BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
WILLIAM KLINE, SR.,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 967795
 
STEEL WAREHOUSING, INC.,   
 
                                         A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     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 20, 1995 is affirmed 
 
and is adopted as the final agency action in this case.
 
 
 
Defendants shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
Signed and filed this ____ day of April, 1995.         
 
                                 ________________________________                 
 
                                  BYRON K. ORTON           
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Harry W. Dahl
 
Attorney at Law
 
974 73rd St., Suite 16
 
Des Moines, Iowa  50312
 
 
 
Mr. D. Brian Scieszinski
 
Attorney at Law
 
801 Grand Ave., Ste 3700
 
Des Moines, Iowa 50309-2727
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                      5-1803; 1808
 
                                      Filed April 28, 1995
 
                                      BYRON K. ORTON
 
               
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
WILLIAM KLINE, SR.,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                       File No. 967795
 
STEEL WAREHOUSING, INC.,   
 
                                         A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
5-1803; 1808
 
Non-precedential, extent of disability case.  Iowa Code section 
 
85.34(2)(s) used to arrive at an award in a simultaneous carpal tunnel 
 
injury case.
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         WILLIAM KLINE, SR.,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 967795
 
         STEEL WAREHOUSING, INC.,      :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by William 
 
         Kline, Sr., claimant, against Steel Warehousing Inc., employer, 
 
         hereinafter referred to as SWI, and Employers Mutual Companies, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on June 7, 1990.  On October 5, 
 
         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 June 7, 1990 claimant received an injury arising out 
 
         of and in the course of employment with SWI.
 
         
 
              2.  Claimant is not seeking additional temporary total or 
 
         healing period benefits at this time. 
 
         
 
              3.  If permanent partial disability benefits are awarded, 
 
         they shall begin as of April 1, 1991.
 
         
 
              4.  At the time of injury claimant's gross rate of weekly 
 
         compensation was $392.00; he was married; and, he was entitled to 
 
         four exemptions.  Therefore, claimant's weekly rate of 
 
         compensation is $256.98 according to the Industrial 
 
         Commissioner's published rate booklet for this injury. 
 
         
 
              5.  Medical benefits are not in dispute.
 
         
 
              6.  Claimant was paid 25 weeks of permanent partial 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         disability benefits prior to hearing at the stipulated weekly 
 
         rate of compensation.
 
         
 
                                      ISSUES
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to 
 
         permanent disability benefits.  A subissue within this dispute is 
 
         the extent of any future credit under Iowa code section 85.34(5) 
 
         possessed by defendants due to a claimed overpayment of weekly 
 
         benefits for permanent partial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              Claimant, age 45, has been employed by SWI as a truck driver 
 
         hauling steel products for over 16 years and he continues in this 
 
         employment today.  A part of his responsibilities includes 
 
         loading and unloading his truck either by hand or with available 
 
         equipment.  The job requires extensive use of his hands and arms.  
 
         
 
              The work injury involves bilateral carpal tunnel syndrome 
 
         from a cumulative work activity occurring simultaneously.  
 
         Claimant first sought treatment from his family doctor for pain 
 
         and numbness in both hands.  When conservative care using 
 
         medication and wrist braces failed to improve his symptoms, 
 
         claimant was referred to Ronald Bergman, D.O., a board certified 
 
         orthopedic surgeon.  Dr. Bergman performed decompression or 
 
         release surgeries on both hands.  Claimant was returned to work 
 
         following these surgeries in April 1991 with only a temporary 
 
         restriction for one month prohibiting heavy lifting and 
 
         repetitive use of his hands.  Claimant now is on full duty at 
 
         work but after work activity involving his hands, he continues 
 
         today to have symptoms of numbness and pain in both hands and 
 
         arms, although more severe on the right.
 
         
 
              It is first found that the work injury herein does not 
 
         result in permanent total disability or a total loss of earning 
 
         capacity.  Claimant is back to work without loss of pay in the 
 
         same job he had before the injury.  As will be explained in the 
 
         Conclusions of Law section, functional loss of use must be 
 
         assessed when the loss of earning capacity is less than total.
 
         
 
              In measuring the loss of functional use, two physicians have 
 
         given impairment ratings in this case.  Dr. Bergman opines that 
 
         claimant suffers a 2 percent and 3 percent permanent impairment 
 
         to the right and left hand respectively.  Another evaluating 
 
         orthopedic surgeon, Keith Riggins, M.D., also board certified, 
 
         gives a rating of 14 percent to the body as a whole for the 
 
         bilateral carpal tunnel condition.  
 
         
 
              It is found that Dr. Riggins' rating to be the most credible 
 
         and that the work injury herein is a cause of a loss of use 
 
         consisting of a 14 percent body as a whole permanent partial 
 
         impairment.  Although he was the treating physician and more 
 
         clinically involved with claimant, there are a number of problems 
 
         with Dr. Bergman's rating.  Dr.  Bergman fails to identify use of 
 
         any rating guide in arriving at this rating.  The doctor's 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         ratings are unusually low given claimant's continuing problems.  
 
         Finally, Dr. Bergman fails to properly use a proper technique for 
 
         rating a bilateral impairment as will be explained in the 
 
         Conclusions of Law section of this decision.  
 
         
 
              On the other hand, Dr. Riggins issued a very complete report 
 
         correctly describing claimant's history and current status.  He 
 
         utilized a guide adopted by the American Medical Association for 
 
         rating impairments.  His final rating is more accurate in 
 
         assessing claimant's current loss of use.  Finally, the doctor 
 
         coverts both hand impairments to a combined body as a whole 
 
         rating which is the correct method for arriving at a rating under 
 
         our law.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has shown that the work injury involved a 
 
         permanent impairment to two upper extremities occurring 
 
         simultaneously.  This is viewed by this agency to be caused from 
 
         a single accident.  Fichter v. Griffin Pipe Products, File No. 
 
         941434 (Appeal Decision April 29, 1993).  Therefore, the extent 
 
         of disability is measured pursuant to Iowa Code section 
 
         85.34(2)(s).  Measurement of disability under this subsection is 
 
         peculiar.
 
         
 
              Normally, if the injury is to only an extremity, the amount 
 
         of disability is measured functionally as a percentage of loss of 
 
         use which is then multiplied by the maximum allowable weeks of 
 
         compensation allowed for that scheduled member set forth in Iowa 
 
         Code sections, 85.34(2)(a-r) to arrive at the permanent 
 
         disability benefit entitlement.  These disabilities are termed a 
 
         "scheduled member" disabilities.  Barton v. Nevada Poultry 
 
         Company, 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss of use" of a 
 
         member is equivalent to "loss" of the member.  Moses v. National 
 
         Union C.M. Co., 184 N.W. 746 (1922).
 
         
 
              For all other injuries, including those to the body as a 
 
         whole, the degree of permanent disability is measured pursuant to 
 
         Iowa Code section 85.34(2)(u).  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 disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City R. Co., 
 
         219 Iowa 587, 593, 258 N.W. 899 (1935).
 
         
 
              Under Iowa Code section 85.34(2)(s), this agency must first 
 
         determine the extent of industrial disability or loss of earning 
 
         capacity caused by the two simultaneous injuries.  If the injury 
 
         caused a loss of earning capacity that is less than total or 100 
 
         percent, then the extent of the permanent disability is measured 
 
         only functionally as a percentage of loss of use for each 
 
         extremity which is then translated into a percentage of the body 
 
         as a whole and combined together into one body as a whole value.  
 
         This can be done as it was in this case by Dr. Riggins using the 
 
         AMA guides.  If the industrial disability is total or there is a 
 
         total loss of earning capacity, then claimant is entitled to 
 
         permanent total disability benefits under Iowa Code section 
 
         85.34(3).  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983); 
 
         Burgett v. Man An So Corp., 3 Ia Ind Comm Rep 38 (Appeal 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         Decision 1982).
 
         
 
              In the case sub judice, it was found that claimant had not 
 
         suffered a total loss of earning capacity, consequently his 
 
         entitlement to permanent disability benefits is measured 
 
         functionally.  Based upon the findings herein of a combined 14 
 
         percent impairment to the body as a whole as a result of the 
 
         injury, claimant is entitled as a matter of law to 70 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(s) which is 14 percent of the 500 weeks, the maximum 
 
         allowable for a simultaneous injury to two extremities in that 
 
         subsection. 
 
         
 
              Given the award herein of 70 weeks, the credit issue for a 
 
         claimed overpayment is moot as claimant was paid only 25 weeks of 
 
         permanent partial disability benefits prior to hearing according 
 
         to the hearing report.  Defendants did not overpay claimant's 
 
         entitlement but will receive a credit against the award for the 
 
         benefits already paid.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant seventy (70) weeks of 
 
         permanent partial disability benefits at a rate of two hundred 
 
         fifty-six and 98/l00 dollars ($256.98) per week from April 1, 
 
         1991.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for the 
 
         twenty-five (25) weeks of benefits previously paid.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl, III
 
         Attorney at Law
 
         974 73rd St  STE 16
 
         Des Moines  IA  50312
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         Mr. D. Brian Scieszinski
 
         Attorney at Law
 
         801 Grand Ave
 
         STE 3700
 
         Des Moines  IA  50309-2727
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1803; 1808
 
                                           Filed October 20, 1994
 
                                           LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM KLINE, SR., 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 967795
 
            STEEL WAREHOUSING, INC., 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1803, 1808
 
            
 
            Non-precedential, extent of disability case.  Iowa Code 
 
            section 85.34(2)(s) used to arrive at an award in a 
 
            simultaneous carpal tunnel injury case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. FARIS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 967932
 
            CITY OF COUNCIL BLUFFS,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Robert Faris, against the City of Council Bluffs, 
 
            and its insurance carrier, Argonaut Insurance, as 
 
            defendants.  Mr. Faris seeks to recover workers' 
 
            compensation benefits as a result of an alleged injury 
 
            occurring on August 17, 1990.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on February 5, 1993, at Council Bluffs, Iowa.
 
            
 
                 The record consists of testimony from the claimant, 
 
            claimant's wife, Norma Faris, C. Lowell Richey, Mary Ann 
 
            Krutzfeldt, Dan Woellhof, and Terry Mauer; and joint 
 
            exhibits 1 through 19.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on August 15, 
 
            1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial or permanent 
 
            total disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 The undersigned deputy having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on January 27, 1933.  At the time of 
 
            the hearing he was 60 years of age.  He has been married to 
 
            Norma Faris for 19 years and considered his marriage a 
 
            partnership.  Throughout the hearing claimant and his wife 
 
            described claimant's life outside of his work as 
 
            non-stressful.  Claimant stated that he had a very good 
 
            relationship with his children and grandchildren.  Claimant 
 
            is a high school graduate and participated in a four year 
 
            apprenticeship in order to become a specialist in electrical 
 
            work.  He also received training during a five year 
 
            engineering course.  He is a fire cause investigator and a 
 
            licensed electrical engineer in both Nebraska and Iowa.
 
            
 
                 Claimant began working for the City of Council Bluffs 
 
            in July of 1977.  His first position was as a rehabilitation 
 
            specialist in the department of planning and community 
 
            development.  His duties included surveying the City of 
 
            Council Bluffs to identify substandard housing.  He 
 
            developed technical specifications for bids for contractors 
 
            which were later used in the national HUD program.  His job 
 
            functions required him to follow federal guidelines to write 
 
            the specifications and estimates.  He also supervised on a 
 
            daily basis other contractors' work and acted as a liaison 
 
            between the contractors and the various homeowners.
 
            
 
                 In 1980, his duties changed and claimant became an 
 
            electrical inspector for the City of Council Bluffs.  
 
            Claimant's job duties increased as he was required to 
 
            perform inspections of electrical wirings, right permits and 
 
            issue licenses to various contractors.  He also became a 
 
            member of the E-board and served as a mediator between 
 
            contractors and homeowners.  He was required to conduct 
 
            field inspections and reviewed rewiring jobs on both 
 
            commercial and residential projects.  Claimant explained 
 
            that his job became particularly hectic during the summer 
 
            months (June, July and August) as prime construction 
 
            projects became active during this time.  He considered 
 
            himself to be on call 24 hours a day and regularly received 
 
            calls in the evening to set up inspections for different 
 
            contractors.  He typically performed the inspections prior 
 
            to the beginning of his actual work day and stated that it 
 
            was not uncommon for him to conduct inspections between 5:00 
 
            and 6:30 a.m.
 
            
 
                 Claimant encountered the most problems when he reviewed 
 
            plans for commercial buildings.  He would review the 
 
            architectural and engineering prints checking for violations 
 
            of city code regulations before issuing permits.  Claimant 
 
            described this particular aspect of his job as stressful in 
 
            that the owners of the building would usually want to 
 
            construct the building as cheaply as possible and the 
 
            architects would necessarily leave out required design plans 
 
            for safety assurances.  Claimant stated that this caused him 
 
            particular concern in hospitals and schools where residents 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            were unable to protect themselves, and he also was concerned 
 
            about the city's liability if the city issued permits for 
 
            construction projects which did not adhere to city code 
 
            regulations.
 
            
 
                 One particular project caused claimant much concern.  
 
            In 1988, Mercy Hospital and Iowa Power entered into an 
 
            agreement whereby Iowa Power would furnish electrical power 
 
            through a specially built transformer.  Of particular note 
 
            was concern about various switching gear that needed to be 
 
            installed to connect Mercy electrical systems with Iowa 
 
            Power.  If Iowa Power provided too much or too little power 
 
            to the hospital, an eminent potential for a melt down of the 
 
            electrical generators was possible.  This, of course, would 
 
            cut off the supply of electrical power to the hospital.
 
            
 
                 Claimant stated that from the beginning both Iowa Power 
 
            and Mercy Hospital were reluctant to work with the City of 
 
            Council Bluffs.  Iowa Power denied that the city needed to 
 
            be involved with the project.  There were continued 
 
            arguments over which architect was involved with the project 
 
            and who was in charge of the plans and specifications for 
 
            the distribution system.  Claimant described that some of 
 
            these arguments turned into screaming fights and eventually 
 
            the plans were submitted to the International Conference of 
 
            Building Officials (ICBO) an independent review board to 
 
            check the prints.  While the parties were gathering a 
 
            complete set of prints to be sent to the ICBO, Iowa Power 
 
            and Mercy Hospital installed the switch gear equipment 
 
            without the permit.  All of the equipment was represented to 
 
            have as UL approved, but in fact the equipment had not been 
 
            tested.  Apparently, the equipment had been installed since 
 
            1989.
 
            
 
                 Claimant became aware of the installation on August 15, 
 
            1990, while he was on the telephone with one of the 
 
            architects involved.  After he was told that the switch gear 
 
            was installed without the permit and without proper testing, 
 
            claimant states he "blew up."  He then received a call from 
 
            Don Mitchell with Iowa Power and during the telephone 
 
            conversation began to experience a cold sweat, was unable to 
 
            sit up and had to lie down on the floor.  He became 
 
            nauseous, and suffered a headache.  He lost his balance and 
 
            claimant stated that he underwent some type of an 
 
            out-of-body experience.  One of claimant's coworkers called 
 
            Norma Faris, claimant's wife, who went down to the office.  
 
            She transported claimant to the Clarkson Hospital emergency 
 
            room where he was monitored for a short time and released 
 
            with the diagnosis of a migraine headache.  His neurologic 
 
            examination was unremarkable.  Claimant was sent home but 
 
            returned to the hospital for a CT scan of the head several 
 
            days later.  The result of the scan revealed a low density 
 
            area in the right cerebellar hemisphere.  An MRI scan 
 
            performed on August 22, 1990, showed changes consistent with 
 
            a subacute right inferior cerebellar infarct in the right 
 
            hemisphere, and small vessel disease, possibly related to 
 
            hypertension (Joint Exhibit 5A-C).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant then took a two week vacation and returned to 
 
            work during October of 1990.  On October 4, 1990, claimant 
 
            sought treatment from Joel Cotton, M.D., for treatment of 
 
            intermittent vertigo and numbness of the hands and feet.  
 
            Apparently, these symptoms had manifested on four different 
 
            occasions since August 15, 1990.  Mrs. Faris attended the 
 
            appointment with claimant, and offered that claimant was 
 
            often sleepy, lacked energy and was irritable.  His 
 
            neurological examination was unremarkable except for some 
 
            slight left facial asymmetry.  He was referred to Barry 
 
            Munyon, M.D., in Omaha, Nebraska (Jt. Ex. 2(b)).
 
            
 
                 Upon completion of an examination, Dr. Munyon 
 
            restricted claimant from performing normal work activities 
 
            and was of the opinion claimant should be on medical 
 
            disability (Jt. Ex. 3(f)).
 
            
 
                 In December of 1990, claimant returned to Dr. Munyon 
 
            due to several spells of transient ischemic attacks which 
 
            Dr. Munyon believed were related to the lack of blood supply 
 
            in the vertebrobasilar system.  Claimant continued with 
 
            medical therapy.  Dr. Munyon was unable to relate the lack 
 
            of blood supply in the vertebrobasilar system to claimant's 
 
            job activities (Jt. Ex. 3(e)).
 
            
 
                 Dr. Munyon believed claimant was still unable to return 
 
            to work as indicated by a doctor's certificate dated January 
 
            23, 1991 (Jt. Ex. 3(d)).
 
            
 
                 Dr. Munyon's assessment was based partially on the 
 
            results of an examination performed by John C. Goldner, 
 
            M.D., on January 7, 1991.  A neurological examination was 
 
            unremarkable other than facial asymmetry which was more 
 
            pronounced on the left side.  Dr. Goldner was of the opinion 
 
            that claimant suffered from vertebrobasilar insufficiency 
 
            and had a right cerebellar infarct on August 17, 1990.  He 
 
            noted that recurring similar symptoms were associated with 
 
            stress, and it was his opinion that claimant's stroke was 
 
            related to his long-standing hypertensive disease but was 
 
            accelerated by the stress at work that was occurring at the 
 
            time he developed his symptoms.  Dr. Goldner opined that 
 
            claimant's long-term history of work stress was 
 
            significantly greater than his long-term history of 
 
            nonemployment-like stress, and recommended claimant not 
 
            return to work in a high stress position.  He recommended 
 
            relatively low stress and sedentary activities to circumvent 
 
            the risk of another brain stem or cerebellar infarct (Jt. 
 
            Ex. 1(b)).  On February 1, 1991, Dr. Munyon wrote another 
 
            report after reviewing Dr. Goldner's evaluation.  He 
 
            indicated that claimant had experienced several recurrent 
 
            episodes consistent with vertebrobasilar insufficiency and 
 
            that all of the symptoms had been correlated with stressful 
 
            activities.  He, too, stated that claimant's stroke was 
 
            related to a history of hypertension, exacerbated by stress.  
 
            He recommended a job situation in which environmental stress 
 
            could be controlled and a more sedentary occupation due to 
 
            claimant's persistent dizziness and recurrent spells of 
 
            lightheadedness that claimant experienced as a result of his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            vertebrobasilar insufficiency (Jt. Ex. 3(c)).  Dr. Munyon 
 
            certified that claimant could return to work in his regular 
 
            capacity on April 1, 1991, although he cautioned that 
 
            claimant needed to limit his environmental tension at work 
 
            (Jt. Ex. 3(b)).
 
            
 
                 Next, claimant came under the care of Dean Wampler, 
 
            M.D., who was to perform a fitness for duty evaluation at 
 
            the direction of the City of Council Bluffs,  Dr. Wampler 
 
            noted that claimant's current systems included occasional 
 
            headaches and minimal facial droop.  Dr. Wampler was of the 
 
            opinion that claimant was fit for duty without restrictions.  
 
            In addressing the issue of stress, he offered that stress 
 
            was a personal manipulation and nothing specific could be 
 
            accommodated by the work environment (Jt. Ex. 4(c)).
 
            
 
                 Dr. Wampler's next report is dated April 11, 1991.  
 
            Again, he reiterated that claimant had been treated for 
 
            hypertension for more than 30 years and that hypertension 
 
            was the single most significant risk factor for the 
 
            development of vertebrobasilar disease.  He did, however, 
 
            indicate that emotional stress will complicate hypertension 
 
            and may well contribute to the precipitation of a stroke.  
 
            He indicated work-related stress was an aggravating factor 
 
            but not causative of claimant's current medical problems 
 
            (Jt. Ex. 4(b)).
 
            
 
                 Claimant returned to Dr. Cotton in July of 1991.  
 
            Claimant had had a recent episode of visual problems and 
 
            lightheadedness while trap shooting.  A neurological 
 
            examination was normal and Dr. Cotton was uncertain as to 
 
            the cause of the recent episode.  Dr. Cotton did not believe 
 
            claimant had sustained any additional neurological injury 
 
            and advised against a repeat CT scan or MRI scan, nor did 
 
            Dr. Cotton feel an arteriogram was warranted.  Claimant was 
 
            to continue to monitor his blood pressure but no further 
 
            treatment was recommended (Jt. Ex. 2(a)).
 
            
 
                 Claimant returned to Dr. Cotton on October 22, 1991.  
 
            During the two weeks preceding the examination on this date, 
 
            claimant was experiencing numbness in the left side of his 
 
            face.  He was also experiencing slight slurring of speech as 
 
            well as facial weakness in the 24 hours preceding the 
 
            examination.  His left arm felt numb and claimant complained 
 
            he was lightheaded and unsteady.  The examination showed 
 
            slight dysarthria and slight left facial paresis and 
 
            slightly diminished strength in the left hand compared to 
 
            the right hand.  Dr. Cotton felt claimant had sustained 
 
            another infarct and brain stem.  He was to undergo another 
 
            MRI scan of the brain (Unnumbered Jt. Ex.).
 
            
 
                 In November of 1991, Dr. Munyon rendered what appears 
 
            to be a final diagnosis for claimant.  He indicated that 
 
            claimant suffered from hypertension and status posterior 
 
            cerebral infarction with chronic dizziness and 
 
            lightheadedness.  He requested that claimant be given a 
 
            handicapped parking sticker (Jt. Exs. 3(a) and 6).
 
            
 
                 In February of 1992, Dr. Goldner issued his final 
 
            report.  His examination on January 31, 1992 reveals that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant apparently had another stroke on January 14, 1992.  
 
            After this episode, claimant had developed acute onset of 
 
            memory loss, confusion and trouble using his left arm.  Dr. 
 
            Goldner's neurological examination confirmed that claimant 
 
            had difficulty using his left leg.  Left facial asymmetry 
 
            was still present and while performing a finger to nose 
 
            test, claimant displayed mild intension tremor.  Dr. Goldner 
 
            was of the opinion that claimant had sustained a 20 percent 
 
            functional impairment due to the persistence of symptoms and 
 
            development of another stroke.  Claimant's prognosis for 
 
            further strokes in the vertebrobasilar system existed.  
 
            Earlier, in July of 1991, Dr. Goldner had evaluated 
 
            claimant's impairment between 10-15 percent (Jt. Ex. 19; Jt. 
 
            Ex. 1(a)).
 
            
 
                 Next, claimant was sent by the employer to Dr. Wampler 
 
            for a re-evaluation for fitness for duty.  Dr. Wampler noted 
 
            a decrease in claimant's left hand grip strength and 
 
            weakness in the left foot and hip.  Dr. Wampler noted that 
 
            claimant had been released for full duty on April 1, 1992.  
 
            After consultation with Dr. Munyon, he ascertained that 
 
            claimant had had other episodes of transient ischemic 
 
            attacks and probably light strokes from March of 1991 until 
 
            his examination with Dr. Wampler.  Dr. Wampler's examination 
 
            revealed that claimant's left hip tended to invert or turn 
 
            inward while walking, producing elements of spasticity and 
 
            discoordination.  After working a full eight hours per day, 
 
            claimant went home and would sleep 12 to 14 hours per night.  
 
            Dr. Wampler expressed concerns about claimant's ability to 
 
            continue to perform his job duties.  He considered it unsafe 
 
            for claimant to operate a motor vehicle, walk on uneven 
 
            surfaces and to climb in and out of buildings under 
 
            construction.  He felt claimant should go on an immediate 
 
            leave of absence and apply for social security disability 
 
            benefits.  His opinion was that claimant's vertebrobasilar 
 
            disease was related to a combination of genetic 
 
            predisposition and a long-standing history of hypertension.  
 
            He was unwilling to state that the claimant's job duties 
 
            contributed to the onset of his medical illness (Jt. Ex. 
 
            4(a)).
 
            
 
                 Although the city asked claimant whether there were any 
 
            accommodations that could be made in his job functions that 
 
            would allow him to return to work (Jt. Ex. 8), claimant was 
 
            terminated on May 5, 1992 (Jt. Exs. 9-11).  Claimant filed a 
 
            grievance requesting reinstatement which was eventually 
 
            rejected, and he also filed a civil rights charge (Jt. Exs. 
 
            12-15).
 
            
 
                 The parties submitted as joint exhibits depositions of 
 
            George Scott, the director of community development for the 
 
            City of Council Bluffs; Dr. Goldner; and, claimant.  Mr. 
 
            Scott supervised the four divisions of the department 
 
            including the building inspection and permitting division.  
 
            He was familiar with claimant and claimant's job duties.  
 
            Mr. Scott indicated that he was aware of the Mercy 
 
            Hospital/Iowa Power project and the problems that had been 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            encountered with the placement of the electrical equipment 
 
            without the required permit.  He was also aware that the 
 
            ICBO reviewed the plans and agreed with claimant that the 
 
            specifications and equipment did not meet code 
 
            requirements..  Likewise, he was aware that the equipment 
 
            needed to be tested or removed, and that Mercy was unwilling 
 
            to do either one.  While claimant was out on medical leave, 
 
            Mr. Scott and Mercy came to an agreement which would allow 
 
            Mercy to have the equipment tested while it was installed.  
 
            The testing laboratory engineer was supplied with sufficient 
 
            information to determine whether the equipment could be 
 
            tested on site.  Although Mr. Scott agreed that claimant was 
 
            correct in notifying Mercy Hospital that the equipment was 
 
            improperly installed, he felt that claimant should have "red 
 
            tagged" the equipment and that the red tag would have 
 
            eliminated any further questions in that this is an official 
 
            action by the city stating that the piece of electrical work 
 
            or equipment was improperly installed.   Then, the owners 
 
            would either have to reinstall the equipment or civil 
 
            penalties would be instituted (Jt. Ex. 18, pp. 10-12).
 
            
 
                 Dr. Goldner's deposition, taken July 29, 1991, outlines 
 
            claimant's course of treatment and contains Dr. Goldner's 
 
            opinion that, based on his examination of claimant, his 
 
            review of medical records presented to him, the stress of 
 
            claimant's employment on August 17, 1990, was a material and 
 
            substantial factor in aggravating or accelerating claimant's 
 
            hypertension thereby causing his stroke.  Dr. Goldner's 
 
            opinion is based on claimant's assertion that he worked in a 
 
            stressful environment.  Likewise, at that time Dr. Goldner 
 
            was of the opinion that claimant had sustained a 10 to 15 
 
            percent functional impairment rating due to the aftereffects 
 
            of the stroke.  And, he believed that claimant should avoid 
 
            high stress, and highly physical activity (Jt. Ex. 19, pp. 
 
            17-19).
 
            
 
                 Currently, claimant is not working but has used 
 
            listings from job service to check for various appropriate 
 
            positions.  Additionally, he belongs to a union, Local 22, 
 
            but has received no "send-outs" for supervisory positions.  
 
            Claimant stated that his grandchildren were his life, and 
 
            that he does what he wants to do and as a result feels less 
 
            stress in his life.
 
            
 
                 It should also be noted that claimant has been treated 
 
            for hypertension for the past 30 years, and as precautionary 
 
            measures, checks his blood pressure two times per day for 
 
            the past 30 years.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on August 15, 1990, which arose out of 
 
            and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 On August 15, 1990, claimant suffered what was later 
 
            defined as a stroke.  There is no evidence to rebut the 
 
            finding that claimant was performing his regular job duties 
 
            during his normal work hours.  His duties were being 
 
            performed in a manner consistent with the requirements of 
 
            his position.  Therefore, claimant did sustain an injury in 
 
            the course of his employment on August 15, 1990.
 
            
 
                 The threshold issue is whether claimant's stroke arose 
 
            out of his employment.  In order to prove this part of the 
 
            test, claimant must show that his employment was the cause 
 
            or the source of the injury.  In other words, if claimant's 
 
            employment was a substantial factor in bringing about the 
 
            result of claimant's stroke, he has proven that the stroke 
 
            arose out of his employment.
 
            
 
                 The undersigned was able to uncover one agency decision 
 
            which addressed this issue. In Smith v. Iowa Farmers Union 
 
            and Farmers Elevator Mutual Insurance Company, II Iowa 
 
            Indus. Comm'r Rep. 374 (1982), claimant's wife suffered a 
 
            cerebral hemorrhage on November 21, 1975 and died on 
 
            December 1, 1975 after failing to regain consciousness.  The 
 
            decedent worked as the office manager for the employer.  She 
 
            was involved in a variety of activities, some associated 
 
            with her work, others not.
 
            
 
                 The employer participated in a land use seminar 
 
            sponsored by Drake University.  Decedent undertook the 
 
            responsibility of transporting individuals to and from the 
 
            airport for the employer.  The decedent did not participate 
 
            in the seminar on behalf of the employer.  During the 
 
            seminar, decedent was speaking to a colleague and suffered a 
 
            stroke.  She died approximately one week later.  Smith at 
 
            375.
 
            
 
                 Claimant, the surviving husband, was denied benefits.  
 
            The facts of the case were analyzed under the Iowa Supreme 
 
            case of Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The opinion states that in order to prove that 
 
            decedent's stroke arose out of her employment, claimant must 
 
            show that "some employment incident or activity was the 
 
            proximate cause of decedent's stroke."  Smith at 377.  
 
            However, caution was urged in applying the full standards 
 
            set out in Sondag (where claimant suffered a heart attack), 
 
            to cases where the worker has suffered a stroke.  Strokes 
 
            are physiologically different and more complex than heart 
 
            attacks.
 
            
 
                 In conjunction with an analysis of decedent's 
 
            activities prior to the stroke, Smith relies on expert 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            testimony to analyze whether decedent's injury arose out of 
 
            her employment.  In Smith, a failure of expert testimony to 
 
            establish the requisite causal connection between the 
 
            activities and decedent's stroke, coupled with a 
 
            determination that decedent stresses on the day/evening of 
 
            the stroke "were not even as great as would be present in 
 
            her normal daily activity" resulted in a denial that 
 
            decedent's death from a stroke arose out of her employment.
 
            
 
                 In the case at bar, a review of claimant's activities 
 
            the day of the stroke is warranted.
 
            
 
                 The testimony is uncontroverted with respect to the 
 
            Mercy-Iowa Power project.  Claimant, Norma Faris, C. Lowell 
 
            Richey, and Dan Woellhof all testified that they knew this 
 
            particular project was troublesome.  Another witness, Mary 
 
            Ann Krutzfeldt, was a coworker of claimant's and testified 
 
            that although she knew claimant was busy, he wasn't any 
 
            busier than other members of the building department.  Ms. 
 
            Krutzfeldt did not notice whether claimant got upset over 
 
            the Mercy-Iowa Power project.
 
            
 
                 Claimant testified that during June, July and August of 
 
            1990, his job was particularly stressful.  Several large 
 
            projects were being constructed in Council Bluffs, and 
 
            claimant was responsible for checking prints and 
 
            specifications in order to issue permits.  Claimant stated 
 
            that during a typical day during this time frame, he would 
 
            receive between 25 to 40 phone calls per day.  Calls came 
 
            from the city attorney regarding lawsuits to which the city 
 
            was a party, businesses requesting the status of their 
 
            permits, and, calls from and to Iowa Power regarding the 
 
            Mercy Hospital project, specifically, whether it was 
 
            necessary to conform with the rules and regulations 
 
            regarding meters and placement of electrical equipment.  
 
            Claimant stated that he was also performing administrative 
 
            duties and that he would oftentimes work between 60 and 70 
 
            hours per week.  He also worked at home and seldom ate 
 
            lunch.
 
            
 
                 In August, claimant stated that he felt tired and 
 
            harried.  He received a phone call upon arriving at the 
 
            office at 8:00 a.m. and received additional information 
 
            about the Mercy-Iowa Power project.  At this point, he was 
 
            told that the equipment had been hooked and was functioning, 
 
            and claimant became very angry.  Shortly thereafter, he had 
 
            the stroke.
 
            
 
                 Claimant's entire testimony describes his position as 
 
            one which is deemed stressed, especially in the summer 
 
            months.  Many demands were placed upon claimant and the 
 
            functions of his position with the city.  In other words, 
 
            the undersigned finds that the evidence shows claimant was 
 
            almost always under a certain amount of stress.  In 
 
            reference to the Mercy-Iowa Power project, almost from its 
 
            initial conception, the project caused much stress in 
 
            claimant's life.  The project had been ongoing for more than 
 
            two years prior to claimant's stroke.  
 
            
 
                 Dr. Goldner is of the opinion that claimant's 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            longstanding hypertension was aggravated by the stress at 
 
            work.  He also stated that claimant's work environment was 
 
            more stressful than claimant's non-employment life.
 
            
 
                 Dr. Munyon advised that claimant should work in a 
 
            situation where stress could be controlled.  He was able to 
 
            state that claimant's hypertension contributed to his 
 
            stroke.  He was able to state that claimant's problem was 
 
            related to a lack of blood supply in the vertebrobasilar 
 
            system.  Dr. Munyon could not relate this to claimant's job 
 
            activities.
 
            
 
                 Dr. Wampler associated claimant's cerebral vascular 
 
            disease to genetic disposition and hypertension.
 
            
 
                 The medical evidence, viewed in its entirely, does not 
 
            support a finding that  claimant's job caused his stroke.  
 
            As a result, it is found that claimant has not met his 
 
            burden of proof and has not shown that the employment 
 
            incident or activity was the proximate cause of his stroke.  
 
            Although there is no doubt that his activity on August 15, 
 
            1990 was stressful, it does not appear to be more stressful 
 
            than his normal daily activities.
 
            
 
                 The record indicates that claimant suffered two 
 
            additional strokes while he was not working.  No physician 
 
            opined that one stroke predisposes an individual to further 
 
            strokes.
 
            
 
                 Even if claimant had shown that his injury arose out of 
 
            and in the course of his employment, claimant subsequently 
 
            had a series of strokes after the initial stroke on August 
 
            15, 1990.  It is noted that the evidence shows that claimant 
 
            eventually released to return to full duties in April of 
 
            1991.  It was only after he had sustained several other 
 
            strokes that his physical condition deteriorated to a point 
 
            where he was taken off of full duty work.  Therefore, even 
 
            if claimant had shown that he sustained an injury which 
 
            arose out of and in the course of his employment, claimant 
 
            was only temporary totally disabled until April of 1991.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant has failed to establish that he sustained 
 
            an injury on August 15, 1990, which arose out of and in the 
 
            course of his employment.
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall pay their respective costs of 
 
            pursuing or defending the claim.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon Gallner
 
            Attorney at Law
 
            803 Third Ave
 
            Council Bluffs IA 51502
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
                             
 
                                              5-1100
 
                                              Filed March 30, 1993
 
                                              Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. FARIS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 967932
 
            CITY OF COUNCIL BLUFFS,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            
 
            Claimant suffered a stroke at work.  He had a 30-year 
 
            history of hypertension.
 
            
 
            His job was stressful, but no more so than his 
 
            non-employment life.  Claimant had also suffered strokes 
 
            while trapshooting and while relaxing at home.
 
            
 
            Claimant denied benefits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       SUSAN E. McINTOSH,       
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                            File No. 967963
 
       PRIME MOVERS COMPANY,    
 
                                              A P P E A L
 
          Employer,   
 
                                            D E C I S I O N
 
       and           
 
                 
 
       KEMPER 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.
 
       
 
                                ISSUES
 
       
 
          Defendants state the following issues on appeal:
 
            
 
            I.      Did the deputy err in determining the claimant 
 
            sustained an injury arising out of and in the course of 
 
            her employment on November 1, 1990.
 
            
 
            II.     Did the deputy err in determining that claimant's 
 
            disability and medical expenses were causally connected 
 
            to her work injury.
 
            
 
            III.    Did the deputy err in awarding healing period 
 
            benefits from November 9, 1990 through August 15, 1991.
 
            
 
            IV.     Did the deputy err in awarding the claimant 
 
            medical expenses.
 
            
 
            V.      Did the deputy err in awarding the claimant 
 
            permanent partial disability benefits equal to 20 
 
            percent of the body as a whole.
 
       
 
                           FINDINGS OF FACT
 
       
 
          The findings of fact contained in the proposed agency 
 
       decision filed March 18, 1994 are adopted as final agency action.
 
       
 
                         CONCLUSIONS OF LAW
 
       
 
          The conclusions of law contained in the proposed agency 
 
       decision filed March 18, 1994 are adopted as set forth below.  
 
       Segments designated by asterisks (*****) indicate portions of the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       language from the proposed agency decision that have been 
 
       intentionally deleted and do not form a part of this final agency 
 
       decision.  Segments designated by brackets ([ ]) indicate 
 
       language that is in addition to the language of the proposed 
 
       agency decision.
 
       
 
          The first issue to address is whether claimant sustained an 
 
       injury on November 1, 1990, which arose out of and in the course 
 
       of her employment. 
 
       
 
          The party who would suffer loss if an issue were not 
 
       established has the burden of proving that issue by a 
 
       preponderance of the evidence.  Iowa R. App. P. 14(f).
 
       
 
          The claimant has the burden of proving by a preponderance of 
 
       the evidence that the alleged injury actually occurred and that 
 
       it arose out of and in the course of employment.  McDowell v. 
 
       Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
       Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
       "arising out of" refer to the cause or source of the injury.  The 
 
       words "in the course of" refer to the time, place and 
 
       circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
       415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
       1971).
 
       
 
          On November 1, 1990, claimant's job duties included painting 
 
       steel frames.  Some of the frames weighed in excess of 100 
 
       pounds.  She was required to lift the frames in order to paint 
 
       them.  The record confirms that she was performing her job duties 
 
       in a manner consistent with the requirements of the job, and that 
 
       she was working her normal shift. 
 
       
 
          While ***** claimant has had prior back problems, and has 
 
       been less than honest on numerous occasions, the medical records 
 
       confirm that she sought treatment around November 1, 1990.  There 
 
       is nothing in the record to dispute claimant's contention that 
 
       she injured her back and told her supervisor of the injury. 
 
       
 
          As a result, it is found that claimant sustained an injury 
 
       on November 1, 1990, which arose out of and in the course of her 
 
       employment.  
 
       
 
          The next issue to address is whether claimant is entitled to 
 
       temporary total, healing period or permanent partial disability 
 
       benefits.  
 
       
 
          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).
 
       
 
          Iowa Code section 85.33 provides the following relevant 
 
       information:
 
       
 
          Except as provided in subsection 2 of this section, the 
 
       employer shall pay to an employee for injury producing temporary 
 
       total disability weekly compensation benefits, as provided in 
 
       section 85.32, until the employee has returned to work or is 
 
       medically capable of returning to employment substantially 
 
       similar to the employment in which the employee was engaged at 
 
       the time of injury, whichever occurs first.
 
       
 
          Iowa Code section 85.34(1) provides, in pertinent part:
 
            
 
               Healing period.  If an employee has suffered a 
 
            personal injury causing permanent partial disability 
 
            for which compensation is payable as provided in 
 
            subsection 2 of this section, the employer shall pay to 
 
            the employee compensation for a healing period, as 
 
            provided in section 85.37, beginning on the date of 
 
            injury, and until the employee has returned to work or 
 
            it is medically indicated that significant improvement 
 
            from the injury is not anticipated or until the 
 
            employee is medically capable of returning to 
 
            employment substantially similar to the employment in 
 
            which the employee was engaged at the time of the 
 
            injury, whichever occurs first.
 
       
 
          ***** Dr. Miller ***** continued to deny that claimant had 
 
       sustained a herniated disc, and was of the opinion that she was 
 
       not a candidate for surgery.  This is so, even in light of an MRI 
 
       scan and a CT scan which confirmed a herniated disc.  Even Dr. 
 
       Miller was under the impression that claimant had sustained a 
 
       permanent impairment, and offered that her impairment was 10 
 
       percent of the body as a whole.  
 
       
 
          Dr. Honda, who eventually performed surgery to claimant's 
 
       lumbar spine, also was of the opinion that her work injury had 
 
       caused a permanent impairment of 10 percent to the body as a 
 
       whole.  
 
       
 
          Since both primary physicians involved with the case have 
 
       rendered opinions that claimant's work injury caused a permanent 
 
       impairment, it is found that she did sustain a permanent injury, 
 
       and she is entitled to healing period benefits for the time she 
 
       was off of work and under medical care for her low back problem.  
 
       Unfortunately, the parties were unable to agree upon a time frame 
 
       for which claimant would be entitled to these benefits. *****
 
       
 
          As claimant has sustained a permanent impairment to the body 
 
       as a whole, an analysis of her industrial disability is 
 
       warranted. 
 
       
 
          Functional impairment is an element to be considered in 
 
       determining industrial disability which is the reduction of 
 
       earning capacity, but consideration must also be given to the 
 
       injured employee's age, education, qualifications, experience 
 
       and inability to engage in employment for which he is fitted.  
 
       Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
       (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
       (1961).
 
       
 
          A finding of impairment to the body as a whole found by a 
 
       medical evaluator does not equate to industrial disability.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       This is so as impairment and disability are not synonymous.  
 
       Degree of industrial disability can in fact be much different 
 
       than the degree of impairment because in the first instance 
 
       reference is to loss of earning capacity and in the latter to 
 
       anatomical or functional abnormality or loss.  Although loss of 
 
       function is to be considered and disability can rarely be found 
 
       without it, it is not so that a degree of industrial disability 
 
       is proportionally related to a degree of impairment of bodily 
 
       function.
 
       
 
          Factors to be considered in determining industrial dis
 
       ability include the employee's medical condition prior to the 
 
       injury, immediately after the injury, and presently; the situs of 
 
       the injury, its severity and the length of healing period; the 
 
       work experience of the employee prior to the injury, after the 
 
       injury and potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; and 
 
       inability because of the injury to engage in employment for which 
 
       the employee is fitted.  Loss of earnings caused by a job 
 
       transfer for reasons related to the injury is also relevant.  
 
       These are matters which the finder of fact considers collectively 
 
       in arriving at the determination of the degree of industrial 
 
       disability.
 
       
 
          There are no weighting guidelines that indicate how each of 
 
       the factors are to be considered.  There are no guidelines which 
 
       give, for example, age a weighted value of ten percent of the 
 
       total value, education a value of fifteen percent of total, 
 
       motivation - five percent; work experience - thirty percent, etc.  
 
       Neither does a rating of functional impairment directly correlate 
 
       to a degree of industrial disability to the body as a whole.  In 
 
       other words, there are no formulae which can be applied and then 
 
       added up to determine the degree of industrial disability.  It 
 
       therefore becomes necessary for the deputy or commissioner to 
 
       draw upon prior experience, general and specialized knowledge to 
 
       make the finding with regard to degree of industrial disability.  
 
       See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
       February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
       March 26, l985).
 
       
 
          At the time of the injury, claimant was 42 years of age.  
 
       Her job with the defendant employer, which she held for 
 
       approximately two years, is the best paying job she has ever 
 
       held.  The majority of her work experience has been as a school 
 
       bus driver. 
 
       
 
          Claimant's back injury caused a somewhat extended healing 
 
       period, although her actual recovery from surgery was fairly 
 
       quick.  
 
       
 
          Due to claimant's conviction for fraud, her motivation to 
 
       work may be questionable, but she has been able to secure 
 
       appropriate employment, although she earns far less than she 
 
       earned at the time of the injury.  
 
       
 
          After considering all of the factors enumerated above, it is 
 
       found that claimant has sustained a 20 percent industrial 
 
       disability. 
 
       
 
          The next issue to address is whether claimant is entitled to 
 
       medical benefits. 
 
       
 
          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).
 
       
 
          As claimant has sustained an injury which arose out of and 
 
       in the course of her employment, and the defendants denied 
 
       liability for the injury, she is entitled to medical benefits. 
 
       ***** Claimant was involved in an automobile accident in November 
 
       1991, but claimant's condition from her work injury was never 
 
       stabilized prior to the automobile accident.  There is no 
 
       intervening event which breaks the causal connection between 
 
       claimant's work injury and the need for surgical intervention. 
 
       
 
          The evidence did not provide much guidance as to when 
 
       claimant's healing period ended.  This is so due to the somewhat 
 
       inconsistent treatment provided to or undertaken by claimant.
 
       
 
          [Claimant was injured on November 1, 1990.  Claimant was not 
 
       able to return to her job, due to her injury.  However, by 
 
       February 14, 1991, claimant was working at a bar as a waitress.  
 
       Claimant also worked for Halvorsen Construction from June 10 to 
 
       June 11, 1991, and for Johnson Brothers beginning July 29, 1991.  
 
       
 
          Claimant was released from Dr. Miller's care on August 15, 
 
       1991.  Claimant did not return to her original job with defendant 
 
       employer until November of 1992.]
 
       
 
          *****
 
       
 
          The parties stipulated that claimant's gross weekly wages at 
 
       the time of the injury were $476.36 per week.  Based on her 
 
       marital status (single) and entitlement to two exemptions, they 
 
       agreed $295.09 was the correct workers' compensation rate.
 
       
 
          The rate is incorrect.  Pursuant to the July 1, 1990 Guide 
 
       to Iowa Workers' Compensation Handling book, claimant's rate is 
 
       $290.99 per week.
 
       
 
          Additionally, no penalty benefits will be awarded.
 
       
 
          WHEREFORE, the decision of the deputy is affirmed and 
 
       modified.
 
       
 
                                   ORDER
 
       
 
          THEREFORE, it is ordered:
 
       
 
          That defendants shall pay claimant healing period benefits 
 
       at the rate of two hundred ninety and 99/100 dollars ($290.99) 
 
       per week for the time she was off of work from November 1, 1990 
 
       through February 14, 1991.
 
       
 
          That defendants shall pay claimant permanent partial 
 
       disability benefits at the rate of two hundred ninety and 99/100 
 
       dollars ($290.99) per week for one hundred (100) weeks commencing 
 
       August 16, 1991.
 
       
 
          That defendants shall pay accrued weekly benefits in a lump 
 
       sum and shall receive credit against the award for weekly 
 
       benefits previously paid.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
          That defendants shall pay interest on benefits awarded 
 
       herein as set forth in Iowa Code section 85.30.
 
       
 
          That defendants shall pay the costs of this action, pursuant 
 
       to rule 343 IAC 4.33.
 
       
 
          That defendants shall file an activity report upon payment 
 
       of this award as required by this agency, pursuant to rule 343 
 
       IAC 3.1.
 
            
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
                               ________________________________
 
                               BYRON K. ORTON
 
                               INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. James P. Hoffman
 
       Attorney at Law
 
       Middle Road
 
       P.O. Box 1087
 
       Keokuk, Iowa 52632
 
       
 
       Mr. Craig Levien
 
       Attorney at Law
 
       600 Union Arcade Building
 
       111 East Third
 
       Davenport, Iowa  52801
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1803
 
                                       Filed November 30, 1994
 
                                       Byron K. Orton
 
                         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       SUSAN E. McINTOSH,       
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                          File No. 967963
 
       PRIME MOVERS COMPANY,    
 
                                            A P P E A L
 
          Employer,   
 
                                          D E C I S I O N
 
       and            
 
                 
 
       KEMPER INSURANCE COMPANY,     
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
       5-1803
 
       
 
          Claimant awarded 20 percent industrial disability.
 
       
 
       
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            SUSAN E McINTOSH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 967963
 
            PRIME MOVERS COMPANY,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Susan McIntosh, against her former employer, Prime 
 
            Mover, and its insurance carrier, Kemper Insurance Company.  
 
            
 
                 A hearing was held before the undersigned on January 6, 
 
            1994, at Davenport, Iowa.  The record consists of testimony 
 
            from the claimant, Randy Hilbrant (claims representative), 
 
            and Michael Black (vice president of personnel for Prime 
 
            Mover); joint exhibits 1-28; defendants' exhibit 29; and, 
 
            claimant's exhibits 31-47.
 
            
 
                                      ISSUES
 
            
 
                 The parties present the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on November 1, 
 
            1990, which arose out of and in the course of her 
 
            employment; 
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period, or permanent partial disability benefits; 
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.  Although defendants 
 
            argue that any treatment rendered was unauthorized, this is 
 
            an invalid defense in light of defendants' denial of 
 
            liability.  The defense of unauthorization will not be 
 
            addressed;
 
            
 
                 4.  Whether claimant is entitled to penalty benefits as 
 
            governed by Iowa Code section 86.13.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Susan McIntosh, was born on September 6, 
 
            1947.  At the time of the hearing, she was 46 years of age.  
 
            On November 1, 1990, she was single with one dependent 
 
            child. 
 
            
 
                 Claimant finished the eleventh grade in high school, 
 
            and is currently working to earn her general equivalency 
 
            diploma.  Her work experience includes driving a school bus 
 
            and working as a machinist in a factory, a job which paid 
 
            $6.00 per hour. 
 
            
 
                 Claimant began working as a spray painter for the 
 
            defendant in February, 1989.  To perform her job duties, she 
 
            was required to use electrostats and air guns.  She spray 
 
            painted PMX frames used to build fork trucks.  Her top 
 
            earnings were either $13.26 per hour, or $13.43 per hour, as 
 
            claimant was unable to remember her exact hourly rate.  
 
            
 
                 According to claimant, on November 1, 1990, she was 
 
            lifting a 150 pound steel frame.  She felt her back snap, 
 
            and told her foreman, Marv, that she had been injured.  She 
 
            was told to go home and rest.  
 
            
 
                 The following day, she was unable to get out of bed, 
 
            and  called the personnel department, who secured an 
 
            appointment with Mark Odell, M.D.  She was treated with 
 
            Tylenol and physical therapy sessions.  Eventually, she was 
 
            referred to Dennis Miller, M.D. (Joint Exhibit 6).   He 
 
            performed an examination which revealed tenderness in the 
 
            lower lumbar area.  Straight leg raising tests were 
 
            negative, with no sensory loss in the thighs or the lower 
 
            extremities.  Radiographs of the lumbosacral spine were 
 
            reviewed and interpreted as normal.  Dr. Miller diagnosed an 
 
            acute lumbosacral strain.  Claimant was to continue physical 
 
            therapy and was to take Darvocet for pain.  (Joint Exhibit 
 
            5, pp. 1-2)
 
            
 
                 Claimant returned to Dr. Miller on December 13, 1990.  
 
            Due mostly to her pain behavior, and not objective findings, 
 
            claimant was scheduled for an MRI of the lumbar spine.  The 
 
            results of the MRI showed a disc herniation at the L1-2 
 
            level, mild discogenic disease at L5-S1 and mild 
 
            degenerative changes involving the facet joints.  A CT scan 
 
            was performed two weeks later.  The test results state, 
 
            "[t]here is apparently herniation of the disc with 
 
            osteophyte formation more to the right of midline contiguous 
 
            with the vertebral body."  (Jt. Ex. 5, pp. 3-5)
 
            
 
                 During December and January, claimant also saw D. 
 
            Palmer, M.D.  He believed that the MRI showed a herniation 
 
            of the disc at L1-2 with displacement of the spinal cord.  
 
            He prescribed Percocet and physical therapy.  (Jt. Exs. 1 
 
            and 2)
 
            
 
                 Dr. Miller's January notes indicate he did not 
 
            interpret either the MRI or the CT scan as showing a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            herniated disc.  He believed claimant was suffering from a 
 
            bony spur, and "suspicion[ed] that it [was] somewhat old."  
 
            (Jt. Ex. 5, p. 6) After consultation with Dr. Tullo and Dr. 
 
            Harre, Dr. Miller believed claimant's problem stemmed from 
 
            an old defect, rather than a recent accident, and expressed 
 
            frustration with claimant's noncompliance with his 
 
            prescribed course of treatment (epidural injections and 
 
            physical therapy).  All agreed that claimant should seek a 
 
            second opinion, which was secured from Byron Rovine, M.D.  
 
            (Jt. Ex. 5, pp. 6-7)
 
            
 
                 Dr. Rovine examined claimant, and reviewed the CT and 
 
            MRI scans.  He found an abnormality at the T1-2 level and a 
 
            "loss of signal from the L5-S1 disc, without any evidence of 
 
            herniation or protrusion."  (Jt. Ex. 7, p. 2)  He 
 
            recommended exercises, but did not recommend surgery.  He 
 
            found her symptoms and his findings unusual.  He believed 
 
            there was no objective evidence to suggest any organic 
 
            involvement of the spinal cord or nerve roots.  He thought 
 
            her symptoms suggested musculoskeletal problems.  (Jt. Ex. 
 
            7, pp. 1-4)
 
            
 
                 Claimant returned to Dr. Miller, with new complaints of 
 
            shoulder pain.  He did not note any objective findings on an 
 
            examination.  He recommended a comprehensive evaluation with 
 
            Barbara Klaessy, a rehabilitation specialist at the Work 
 
            Fitness Center in Moline, Illinois.  (Jt. Ex. 5, pp. 7-8)
 
            
 
                 Claimant returned to Dr. Miller in March and April 
 
            1991.  He found her complaints "out of porportion (sic) to 
 
            the physical findings."  He believed her "hyper response to 
 
            palpation" was suggestive of psychophysiological behavior, 
 
            and recommended psychiatric evaluation.  (Jt. Ex. 5, p. 9)  
 
            Claimant returned to work hardening at the Work Fitness 
 
            Center in April 1991.  These records are found at joint 
 
            exhibit 4, and consist of 50 pages.  Essentially, it was 
 
            recommended that claimant perform job duties in the light 
 
            job classification with the following capabilities:
 
            
 
                  1.  Sitting tolerance, 32 minutes
 
            
 
                  2.  Waist height lift, 22 pounds
 
            
 
                  3.  Below waist height lift, 12 pounds
 
            
 
                  4.  Above waist height lift, 12 pounds
 
            
 
                  5.  Waist height carry, 27 pounds
 
            
 
                  6.  Whole body, push/pull, 20 pounds horizontal 
 
                 force
 
            
 
                  7.  Static stance, 9 minutes 46 seconds
 
            
 
                  8.  Repetitive squat, 12 repetitions in 51 
 
                 seconds
 
            
 
                  9.  Sustained squat, 1 minute 15 seconds
 
            
 
                 10.  Stair climbing, 4 repetitions in 1 minute 15 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 seconds
 
            
 
                 11.  Kneeling, 5 minutes continuously
 
            
 
            (Jt. Ex. 4, p. 49). 
 
            
 
                 After several more visits to Dr. Miller, and his 
 
            recommendation that claimant return to a job with limited 
 
            lifting requirements, Dr. Miller performed an evaluation for 
 
            the purpose of determining claimant's permanent impairment.  
 
            He stated that she had sustained an injury to her lower back 
 
            while working for the defendant employer, and due to 
 
            persistent pain and limited lumbar motion, she had sustained 
 
            a 10 percent impairment to the body as a whole.  (Jt. Ex. 5, 
 
            pp. 15-16)
 
            
 
                 In December 1991, claimant sought treatment from Harry 
 
            Honda, M.D.  She was complaining of neck, shoulder, back and 
 
            leg pain.  He ordered x-rays and an MRI of the cervical 
 
            spine.  Apparently, he reviewed the CT results of the lumbar 
 
            spine, which "shows L1-2."  He recommended a hemilaminectomy 
 
            and anterior cervical interbody fusion.  (Jt. Ex. 11, pp. 
 
            1-9)  A second opinion from Dr. Sanguino was secured, and he 
 
            agreed with surgery because of claimant's lumbar 
 
            radiculopathy.  (Jt. Ex. 12)  She was scheduled for surgery 
 
            on June 11, 1992.  (Jt. ex. 11, p. 10)  Dr. Honda stated 
 
            that claimant's neck injury was the result of an automobile 
 
            accident which occurred in November 1991.  (Jt. ex. 11, pp. 
 
            11-12)  She also underwent a cervical laminectomy.  While 
 
            some of Dr. Honda's notations indicate that the back problem 
 
            was work-related (Jt. Ex. 11, p. 13), other records from Dr. 
 
            Honda expressly state that it is not a workers' compensation 
 
            claim (Jt. Ex. 11, pp. 16, 20-21)   However, one record of 
 
            Dr. Honda's (found within the records from the MRI Center) 
 
            provides an opinion regarding her permanent impairment, 
 
            which he stated was 10 percent, and that according to her 
 
            history, the low back problems stemmed from her accident at 
 
            work on November 1, 1990.  (Jt. Ex. 10, p. 7)
 
            
 
                 Next, claimant sought treatment from R.J. Prentice, 
 
            whose examination noted no gross neurologic deficits.  He 
 
            referred her to Iowa City.  His notes indicate claimant hurt 
 
            her neck and low back at work.  (Jt. Ex. 14)
 
            
 
                 Medical records dated from 1979 to 1986 indicate 
 
            claimant has been involved in two prior automobile 
 
            accidents.  She denies this, and testified that she was 
 
            involved in one accident.  She denied any prior back 
 
            problems, yet the record indicates she has received 
 
            treatment for her back in the past. (Jt. Exs. 16, 17, 19 and 
 
            28)
 
            
 
                 In the summer of 1991, claimant worked for several 
 
            construction companies while receiving unemployment 
 
            benefits.  She was convicted of fraud/theft in the second 
 
            degree in March 1993 for knowingly executing false 
 
            certificates in order to receive unemployment benefits to 
 
            which she was not entitled.  (Jt. Ex. 29)
 
            
 
                 Defendants state that claimant was released to return 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to work in April of 1991, but the plant was implementing 
 
            layoffs, and claimant could not return to work.  The plant 
 
            recalled workers in November of 1992, and claimant returned 
 
            to her position with the defendant employer on November 9 
 
            1992.  
 
            
 
                 In April of 1993, claimant was terminated from her job 
 
            after the employer discovered she had been convicted of 
 
            fraud, not due to any physical limitations.  Mr. Black 
 
            addressed claimant's job performance, which was good, except 
 
            for the quality of her work.  In the past, she had received 
 
            progressive discipline regarding the quality of her work. 
 
            
 
                 Currently, claimant works at General Machine and Grind 
 
            and runs a drill press.  She began this employment in 
 
            September, 1993.  
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on November 1, 1990, which arose out of 
 
            and in the course of her employment. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 On November 1, 1990, claimant's job duties included 
 
            painting steel frames.  Some of the frames weighed in excess 
 
            of 100 pounds.  She was required to lift the frames in order 
 
            to paint them.  The record confirms that she was performing 
 
            her job duties in a manner consistent with the requirements 
 
            of the job, and that she was working her normal shift. 
 
            
 
                 While the undersigned certainly recognizes that 
 
            claimant has had prior back problems, and has been less than 
 
            honest on numerous occasions, the medical records confirm 
 
            that she sought treatment around November 1, 1990.  There is 
 
            nothing in the record to dispute claimant's contention that 
 
            she injured her back and told her supervisor of the injury. 
 
            
 
                 As a result, it is found that claimant sustained an 
 
            injury on November 1, 1990, which arose out of and in the 
 
            course of her employment.  
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to temporary total, healing period or permanent 
 
            partial disability benefits.  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 Iowa Code section 85.33 provides the following relevant 
 
            information:
 
            
 
                 Except as provided in subsection 2 of this section, the 
 
            employer shall pay to an employee for injury producing 
 
            temporary total disability weekly compensation benefits, as 
 
            provided in section 85.32, until the employee has returned 
 
            to work or is medically capable of returning to employment 
 
            substantially similar to the employment in which the 
 
            employee was engaged at the time of injury, whichever occurs 
 
            first.
 
            
 
                 Iowa Code section 85.34(1) provides, in pertinent part:
 
            
 
                    Healing period.  If an employee has suffered a 
 
                 personal injury causing permanent partial 
 
                 disability for which compensation is payable as 
 
                 provided in subsection 2 of this section, the 
 
                 employer shall pay to the employee compensation 
 
                 for a healing period, as provided in section 
 
                 85.37, beginning on the date of injury, and until 
 
                 the employee has returned to work or it is 
 
                 medically indicated that significant improvement 
 
                 from the injury is not anticipated or until the 
 
                 employee is medically capable of returning to 
 
                 employment substantially similar to the employment 
 
                 in which the employee was engaged at the time of 
 
                 the injury, whichever occurs first.
 
            
 
                 While claimant's initial treating physician was Dr. 
 
            Miller, the undersigned finds his course of treatment 
 
            somewhat puzzling.  He continued to deny that claimant had 
 
            sustained a herniated disc, and was of the opinion that she 
 
            was not a candidate for surgery.  This is so, even in light 
 
            of an MRI scan and a CT scan which confirmed a herniated 
 
            disc.  Even Dr. Miller was under the impression that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant had sustained a permanent impairment, and offered 
 
            that her impairment was 10 percent of the body as a whole.  
 
            
 
                 Dr. Honda, who eventually performed surgery to 
 
            claimant's lumbar spine, also was of the opinion that her 
 
            work injury had caused a permanent impairment of 10 percent 
 
            to the body as a whole.  
 
            
 
                 Since both primary physicians involved with the case 
 
            have rendered opinions that claimant's work injury caused a 
 
            permanent impairment, it is found that she did sustain a 
 
            permanent injury, and she is entitled to healing period 
 
            benefits for the time she was off of work and under medical 
 
            care for her low back problem.  Unfortunately, the parties 
 
            were unable to agree upon a time frame for which claimant 
 
            would be entitled to these benefits.  The record is unclear, 
 
            and the undersigned is unable to establish the time frame 
 
            for these benefits.  
 
            
 
                 As claimant has sustained a permanent impairment to the 
 
            body as a whole, an analysis of her industrial disability is 
 
            warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 42 years of 
 
            age.  Her job with the defendant employer, which she held 
 
            for approximately two years, is the best paying job she has 
 
            ever held.  The majority of her work experience has been as 
 
            a school bus driver. 
 
            
 
                 Claimant's back injury caused a somewhat extended 
 
            healing period, although her actual recovery from surgery 
 
            was fairly quick.  
 
            
 
                 Due to claimant's conviction for fraud, her motivation 
 
            to work may be questionable, but she has been able to secure 
 
            appropriate employment, although she earns far less than she 
 
            earned at the time of the injury.  
 
            
 
                 After considering all of the factors enumerated above, 
 
            it is found that claimant has sustained a 20 percent 
 
            industrial disability. 
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits. 
 
            
 
                 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).
 
            
 
                 As claimant has sustained an injury which arose out of 
 
            and in the course of her employment, and the defendants 
 
            denied liability for the injury, she is entitled to medical 
 
            benefits.  The undersigned is aware that claimant was 
 
            involved in an automobile accident in November 1991, but 
 
            claimant's condition from her work injury was never 
 
            stabilized prior to the automobile accident.  There is no 
 
            intervening event which breaks the causal connection between 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            claimant's work injury and the need for surgical 
 
            intervention. 
 
            
 
                 The evidence did not provide much guidance as to when 
 
            claimant's healing period ended.  This is so due to the 
 
            somewhat inconsistent treatment provided to or undertaken by 
 
            claimant.
 
            
 
                 The undersigned believes claimant was initially 
 
            released to return to work, with restrictions, on August 15, 
 
            1991.  As a result, she is awarded healing period benefits 
 
            for the time she was off of work from November 1, 1990 
 
            through August 15, 1991, and the permanent partial 
 
            disability benefits shall commence August 16, 1991.
 
            
 
                 (While the undersigned acknowledges that claimant 
 
            returned to work at a bar, she does not believe that this is 
 
            work substantially similar to her prior employment.)
 
            
 
                 The parties stipulated that claimant's gross weekly 
 
            wages at the time of the injury were $476.36 per week.  
 
            Based on her marital status (single) and entitlement to two 
 
            exemptions, they agreed $295.09 was the correct workers' 
 
            compensation rate.
 
            
 
                 The rate is incorrect.  Pursuant to the July 1, 1990 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Guide to Iowa Workers' Compensation Handling book, 
 
            claimant's rate is $290.99 per week.
 
            
 
                 Additionally, no penalty benefits will be awarded.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits at the rate of two hundred ninety and 99/100 
 
            dollars ($290.99) per week for the time she was off of work 
 
            from November 9, 1991 through August 15, 1991.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits at the rate of two hundred ninety and 
 
            99/100 dollars ($290.99) per week for one hundred (100) 
 
            weeks commencing August 16, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                              
 
                                         ---------------------------
 
                                         PATRICIA J. LANTZ
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            P O Box 1087
 
            Keokuk IA 52632
 
            
 
            Mr Craig A Levien
 
            Attorney at Law
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed March 18, 1994
 
                                              Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            SUSAN E McINTOSH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 967963
 
            PRIME MOVERS COMPANY,         :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
            5-1803
 
            Claimant awarded 20% industrial disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       SUSAN E. McINTOSH,       
 
                 
 
          Claimant,                         File No. 967963
 
                 
 
       vs.                                     O R D E R
 
                 
 
       PRIME MOVERS COMPANY,                    N U N C
 
                           
 
          Employer,                              P R O
 
                     
 
       and                                      T U N C
 
                 
 
       KEMPER INSURANCE COMPANY,     
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
       
 
          The conclusions of law contained in the appeal decision 
 
       filed November 30, 1994 are hereby amended with the following 
 
       additional analysis:
 
       
 
          Iowa Code section 85.34(1) states that a return to work 
 
       terminates healing period.  The section does not limit a 
 
       "return to work" to a return to the same job that claimant was 
 
       performing at the time of the injury.  Such language is used in a 
 
       later alternative under section 85.34(1), in that healing period 
 
       ends when a claimant is "medically capable of returning to 
 
       employment substantially similar to the employment in which the 
 
       employee was engaged at the time of injury."  However, the 
 
       "substantially similar" language, which refers to a claimant's 
 
       capability to return to the same or similar work, whether or not 
 
       the claimant actually does,  is not applicable to the first prong 
 
       of 85.34(1), a "return to work."  Thus, any return to work ends 
 
       the claimant's healing period.  To hold otherwise would result in 
 
       a double recovery by claimants who would collect healing period 
 
       benefits for the same week he or she was also earning wages.
 
       
 
          Thus, claimant's healing period ended when she returned to 
 
       work.  Claimant acknowledges that she was working as a waitress 
 
       by February 14, 1991.  Claimant's healing period ended on 
 
       February 14, 1991.  It is possible that claimant was not working 
 
       for periods subsequent to February 14, 1991, due to her injury, 
 
       but the record is insufficient to determine this.  Claimant has 
 
       failed to carry her burden to show entitlement to additional, 
 
       intermittent healing period benefits.  
 
       
 
            
 
            Signed and filed this ____ day of December, 1994.
 
       
 
       
 
       
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                 ________________________________
 
                                         BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. James P. Hoffman
 
       Attorney at Law
 
       Middle Road
 
       P.O. Box 1087
 
       Keokuk, Iowa 52632
 
       
 
       Mr. Craig Levien
 
       Attorney at Law
 
       600 Union Arcade Building
 
       111 East Third
 
       Davenport, Iowa  52801
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                  1401, 1402.60, 1403.10, 2501, 2601, 
 
                                  2701, 2902
 
                                  Filed April 23, 1993
 
                                  Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN SANTUCCI, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                 File No. 967995
 
                      
 
            AIR & WATER TECHNOLOGIES          M E M O R A N D U M
 
            CORP.,    
 
                                              O F  D E C I S I O N 
 
                 Employer, 
 
                                              O N   A L T E R N A T E
 
            and       
 
                                              M E D I C A L  C A R E
 
            CIGNA PROPERTY & CASUALTY     
 
            COMPANIES,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1401, 1402.60, 1403.10, 2501, 2601, 2701, 2902
 
            
 
            Claimant was injured.  Defendants failed to actively monitor 
 
            claimant's medical care by authorizing a physician of their 
 
            own choice.  Claimant sought care from his family physician.  
 
            Defendants expressed no objection to this physician for one 
 
            year and nine months.  Defendants paid his bills for one 
 
            year and nine months.
 
            
 
            Defendants then purported to terminate the care of 
 
            claimant's choice of physician and authorized a physician of 
 
            their own choice.  This forced claimant to bring an action 
 
            for alternate medical care in order to continue his care 
 
            with the same physician that had been treating him from the 
 
            date of injury until the date of the hearing.  Defendants 
 
            introduced no evidence that the care of the family physician 
 
            was unreasonable, inappropriate, excessive or ineffective.
 
            It was held that claimant's choice of his family physician 
 
            under these circumstances constituted the family physician 
 
            as an authorized medical care provider.  (Several cites)
 
            It was further held that defendants acquiesced in the care 
 
            selected by claimant.  (Several cites)
 
            
 
            It was further held that under these circumstances 
 
            defendants waived the right to choose the care, but the 
 
            waiver was not irreversible.  Defendants would be entitled 
 
            to choose the care by introducing evidence that the care 
 
            provided by claimant's choice of physician was unreasonable, 
 
            inappropriate, excessive or ineffective, but defendants 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            introduced no such evidence.  (Several cites)
 
            It was held that the burden of proof was upon defendants to 
 
            prove that the care being given was unreasonable.  (Several 
 
            cites)
 
            
 
            Defendants were ordered to continue to provide and pay for 
 
            the care of claimant's choice of physician from the date of 
 
            the injury until such time that defendants can prove this 
 
            care is unreasonable.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN SANTUCCI, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                 File No. 967995
 
                      
 
            AIR & WATER TECHNOLOGIES          M E M O R A N D U M
 
            CORP.,    
 
                                              O F  D E C I S I O N 
 
                 Employer, 
 
                                              O N   A L T E R N A T E
 
            and       
 
                                              M E D I C A L  C A R E
 
            CIGNA PROPERTY & CASUALTY     
 
            COMPANIES,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                   INTRODUCTION
 
            
 
                 This is a memorandum of decision to put in writing the 
 
            determination of the deputy industrial commissioner which 
 
            was given to the attorneys for the parties verbally at the 
 
            time of the telephone hearing.
 
            
 
                 The determination in this case is a result of an 
 
            alternate care proceeding filed by John Santucci, claimant, 
 
            against Air and Water Technologies, employer, and CIGNA 
 
            Property & Casualty Companies, insurance carrier, for 
 
            alternate medical care pursuant to rule 343 IAC 4.48.
 
            
 
                 A telephone hearing was held on April 20, 1993 at 1:45 
 
            p.m..  Claimant was represented by J. Drew Chambers.  
 
            Defendants were represented by Craig A. Levien.  Claimant 
 
            was not personally present at the time of the telephone 
 
            hearing but submitted an affidavit with his original notice 
 
            and petition.  Also attached to claimant's petition is the 
 
            report of defendant's evaluator Dr. Sandra 
 
            Scheler-Mangiapia.  Terence Milford, insurance company 
 
            representative, was present at the time of the telephone 
 
            hearing and testified at the time of the hearing.  
 
            Defendants also submitted the affidavit of Terence Milford 
 
            as an unmarked exhibit as well as defendants' exhibits A, B 
 
            and C.  An audio tape recording was made of the hearing and 
 
            is on file in the office of industrial commissioner.  
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                             PRELIMINARY MATTERS
 
            
 
                 Defendants acknowledge (1) that an employer-employee 
 
            relationship existed between claimant and employer at the 
 
            time of the injury, and (2) that claimant did in fact 
 
            sustain an injury on October 25, 1990, which arose out of 
 
            and in the course of employment with employer.
 
            
 
                 It was announced before the hearing began that the 
 
            deputy had been delegated the authority to issue the final 
 
            agency action in this matter.  Therefore, appeal of this 
 
            decision, if any, would be judicial review pursuant to Iowa 
 
            Code section 17A.19.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for determination is whether claimant is 
 
            entitled to continue with the physician that has treated him 
 
            since the date of the injury until the time of the hearing 
 
            or whether he must terminate treatment with this physician 
 
            and begin seeking care from a new physician based on a 
 
            purported change of authorized care expressed in letters 
 
            from defendants' attorney to claimant's attorney dated 
 
            August 19, 1992, November 10, 1992 and December 31, 1992 
 
            (Defendants' Exhibits A, B & C).
 
            
 
                 At the hearing the deputy stated that the affidavit of 
 
            claimant attached to the petition would be accepted as 
 
            evidence.  Defendants' attorney objected to the use of the 
 
            affidavit as evidence because he did not have the 
 
            opportunity to cross-examine claimant.  Even though the 
 
            objection to the affidavit is not meritorious, nevertheless, 
 
            in deference to defendant and defendants' counsel the 
 
            affidavit will not be considered as evidence and will not be 
 
            used in determination of the issue in this case.
 
            
 
                 The reason that the objection is not meritorious is 
 
            because defendant was put on notice that claimant would not 
 
            be present and testify at the hearing because of the fact 
 
            that his affidavit was attached to the petition.  As a 
 
            general rule, affidavits are never attached to petitions.  
 
            When an affidavit is attached to a petition it should prompt 
 
            an inquiry as to why.  Defendants made no inquiry prior to 
 
            hearing as to whether claimant would be present and testify.  
 
            Defendants submitted no interrogatories to claimant, did not 
 
            depose claimant or request admissions of claimant.  
 
            Defendants did not subpoena claimant to appear at the 
 
            hearing.  Nor is there any evidence or any indication that 
 
            defendants attempted to do any of the foregoing or make any 
 
            attempt to find out whether claimant would be present at 
 
            hearing even though attachment of his affidavit to the 
 
            petition was a signal that he would not be present to 
 
            testify in person.  There is no obligation for a claimant to 
 
            be present or to testify at a hearing.  Strict rules of 
 
            evidence are not to be applied in proceedings before the 
 
            industrial commissioner.  Morrison v. Century Eng'g, 434 
 
            N.W.2d 874 (Iowa 1989)
 
            
 
                 Nevertheless, in deference to defense counsel's 
 
            objection to the affidavit of claimant to the effect that he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            did not have the opportunity to cross-examine claimant, then 
 
            it is subsequently and now determined that the affidavit of 
 
            claimant will not be considered evidence in this case and 
 
            will not be used in the determination of the facts or legal 
 
            issues in this case.  Iowa Administrative Procedure Act 
 
            17A.14(3).  Furthermore, the affidavit of claimant is not 
 
            essential to the determination of the facts and legal issues 
 
            in this case.  This decision is based on the other evidence 
 
            presented in this case.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant's attorney contended on behalf of claimant 
 
            that Dr. Jeffery S. Smith, claimant's family physician, has 
 
            been the treating physician from the date of the injury 
 
            until the date of the hearing.  Defendants' attorney did not 
 
            dispute this proposition.  Milford did not dispute this 
 
            proposition.  On the contrary, Milford indicated that the 
 
            only treating physician was Dr. Jeffery S. Smith and Milford 
 
            testified that the insurance carrier did pay claimant's 
 
            medical bills from Dr. Smith up until July 13, 1992, when a 
 
            dispute arose as to whether his continued back treatment was 
 
            due to this injury or a fishing accident not related to this 
 
    
 
            an employer-retained physician.  Munden v. Iowa Steel & 
 
            Wire, Thirty-third Biennial Report of the Industrial 
 
            Commissioner 99 (1977).  
 
            
 
                 Wherefore, it is determined that Dr. Jeffery S. Smith 
 
            is an authorized physician within the purview of Iowa Code 
 
            section 85.27 in this case.  Defendants acquiesced in his 
 
            care for one year and nine months.  They paid his bills for 
 
            approximately this same period of time.  Therefore, Dr. 
 
            Jeffrey S. Smith was an authorized physician.  Conte v. 
 
            Heartland Lysine, Inc., File No. 900546 (Filed June 13, 
 
            1991).
 
            
 
                 Defendants, by not objecting to Dr. Jeffery S. Smith's 
 
            care and by not offering alternative services, in effect, 
 
            waived the right to choose the care.  Worrell v. Griffin 
 
            Wheel Co., File No. 702268 (App. Decn., Feb. 26, 1988).  
 
            This waiver is not irreversible, but in order to change the 
 
            care defendants must show that it is somehow unreasonable, 
 
            inappropriate, excessive or ineffective.
 
            
 
                 Once an employee has justifiably engaged a physician, a 
 
            belated attempt by the employer or insurance carrier to 
 
            control the care will not cut off the right of the employee 
 
            to continue with the employee's chosen physician in the 
 
            absence of a change of condition or evidence that the 
 
            treatment is in some manner ineffective or inappropriate.  
 
            Kelley v. Firestone Tire and Rubber Co., File No. 990797 
 
            (Filed March 23, 1992).  Although this particular point made 
 
            by the deputy was not discussed in the appeal decision of 
 
            the Kelley case, it was not rejected, and the industrial 
 
            commissioner did affirm the decision of the deputy.  Kelley 
 

 
            
 
        nt was satisfied 
 
            with the care being received and it was the 
 
            defendant-employer and insurance carrier that wanted a 
 
            change of care.  The deputy in the Smith case stated that it 
 
            is a well known principle of workers' compensation law that 
 
            the Act is construed in the light most favorable to the 
 
            claimant citing Iowa Code section 85.27, unnumbered 
 
            paragraph 4.  The deputy added that this section clearly 
 
            states that the employer has the right to choose the care 
 
            but qualified that statement by adding that the tendered 
 
            care must be offered promptly, must be reasonable and must 
 
            not entail undue inconvenience to the employee.  
 
            
 
                 In the Smith case defendants became dissatisfied with 
 
            the care that they had authorized originally.  In this case 
 
            defendants have become dissatisfied with the care that they 
 
            acquiesced in for a year and nine months.  It was stated in 
 
            the Smith case, and can be stated in this case, that whether 
 
            there was a direct authorization of medical care or whether 
 
            it was to be implied by the conduct of the parties, in 
 
            either event, it would not affect the outcome of the 
 
            decision.  The deputy in the Smith case accused defendants 
 
            of manipulation of the statute by withdrawing of the 
 
            authorization and thereby forcing the claimant to become the 
 
            dissatisfied party making it necessary to bring an action 
 
            for continued care and concomitantly delaying the care which 
 
            claimant was receiving.  Santucci, in this case, like Smith 
 
            in her case, had not sought excessive care nor had either 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant been forum shopping at defendants' expense.  Dr. 
 
            Jeffery S. Smith is the only doctor that Santucci ever saw 
 
            for treatment.
 
            
 
                 In this case, claimant's counsel alleged that claimant 
 
            has only followed a course of conservative care of 
 
            analgesics and exercise from Dr. Jeffery S. Smith.  The 
 
            report of Dr. Sandra Scheler-Manigiapia attached to 
 
            claimant's petition and referred to by defendants confirms 
 
            this allegation.  No surgery or other extraordinary care was 
 
            sought by claimant.  Defendants made no objection to the 
 
            report of Dr. Scheler-Manigiapia, who is their own current 
 
            choice of physician.
 
            
 
                 Since defendants are the party seeking a change of care 
 
            the burden of proof should be on them to prove that the care 
 
            which claimant has been receiving was either unauthorized or 
 
            unreasonable.  The care of Dr. Jeffrey S. Smith has already 
 
            been determined to be authorized.  It is now determined that 
 
            there was no evidence that the care of Dr. Jeffery S. Smith 
 
            was unreasonable.  Therefore it must be determined that 
 
            defendants did not prove that the care of Dr. Jeffery S. 
 
            Smith was unreasonable.  Parson v. Kelly Services, File No. 
 
            940972 (Filed Oct. 26, 1992).  
 
            
 
                 Wherefore, it is determined, as a matter of fact (1) 
 
            that claimant sustained an injury on October 25, 1990, (2) 
 
            that defendant employer or insurance carrier did not 
 
            actively monitor claimant's medical care by authorizing a 
 
            physician of their own choice, (3) that claimant sought the 
 
            care of his family physician, Dr. Jeffery S. Smith, (4) that 
 
            defendants expressed no objection to this care for one year 
 
            and nine months, (5) that defendants paid Dr. Smith's bills 
 
            for od to provide prompt, reasonable and 
 
            appropriate care that defendants waived the right to choose 
 
            the care.  Worrell v. Griffin Wheel Co., File No. 702268 
 
            (App. Decn. Feb. 26, 1991); and defendants have not shown 
 
            that the medical care of Dr. Jeffery S. Smith is 
 
            unreasonable, inappropriate, excessive, or ineffective in 
 
            order to justify a change of care.  Richards v. Dept. of 
 
            General Services, Vol. 1, No. 3, State of Iowa Industrial 
 
            Commissioner Decisions 684 (App. Decn. 1985); Smith v. 
 
            Carnation Company, II Iowa Industrial Commissioner Report 
 
            366 (1981); Kelley v. Firestone and Tire and Rubber Co., 
 
            File No. 990797 (App. Decn., Dec. 31, 1992); Parson v. Kelly 
 
            Services, File No. 940972 (Filed Oct. 26, 1992). 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants continue to provide and pay for the 
 
            medical care of Dr. Jeffery S. Smith to claimant 
 
            indefinitely from the date of the injury until such time 
 
            that defendants can prove that his care is not reasonable 
 
            medical care.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40.
 
            
 
                 That defendants continue to file claim activity reports 
 
            as requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That the undersigned has been delegated the authority 
 
            to issue final agency action in this matter.  Appeal of this 
 
            decision, if any, would be by judicial review pursuant to 
 
            Iowa Code section 17A.19.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 
            
 
            Mr. J. Drew Chambers
 
            Attorney at Law
 
            86 Main Ave., PO Box 3055
 
            Clinton, IA  52732
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            Davenport, IA  52801
 
            
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SHEILA SELLS,                 :
 
                                       :
 
              Claimant,                :
 
                                       :  File Nos. 1026741 968142
 
         vs.                           :
 
                                       :  A R B I T R A T I O N
 
         IBP, INC.,                    :
 
                                       :     D E C I S I O N
 
              Employer,                :
 
              Self-Insured             :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Sheila Sells, 
 
         claimant, against IBP, Inc., employer, hereinafter referred to as 
 
         IBP, defendant, for workers' compensation benefits as a result of 
 
         alleged injuries on November 17, 1990 and August 31, 1991.   On 
 
         June 15, 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. An employee-employer relationship existed between 
 
         claimant and IBP at the time of the alleged injuries.
 
         
 
              2. Claimant is not seeking additional temporary total or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  If permanent partial disability benefits are awarded, 
 
         they shall begin as of April 20, 1992.
 
         
 
              4.  At the time of injury,  claimant's gross rate of weekly 
 
         compensation was $260;  she was married;  and, she was entitled 
 
         to four exemptions.  Therefore, claimant's weekly rate of 
 
         compensation is $182.18 according to the Industrial 
 
         Commissioner's published rate booklet for this injury.
 
         
 
              5.  Medical benefits are not in dispute.
 

 
         
 
         Page   2
 
         
 
              
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of  employment; 
 
         
 
              II. Whether there was timely notice to employer of a claimed 
 
         psychological injury under Iowa Code section 85.23.    
 
         
 
              III. The extent of claimant's entitlement to permanent 
 
         disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              To the extent credibility was an issue,  from her demeanor 
 
         while testifying, claimant is found credible.
 
         
 
              Claimant worked for IBP from September 28, 1990, until 
 
         February 15, 1992, at which time she left work due to physician 
 
         imposed activity restrictions.  Claimant worked in various 
 
         laborer jobs on the line at defendant's meat processing plant   
 
         Her jobs all involved very repetitive use of claimant's hands, 
 
         arms, shoulders, and back.
 
         
 
              On or about November 17, 1990, claimant injured her lower 
 
         back lifting large pieces of fat from a barrel.  This arose out 
 
         of and in the course of her employment at IBP.   Claimant was off 
 
         work four to five days and received treatment in the form of ice 
 
         packs and physical therapy.  Claimant returned to a lighter duty 
 
         job of casing puller.  This job involved a great deal of 
 
         repetitive gripping.  Her upper back began to bother her and both 
 
         hands became swollen.  She then was transferred to the cut floor 
 
         and put on the belly line taking lean meat off of pieces of fat.  
 
         This job also involved extensive use of her hands and arms.  In 
 
         the Spring of 1991, claimant's right hand, wrist and elbow along 
 
         with her upper back again began to hurt.  She then was given a 
 
         splint and  arm sling but continued working.  In July 1991, she 
 
         returned to full duty and back to her regular job. 
 
         
 
              In August 1991 she was put on the fat back line using a 
 
         larger wizard knife and began to have more serious problems with 
 
         her hands and arms including locking of her fingers.  She also 
 
         had elbow and back complaints, especially in the upper back.    
 
         At this time claimant received another injury arising out of and 
 
         in the course of her employment at IBP.  Claimant was referred 
 
         for medical treatment and placed on light duty.  Claimant then 
 
         began a program of physical therapy.   Due to activity 
 
         restrictions against repetitive work, especially with the wizard 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         knife, claimant was given a medical leave of absence.  She hasn't 
 
         worked for IBP or anyone else since.  Claimant was terminated by 
 
         IBP a year later for an inability to return to work.   
 
              
 
              The work injury of November 17, 1990 is not found to be a 
 
         cause of a any permanent impairment to any part of the body.   
 
         Although claimant was off work for a few days for back pain, she 
 
         recovered and eventually returned to full duty.  No medical 
 
         opinion evidence was offered to show any lasting effects from 
 
         this injury.
 
         
 
              The work injury on or about August 31, 1991 is found to have 
 
         caused significant, permanent impairment to the body as a whole 
 
         due to chronic hand, arm and back pain.  Claimant had little or 
 
         no physical problems before working at IBP.   Despite a removal 
 
         from the harmful repetitive work at IBP, claimant has not fully 
 
         recovered.  All physicians offering opinions in this case opine 
 
         that claimant has suffered some degree of permanent impairment 
 
         from overuse syndrome to her hands, arms, neck and back.  The 
 
         actual percentage of impairment is not particularly important in 
 
         this industrial disability case.   What is important are 
 
         claimant's physician imposed severe, permanent restrictions upon 
 
         her physical activity.  The most recent restrictions are from  
 
         Arnold Delbridge, M.D., an orthopedic surgeon who limits 
 
         claimant's lifting to 10 pounds; standing to one to two hours; 
 
         sitting no more than 15 minutes without changing positions; 
 
         walking only one to two hours; no repetitive bending, twisting or 
 
         turning; and, no reaching, pushing or pulling over 10 pounds.  
 
         Claimant is specifically restricted from using  hand held knifes.  
 
         
 
              Claimant also asserts that she suffered from psychological 
 
         problems as a result of the original August 31, 1991 injury.  
 
         Claimant has had a long history of recurrent depression with 
 
         episodes of attempted suicide.  She also has a history of 
 
         substance abuse.  Both of these are found to have been aggravated 
 
         by her work injury.  However, claimant failed to show by medical 
 
         evidence that this psychological aggravation permanently worsened 
 
         her prior-existing depression problems.   Claimant received some 
 
         treatment from a mental health clinic after the injury but this 
 
         was discontinued when claimant started to received psychogenic 
 
         medication from her family physician. 
 
         
 
              Due to her physical limitations, claimant is unable to 
 
         return to her former work at IBP and IBP has refused to rehire 
 
         claimant in any capacity.  Claimant's past work history consists 
 
         of cook, waitress, machine operator and heavy masonry work along 
 
         with housekeeping.  Claimant's current physical limitations 
 
         precludes much of this type of employment.  Physicians in this 
 
         case do not preclude any type of return to work and vocational 
 
         counselors have opined that based upon current  physician imposed 
 
         restrictions, claimant is still capable of very light or 
 
         sedentary work paying mostly minimum wage on a part-time basis.   
 
         
 
              Claimant views herself as totally disabled and has made no 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         effort to secure suitable replacement employment.  She states she 
 
         cannot return to cook or waitress work.  One of her former 
 
         employers testified that she believes claimant cannot return to 
 
         cooking.  However, this was only from observation of claimant's 
 
         pain behavior, not from an objective viewpoint.  One vocational 
 
         expert states that this psychological component, real or 
 
         perceived, makes claimant totally unemployable.  However, again 
 
         there is no evidence to suggest that this current mental 
 
         component is the result of the aggravation or just a continuation 
 
         of her preexisting problems and not related to the work injury 
 
         such as her past difficulties with substance abuse.    Claimant 
 
         has never had a consistent, steady employment history and moved 
 
         from job to job frequently.  Her employment history would not be 
 
         good even without this work injury.  Viewed objectively and based 
 
         upon a return to work in sedentary occupations and estimates by 
 
         vocational experts, it is found that claimant has suffered an 
 
         actual loss of income in the range of only 30 to 40 percent 
 
         despite a failure to return to work.  Claimant is 42 years of 
 
         age.  Claimant has a high school education.   Claimant does not 
 
         appear to be highly motivated to return to any type of work.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that the work injury of August 31, 1991, 
 
         was a cause of a 35 percent loss of earning capacity.  
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury arising out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury. See 
 
         generally, Cedar Rapids, Comm. Sch.  Dist. v. Cady, 278 N.W. 2d 
 
         298 (Iowa 1979);  Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W. 2d 63 (1955).  An employer takes an employee subject 
 
         to any active or dormant health impairments. A work connected 
 
         injury which more than slightly aggravates the condition is 
 
         considered to be a personal injury.  Ziegler v. U.S. Gypsum, 252 
 
         Iowa 613, 620, 106 N.W. 2d 591 (1961), and cases cited therein.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W. 2d 368 (Iowa 1985).  The 
 
         McKeever Court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.   
 
         This date was then used by the Court to determine rate and the 
 
         timeliness of claimant's claim under Iowa Code section  85.26 and 
 
         notice under Iowa Code section 85.23.  
 
         
 
              In the case sub judice,  Claimant established two work 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         injuries, however, only one was found to have caused permanent 
 
         disability.
 
              
 
              II.  The notice issue is moot.   Although it was found that 
 
         the work injury aggravated a prior existing mental condition, it 
 
         was not found that this aggravation permanently worsened the 
 
         prior condition.
 
         
 
              In any event, the mental component of this injury was not a 
 
         separate event and merely flowed from the work injury.  No new 
 
         notice need be given of conditions caused by a work injury when 
 
         notice was given of the original injury.  See Lawyer & Higgs, 
 
         Iowa Workers' Compensation--Law and Practice (2d Ed.), Section 10 
 
         et seq.
 
         
 
              III. The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of  
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.   Generally, a claim of permanent disability 
 
         invokes an initial determination  of whether the work injury was 
 
         a cause of permanent physical impairment or permanent limitation 
 
         in work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W. 2d 348 (Iowa 1980).  
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W. 2d 167 (1960).   The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact. Sondag v. Ferris 
 
         Hardware, 220 N.W. 2d 903 (Iowa 1974).  The weight to be given 
 
         to such an opinion is for the finder of fact to determine from 
 
         the completeness of the premise given the expert or other 
 
         surrounding circumstances.  Bodish v. Fischer, Inc.,  257 Iowa 
 
         516, 133 N.W. 2d 867 (1965).    
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with non-expert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere V. Aase 
 
         Haugen Homes, Inc. 259 Iowa 1065, 146 N. W. 2d 911, 915 (1966) 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co. 217 N.W. 2d 531, 536 (1974)  
 
         To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith at 354.  In the case of a preexisting 
 
         condition, an  employee is not entitled to recover for the 
 
         results of a preexisting injury or disease but can recover for an 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         aggravation thereof which resulted in the disability found to 
 
         exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W. 
 
         2d 251 (1963).
 
         
 
              As the claimant has shown that the work injury was a cause 
 
         of 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 
 
         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, Feb. 28, 1985).
 
         
 
              In the case sub judice,  it was found that claimant suffered 
 
         a 35 percent loss of her earning capacity as a result of the work 
 
         injury.  Such a finding entitles claimant to 175 weeks of 
 
         permanent partial disability benefits as a matter of law under 
 
         Iowa Code section 85.34(2)(u) which is 35 percent of 500 weeks, 
 
         the maximum allowable number of weeks for an injury to the body 
 
         as a whole in that subsection. 
 
              
 
                                   ORDER
 
              
 
         THEREFORE IT IS ORDERED:
 
         
 
              1.  Defendant shall pay to claimant  one hundred 
 
         seventy-five (175) weeks of permanent partial disability benefits 
 
         at a rate of one hundred eighty-two and 18/100 dollars ($182.18) 
 
         per week from April 20, 1992.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.  
 
         
 
              3.  Defendant shall pay interest on weekly benefits awarded 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendant shall pay the costs of this action pursuant to 
 
         D.I.S. rule 343 IAC 4.33, including reimbursement to claimant for 
 
         any filing fee paid in this matter.
 
         
 
              5.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to D.I.S. rule 
 
         343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of July, 1994.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Ms. Cynthia A. Scherrman
 
         Mr. Bruce L. Gettman, Jr.
 
         Attorneys at Law
 
         P.O. Box 2615
 
         Waterloo, IA  50704
 
         
 
         Mr. John M. Comer
 
         Attorney at Law
 
         P.O. Box 515, Dept. #41
 
         Dakota City, NE  68731
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                                                5-1803
 
                                                Filed July 14, 1994
 
                                                Larry P. Walshire
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHEILA SELLS,  
 
                      
 
                 Claimant, 
 
                                         File Nos. 1026711 968142
 
            vs.       
 
                                          A R B I T R A T I O N
 
            IBP, INC.,     
 
                                              D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1803 
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BENJAMIN OATES,               :
 
                                          :       File No. 968306
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            CONAGRA FROZEN FOODS, INC.,   :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Benjamin 
 
            Oates, claimant, against Conagra Frozen Foods, Inc, 
 
            employer, hereinafter referred to as Conagra, self-insured, 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on October 12, 1990.  On April 16, 1992, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript. 
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated that an employee-employer relationship existed 
 
            between claimant and Conagra at the time of the alleged 
 
            injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            defendant placed claimant's credibility at issue during the 
 
            hearing as to the nature and extent of the injury and dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant, age 61, claims that he injured himself from a 
 
            fall while working at Conagra on October 12, 1990.  The 
 
            occurrence of this fall was hotly contested at hearing.  
 
            However, whether or not the fall was actually witnessed by 
 
            someone other than claimant, claimant is believed and it is 
 
            found that a fall occurred sometime in October and he first 
 
            received treatment on October 17, 1990 for this fall at the 
 
            emergency room of the University of Nebraska Medical Center.  
 
            Claimant is obviously confused as to exact dates but there 
 
            is little dispute that he reported to the emergency room 
 
            doctors that a fall occurred and he had pain and swelling of 
 
            his right testicle since.  He also complained of bleeding 
 
            while urinating.
 
            
 
                 The problem with claimant's case is first, he failed to 
 
            establish that he lost more than three days from work as a 
 
            result of the fall.  Again his dates were confused and his 
 
            own testimony reflected absences from work less than three 
 
            days.
 
            
 
                 Secondly, there is no doctor that supports claimant's 
 
            position that the persistent pain, swelling and bleeding 
 
            since the fall is attributable to the fall.  The physicians 
 
            from the Urology Department at the University Medical Center 
 
            suggests the contrary.  
 
            
 
                 Therefore, although claimant has shown by the evidence 
 
            that he fell, he has failed to demonstrate that he suffered 
 
            any injury as a result of the fall or that the treatment he 
 
            received for swelling, pain and urinary bleeding is causally 
 
            connected to the fall.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  
 
            
 
                 In this case, claimant failed to carry his burden of 
 
            proof to shown that the incident at work was a cause of the 
 
            problems he is experiencing with swelling and bleeding in 
 
            his urinary tract.
 
            
 
                 However, the claimant appeared honest at hearing and 
 
            the claim was arguable as claimant believed the pain and 
 
            swelling began soon after the fall.  He lost his case due to 
 
            the utter absence of supportive medical opinion.  
 
            Consequently, he will be awarded costs.
 
            
 
                                      ORDER
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 1.  Claimant's claim is dismissed with prejudice.
 
            
 
                 2.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. F. J. Kraschel
 
            Attorney at Law
 
            403 1st Federal Savings & Loan
 
            Council Bluffs  IA  51501
 
            
 
            Mr. John F. Thomas
 
            Mr. Ronald L. Comes
 
            Attorneys at Law
 
            One Central Park Plaza
 
            222 S Fifteenth St #1100
 
            Omaha  NE  68102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed June 9, 1992
 
                                                  LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BENJAMIN OATES,     
 
                                                File No. 968306
 
                 Claimant, 
 
                                             A R B I T R A T I O N
 
            vs.       
 
                                                D E C I S I O N
 
            CONAGRA FROZEN FOODS, INC.,   
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
              
 
            5-1803
 
            
 
            Non-precedential, extent of disability case.