentary 
 
position with the employer and played a role in claimant's ultimate 
 
termination of employment those results appear to be a sequela of the 
 
depressive disorder itself and not conditions which produced the 
 
depressive disorder.
 
 
 
Claimant's complaints of low back discomfort not shown to be causally 
 
related to a work injury to the knee where claimant was overweight, had 
 
degenerative disc disease on x_ray examination which level of 
 
degeneration was consistent with claimant's age (early 50s) and 
 
excessive weight (5' 4", 190 pounds).  Additionally, while claimant's 
 
office notes with the treating orthopedic surgeon reflected that 
 
claimant did have a fall at home with back complaints after her knee 
 
came out and that claimant did complain intermittently of back pain 
 
subsequent to that fall, claimant received no active treatment for any 
 
back complaints.
 
 
 
While claimant had preexisting osteochondritis dessicans and 
 
preexisting arthritis in her knee, claimant was asymptomatic prior to 
 
her work incident.  Bearce followed in holding that apportionment of 
 
disability was inappropriate in that claimant had had no loss of use of 
 
her leg prior to the work incident.
 
 
 
2501
 
Second arthroscopic surgery found to be reasonable and necessary care.  
 
The surgery related back to the original work incident and increased 
 
claimant's comfort level.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             ____________________________________________________________
 
            CAROL WEISENBERGER,   
 
                        
 
                 Claimant,                     File No. 966128
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            COVENANT MEDICAL CENTER,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 15, 1993 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 February, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            P.O. Box 2634
 
            Waterloo, Iowa 50704
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108; 1803; 1806
 
                                            Filed February 28, 1994
 
                                            Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            CAROL WEISENBERGER,   
 
                        
 
                 Claimant,                       File No. 966128
 
                        
 
            vs.                                    A P P E A L
 
                        
 
            COVENANT MEDICAL CENTER,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            
 
            1108; 1803; 1806
 
            
 
                 Claimant did establish an injury arising out of and in 
 
            the course of her employment where claimant had a 
 
            preexisting low back condition and where claimant's symptoms 
 
            and need for a medical intervention substantially increased 
 
            subsequent to the work incident.  Defendant was not entitled 
 
            to apportionment of any portion of the industrial 
 
            disability.  Claimant had maintained her employment and her 
 
            wages subsequent to a return to work after treatment for the 
 
            preexisting low back condition to the work incident.  
 
            Claimant, who had transferable skills, who was not motivated 
 
            to upgrade her skills, and whom the employer accommodated 
 
            and who had an actual loss of earnings of 30 cents per hour 
 
            awarded 15 percent industrial disability.  Claimant's 
 
            permanent partial impairment rating after a one-level 
 
            diskectomy was 18 percent of the body as a whole.  Her 
 
            restrictions did preclude her from returning to her prior 
 
            work as a nurse's aide or a physical therapist's assistant.  
 
            The employer provided claimant work as a department 
 
            secretary.  The employer was willing to accommodate claimant 
 
            as a medical secretary should claimant choose to upgrade her 
 
            skills to qualify for that position.  Claimant chose not to 
 
            upgrade her skills.  The record reflected that claimant 
 
            anticipated leaving work in approximately three years in 
 
            order to join her husband in retirement.  
 
            
 
            
 
 
            
 
  
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CAROL WEISENBERGER, 
 
                      
 
                 Claimant, 
 
                                                File No. 966128
 
            vs.       
 
                                            A R B I T R A T I O N
 
            COVENANT MEDICAL CENTER, 
 
                                                D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Carol Weisenberger, against her self-insured 
 
            employer, Covenant Medical Center, to recover benefits under 
 
            the Iowa Workers' Compensation Act, as a result of an injury 
 
            allegedly sustained on January 31, 1989.  The record 
 
            consists of the testimony of claimant, of John Weisenberger, 
 
            of Walter Svoboda, and of John Kluge as well as of joint 
 
            exhibits 1 through 10, as identified on the joint exhibit 
 
            list.  
 
            
 
                                     ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed to the following:
 
            
 
                 (1)  An employer-employee relationship existed between 
 
            claimant and Covenant Medical Center on the alleged date of 
 
            injury;
 
            
 
                 (2)  A causal relationship exists between claimant's 
 
            work incident and a period of healing period or temporary 
 
            total disability;
 
            
 
                 (3)  On the alleged injury date claimant had a gross 
 
            weekly wage of $333.60; was married and entitled to four 
 
            exemptions resulting in a weekly rate of $222.61; and
 
            
 
                 (4)  Defendant has paid claimant permanent partial 
 
            disability benefits representing 18 percent of the body as a 
 
            whole from December 20, 1990 to October 14, 1992.
 
            
 
                 Issues remaining for resolution are:
 
            
 
                 (1)  Whether claimant did receive an injury which arose 
 
            out of and in the course of her employment on the alleged 
 
            injury date;
 
            
 
                 (2)  Whether a causal relationship exists between the 
 
            alleged injury and claimed permanent disability;
 
            
 
                 (3)  The nature and extent of disability benefits, if 
 
            any, due claimant including the question of entitlement to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            permanent partial disability benefits beyond those already 
 
            paid and the question of entitlement to healing period or 
 
            temporary total benefits beyond those already paid; and
 
            
 
                 (4)  Whether any of claimant's claimed permanent 
 
            partial disability should be apportioned to a preexisting 
 
            condition.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is 43 years old and a high school graduate.  
 
            She completed a refresher typing course at technical college 
 
            in 1991.  Claimant has intermittently worked at Covenant 
 
            Medical Center or its predecessor hospitals from 1971 
 
            onward.  Initially she worked as a nurse's aide and 
 
            subsequently worked as a physical therapist's aide until her 
 
            physical restrictions precluded her continuing in that 
 
            capacity.  She currently works as the intake secretary in 
 
            one of Covenant's physical therapy departments.  Both 
 
            claimant's duties as a nurse's aide and claimant's duties as 
 
            a therapy aide had required claimant engage in physical 
 
            strenuous lifting and other maneuvers relative to her 
 
            patients.
 
            
 
                 Claimant initially treated with David Poe, M.D., a 
 
            board certified orthopedic surgeon in May 1988.  Claimant 
 
            complained of severe and unremitting low back pain which 
 
            radiated into both SI joints.  She had no leg pain 
 
            complaints.  Claimant gave a history of an onset of this 
 
            pain after a long car trip and then washing and carrying 
 
            seven loads of laundry.  Claimant had excellent range of 
 
            motion and a normal neurologic exam.  CT scan of May 5, 
 
            1998, was interpreted as showing a bulging, "protruding" 
 
            L4-5 disc.  
 
            
 
                 The record also reflects that claimant was off work and 
 
            received physical therapy for severe unremitting low back 
 
            pain from March 1988 through May 1988.  Claimant 
 
            subsequently returned to work as a physical therapy aide in 
 
            spring or summer 1988.  Claimant did not recall having 
 
            restrictions on her activities when she returned to work in 
 
            1988.  
 
            
 
                 Claimant recalled a work incident in November or 
 
            December 1989 where she experienced back pain after holding 
 
            upright a patient who "wanted to sit."  
 
            
 
                 On January 31, 1989, claimant was attempting to throw a 
 
            bag of laundry weighing between 30 and 40 pounds into a bin.  
 
            She felt a "pop" in her back.  She finished her workday but 
 
            could not return on the following day.  Dr. Poe subsequently 
 
            hospitalized claimant for conservative care from February 1, 
 
            1989 to approximately February 18, 1989.  
 
            
 
                 HoSung Chung, M.D., a neurologist, first saw claimant 
 
            on February 1, 1989.  Claimant gave a history of having had 
 
            progressively worse low back pain for approximately two to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            three years with intermittent recurrences of pain and of 
 
            having had a last recurrence approximately three weeks prior 
 
            to the admission after lifting a heavy patient at work.  
 
            Claimant reported that, after that lifting incident, her low 
 
            back pain had gradually worsened and radiated into both 
 
            legs.  
 
            
 
                 Dr. Chung interpreted an MRI study performed February 
 
            8, 1989, as showing a midline herniated disc at the L4-5 
 
            level.  In his deposition taken February 11, 1993, Dr. Chung 
 
            opined that May 5, 1988 CT scan showed a very small, 
 
            triangular, soft tissue density lesion, suggestive of a 
 
            herniated disc at L4-5 on the left, that is, the same thing 
 
            as was observed on the February 9, 1989 MRI study.
 
            
 
                 John C. VanGilder, M.D., a neurosurgeon at the 
 
            University of Iowa Hospital and Clinics, initially examined 
 
            claimant on March 3, 1989.  Dr. VanGilder interpreted 
 
            claimant's MRI study of February 8, 1989, as showing a 
 
            bulging L4-5 disc and not a herniated disc.  Claimant had 
 
            flexion to 80 degrees, bilateral straight leg raising to 90 
 
            degrees and full strength of the lower extremities with no 
 
            evidence of muscle atrophy or sensory deficit.  Dr. 
 
            VanGilder noted that claimant's disc bulge was on the right 
 
            side, which was atypical, given that claimant was more 
 
            symptomatic relative to the left leg.  
 
            
 
                 Claimant did not improve.  In August 1989, Dr. Chung 
 
            performed a hemilaminectomy with excision of a herniated 
 
            disc at L4-5 bilaterally.  Claimant initially returned to 
 
            work on a four hour per day basis in December 1989.  She 
 
            gradually increased her work hours from four to six and 
 
            finally to eight per day.  Dr. Chung opined that claimant 
 
            reached maximum medical improvement approximately one year 
 
            subsequent to her surgery.  Dr. Chung assigned claimant a 18 
 
            percent permanent partial impairment rating to the body as a 
 
            whole.  In his deposition, the doctor indicated this 
 
            impairment rating was due to claimant's herniated disc such 
 
            as was seen on the CT scan in 1988 and the MRI in 1989.  Dr. 
 
            Chung opined that both lifting a patient and picking up a 
 
            towel would aggravate previous lumbar disc disease.  Dr. 
 
            Chung indicated that, as of August 1990, he restricted 
 
            claimant from heavy lifting, pushing, pulling, bending, and 
 
            prolonged sitting.  He further stated he would have imposed 
 
            similar restriction on claimant in 1988.  Dr. Chung opined 
 
            that pursuant to the AMA Guides, Third Revised Edition, 
 
            claimant had a five percent permanent partial impairment to 
 
            the body as a whole in 1988.  Chung agreed that claimant's 
 
            work subsequent to January 1989 could have "harmed" her 
 
            herniated disc and that a long car trip and carrying seven 
 
            loads of laundry could also have produced a herniated disc.
 
            
 
                 Dr. VanGilder re-examined claimant in July 1990.  He 
 
            again found no evidence of muscle atrophy or sensory 
 
            deficit.  He opined that claimant's low back pain was mainly 
 
            muscular in origin and might be secondary to her previous 
 
            degenerative changes at L4-5. 
 
            
 
                 Dr. Poe testified by way of his deposition taken August 
 
            14, 1992.  Dr. Poe opined that it was not possible to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            characterize any single event as the cause of claimant's 
 
            disc condition.  He felt that claimant's disc condition 
 
            resulted from a lifetime of wear and tear and from "being 
 
            forty".  He further opined, however, that claimant's lifting 
 
            in January 1989 at work aggravated her degenerative disc 
 
            disease.  Poe believed that claimant's May 1988 low back 
 
            episode left claimant with continued midline low back pain 
 
            which was not unlike the pain claimant experienced in 1989 
 
            subsequent to lifting a patient.  Poe opined that one would 
 
            reasonably anticipate recurrent episodes of midline low back 
 
            pain associated with bending in cases where degenerative 
 
            disc disease has been diagnosed.
 
            
 
                 Claimant currently earns $9.19 per hour which she 
 
            characterized as approximately 30 percent less she would be 
 
            earning as a therapist's assistant.  Claimant opined that 
 
            she could not perform work as a nurse's aide or therapist's 
 
            assistant given her restrictions.  
 
            
 
                 On direct examination, claimant indicated that she had 
 
            been prepared to work as a physical therapist's assistant 
 
            until age 62.  On cross-examination, claimant agreed that 
 
            her spouse will be retiring from his job in three years and 
 
            that her actual plans are to leave work when her spouse 
 
            retires.  
 
            
 
                 Claimant originally returned to work at Covenant as a 
 
            departmental secretary.  That position required 
 
            transcription of medical records.  Claimant did not do 
 
            transcription as part of her duties.  Claimant, for that 
 
            reason, was reclassified as charge secretary with a 
 
            subsequent pay reduction.  Claimant expressed her opinion 
 
            that working towards the position of medical secretary would 
 
            require her taking classes.  Claimant stated that she did 
 
            not know whether she wanted to sit and type all day and that 
 
            an advantage of her current charge secretary job is that it 
 
            allows her to get up and move about.  
 
            
 
                 It is now possible for an individual to become a state 
 
            licensed physical therapy assistant.  Persons with 1,000 
 
            hours or four years of experience as physical therapist's 
 
            assistant can be grandparented in provided they pass a state 
 
            licensing examination on a first or second attempt at the 
 
            examination.  Theresa Hodgeon, who has been a physical 
 
            therapist assistant for nineteen years and who knew claimant 
 
            as a co-worker testified that she was licensed as a 
 
            therapist assistant under the grandparenting clause.  She 
 
            indicated that the examination was three hours long and 
 
            difficult.  Ms. Hodgeon prepared for the examination by 
 
            taking an anatomy course and by doing additional self-study.  
 
            Ms. Hodgeon's pay increased by $3 per hour when she attained 
 
            the status of licensed physical therapist assistant.  
 
            Claimant had worked sufficiently long as a regular 
 
            therapist's assistant that she would have qualified under 
 
            the grandparenting clause.  It would be speculative to 
 
            indicate that claimant would have attempted or attained 
 
            licensure but for her injury, however.  Claimant's stated 
 
            desire to leave work in three years and her stated lack of 
 
            desire to continue with additional course work in order to 
 
            perform the duties of a medical secretary raise questions as 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to whether claimant would have been motivated to do the 
 
            self-study and course work necessary to prepare for the 
 
            licensing examination.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether claimant received an 
 
            injury which arose out of and in the course of her 
 
            employment on January 31, 1989.
 
            
 
                 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).
 
            
 
                 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).
 
            
 
                 Sufficient credible evidence exists in the record to 
 
            establish that, while claimant had a preexisting back 
 
            condition which manifested itself at least as early as March 
 
            1988, claimant did experience significant aggravation of 
 
            that condition while lifting laundry on January 31, 1989 
 
            such that claimant did sustain an injury arising out of and 
 
            in the course of claimant's employment on that date.
 
            
 
                 The fighting issues between the parties appear to be 
 
            that of causal relationship between the January 31, 1989 
 
            injury and claimed disability and the question of 
 
            apportionment of any permanent disability due between the 
 
            residuals of the January 31, 1989 incident and claimant's 
 
            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 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Both Dr. Poe and Dr. Chung equivocate as regards the 
 
            relationship between claimant's January 31, 1989 work 
 
            incident, her disc and her current residuals.  Both agree 
 
            that claimant had a degenerative disc at L4-5 on CT 
 
            examination in May 1988.  Dr. Poe chooses to characterize 
 
            the condition as a bulging disc, Dr. Chung as a herniated 
 
            disc.  Dr. Chung believes the finding in the 1988 CT scan 
 
            was essentially similar to the finding on MRI examination in 
 
            February of 1989.  While the doctors' equivocation creates 
 
            confusion in the record, which confusion disfavors 
 
            claimant's position, the chronology of events establishes 
 
            that claimant had significantly more severe problems and 
 
            required significantly more substantial treatment, including 
 
            a seventeen day hospitalization and subsequent, additional 
 
            hospitalization and surgery after January 31, 1989.  
 
            Furthermore, claimant had been able to return to work and 
 
            fulfill her duties until January 31, 1989.  These facts 
 
            establish that it is more probable than not that claimant's 
 
            need for surgical intervention as regards her degenerative 
 
            disc disease and the subsequent residuals regarding that 
 
            disease relate to the January 31, 1989 injury.  Claimant has 
 
            established the requisite causal connection between her 
 
            January 31, 1989 injury and her claimed permanent 
 
            disability.
 
            
 
                 We consider the question of apportionment of any 
 
            industrial disability between claimant's preexisting 
 
            condition and her work injury of January 31, 1989.  
 
            
 
                 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 that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Defendant has not carried the burden of establishing 
 
            that any disability is attributable to claimant's 
 
            preexisting condition.  The disability with which we are 
 
            concerned here is industrial disability.  Dr. Chung has 
 
            indicated that claimant had a functional disability of five 
 
            percent in 1988.  However, although claimant was apparently 
 
            off work in 1988, while undergoing treatment for her 
 
            preexisting condition, claimant returned to her full duty 
 
            employment once the need for treatment resolved.  Her 
 
            earnings were not reduced.  The record does not demonstrate 
 
            claimant could not have continued to perform her duties had 
 
            she not experienced the January 31, 1989 work incident.  
 
            Hence, defendant has produced insufficient evidence to 
 
            establish that any of claimant's ultimate industrial 
 
            disability properly is apportionable to her preexisting 
 
            condition.  
 
            
 
                 We consider claimant's healing period entitlement.  
 
            
 
                 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).
 
            
 
                 Claimant actually returned to work in December 1989.  
 
            Under section 85.34(1) that would have been the first to 
 
            occur of the three events which potentially terminate 
 
            healing period benefits.  Hence, claimant's healing period 
 
            entitlement ends on the day immediately subsequent to her 
 
            first day of partial employment in December 1989.  
 
            
 
                 The record does reflect that claimant returned to work 
 
            initially on four hour days and then on six hour days and 
 
            ultimately increased to eight hour days.  Claimant, of 
 
            course, would be entitled to temporary partial benefits 
 
            pursuant to section 85.33(4) during those times in which 
 
            claimant worked less than full duty, that is, less than 
 
            eight hours per day.  The parties have not stipulated to 
 
            those dates and those dates cannot be adequately ascertained 
 
            from this record, however.  Permanent partial disability 
 
            benefits would probably commence on the day on which 
 
            claimant returned to full duty work at eight hours per day.  
 
            Again, that day cannot be adequately ascertained from the 
 
            record submitted at hearing.  Additionally, it is noted 
 
            that, should that date have been after August 2, 1990, 
 
            claimant's healing period probably would end on August 2, 
 
            1990 when Dr. Chung indicated that claimant had reached 
 
            maximum medical improvement.  This follows because, that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            event, achievement of maximum medical improvement, properly 
 
            must be characterized as occurring before a return to work 
 
            since in this situation commencement of permanent partial 
 
            disability prior to claimant's returning to work on a eight 
 
            hour per day basis would result in claimant receiving 
 
            simultaneous payments of temporary partial disability and 
 
            permanent partial disability on account of the same injury.  
 
            That result would be contrary to the intent underlying 
 
            sections 85.33 and 85.34.  
 
            
 
                 We consider the question of claimant's industrial 
 
            disability entitlement.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man (sic)."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant's physician has assigned claimant a moderately 
 
            severe functional impairment rating.  Claimant's 
 
            restrictions are consistent with that rating and do preclude 
 
            claimant from returning to past work either as a therapist's 
 
            assistant or a nurse's aide.  Claimant's employer has 
 
            accommodated claimant by providing her with work within her 
 
            restriction, which work has apparently resulted in an 
 
            approximately 30 cents per hour reduction in claimant's 
 
            earnings from those she would now be earning as a 
 
            therapist's  assistant.  The employer apparently also has 
 
            opportunities where claimant potentially could advance to 
 
            the higher wage job of medical secretary were claimant 
 
            motivated to pursue additional training or additional skills 
 
            development.  Claimant is not motivation to do so.  Claimant 
 
            appears content to continue working for the employer until 
 
            she can leave work to join her husband in retirement.  
 
            Claimant's past work experience with the employer and the 
 
            employer's willingness to accommodate claimant have served 
 
            claimant in good stead and minimized her actual loss of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            earnings on account of her injury.  Claimant's ability to 
 
            transfer and further develop new skills within her 
 
            restrictions and functional limitation, of itself, 
 
            demonstrates that claimant's loss of earnings capacity is 
 
            less than would be the case were claimant by education, 
 
            qualifications, and work experience suited for heavier 
 
            physical labor only.  Claimant's industrial disability on 
 
            account of her work-related condition is 15 percent of the 
 
            body as a whole.  As defendant has already paid 18 percent 
 
            permanent partial disability, claimant is entitled to no 
 
            further benefits for permanent partial disability from 
 
            defendant unless defendant improperly calculated the 
 
            commencement date for permanent partial disability benefits 
 
            such that claimant has currently received less than 15 
 
            percent permanent partial disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pay claimant temporary partial disability 
 
            benefits at the appropriate rate for those periods after 
 
            claimant returned to work in which claimant worked less than 
 
            eight (8) hours per day.  
 
            
 
                 Defendant pay claimant permanent partial disability 
 
            benefits at the rate of two hundred twenty-two and 61/100 
 
            dollars ($222.61) from the date on which claimant first 
 
            worked a full eight (8) hours per day or from August 2, 
 
            1990, which ever date was first to occur for a period of 
 
            seventy-five (75) consecutive weeks.  
 
            
 
                 Defendant receive credit for permanent partial 
 
            disability benefits previously paid.  
 
            
 
                 Claimant and defendant share equally in the costs of 
 
            this action.  
 
            
 
                 Defendant file claim activity reports as the agency 
 
            orders.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            PO Box 2634
 
            Waterloo, IA  50704-2634
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            Suite 300 Fleming Bldg.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            218 Sixth Ave.
 
            PO Box 9130
 
            Des Moines, IA  50306-9130
 
            
 
            
 
 
            
 
             
 
                         
 
 
 
                                                  1108; 1803; 1806
 
                                                  Filed July 15, 1993
 
                                                  Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            _________________________________________________________
 
            CAROL WEISENBERGER, 
 
                      
 
                 Claimant, 
 
                                                  File No. 966128
 
            vs.       
 
                                               A R B I T R A T I O N
 
            COVENANT MEDICAL CENTER, 
 
                                                  D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1108; 1803; 1806
 
            
 
                 Claimant did establish an injury arising out of and in 
 
            the course of her employment where claimant had a 
 
            preexisting low back condition and where claimant's symptoms 
 
            and need for a medical intervention substantially increased 
 
            subsequent to the work incident.  Defendant was not entitled 
 
            to apportionment of any portion of the industrial 
 
            disability.  Claimant had maintained her employment and her 
 
            wages subsequent to a return to work after treatment for the 
 
            preexisting low back condition to the work incident and was 
 
            not able to return to work from the work incident onward.  
 
            Claimant, who had transferable skills, who was not motivated 
 
            to upgrade her skills, and whom the employer accommodated 
 
            and who had an actual loss of earnings of 30 cents per hour 
 
            awarded 15 percent industrial disability.  Claimant's 
 
            permanent partial impairment rating after a one-level 
 
            diskectomy was 18 percent of the body as a whole.  Her 
 
            restrictions did preclude her from returning to her prior 
 
            work as a nurse's aide or a physical therapist's assistant.  
 
            The employer provided claimant work as a department 
 
            secretary.  The employer was willing to accommodate claimant 
 
            as a medical secretary should claimant choose to upgrade her 
 
            skills to qualify for that position.  Claimant chose not to 
 
            upgrade her skills.  The record reflected that claimant 
 
            anticipated leaving work in approximately three years in 
 
            order to join her husband in retirement.  
 
            
 
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            HAUN KIM ONG,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 966303
 
            RAPIDS CHEVROLET,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and        
 
                        
 
            CIGNA 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 October 18, 1993 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Claimant bears the burden of proof to show that he suffered 
 
            a head injury on January 9, 1990 that resulted in his 
 
            present mental condition.
 
            
 
            The evidence shows that claimant was involved in an 
 
            altercation on January 9, 1990.  Although claimant asserts 
 
            he hit his head on a concrete floor in the altercation, the 
 
            other participant in the altercation testified that claimant 
 
            hit his buttocks only.  Co-workers confirmed that dust 
 
            appeared on claimant's buttocks, but not on the shoulder 
 
            area of his clothing after the incident.
 
            Claimant went to the hospital emergency room later that 
 
            night.  The examining nurse and physician could find no 
 
            evidence of a head injury.
 
            
 
            Subsequently, various objective tests, including an MRI, 
 
            EEG, and CT scan all showed normal results.  Claimant has 
 
            failed to carry his burden to show that he suffered a head 
 
            injury on January 9, 1990.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Even assuming claimant had met his burden to show a head 
 
            injury, claimant also bears the burden to show that his 
 
            present mental condition is causally connected to his 
 
            January 9, 1990 injury.  Claimant relies on the testimony of 
 
            Dr. Penningroth, who does offer an opinion that claimant's 
 
            current schizophrenia is caused by the January 9, 1990 
 
            incident.  However, Dr. Penningroth also acknowledges that 
 
            there is no objective indication of a head injury in 
 
            claimant's case.  Dr. Penningroth appears to base his 
 
            opinion in large part on the fact that claimant is from a 
 
            foreign cultural background rather than factors related to 
 
            the alleged injury.  Finally, Dr. Penningroth diagnosed 
 
            claimant's condition as a non-organic psychotic reaction.  
 
            Dr. Penningroth is not a board certified psychiatrist or 
 
            specialist.
 
            
 
            Dr. Jones, a neuropsychologist, has opined that claimant's 
 
            current mental condition is not caused by his alleged 
 
            January 9, 1990 injury.  Dr. Larsen, a psychiatrist, has 
 
            also opined that claimant's schizophrenia is not related to 
 
            his alleged injury.  Dr. Larsen noted that claimant's 
 
            behavior patterns prior to the injury, including 
 
            aggressiveness and bravado, were consistent with the early 
 
            phases of schizophrenia.
 
            
 
            The findings of Dr. Larsen and Dr. Jones indicate that 
 
            claimant did not exhibit a rapid onset of symptoms that 
 
            gradually improved, as normally would be seen in head 
 
            injuries.  Rather, claimant had gradual onset and worsening 
 
            of symptoms, which is more indicative of non-organic 
 
            (non-injury) mental illness.  In addition, the record 
 
            discloses that individuals with a close family member 
 
            suffering from schizophrenia are more likely to suffer the 
 
            condition themselves.  Claimant's brother has been diagnosed 
 
            as suffering from schizophrenia.
 
            
 
            Although claimant has relied on a theory of a physical 
 
            injury that caused a mental condition, Dr. Larsen also noted 
 
            that there was no indication that claimant's schizophrenia 
 
            was caused by stressors that might have caused a mental 
 
            injury.
 
            
 
            Claimant offered testimony from witnesses that his behavior 
 
            changed after the alleged injury.  A change of behavior is 
 
            as consistent with a worsening of non-organic schizophrenia 
 
            as it would be for a schizophrenia caused by a head injury.
 
            The opinions of Dr. Jones and Dr. Larsen will be given 
 
            greater weight than that of Dr. Penningroth.  Claimant has 
 
            failed to carry his burden of proof to show that he suffered 
 
            a head injury on January 9, 1990.  Claimant has also failed 
 
            to carry his burden of proof to show that he has suffered a 
 
            mental condition caused by a work injury on January 9, 1990.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                    BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael M. Lindeman
 
            Attorney at Law
 
            4920 Johnson Ave. NW
 
            Cedar Rapids, Iowa 52405
 
            
 
            Mr. Douglas R. Oelschlaeger
 
            Attorney at Law
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                2200; 1108.20
 
                                                Filed March 29, 1994
 
                                                Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            HAUN KIM ONG,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 966303
 
            RAPIDS CHEVROLET,     
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            CIGNA INSURANCE COMPANY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            2200
 
            Held on appeal that claimant failed to show he suffered a 
 
            head injury.  Claimant was in an altercation with a 
 
            co-worker.  Claimant alleged he hit his head in the 
 
            incident, but this was contradicted by other witnesses and 
 
            by the medical evidence.
 
            
 
            1108.20
 
            Held that even if claimant had suffered a head injury, he 
 
            failed to show that his current psychological condition was 
 
            caused by any such injury.  the greater weight of the 
 
            evidence indicated that claimant's mental condition was 
 
            caused by hereditary, organic factors and not an injury.