BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JOHN P. METZ, III,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos.  968319
 
            METZ ENGINEERING,             :                1045170
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :     A R B I T R A T I O N
 
            UNION INSURANCE COMPANY,      :
 
                                          :        D E C I S I O N
 
                 Insurance Carrier,       :
 
            ------------------------------
 
                                          :
 
            JOHN P. METZ, III,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            METZ ENGINEERING,             :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, John Metz, against his employer, Metz Engineering 
 
            Company, and its insurance carriers, Union Insurance Company 
 
            and United Fire and Casualty Company.  Mr. Metz seeks 
 
            workers' compensation benefits due to an alleged 
 
            occupational disease. 
 
            
 
                 The case was brought on for a hearing before the 
 
            undersigned deputy industrial commissioner on December 9-10, 
 
            1993, in Des Moines, Iowa.  The record in the case consists 
 
            of testimony of the claimant, I.R. Danse, M.D., Elaine 
 
            Panitz, M.D., and LuRie Farlie, a workers' compensation 
 
            adjuster for defendant Union Fire and Casualty Company; 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            joint exhibits 1-21 and 23-37; claimant's exhibits 2 and 3; 
 
            defendant Union Insurance Company's exhibits 1, 2, 3, and 
 
            4a-p; and, defendant United Fire and Casualty Company's 
 
            exhibits A-O and R.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of his employment.  Although 
 
            claimant has alleged two dates, July 15, 1989 and August 23, 
 
            1991, he argues that his last injurious exposure could have 
 
            been as late as March 1992; 
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial or total 
 
            disability benefits; 
 
            
 
                 3.  Whether claimant's workers' compensation rate 
 
            should be based on gross weekly earnings of $889.00 per 
 
            week, or a gross weekly wage of $250.00 per week.  The 
 
            parties stipulated that claimant was married at the time of 
 
            the exposure(s) and is entitled to four exemptions; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27.  
 
            
 
                 Defendant Union Insurance Company argues that they did 
 
            not provide insurance coverage after May 22, 1990 and in the 
 
            event claimant is found to have sustained an occupational 
 
            disease, he did not become disabled until after their 
 
            coverage ended.  
 
            
 
                 Defendant United Fire and Casualty argues that claimant 
 
            is not disabled as defined under Iowa Code section 85A.12.
 
            
 
                 Iowa Code section 85A.12 provides the following 
 
            information:
 
            
 
                    An employer shall not be liable for any 
 
                 compensation for an occupational disease unless 
 
                 such disease shall be due to the nature of an 
 
                 employment in which the hazards of such disease 
 
                 actually exist, and which hazards are 
 
                 characteristic thereof and peculiar to the trade, 
 
                 occupation, process, or employment, and such 
 
                 disease actually arises out of the employment, and 
 
                 unless disablement or death results...within one 
 
                 year in case of any other occupational disease, 
 
                 after the last injurious exposure to such disease 
 
                 in such employment, or in case of death, unless 
 
                 death follows continuous disability from such 
 
                 disease commencing within the period above limited 
 
                 for which compensation has been paid or awarded or 
 
                 timely claim made as provided by this chapter and 
 
                 results within seven years after such exposure.
 
            
 
                 Iowa Code section 85A.4 provides the definition of 
 
            "disablement" in the following manner:
 

 
            
 
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                    Disablement as that term is used in this 
 
                 chapter is the event or condition where an 
 
                 employee becomes actually incapacitated from 
 
                 performing the employee's work or from earning 
 
                 equal wages in other suitable employment because 
 
                 of an occupational disease as defined in this 
 
                 chapter in the last occupation in which such 
 
                 employee is injuriously exposed to the hazards of 
 
                 such disease.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, John Metz, III, was 43 years of age at the 
 
            time of the hearing.  He is married and is the father of two 
 
            children, ages 13 and 14.  
 
            
 
                 Mr. Metz is a 1969 high school graduate, and received 
 
            one year of advanced education in 1970.  He earned a degree 
 
            in welding from a community college.  He holds a state 
 
            issued certification in welding. 
 
            
 
                 Claimant has worked as a welder and general laborer for 
 
            several employers, but started his own company in 1973.  In 
 
            the beginning, claimant worked as a mechanic and welder and 
 
            operated a small machine shop, but by 1980, 90 percent of 
 
            the company's business involved providing support services 
 
            to the oil industry.  These services included gasoline tank 
 
            renovation, repair and cleaning.  The tanks held between 
 
            500,000 gallons and 1.2 million gallons of petroleum 
 
            products (gasoline, diesel fuels, etc.) and measured between 
 
            45 feet to 110 feet in diameter.  
 
            
 
                 Cleaning the tanks required workers to enter the tank 
 
            through "manways" and use pumps and suction hoses to remove 
 
            the bituminous sediment water (BSW) left in the tanks.  
 
            Workers inside the tank wore protective clothing, and were 
 
            provided air packs to aid in breathing.  Claimant worked as 
 
            a safety person for the workers inside the tanks.  He stood 
 
            outside of the tank and watched from the manway to assure 
 
            that the workers were performing their job duties, and to 
 
            assure that workers were provided enough equipment, 
 
            including safety equipment.  He also ran the vacuum.  
 
            Claimant stated that during his work as a safety person, he 
 
            wore a hat, leather gloves and leather boots.  Cleaning the 
 
            tanks took one day to complete, and the company cleaned 12 
 
            to 15 tanks per year.
 
            
 
                 Metz Engineering also provided tank installation and 
 
            repair services.  Claimant explained that his workers would 
 
            travel to tank farms, which consisted of earthen berms built 
 
            around the gas tanks measuring three to ten feet in height 
 
            built.  Removal of the tanks was necessary to repair them, 
 
            and the workers would use the same basic techniques as they 
 
            used in cleaning the tanks, described above.  Once the tanks 
 
            had been repaired, they were reinstalled in the berms.  The 
 
            company worked on 10 to 12 tanks per year.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 Other services the company provided to oil companies 
 
            included valve replacements; emergency services, including 
 
            clean up for oil spills and leaks; inspection of oil tanks; 
 
            ground water reclamation and recovery; and renovation of 
 
            piping and oil lines.  Claimant testified that exposure to 
 
            gasoline and diesel was an every day occurrence.  
 
            Oftentimes, the product would come into direct contact with 
 
            his skin while he was working on the pumps and varied in 
 
            amounts from  splashes to showers of gasoline.  This 
 
            happened two to three times per month.  Inhalation of fumes 
 
            was also common, and the workers attempted to work upwind of 
 
            the product.  Claimant stated that he frequently found 
 
            himself standing in dirt which was saturated in fuel and 
 
            further testified that the soles of his boots were sometimes 
 
            eaten away by the fuels.  Likewise, claimant worked with 
 
            nuts, bolts and other parts and equipment which had been 
 
            doused in fuels.  
 
            
 
                 Claimant's normal workday was from 7:00 a.m. to 5:00 
 
            p.m. with one hour allotted for lunch.  He estimated that 
 
            between 1980 and 1991, he spent 95 percent of his workday in 
 
            oil terminals.
 
            
 
                 During 1989, claimant noticed he was feeling fatigued.  
 
            Initially, he saw his family physician at the Cogley Clinic.  
 
            These records, found at joint exhibit 1, are in no 
 
            particular order, but suffice it to say, claimant visited 
 
            Ralph Hopp, M.D., on a number of occasions complaining of 
 
            fatigue, joint and muscle pain, cold and flu symptoms, etc.  
 
            Many tests were taken, and one entry (the undersigned is 
 
            unable to read the full date, but the year is 1990) suggests 
 
            that claimant's low blood count was related to his exposure 
 
            to benzene and gasoline.  (Jt. Ex. 1, p. 11)   Claimant was 
 
            referred to the University of Nebraska Medical Center, where 
 
            in October of 1990, he was treated for neutropenia.  (Jt. 
 
            Ex. 11)  Julie Vose, M.D., in a report dated October 10, 
 
            1990, assessed claimant's condition as "neutropenia with 
 
            lymphocytosis of unknown etiology.  Patient has benzene 
 
            exposure."  (Jt. ex. 11)  In January of 1991, claimant was 
 
            referred to Robert Warner, M.D., at the Heartland Oncology 
 
            and Hematology clinic in Council Bluffs, Iowa.  Dr. Warner's 
 
            deposition is submitted as joint exhibit 14.  He believes 
 
            claimant is suffering from myelodysplasia with 
 
            granulocytopenia, a condition which affects the bone marrow.  
 
            He is of the opinion that the condition was caused by 
 
            claimant's exposure to benzene.  He believes the condition 
 
            is permanent, and that claimant is 75 to 80 percent 
 
            impaired.  He bases this impairment rating on the AMA Guide 
 
            to the Evaluation of Permanent Impairment.  He would 
 
            restrict most of claimant's activities, including driving, 
 
            walking, operating heavy equipment, climbing, pushing, 
 
            pulling and lifting.  Dr. Warner recommends claimant be 
 
            allowed to rest as often as necessary during the day, and 
 
            alleviate any activities which would cause claimant to be 
 
            exposed to environmental toxins.  Extreme hot or cold 
 
            temperatures should be avoided.  (Jt. ex. 14)
 
            
 
                 In 1991, claimant felt even more fatigued, and felt his 
 
            ability to concentrate deteriorate.  He began resting in his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            pickup while at the job sites, and began to cut back on his 
 
            workday.  He began to feel pain in his arms, legs, back, 
 
            shoulders and buttocks.  Standing caused burning sensations, 
 
            and he found it difficult to get into and out of his truck.  
 
            He began to experience night sweats and below normal 
 
            temperatures.  Yet, he continued to go to the oil terminals 
 
            and visited all of the job sites and crews and worked as the 
 
            safety person if tank work was being performed.  
 
            
 
                 Eventually, claimant was treated at the Mayo Clinic and 
 
            treated with a course of oral and intravenous antibiotics.   
 
            Dr. Warner, his primary physician at the University of 
 
            Nebraska Medical Center, performs CBC tests on a regular 
 
            basis to monitor claimant's blood.  (Jt. Ex. 4)
 
            
 
                 In 1992, claimant was still "plodding along" at work, 
 
            but continued to employ more subcontractors on various jobs.  
 
            He relinquished more supervisory duties.  In January of 
 
            1992, claimant was sent to Elaine Panitz, M.D., for a 
 
            medical evaluation.   She advised him to stop all exposures 
 
            to hydrocarbons, and claimant stated that the company ended 
 
            all support services to oil companies in January or 
 
            February, 1992.  
 
            
 
                 Claimant continued his treatment program with Dr. 
 
            Warner, and noticed that in March of 1992, his memory lapses 
 
            increased.  In 1993, claimant has relinquished more control 
 
            of the business (which apparently is for sale) and currently 
 
            addresses his fatigue on a daily basis in that he must take 
 
            naps two times per day.  He continues to suffer burning, 
 
            aching and pain in his legs, hip, back, arms and shoulders.  
 
            Each sensation varies in its intensity, but claimant is 
 
            physically more capable in the mornings than in the late 
 
            afternoons.  Claimant stated that he has two headaches per 
 
            week since 1990, imbalance if he stands too quickly, 
 
            problems with depth perception, overall weakness and cold 
 
            sores.  Claimant is unable to concentrate, which affects his 
 
            ability to dictate/write business correspondence and checks.  
 
            Currently, he is able to walk around various job sites for 
 
            only 20 minutes at a time.  Claimant stated that if the 
 
            business is not sold by May 1, 1994, an auction will be held 
 
            in an effort to sell off the pieces.  He stated that there 
 
            had been no new business ventures for approximately one 
 
            year.  None of his physical problems existed prior to 1988.  
 
            
 
                 Claimant owns a ranch where he is currently having a 
 
            house remodeled.  He helps with the care provided to 
 
            livestock which includes 15 horses (some of which are draft 
 
            horses which are used in two-horse team competitions), 
 
            cattle, dogs and cats.  Claimant estimated that he spends 10 
 
            minutes performing duties on the ranch.  A typical day 
 
            includes visiting the ranch, eating lunch with friends, 
 
            visiting job sites, returning to the ranch, resting and 
 
            eating dinner with his family.    
 
            
 
                 Claimant stated that his name or initials did not 
 
            always appear on invoices from the company, so the absence 
 
            of his initials did not necessarily mean that he did not 
 
            work on the job site on a particular day.  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant also stated that he had lost weight in the 
 
            past year; had used coal tar shampoo to treat dermatitis on 
 
            rare occasions; and continues to own a driver's license and 
 
            a chauffeur's license.  He admitted that the company had 
 
            worked on nine to ten cellular sites/facilities during the 
 
            past three years, but that he is not actively pursuing new 
 
            business.  His personal income has increased in the last 
 
            three years, and a 6,000 square foot addition has been added 
 
            to his business facility.
 
            
 
                 Claimant was safety conscious, and instilled safety 
 
            precautions in the business, including adhering to OSHA 
 
            requirements; developing a written program addressing 
 
            hazards in the work place; and, implementing a new employee 
 
            training program.  Protective/safety equipment was furnished 
 
            to the workers.    
 
            
 
                 Elaine Panitz, M.D., testified on behalf of claimant.  
 
            She is certified in internal, preventative and special 
 
            occupational disease medicine.  Her credentials are 
 
            impeccable.  (Jt. ex. 16)  She has reviewed between 30 and 
 
            40 cases of benzene exposure.  Dr. Panitz provided education 
 
            to the undersigned concerning several technical and medical 
 
            points.  Gas and jet fuels are hydrocarbon mixtures that 
 
            contain the chemical benzene.  Gas contains the most 
 
            benzene, and vapor exposure to the same is most dangerous 
 
            although it can be absorbed through the skin.  Gasoline 
 
            vapors can be broken down into carbons, and contains C4 
 
            (butane); C5 (pentane); C6 (benzene/hexene); C7 (talulene); 
 
            and C8 (zylene).  The C6 is the most damaging to bone 
 
            marrow, and causes lymphatics, affects the nervous system 
 
            and can damage the liver and its functions.  Exposure to 
 
            gasoline jet fuels can cause skin irritations 
 
            (dermatitis/foliculitis); respiratory inflammation; 
 
            neurologic damage (short and long term memory loss, 
 
            headaches, comas and chronic central nervous dysfunction 
 
            such as moodiness, depression and brain damage); and, 
 
            cirrhosis of the liver.  
 
            
 
                 Dr. Panitz examined the claimant on January 8, 1992.  
 
            Her evaluation included a review of his medical history, as 
 
            well as a complete examination and various laboratory tests.  
 
            She determined that claimant was suffering nonmalignant 
 
            disorder of the bone marrow due to chronic solvent 
 
            poisoning.  Specific diagnoses also included neutropenia 
 
            (low white blood cell count), mylodysplasia (abnormal 
 
            platelets), and neurosthenia (fatigue and joint pain).    
 
            Tests of claimant's white blood cells indicate that in 1991, 
 
            he exhibited signs of mild neutropenia; in 1992, he showed a 
 
            shift from mild to moderate neutropenia; and, in 1993, he 
 
            showed some cell count in the severe range.  In other words, 
 
            there has been a progressive decline over the past two years 
 
            in the number of white blood cells in claimant's blood.  As 
 
            a result, he is at risk for infections, inflammations and an 
 
            overall alteration of his immune system.  He runs a higher 
 
            risk for developing more severe neutropenia.  Dr. Panitz 
 
            determined within a reasonable degree of medical certainty 
 
            that claimant had sustained an occupational disease due to 
 
            exposures during his employment with Metz Engineering 
 
            Company.  She stated that the inhalation and skin absorption 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of benzene caused the occupational diseases (chronic solvent 
 
            poisoning; neutropenia; neurosthenia; and mylodysplasia).  
 
            She believed claimant was permanently and totally disabled 
 
            from employment one year after the last injurious exposure, 
 
            which she stated was in "mid-1992."  She believes that due 
 
            to his condition claimant can anticipate a shorter lifetime 
 
            and is at greater risk for diseases such as leukemia, bone 
 
            marrow failure and malignancy of lymphatics.  She stated 
 
            that after May 1990 the exposures were more injurious.  She 
 
            reviewed the medical bills incurred by claimant (in the 
 
            amount of $73,507.36) and was of the opinion that the 
 
            treatments and charges were reasonable and necessary to 
 
            treat claimant's occupational disease.  She disagrees that 
 
            claimant's exposure to the fuels was trivial and further 
 
            disagrees that any drugs taken by claimant contributed to or 
 
            caused his condition.
 
            
 
                 Dr. Panitz admitted that 80 percent of the time, 
 
            claimant acted as a safety person while other workers 
 
            cleaned out the gasoline tanks.  She believed claimant could 
 
            stand for one to two hours; travel as a driver or as a 
 
            passenger for 100 miles; run short distances; and lift at 
 
            least 20 pounds.  She was aware that claimant had not yet 
 
            sold his business.  Furthermore, her physical examination 
 
            and the history she secured from claimant showed no 
 
            consistent history of elevated temperature; no bacterial 
 
            infections; no enlargement of the liver or spleen; no 
 
            evidence of neuropathy (muscle disease); no myositis; and, 
 
            no motor neurological disease except delayed conduction 
 
            across the carpal tunnel in one of claimant's wrists.  (Jt. 
 
            Ex. 13)
 
            
 
                 A report from Dr. Panitz, dated January 14, 1992, 
 
            provides the following information:
 
            
 
                    In my opinion, based on currently available 
 
                 information, Mr. Metz is suffering from 
 
                 myelodysplasia, a premalignant disorder of the 
 
                 bone marrow, caused by repetitive occupational 
 
                 exposures to benzene over the past 12 years.  
 
                 Benzene exposures have resulted from heavy 
 
                 inhalation and dermal contact with petroleum 
 
                 hydrocarbon mixtures in his work as a maintenance 
 
                 engineer for major oil companies.
 
            
 
                    Mr. Metz is at risk for the progression of 
 
                 myelodysplasia, with its attendant hazards of 
 
                 infection and bleeding.  Unfortunately he is also 
 
                 at risk for malignant transformation, including 
 
                 leukemia, lymphoma, and other disorders of the 
 
                 bone marrow and lymphatic system.  Since the 
 
                 damaging effects of benzene exposure are 
 
                 cumulative, I have advised Mr. Metz that avoidance 
 
                 of further benzene exposure is essential to 
 
                 prevent any additional risk.
 
            
 
            (Jt. Ex. 10, p. 1)
 
            
 
                 Ilene Danse, M.D., testified on behalf of defendant 
 
            United Fire and Casualty Company.  Her credentials are 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            impeccable.  (Defendant United Fire and Casualty Exhibit O)
 
            
 
                 Dr. Danse provided a report, marked exhibit N, 
 
            consisting of 80 pages.  She reviewed various medical 
 
            reports and records and performed a physical examination of 
 
            the claimant.  While she indicates that claimant is 
 
            suffering from neutropenia, she goes on to explain that 
 
            "neutropenia is most commonly caused as a drug side effect, 
 
            often as an idiosyncratic reaction which is not predictably 
 
            dose or duration-related."  Dr. Danse identified more than 
 
            70 medications that claimant takes or has taken in the past, 
 
            42 of which can cause neutropenia.  
 
            
 
                 In her review of the medical documentation, she states 
 
            that Julie Vose, M.D., a physician associated with the 
 
            University of Nebraska Medical Center found no evidence of 
 
            neutropenia at the time of her examination, October 3, 1990.  
 
            (Tab 3 of Dr. Danse's report)  In April and October of 1991, 
 
            claimant visited the Mayo Clinic for tests.  Robert Phyliky, 
 
            M.D., was of the opinion that the cause of claimant's 
 
            neutropenia was unknown, and at that time, claimant was 
 
            advised that he did not have any infectious diseases.  (Tab 
 
            6 of Dr. Danse's report)
 
            
 
                 According to Dr. Danse, a bone marrow test taken in 
 
            February of 1992 was unremarkable.  (Tab 7 of Dr. Danse's 
 
            report)  (This reading is in sharp disagreement with another 
 
            reading by Ilana Pachter, M.D., and Dr. Warner, who have 
 
            been treating claimant).   A report from Donald Macfarlane, 
 
            M.D., Ph.D., indicates that after a thorough review of the 
 
            various medical records and reports generated from this 
 
            case, Dr. Macfarlane does not believe there is a causal 
 
            connection between claimant's neutropenia and his exposure 
 
            to benzene and that claimant is not disabled because of his 
 
            condition.  Dr. Macfarlane goes on to state that the 
 
            symptoms about which claimant is complaining (i.e., fatigue 
 
            and aching pains) are not indicative of neutropenia.  
 
            Likewise, he stated that claimant had not had a serious 
 
            bacterial infection, and he did not expect claimant's 
 
            condition to worsen.  (Tab 8 of Dr. Danse's report)
 
            
 
                 Dr. Danse stated that poisoning due to benzene exposure 
 
            was rare because people do not work with pure benzene 
 
            anymore.  She offered that claimant's description of his 
 
            exposure to benzene revealed that appropriate safety 
 
            procedures were used.  She advised that claimant discontinue 
 
            use of all medications in an effort to determine if the 
 
            neutropenia was drug-induced.  She stated that the records 
 
            showed that when claimant was not taking any medications, 
 
            his blood was within normal limits.  Furthermore, she did 
 
            not believe claimant was suffering from mylodysplasia.  The 
 
            diagnosis of neurosthenia was also suspect to Dr. Danse, who 
 
            believed claimant was perhaps depressed.  Neither did Dr. 
 
            Danse believe, or find that claimant was unable to work.  
 
            She recommended that claimant cease all drugs, especially 
 
            the IVs of gamma globulin and the frequent blood tests, to 
 
            determine if his neutropenia would disappear.  She suggested 
 
            further investigation into his mental condition and possible 
 
            treatment of the same.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
                 Shirley Conibear, M.D., M.P.H., also served as an 
 
            expert for the case.  She examined claimant on June 4, 1992, 
 
            and provided a report marked as Defendant United and Fire 
 
            Casualty exhibit I.  She was also deposed for the case, and 
 
            the transcript of her testimony is marked as Defendant Union 
 
            Insurance Company exhibit 1.  At this time, claimant was 
 
            still working as a supervisor for the company, but was 
 
            trying to avoid all contact with fumes from the gasoline or 
 
            fuels.  After ordering a battery of tests and reviewing 
 
            results from the same, she was of the opinion that claimant 
 
            did not have any significant chromosomal abnormalities, 
 
            thereby ruling out leukemia.
 
            
 
                 Dr. Conibear concurred with the diagnosis of chronic 
 
            neutropenia, but disagreed that the condition was caused by 
 
            claimant's exposure to benzene.  She, too, questioned 
 
            whether claimant's exposure was significant, and believed 
 
            that the neutropenia was an idiopathic (cause unknown) 
 
            condition.  She opined that a definite diagnosis of 
 
            neutropenia was made in the fall of 1992.   Myelodysplasia, 
 
            if a correct diagnosis (which Dr. Conibear is unwilling to 
 
            concede), was diagnosed in 1990 after the bone marrow test 
 
            and reading from Dr. Pachter were made.  Her belief is 
 
            based, in part, on the overall effect exposure to benzene 
 
            has on the bone marrow, and its indiscriminate ability to 
 
            damage many cell types, not just white blood cells.  In 
 
            other words, if claimant's condition had been caused by his 
 
            exposure to benzene, other cells (red and platelets) would 
 
            also be affected.  Of the more than 100 blood smears that 
 
            have been taken from 1977 to June of 1993, Dr. Conibear did 
 
            not find any abnormalities in cell lines other than the 
 
            white cells.  Likewise, claimant does not have chromosomal 
 
            abnormalities, which would indicate toxicity in the bone 
 
            marrow.  Additionally, Dr. Conibear did not believe claimant 
 
            was suffering from peripheral neuropathy (damage to the 
 
            nerves in the arms or legs), nor with the diagnosis of 
 
            myelodysplasia (a form of leukemia); nor, that claimant had 
 
            suffered from any life-threatening infections.  She did feel 
 
            that his condition was permanent, and that in the ensuing 
 
            years, the white blood cell counts will wax and wane, as 
 
            they had in the past several years.  Upper respiratory 
 
            infections would be anticipated, but not severe.
 
            
 
                 The only treating physician associated with the case 
 
            who was able to determine that claimant's neutropenia (and 
 
            myelodysplasia, although not all of the health care 
 
            providers diagnosed myelodysplasia) was caused by exposure 
 
            to benzene was Dr. Warner.  He bases his opinion, in part, 
 
            on the assumption that claimant encountered almost daily 
 
            exposure to the chemical.  As noted in claimant's testimony, 
 
            this is simply not true.  The most high-risk activities were 
 
            not performed daily, but on an average of 8 to 10 times per 
 
            year.
 
            
 
                 Most of the other physicians associated with the case 
 
            have deemed the cause of claimant's neutropenia as 
 
            idiopathic.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an occupational disease. 
 
            
 
                 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).
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 
            428 (Iowa 1984).
 
            
 
                 Claimant's business focused on providing various types 
 
            and forms of support services for oil companies.  No doubt, 
 
            all of the workers were exposed to gasoline, jet fuels and 
 
            other petroleum products.  
 
            
 
                 What is indeterminable is the extent of claimant's 
 
            exposure.  According to claimant, he was sometimes doused in 
 
            gasoline, and on a regular basis stood in gasoline or fuel 
 
            while working on job sites.  He wore protective clothing, 
 
            however, and typically performed the safety work on various 
 
            jobs.  While claimant described himself as a "hands-on 
 
            manager," the undersigned is under the impression that he 
 
            provided more supervisory duties than actual labor while on 
 
            the job sites.  This would be expected, since claimant was 
 
            the owner of the company. 
 
            
 
                 It is recognized that claimant's treating physician has 
 
            stated that claimant's condition is related to his work and 
 
            exposure to benzene.  Likewise, the expert hired by claimant 
 
            has also formed the requisite opinion that claimant's 
 
            condition is related to his work.  Unlike Dr. Warner, who 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            believes claimant is 75 to 80 percent disabled, Dr. Panitz 
 
            finds claimant totally disabled. 
 
            
 
                 The undersigned was persuaded most by Dr. Danse.  She 
 
            has extensive experience in working with oil companies and 
 
            is completely familiar with OSHA regulations regarding 
 
            exposure to benzene.  Dr. Danse found fault with Dr Panitz' 
 
            reliance upon one particular study which focused on Turkish 
 
            workers and their exposure to benzene while working in a 
 
            shoe factory.  Dr. Danse explained that the length intensity 
 
            of the exposure to these workers was much greater than that 
 
            exposure to which claimant had been exposed.  While not the 
 
            only factor that the undersigned found persuasive, these are 
 
            two significant points that need to be addressed.
 
            
 
                 Additionally, while claimant testified that he 
 
            oftentimes was sprayed or doused with chemicals while 
 
            performing his job duties, the instances are not bourne out 
 
            by his evidence.
 
            
 
                 Even if claimant had shown by a preponderance of the 
 
            evidence that his disease was caused by his employment, 
 
            there is insufficient evidence to show that he is disabled, 
 
            as defined by the Code.  The evidence shows that claimant 
 
            has continued to function as an officer of the company, and 
 
            as an on-site supervisor of some jobs.  Additionally, he 
 
            continues to visit the remodeling project on his ranch.  Dr. 
 
            Panitz advances that claimant is totally disabled, yet the 
 
            activity restrictions she places on claimant would allow him 
 
            to perform many jobs that would be or could be associated 
 
            with owning and operating a business.
 
            
 
                 As a result, it is determined that claimant's condition 
 
            is not causally related to his work.  Claimant takes nothing 
 
            from these proceedings. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings. 
 
            
 
                 That each party shall pay their costs in pursuing or 
 
            defending this claim. 
 
            
 
                 Signed and filed this ____ day of February, 1994
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Daryl L Hecht
 
            Attorney at Law
 
            614 Pierce St
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            P O Box 27
 
            Sioux City IA 51102
 
            
 
            Mr Michael W Manske
 
            Mr Timothy J Cuddingan
 
            Attorneys at Law
 
            11605 Miracle Hills Dr  Ste 300
 
            Omaha NE 68154
 
            
 
            Mr Joseph Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            Mr Thomas M Plaza
 
            Ms Judith Ann Higgs
 
            Attorneys at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1100; 5-1108.30
 
                                             Filed February 21, 1994
 
                                             Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JOHN P. METZ, III,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos.  968319
 
            METZ ENGINEERING,             :                1045170
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :     A R B I T R A T I O N
 
            UNION INSURANCE COMPANY,      :
 
                                          :        D E C I S I O N
 
                 Insurance Carrier,       :
 
            ------------------------------
 
                                          :
 
            JOHN P. METZ, III,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            METZ ENGINEERING,             :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
            ------------------------------------------------------------
 
            5-1100; 5-1108.30
 
            
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained an occupational disease.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
LORETTA STUBBS,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                          File No. 968523
 
MERCY HOSPITAL MEDICAL CENTER,
 
                                      A R B I T R A T I O N
 
     Employer, 
 
                                          D E C I S I O N
 
and       
 
          
 
RELIANCE NATIONAL INSURANCE, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
_________________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Loretta Stubbs, 
 
claimant, against Mercy Hospital Medical Center, employer, hereinafter 
 
referred to as Mercy, and Reliance National Insurance Company, 
 
insurance carrier, defendants, for workers' compensation benefits as a 
 
result of an alleged injury on October 18, 1990.  On March 30, 1995, 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 October 18, 1990, claimant received an injury arising out of and 
 
in the course of employment with Mercy.
 
 
 
2.  Claimant is not seeking additional healing period benefits at this 
 
time. 
 
 
 
3.  The injury is a cause of some extent of permanent disability.
 
 
 
4.  Permanent partial disability benefits shall begin as of July 20, 
 
1992.
 
 
 
5.  At the time of injury claimant's gross rate of weekly compensation 
 
was $357.39; she was married; and, she was entitled to four exemptions. 
 
 
 
 Therefore, claimant's weekly rate of compensation is $237.42 according 
 
to the industrial commissioner's published rate booklet for this 
 
injury. 
 
 
 
6.  Medical benefits are not in dispute.
 
 
 
                                ISSUE
 
 
 
The only issue submitted by the parties for determination in this 
 
proceeding is the nature and extent of claimant's permanent disability.
 
 
 
                         FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is unnecessary to this decision as defendants did 
 
not place claimant's credibility at issue during the hearing.
 
 
 
Claimant, Loretta Stubbs, has worked for Mercy since 1988 and continues 
 

 
 
 
 
 
 
 
to do so at the present time.  Initially, Loretta was performing duties 
 
as a phlebotomist, drawing blood samples from patients.  She has 
 
continued to perform such duties on a part-time basis in the mornings 
 
ever since, despite being transferred to other jobs.  Along with this 
 
phlebotomist duty, Loretta started to rotate between the chemistry and 
 
hematology departments processing blood samples.  In chemistry, she 
 
would repeatedly "pop off" the rubber stoppers on the viles 
 
and place them in centrifuges to separate blood components.  
 
This required extensive use of her fingers and hands from 60-80 
 
times an hour, primarily using her dominate right hand.  In 
 
hematology, Loretta still had to remove the lids on the vials 
 
in preparing slides for microscopic observation but this work was 
 
somewhat less repetitive.  Eventually, Loretta was assigned to only the 
 
chemistry department and that was when she began to have difficulty 
 
with her arms and hands in October 1990.
 
 
 
The work injury herein involves bilateral carpal tunnel and cubital 
 
tunnel syndromes in both wrists and elbows and an ulnar nerve 
 
entrapment in the left elbow.  All of these conditions are commonly 
 
known as overuse syndromes from the repetitive use of Loretta's hands 
 
and arms in her jobs at Mercy.  The injury date is appropriate as the 
 
date Loretta first left work for treatment.
 
 
 
Loretta initially sought treatment from David Berg, D.O., who treated 
 
her with medication and braces.  However, when conservative therapy 
 
failed to alleviate the pain, she was referred to Ronald Bergman, D.O., 
 
and then underwent two surgeries; a left carpal and cubital tunnel 
 
release in February 1991 and a right carpal and cubital tunnel release 
 
in May 1991. Another physician, Timothy Kenney, M.D., performed a 
 
transposition of the left ulnar nerve in June 1992.  Beginning in 1994, 
 
Loretta developed additional shoulder and neck pain and she 
 
started treatment in the form of physical therapy and medication.  
 
To date, the only diagnosis for this condition is degenerative disc 
 
disease.  Following a change in jobs at Mercy, Loretta's shoulder 
 
and neck pain complaints have lessened.
 
 
 
Today, Loretta continues to complain of continuing shoulder and neck 
 
pain.  She also states that her upper left elbow continues to give her 
 
problems.  Loretta states that her bilateral wrist pain continues and 
 
she continually drops many items.  A vocational disability assessment 
 
at a Mercy Pain Center facility demonstrated some loss of grip 
 
strength.  Dr. Bergman rates claimant's permanent impairment as four 
 
percent of the hand on the left and two percent of the hand on the 
 
right.  Dr. Kenney opines that Loretta should have no impairment 
 
from his procedure but recommended a third independent evaluation.  
 
 
 
Keith Riggins, M.D., a board certified orthopedist, in an extensive 
 
and well written report, evaluated claimant using the AMA guidelines, 
 
converting each side into a body as a whole impairment and combined 
 
the two values together arriving at a total body as a whole 
 
impairment of 14 percent.  This rating measured only the overuse 
 
extremity problems.  Given the quality of his report, his stated 
 
use of the AMAguidelines and the methodology in converting the 
 
bilateral extremity impairment, Dr. Riggins' evaluation is viewed 
 
as the most credible.  
 
 
 
Therefore, it is found that the work injury of October 18, 1990, is a 
 
cause of a permanent impairment to each extremity which converts to a 
 
14 percent permanent partial impairment to the body as a whole.  As no 
 
physician has found any objective evidence of neck or shoulder injury 
 
and no physician has opined that the work injury was a cause of any 
 
impairment from neck and shoulder complaints, it is found that 
 
the work injury itself did not extent into the body as a whole.
 
 
 
Claimant today is back to work but her extremity problems caused by the 
 
injury has resulted in a transfer to a secretarial job at Mercy.  
 
Loretta states that she is getting along fairly well in this job and 
 
Mercy has allowed accommodations for her current disability.  
 
 
 
Consequent, it is found that claimant has not suffered a total loss of 
 
earning capacity as a result of the work injury.  The finding is 
 

 
 
 
 
 
 
 
 
 
necessary given the law on bilateral arm injuries as described in the 
 
conclusions of law section of this decision
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
The claimant has shown that the work injury involved an overuse 
 
syndrome and 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 
 
(App. 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 number of weeks of 
 
compensation allowed for that scheduled member set forth in Iowa Code 
 
section 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 was done by Dr. Riggins using the 
 
AMA guidelines.  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., III Iowa Industrial Comm'r Report 
 
38 (App. 1982).
 
 
 
In the case sub judice, it was found that claimant had not suffered a 
 
total loss of earning capacity, consequently her entitlement to 
 
permanent disability benefits is measured functionally.  The rating by 
 
Dr. Riggins was given the most weight as his rating methodology closely 
 
tracked the law in these type of cases.  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.
 
 
 
                              ORDER
 
 
 
1.  Defendants shall pay to claimant seventy (70) weeks of permanent 
 
partial disability benefits at a rate of two hundred thirty-seven and 
 
42/l00 dollars ($237.42) per week from July 20, 1992.
 
 
 
2.  Defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for all 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 April, 1995.                             
 
                                ______________________________                              
 
                                LARRY P. WALSHIRE                            
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert W. Pratt
 
Attorney at Law
 
6959 University
 
Des Moines  IA  50311-1540
 
 
 
Mr. Lee P. Hook
 
Attorney at Law
 
STE 700  Des Moines Bldg
 
PO Box 9130
 
Des Moines  IA  50306-9130
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  5-1803
 
                                  Filed April 17, 1995
 
                                  LARRY P. WALSHIRE
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
LORETTA STUBBS,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 968523
 
MERCY HOSPITAL MEDICAL CENTER,
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                        D E C I S I O N
 
and       
 
          
 
RELIANCE NATIONAL INSURANCE, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
5-1803
 
Nonprecedential, extent of disability case.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1600; 5-1803
 
                                          Filed April 17, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY G. REEDY,               :
 
                                          :       File Nos. 968752
 
                 Claimant,                :                 940673
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            WCI, LAUNDRY DIVISION,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 Non-precedential, extent of disability case.
 
            
 
            
 
            1600 - Misrepresentation Defense
 
            
 
                 Citing agency precedent, the asserted misrepresentation 
 
            defense under the Larson theory was rejected.  Professor 
 
            Larson believes that misrepresentation of physical condition 
 
            in an employment application and/or pre-employment physical 
 
            should bar an employee from workers' compensation benefits 
 
            for injuries arising from that condition.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. MARTIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 968768
 
                                          :               876862
 
            IOWA DEPARTMENT OF            :
 
            TRANSPORTATION,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Robert Martin, against the Department of 
 
            Transportation and the State of Iowa, as defendants.  Mr. 
 
            Martin has filed two petitions and alleges work-related 
 
            injuries on February 19, 1988 and December 6, 1990.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant and his wife; joint exhibits 1 through 5; and, 
 
            claimant's exhibits 1, 2 and 3.  Defendants objected to 
 
            claimant's exhibit 1, and the objection was taken under 
 
            advisement at the hearing.  It is excluded from the evidence 
 
            due to non-compliance with both the hearing assignment order 
 
            and Iowa Rule of Civil Procedure 125(c).
 
            
 
                 After reviewing evidence submitted on the issue, the 
 
            undersigned deputy grants the state's motion to exclude 
 
            testimony and medical reports from Roger Marquardt.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Robert Martin, was born on July 12, 1936, and 
 
            was 55 years of age at the time of the hearing.
 
            
 
                 In September of 1982, he began working for the Iowa 
 
            Department of Transportation as an equipment operator I.  
 
            His duties included snow removal during the winter months, 
 
            mowing, weeding, picking up litter, and controlling traffic 
 
            during the summer months.
 
            
 
                 Claimant first experienced back problems in March of 
 
            1985.  As he was performing his duties, he began to dismount 
 
            from a truck and his left heel caught on the running board.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant fell and experienced back pain.  He continued to 
 
            work, but sought medical treatment from William Boulden, 
 
            M.D.  Dr. Boulden ordered a CT scan, prescribed pain pills 
 
            and advised claimant to stay off work.  The results of the 
 
            CT scan showed that claimant had a large herniated disc at 
 
            L5-S1 on the left side with neuroforaminal stenosis.  
 
            Claimant was also diagnosed as having central cannicular 
 
            stenosis at the L4-L5 level.  Claimant was treated with an 
 
            epidural steroid injection, and although Dr. Boulden 
 
            recommended surgery, claimant chose to undergo conservative 
 
            treatment (Joint Exhibits 1, pages 1-3; Joint Exhibit 2, 
 
            page 4).
 
            
 
                 In April of 1985, claimant underwent a second opinion, 
 
            performed by Jerome Bashara, M.D.  He recommended 
 
            non-operative treatment and returned to work in mid-April of 
 
            1985 (Jt. Ex. 3, pp. 5-7).  Claimant returned to work 
 
            without further problems.
 
            
 
                 In February of 1988, claimant reinjured his low back 
 
            and was off for several weeks.  He returned to full duties 
 
            in March of 1988 (Jt. Ex. 2, p. 8).
 
            
 
                 In November of 1988, claimant again injured his back 
 
            while working for defendant.  He was diagnosed as having a 
 
            musculigamentous strain of the cervical spine and an 
 
            exacerbation of the lumbar disc injury.  He was off work for 
 
            several weeks, but returned to full duty work, although 
 
            Martin Rosenfeld, M.D., noted that claimant's job duties 
 
            could aggravate his back condition (Jt. Ex. 4, p. 13).
 
            
 
                 Claimant continued with his full duties for the Iowa 
 
            Department of Transportation until December 6, 1990, when he 
 
            once again injured his low back.  On this date, as he was 
 
            cleaning a truck after his snow removal duties, claimant 
 
            fell as he tripped over a water hose while descending a 
 
            ladder.  He felt pain in his leg and low back, but worked 
 
            the remainder of the day.  The following day he felt 
 
            continued pain in both legs and low back, and was told by 
 
            the employer to seek medical treatment from the Methodist 
 
            emergency room.  Claimant was referred to Dr. Bashara whom 
 
            he saw on December 18, 1990.  Dr. Bashara diagnosed a 
 
            multiple level disc injury with bilateral sciatica, and 
 
            ordered an MRI.  The results of the MRI showed a herniated 
 
            disc at the L3-4 level with bilateral stenosis, a distal 
 
            bulge at the L4-5 level with bilateral stenosis, and 
 
            degenerative changes from L3-4 through L4,5-S1 of the lumbar 
 
            spine.  Claimant was placed in a lumbosacral corset, was 
 
            advised to undergo physical therapy three times a week for 
 
            three weeks, and was kept off of work (Jt. Ex. 1, pp. 10, 
 
            15-16).
 
            
 
                 From January through May of 1991, claimant continued to 
 
            treat with Dr. Bashara who administered several epidural 
 
            steroid injections and recommended continued physical 
 
            therapy.  A myelogram was ordered, and the results showed 
 
            spinal stenosis with severe compression at the L3-4 and L4-5 
 
            level bilaterally.  Claimant was discharged from Dr. 
 
            Bashara's care on May 14, 1991, and Dr. Bashara recommended 
 
            that claimant remain on sedentary activities (Jt. Ex. 1, pp. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            10-12).
 
            
 
                 On April 29, 1992, claimant underwent an examination by 
 
            Robert Hayne, M.D., who performed an examination and 
 
            assessed an impairment rating.  The examination revealed 
 
            that claimant did not have any reflexes, painful straight 
 
            leg raising tests with limited mobility, and limited range 
 
            of motion of the lumbar spine.  Dr. Hayne stated that 
 
            claimant had sustained a 7 percent "total disability." (Jt. 
 
            Ex. 1, p. 16)
 
            
 
                 Dr. Hayne was deposed for this case, and indicated that 
 
            claimant was restricted from repetitive forward bending, 
 
            twisting from side to side and lifting more than 30 pounds.  
 
            He also restricted claimant from riding in trucks.  He 
 
            indicated that claimant had aggravated a preexisting 
 
            condition, and recommended surgery estimating that claimant 
 
            had a 60 percent chance of improvement.  If surgery were 
 
            performed, claimant would be able to lift 40 pounds, but his 
 
            activities would still be restricted in the same manner (Jt. 
 
            Ex. 4).
 
            
 
                 Dr. Bashara was also deposed, and indicated that 
 
            claimant should perform no bending, stooping or twisting, no 
 
            heavy pushing or pulling and no prolonged sitting or 
 
            standing.  He was of the opinion that due to claimant's 
 
            December 6, 1990 injury, he had sustained a 15 percent 
 
            impairment, and stated that claimant had a 5 percent 
 
            impairment due to preexisting condition (Jt. Ex. 5, pp. 16-
 
            18).
 
            
 
                 Claimant has not returned to work since his accident in 
 
            December of 1990, and is currently collecting social 
 
            security disability benefits.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Although claimant filed two petitions, agency file 
 
            number 876862 (date of injury February 19, 1988), the 
 
            parties present no issues to be determined in this case.  
 
            Claimant was off of work for approximately two weeks and 
 
            four days, and was paid temporary total disability benefits 
 
            for this time.  There is no indication that he sustained a 
 
            permanent injury which limited his ability to carry out his 
 
            regular duties.  As a result, claimant's file number 876862 
 
            is dismissed.
 
            
 
                 The first issue to be addressed regarding claimant's 
 
            second claim is whether claimant is entitled to temporary 
 
            total or healing period benefits.
 
            
 
                 If claimant has sustained a permanent disability due to 
 
            his work-related injury on December 6, 1990, he is entitled 
 
            to healing period benefits during his recovery time.  If 
 
            claimant has sustained a temporary disability, he is 
 
            entitled to temporary total disability benefits during his 
 
            recovery time.
 
            
 
                 Dr. Hayne is of the opinion that claimant had sustained 
 
            a 7 percent impairment based on objective findings during an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            examination on April 29, 1992.  Additionally, Dr. Hayne 
 
            recommended that claimant restrict his work activities such 
 
            as no repetitious bending or twisting, and no lifting of 
 
            more than 30 pounds.
 
            
 
                 Dr. Bashara also rendered an opinion with respect to 
 
            claimant's disability, and stated that claimant had a 20 
 
            percent functional impairment.  Of the 20 percent 
 
            impairment, Dr. Bashara factored 5 percent for a preexisting 
 
            injury dating back to 1985, specifically, the L5-S1 disc, 
 
            and the remaining 15 percent was related to the 1990 
 
            herniation of the L3-4 disc with pressure on the L5 nerve 
 
            root.  There is no evidence that the preexisting 5 percent 
 
            impairment caused any disablement.
 
            
 
                 As a result, it is found that claimant did sustain a 
 
            permanent injury due to the work accident in December or 
 
            1990, and he is awarded healing period benefits for the time 
 
            he has been off of work.
 
            
 
                 The next issue to be addressed is the extent of 
 
            claimant's industrial disability.
 
            
 
                 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   5
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 55 years old.  
 
            He graduated from the eighth grade, and entered the marine 
 
            corp on his seventeenth birthday.  Although he received 
 
            training for the military police, he did not complete the 
 
            preparatory school due to unsatisfactory grades.  After 
 
            three years, claimant received an honorable discharge, and 
 
            three years later he returned to the army.  He served for an 
 
            additional three years and was honorably discharged.  
 
            Subsequently, claimant earned a GED.
 
            
 
                 Most of claimant's work history has focused on labor 
 
            intensive positions.  Claimant has worked in factories and 
 
            foundries, and has worked on construction sites.  
 
            Interspersed throughout his employment career have been jobs 
 
            driving cabs and trucks.  Claimant began to work for the 
 
            Iowa Department of Transportation in 1982 and enjoyed eight 
 
            years of steady employment until his injury in December of 
 
            1990.
 
            
 
                 Apparently, claimant tried to undergo some vocational 
 
            rehabilitation, but when he applied for the state program he 
 
            was rejected due to the extent of his back injury and his 
 
            work history.  They suggested that he apply for social 
 
            security disability benefits, which claimant received.  Both 
 
            Drs. Bashara and Hayne have advised claimant that he should 
 
            not return to his employment with the Iowa Department of 
 
            Transportation.  Claimant has not undertaken a meaningful 
 
            job search to find suitable employment.
 
            
 
                 However, Dr. Hayne is of the opinion that if claimant 
 
            underwent laminectomies with decompression of the contents 
 
            of the spinal canal at the third, fourth and fifth lumbar 
 
            interspaces, there would be a 60 percent chance that he 
 
            would be able to return to the type of work he had been 
 
            doing at the time of the injury.  Dr. Hayne continued to 
 
            recommend against heavy work, and admitted that there was a 
 
            40 percent chance that claimant would not be able to engage 
 
            in a manual labor occupation.
 
            
 
                 Although the Department of Transportation has paid all 
 
            of the medical bills and has paid workers' compensation 
 
            benefits to the claimant since December 6, 1990, no effort 
 
            has been made to help claimant undertake any vocational 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            rehabilitation, and the Department of Transportation has 
 
            been unwilling to offer claimant any type of position.  It 
 
            is unfortunate that a department as large as the Department 
 
            of Transportation is unable to find a position which would 
 
            be suitable to claimant's restrictions.  In fact, claimant 
 
            testified that when he sought employment with the Iowa 
 
            Department of Personnel, they told him that they did not 
 
            have any jobs available and stated "what do you want us to 
 
            do, create a job for you?"
 
            
 
                 Although Dr. Hayne recommended surgery and felt that 
 
            there was a 60 percent chance that claimant would be able to 
 
            return to the same occupation if he underwent the surgery, 
 
            claimant has refused to undergo the medical procedures.
 
            
 
                 As stated by the agency on numerous occasions, failure 
 
            to undergo surgery which carries some significant risk and 
 
            the outcome of which is not altogether certain does not 
 
            represent an unreasonable refusal of medical care.  Arnaman 
 
            v. Mid-American Freight Lines, I-3 Iowa Industial 
 
            Commissioner Decisions 497 (1985); Barkdoll v. American 
 
            Freight System, Inc., Appeal Decision, June 28, 1988.
 
            
 
                 Dr. Hayne's opinion is interesting, in that he states 
 
            claimant would be able to return to the job he held when he 
 
            was injured, yet Dr. Hayne imposed the same limitations on 
 
            claimant regardless of whether he underwent surgery.  In 
 
            fact, claimant's lifting restriction would be more severe if 
 
            he underwent surgery.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 75 percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for three hundred seventy-five (375) 
 
            weeks at the workers' compensation rate of two hundred 
 
            fifty-seven and 16/100 dollars ($257.16) per week beginning 
 
            April 19, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants are awarded credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Arthur C Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            Mr Robert P Ewald
 
            Assistant Attorney General
 
            Department of Transportation
 
            800 Lincoln Way
 
            Ames IA 50010
 
            
 
            Mr Noel C Hindt
 
            Attorney at Law
 
            Department of Transportation
 
            800 Lincoln Way
 
            Ames IA 50010
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed July 14, 1992
 
                                                  Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. MARTIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 968768
 
                                          :               876862
 
            IOWA DEPARTMENT OF            :
 
            TRANSPORTATION,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 55 years of age, sustained a work injury to his 
 
            low back.  He had sustained several other injuries to his 
 
            back, but had always returned to work with the Iowa 
 
            Department of Transportation.  After the latest episode, 
 
            claimant's treating physician and an evaluating doctor told 
 
            claimant he would be unable to return to his prior jobs.
 
            The employer did not offer suitable employment.
 
            In order to correct claimant's physical problems, 
 
            laminectomies to three discs were recommended.  Claimant 
 
            refused, and said refusal seemed reasonable due to 
 
            physician's opinion that claimant's work restrictions would 
 
            be the same with or without the surgery.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3001; 5-1803
 
                                                 Filed July 12, 1994
 
                                                 LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                      
 
            STEVE MESSMORE,     
 
                                                  File No. 968778
 
                 Claimant, 
 
                                                M E M O R A N D U M
 
            vs.       
 
                                                O F   D E C I S I O N
 
            MEL INC (HOLIDAY INN),   
 
                                                O N   E X P E D I T E D
 
                 Employer, 
 
                                                 P R O C E E D I N G
 
            and       
 
                      
 
            GENERAL CASUALTY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            3001
 
            Gross rate includes market value of room and board given to 
 
            employee, not what is charged to employees or members of the 
 
            public.  Room at hotel valued at customary apartment rent in 
 
            geographical area of $400 per month.
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                      
 
            STEVE MESSMORE,     
 
                                                 File No. 968778
 
                 Claimant, 
 
                                               M E M O R A N D U M
 
            vs.       
 
                                               O F   D E C I S I O N
 
            MEL INC (HOLIDAY INN),   
 
                                              O N   E X P E D I T E D
 
                 Employer, 
 
                                                P R O C E E D I N G
 
            and       
 
                      
 
            GENERAL CASUALTY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            An original notice and petition invoking expedited 
 
            procedures under 343 IAC 4.44 was filed on April 28, 1994 
 
            and a telephonic hearing was conducted on July 11, 1994.  
 
            The issues presented were the extent of claimant's 
 
            entitlement to healing period benefits, permanent disability 
 
            benefits and rate of compensation along with interest.
 
            A detailed decision was dictated into the record on the day 
 
            of the hearing and will not be reproduced in typewritten 
 
            form unless there is an appeal by the parties at which time 
 
            the procedures under the administrative code will be 
 
            followed.  Any rights of appeal will run from the date of 
 
            the decision dictated into the record, July 11, 1994.  This 
 
            memorandum is solely for the purpose of the agency file.
 
            The evidence consisted of two joint exhibits and the 
 
            testimony of claimant and one defense witness.  After 
 
            consideration of all evidence and argument of counsel, the 
 
            deputy ordered the defendants to pay additional healing 
 
            period benefits at a higher rate of compensation than it had 
 
            voluntarily paid.  However, no additional permanent 
 
            disability benefits were awarded.  Costs were assessed 
 
            against the defendants.  Credit was given for weekly 
 
            benefits already paid.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            Copies To:
 
            
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  STE 114
 
            Cedar Rapids  IA  52404
 
            
 
            Ms. Anne L. Clark
 
            Attorney at Law
 
            Terrace CTR  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312-5215
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES BOWDEN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 968795
 
            STONE CONTAINER CORPORATION,  :
 
                                          :    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
 
            
 
                 Claimant, James Bowden, seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant, Stone Container Corporation, and its 
 
            insurance carrier, Kemper Insurance Company.  Mr. Bowden 
 
            asserts that he sustained a psychological injury arising out 
 
            of and in the course of his employment on October 30, 1990.
 
            
 
                 This cause came on for hearing in Burlington, Iowa on 
 
            September 29, 1992.  Testimony was received from claimant, 
 
            Cary LeMaster, Dan Bursell and Jerry Boecker.  Joint 
 
            exhibits 1-16 were received into evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and employer at the 
 
            time of the alleged injury, to the rate of compensation 
 
            ($307.67 per week) and to defendants' entitlement to credit 
 
            for sick pay/disability benefits under Iowa Code section 
 
            85.38(2).
 
            
 
                 During the course of hearing, claimant withdrew his 
 
            claim for permanent partial disability.
 
            
 
                 Remaining issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on October 30, 1990;
 
            
 
                 2.  Whether the alleged injury caused temporary 
 
            disability;
 
            
 
                 3.  The extent of temporary disability, if any;
 
            
 
                 4.  Entitlement to medical benefits; and
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Whether penalty benefits should be assessed.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 James Bowden, 30 years of age at hearing, is a 
 
            sel-described short tempered and prideful individual, one 
 
            prone to frustration and anger at perceived slights.
 
            
 
                 Mr. Bowden has been employed by Stone Container 
 
            Corporation, a manufacturer of cardboard boxes, for some six 
 
            years.  During this time, he developed frustration over a 
 
            number of minor issues and filed a number of grievances.  
 
            Some, he now concedes, were "piddly" in nature.  Claimant 
 
            conceded also an inclination to verbalize and display his 
 
            anger at various grievance hearings.
 
            
 
                 General supervisor, Cary LeMaster, also pointed out 
 
            that claimant was reputed to have a fiery temper and was 
 
            generally confrontational in his dealings with management 
 
            and fellow workers.  Plant manager Dan Bursell testified 
 
            that claimant had a violent temper, such that he himself was 
 
            apprehensive of potential violence.  Plant supervisor, Jerry 
 
            Boecker, noted that claimant had threatened him (the nature 
 
            of the threat was not disclosed) when a crew, including 
 
            claimant, was ordered to re-stack a number of cardboard 
 
            boxes.
 
            
 
                 Claimant became overwrought during the course of a 
 
            grievance procedure in October 1990.  As a result, the 
 
            employer referred him for psychiatric evaluation to S. 
 
            Kantamneni, M.D., a psychiatrist, and Patrick Ewing, a 
 
            clinical psychologist associated with Dr. Kantamneni.
 
            
 
                 As a result of this evaluation, claimant was taken off 
 
            work for two weeks, being released effective November 12, 
 
            1990.  When claimant attempted to return to work, he was 
 
            refused admission to the plant for failure to bring a 
 
            written release (claimant did not know one was required).  
 
            He was suspended for one day as a result of this, then 
 
            discharged from employment, although the dispute was 
 
            eventually resolved and claimant rehired.  Mr. Bowden now 
 
            believes he has his temper under control and the employment 
 
            relationship seems much less confrontational in nature.
 
            
 
                 Dr. Kantamneni reached a diagnosis of adjustment 
 
            disorder in his letter of November 1, 1990:
 
            
 
                 Essentially this involves a stronger reaction than 
 
                 might be expected in response to a psycho-social 
 
                 stresser.  In order to qualify for this diagnosis, 
 
                 the reaction must cause an impairment in 
 
                 occupational functioning or in social activities 
 
                 or relationships with others.  The psycho-social 
 
                 stresser in your case is job stress.
 
            
 
            (Exhibit 2, Page 7).
 
            
 
                 Dr. Kantamneni and Mr. Ewing wrote later (January 28, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1991) that Mr. Bowden's condition had manifested itself by 
 
            reason of anger and anxieties stemming directly from his 
 
            concerns at work.  Mr. Ewing's chart notes refer on multiple 
 
            occasions to claimant's "irrational" beliefs, "undoubtedly 
 
            related to his difficulty at work."
 
            
 
                 When cross-examined as to what treatment it was that he 
 
            felt was unfair, claimant pointed to two specific concerns.  
 
            On one occasion, he had made an error in "running" a number 
 
            of cardboard boxes, and was personally offended when Dan 
 
            Bursell hung a sample of the error over the machine.  
 
            Bursell pointed out that he done so as a way of reminding 
 
            the crew not to make the same mistake again.
 
            
 
                 Mr. Bowden also complains that Bursell criticized him 
 
            behind his back to other employees, although he agreed that 
 
            other workers intentionally told him stories just to get him 
 
            "riled up."  Bursell denied ever criticizing claimant to 
 
            other employees, a credible denial.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties dispute whether claimant sustained an 
 
            injury arising out of and in the course of her employment.  
 
            This is his burden to prove.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was recently 
 
            discussed in Ohnemus v. John Deere Davenport Works, File No. 
 
            816947 (App. Decn., February 26, 1990) and Kelley v. 
 
            Sheffield Care Center, File No. 872737 (App. Decn., October 
 
            31, 1991) as follows:
 
            
 
                    "In order to prevail claimant must prove that 
 
                 he suffered a non-traumatically caused mental 
 
                 injury that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal causation 
 
                    presents a question of whether the policy of 
 
                    the law will extend responsibility to those 
 
                    consequences which have in fact been produced 
 
                    by that event.  State v. Marti, 290 N.W.2d 570, 
 
                    584-85 (Iowa 1980).  Causation in fact presents 
 
                    an issue of fact while legal causation presents 
 
                    an issue of law.  Id.
 
            
 
                 "That language was the basis of the language in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    "Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976)."
 
            
 
            Kelley v. Sheffield Care Center, File No. 872737 (App. 
 
            Decn., October 31, 1991).
 
            
 
                 Dr. Kantamneni and Mr. Ewing are of the view that the 
 
            time claimant lost from work was due to anger from perceived 
 
            work stresses.  There is no indication that the underlying 
 
            personality disorder was caused by work, and claimant agrees 
 
            that he has always been hot-tempered.  Claimant has 
 
            established that "stresses" and problems at work, as 
 
            perceived by him bear a causal relationship to his being 
 
            taken off work for two weeks for psychological reasons.  
 
            This meets the "causation in fact" test.
 
            
 
                 But, this only points up the importance of the 
 
            "causation in law" test, since claimant's perceptions are 
 
            not necessary reliable.  The record does not show that 
 
            claimant's temporary mental condition "resulted from a 
 
            situation of greater dimensions than the day to day mental 
 
            stresses and tensions which all employees must experience."  
 
            Claimant has spoken of a gradual build-up of tensions and 
 
            frustrations, but has not presented evidence as to 
 
            specifics, except two:  the posting of a defective product 
 
            and hearsay allegations that the plant supervisor criticized 
 
            him behind his back.  The employer surely had a good reason 
 
            to post the defective product, so as to prevent future 
 
            similar mistakes.  This was not directed at claimant 
 
            personally, although, given his general attitude, he 
 
            perceived it as such.  His concern that Bursell criticized 
 
            him behind his back was ill-founded, as Bursell convincingly 
 
            explained that he did no such thing.  Claimant himself 
 
            admits that fellow workers would tell him stories just to 
 
            get him "riled up."
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Because claimant has failed to establish "causation in 
 
            law" of his temporary disability, the case must be resolved 
 
            in favor of defendants.  Other issues are thereby rendered 
 
            moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk Iowa 52632-1087
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2204
 
                                            Filed October 5, 1992
 
                                            DAVID R. RASEY
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES BOWDEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 968795
 
            STONE CONTAINER CORPORATION,  
 
                                              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.    
 
            ___________________________________________________________
 
            
 
            2204
 
            Wisconsin rule was applied in "mental/mental" stress case.  
 
            Claimant proved "causation in fact" in that work stresses 
 
            were causative of his emotional outburst, but failed to 
 
            establish "causation in law" since his perceptions were not 
 
            reliable and work conditions were not of greater dimension 
 
            than the day to day stresses which all employees experience.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM C. GEIST,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 968840
 
            PAYLESS CASHWAYS,             :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A upon a petition in arbitration filed by claimant 
 
            William C. Geist against his former employer, Payless 
 
            Cashways, and its insurance carrier, Continental Loss 
 
            Adjusting.  Mr. Geist sustained a work injury on October 21, 
 
            1990, and now seeks further benefits under the Iowa Workers' 
 
            Compensation Act.  Defendants agree that claimant sustained 
 
            an abdominal injury, but deny Mr. Geist's claim that he also 
 
            injured his back at the same time.
 
            
 
                 This case was heard and fully submitted in Davenport, 
 
            Iowa on June 14, 1994.  The record consists of defendants' 
 
            exhibits A-P, claimant's exhibits 6, 10 and 11 and the 
 
            testimony of claimant and Scott Forbes.  Deposition 
 
            testimony of Daniel Tully and Dr. Harold Miller is included 
 
            among the exhibits.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on October 
 
                    21, 1990;
 
            
 
                    2.  The injury caused temporary disability;
 
            
 
                    3.  The correct rate of weekly compensation 
 
                    is $173.52;
 
            
 
                    4.  Affirmative defenses have not been 
 
                    raised;
 
            
 
                    5.  Although disputed, medical providers 
 
                    would testify to the reasonableness of fees 
 
                    and treatment and defendants offer no 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    contrary evidence; and,
 
            
 
                    6.  Defendants have voluntarly paid 1.571 
 
                    weeks of compensation at the rate of 
 
                    $156.44.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    2.  The extent of temporary total disability 
 
                    or healing period;
 
            
 
                    3.  The nature, extent and commencement date 
 
                    of permanent disability, if any; and,
 
            
 
                    4.  Entitlement to medical benefits, 
 
                    including whether disputed expenses are 
 
                    causally connected to the work injury.
 
            
 
                 Defendants also sought to defend against disputed 
 
            medical benefits on the basis that the same were not 
 
            authorized.  The authorization defense was ruled invalid 
 
            because defendants have denied liability on the claim, 
 
            thereby forfeiting the right to control the course of 
 
            treatment.
 
            
 
                 This claim involves a discrete lifting injury sustained 
 
            on October 21, 1991.  Mr. Geist was also involved in a 
 
            similar incident on October 19.  It was ruled at hearing 
 
            that only the October 21 injury is properly at issue in this 
 
            proceeding.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 William Geist, 35 years of age at hearing, was employed 
 
            by Payless Cashways (a lumber and building materials 
 
            supplier) as a delivery driver in October 1990.  Many of the 
 
            delivery items were characteristically heavy and bulky, such 
 
            as lumber, stoves, sinks, roofing materials and the like.  
 
            Claimant had previously worked in the warehouse, filling 
 
            orders and generally assisting customers.
 
            
 
                 On October 19, 1990, claimant delivered a wood burning 
 
            stove to a customer who assisted him in unloading the device 
 
            from his truck.  In so doing, the customer partially lost 
 
            his grip, putting an increased strain on claimant.  Mr. 
 
            Geist described that by the end of this day, he felt like he 
 
            had a "pinched nerve" in the back, so he visited Dr. Lee 
 
            Nelson, apparently a chiropractor.  Dr. Nelson's notes refer 
 
            to moderate lumbosacral pain with findings of decreased 
 
            range of motion, tenderness and "muscle bundles" (an 
 
            expression unfamiliar to this reader).  Claimant was treated 
 
            with a spinal adjustment and advised to return in one week.  
 
            As previously noted, any claim relating to this incident is 
 
            not properly at issue in this proceeding.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On October 21, claimant was involved in a similar 
 
            incident while delivering a second woodburning stove to a 
 
            customer known as Daniel Tully.  Mr. Tully testified by 
 
            deposition on November 12, 1993.  The two men attempted to 
 
            move the heavy stove into Tully's house, and had reached the 
 
            porch; while putting the stove down, Tully partially lost 
 
            his grip:
 
            
 
                       Q.  Was there a point there, then, when 
 
                    he was holding the entire weight of the 
 
                    stove because your end had slipped from your 
 
                    hands?
 
            
 
                       A.  I may remember it more favorably to 
 
                    myself.  It's like as it was slipping from 
 
                    my hands I may still have been in touch with 
 
                    it, but, you know, as it was going to the 
 
                    ground he was still trying to hold it up.
 
            
 
                       Q.  All right.
 
            
 
                       A.  Hold up his end.
 
            
 
                       Q.  And you were supporting as much of 
 
                    your end that --
 
            
 
                       A.  Yeah, it was falling from my hands.
 
            
 
            (Tully Deposition, Pages 8-9)
 
            
 
                 Claimant was seen on October 22, October 29 and 
 
            November 5 by three separate physicians at a medical clinic 
 
            known as Express Care North - Urgent Care Center.  The 
 
            undersigned thinks the records of those three visits to be 
 
            the most significant evidence in this record.
 
            
 
                 On October 22, claimant was seen by Dr. Marilyn 
 
            Lensing.  The only symptoms noted were of tenderness to the 
 
            epigastric abdominal wall (an area reaching from slightly 
 
            above the navel to the sternum).  The history "as described 
 
            by patient" is recorded as "injured abdominal wall while 
 
            helping lift 500 lb. stove."  No record whatsoever was made 
 
            of low back complaints.  Dr. Lensing diagnosed abdominal 
 
            wall muscle strain and released claimant to return to 
 
            limited duty work with lifting, bending and stooping 
 
            restrictions.
 
            
 
                 On October 29, claimant was seen by Dr. Roberts.  Chart 
 
            notes reflect that claimant returned for a recheck of 
 
            abdominal wall strain and was quoted as feeling like he 
 
            would vomit every day.  No back complaints were charted.  
 
            Dr. Roberts diagnosed abdominal muscle wall strain and again 
 
            released claimant to limited duty work with restrictions.
 
            
 
                 Claimant returned to Express Care North for the last 
 
            time on November 5.  This time, he was seen by Harold W. 
 
            Miller, M.D., a board certified family practice specialist 
 
            who testified by deposition on November 12, 1993.
 
            
 
                 Notes prepared by a registered nurse on this visit show 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that claimant returned for a recheck of abdominal wall 
 
            strain and directly quoted claimant: "Has no pain."  The 
 
            nurse also charted no reports of nausea.  According to Dr. 
 
            Miller, the use of quotation marks in such a chart note is 
 
            intended to closely reflect claimant's actual words.  Dr. 
 
            Miller found no localized tenderness or ecchymosis of the 
 
            abdominal wall, reported that claimant's back was non-tender 
 
            to percussion, and returned Mr. Geist to full work activity 
 
            without restriction.
 
            
 
                 The first report of injury filed in this matter show 
 
            that claimant was off work commencing October 22 and that he 
 
            returned to work on November 5, 1990.  The form 2A also 
 
            filed in this case reflects payment of temporary total 
 
            disability benefits consistent with those dates.  Official 
 
            notice is hereby taken of the first report of injury and the 
 
            form 2A.  It is determined under Iowa Code section 17A.14(4) 
 
            that fairness to the parties does not require an opportunity 
 
            to contest these facts.
 
            
 
                 According to Dr. Miller, the incident in which claimant 
 
            was injured was capable of causing a low back injury.  
 
            However, Dr. Miller also noted that his staff is trained to 
 
            routinely require whether other parts of the body hurt, 
 
            beyond those complained of.  He did not believe that 
 
            Ibuprofen (which claimant had been taking for his abdominal 
 
            wall complaints) would mask any significant back pain and 
 
            believed it was likely that someone who had a back injury 
 
            would complain of back pain two weeks after that injury.  If 
 
            complaints of back pain had been made, on any of claimant's 
 
            three visits between October 22 and November 5, this 
 
            observer has little doubt but that they would have been 
 
            properly recorded.  On November 5, Dr. Miller even percussed 
 
            claimant's back, largely because this was not the first 
 
            occasion claimant presented with a work injury.  He 
 
            testified:
 
            
 
                       A.  The usual mechanism would be that I 
 
                    would percuss the back in three -- in a 
 
                    situation such as this, percuss the back in 
 
                    three or four locations and ask the patient 
 
                    whether they noticed any pain.
 
            
 
                       Q.  All right.
 
            
 
                       A.  And if they said "no," the back is 
 
                    nontender; that would be my usual procedure 
 
                    under those circumstances.
 
            
 
            (Miller Deposition, Page 15)
 
            
 
                 Here, it is worth noting that claimant has given 
 
            subsequent histories that very much emphasize not only back 
 
            pain, but radicular symptoms.  These histories, by the way, 
 
            come much later in time and are almost certainly influenced 
 
            by this very litigation (claimant's petition was filed on 
 
            September 16, 1991).  For example, the history taken by 
 
            evaluating neurosurgeon Richard Roski on December 14, 1992 
 
            reflect:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    He was working at Payless Cashway two years 
 
                    ago and was unloading a woodburner.  He had 
 
                    this at about waist level with another 
 
                    employee who dropped his side.  This caused 
 
                    him to carry the weight but at the same time 
 
                    he was pulled forward.  He immediately had 
 
                    low back pain that radiated into the abdomen 
 
                    on the right side.  He has continued to have 
 
                    constant pain in the center and to the right 
 
                    in the low back.
 
            
 
                 Dr. Robert J. Chesser, on September 2, 1992, records a 
 
            history of claimant developing back and lower extremity pain 
 
            in October 1990 which had been steadily increasing since 
 
            that time.  Dr. B. E. Krysztofiak, a consulting physical 
 
            medicine and rehabilitation specialist, reported on February 
 
            16, 1993 a history of: "He apparently developed acute pain 
 
            in the lower back while unloading a wood stove, since then 
 
            the patient has been experiencing continuing pain in the 
 
            lower back more on the right side than on the left side as 
 
            previously reported."
 
            
 
                 It is absolutely unbelievable that complaints of an 
 
            acute back injury with radiating symptoms would not have 
 
            been charted during claimant's three visits to Express Care 
 
            North.  It is found as fact that claimant did not experience 
 
            back or radicular symptoms between October 22 and November 
 
            5, 1990, when he was under active treatment at Express Care 
 
            North.  As of October 5, claimant reported having no pain, a 
 
            condition absolutely contrary to the inaccurate histories 
 
            given to later physicians.
 
            
 
                 As it happens, claimant did subsequently develop some 
 
            back pain, although with no apparent association to the 
 
            subject work injury.  The extent of claimant's symptoms and 
 
            objective findings are disputed by different medical 
 
            experts, but it is unnecessary to resolve those issues 
 
            because claimant fails to persuade that he injured his back 
 
            on October 21, 1990.
 
            
 
                 On November 17, 1990, nearly a month later, claimant 
 
            was seen by a chiropractor, Robert W. Duncalf, with a 
 
            complaint of lower back pain.  Dr. Duncalf has written that: 
 
            "Our records do not show that it was a work related injury."  
 
            When claimant was later seen (March 19, 1991) at the 
 
            University of Iowa Hospitals and Clinics, chart notes 
 
            reflect a history of lower back pain beginning in late 
 
            November 1990, a pre-litigation report consistent with a 
 
            November injury, but inconsistent with Mr. Geist's claim 
 
            here.
 
            
 
                 Dr. Miller has further opined as follows:
 
            
 
                       Q.  And when you saw him on November 5th, 
 
                    you released him to return to work without 
 
                    restriction?
 
            
 
                       A.  That's true.
 
            
 
                       Q.  Okay.  Does that mean in your mind 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    that any condition for which he was being 
 
                    seen at the clinic had resolved?
 
            
 
                       A.  Yes.
 
            
 
            (Miller Deposition, Pages 25-26)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 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).
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of employment.  
 
            Defendants agree that claimant sustained an abdominal wall 
 
            injury, but deny that claimant injured his back.  Based on 
 
            the records of Express Care North and the opinion of Dr. 
 
            Miller, it is concluded that claimant failed to meet his 
 
            burden of proof in establishing that subsequent development 
 
            of back symptomatology is causally related to the abdominal 
 
            wall injury of October 21, 1990.  The physicians who have 
 
            supported a causal nexus have done so on the basis of 
 
            inaccurate histories.  Claimant did not suffer or complain 
 
            of back pain during his treatment at Express Care North.
 
            
 
                 The abdominal injury has not been shown to have caused 
 
            permanent disability.  All impairment ratings and 
 
            recommended restrictions relate to claimant's back 
 
            condition, not the abdominal wall condition which had 
 
            resolved by November 5, 1990.  Accordingly, claimant is not 
 
            entitled to an award of permanent disability benefits.
 
            
 
                 However, claimant was off work from October 22 through 
 
            November 4, 1990, a total of 14 days.  Because claimant did 
 
            not sustain a permanent injury, this disability must be 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            compensated as temporary total disability under Iowa Code 
 
            section 85.32 and 85.33, not as healing period under section 
 
            85.34(1).  Section 85.32 provides:
 
            
 
                       Except as to injuries resulting in 
 
                    permanent partial disability, compensation 
 
                    shall begin on the fourth day of disability 
 
                    after the injury.
 
            
 
                       If the period of incapacity extends 
 
                    beyond the fourteenth day following the date 
 
                    of injury, then the compensation due during 
 
                    the third week shall be increased by adding 
 
                    thereto an amount equal to three days of 
 
                    compensation.
 
            
 
                 In this case, claimant's period of incapacity was of 
 
            fourteen days duration, but extended to the fifteenth day 
 
            following the date of injury.  The section is keyed to the 
 
            date of injury, not the first day of disability.  
 
            Accordingly, claimant is entitled to fourteen days of 
 
            temporary total disability benefits (2 weeks) at the 
 
            stipulated compensation rate.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant two (2) weeks of 
 
            temporary total disability benefits at the rate of one 
 
            hundred seventy-three and 52/100 dollars ($173.52) per week 
 
            commencing October 22, 1991.
 
            
 
                 Defendants shall have credit for all voluntary payments 
 
            of benefits previously made.
 
            
 
                 Accrued benefits shall be paid in a lump sum together 
 
            with statutory interest.
 
            
 
                 Each party shall be responsible for its own costs.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                           ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr A Fred Berger
 
            Attorney at Law
 
            900 Kahl Building
 
            Davenport Iowa 52801
 
            
 
            Ms Deborah A Dubik
 
            Mr Craig A Levien
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1801
 
                                            Filed August 19, 1994
 
                                            DAVID RASEY
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM C. GEIST,   
 
                      
 
                 Claimant, 
 
                     
 
            vs.       
 
                                           File No. 968840
 
            PAYLESS CASHWAYS,   
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                           D E C I S I O N
 
            and       
 
                      
 
            CONTINENTAL LOSS ADJUSTING,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant sustained temporary disability as the result of an 
 
            abdominal wall injury.  He was off work for fourteen days 
 
            commencing the day following injury.  However, under section 
 
            85.32, compensation during the third week is increased by 
 
            adding the three-day waiting period where "the period of 
 
            incapacity extends beyond the fourteenth day following the 
 
            date of injury."  Even though claimant was only disabled for 
 
            fourteen days, the final day was the fifteenth day from the 
 
            date of injury.  The section is keyed to the date of injury, 
 
            not the first day of disability.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BONNIE ENGALDO,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 968978
 
            IPSCO STEEL, INC.,    
 
                                               A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and        
 
                        
 
            CIGNA,      
 
                        
 
                 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 January 4, 1994 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            The presence of Mr. Havens in the courtroom and his failure 
 
            to testify does not carry any significance.  His presence 
 
            and failure to testify have not been relied on in this 
 
            decision.  However, the claimant's description of her work 
 
            conditions and her description of the employer's conduct are 
 
            in the record and are unrebutted.
 
            
 
            The fact that Dr. Robb altered his opinion on the extent of 
 
            claimant's disability is only part of the medical evidence.  
 
            In addition, claimant has offered a credible explanation for 
 
            the reference to prior low back problems.  In addition, Dr. 
 
            Robb did not alter his opinion on causal connection.
 
            Contrary to the employer's assertion, an employer's refusal 
 
            to rehire an injured worker is a factor to be considered in 
 
            assessing industrial disability.  McSpadden v. Big Ben Coal 
 
            Co., 288 N.W.2d 181 (Iowa 1980).  In this case, the 
 
            employer's failure to rehire the claimant in a position 
 
            consistent with her restrictions as well as the employer's 
 
            failure to honor those restrictions after becoming aware of 
 
            them are considered in assessing claimant's industrial 
 
            disability.
 
            
 
            Claimant is able to perform some recognized jobs in the job 
 
            market.  Claimant herself indicated a desire to return to 
 
            factory work.  Claimant is not an odd-lot employee.
 
            Claimant and defendants shall share equally the costs of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            appeal including transcription of the hearing.  Defendants 
 
            shall pay all other costs.
 
            
 
            Signed and filed this ____ day of June, 1994.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803; 3700
 
                                                Filed June 28, 1994
 
                                                Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BONNIE ENGALDO,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 968978
 
            IPSCO STEEL, INC.,    
 
                                                A P P E A L
 
                 Employer,   
 
                                             D E C I S I O N
 
            and         
 
                        
 
            CIGNA,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant awarded 35 percent industrial disability.
 
            
 
            3700
 
            No inference was to be drawn from fact that defendants' 
 
            representative was in the hearing room but did not testify; 
 
            but, fact that claimant's testimony was unrebutted was 
 
            relied upon.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BONNIE ENGALDO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 968978
 
            IPSCO STEEL, INC.,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 7, 1993, at 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on November 5, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant; joint exhibits A 
 
            through W; and defendants' exhibit 1.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is a causal connection as to any 
 
            healing period, temporary total disability or permanent 
 
            partial disability and claimant's alleged November 5, 1990 
 
            injury;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits, if any; 
 
            and,
 
            
 
                 3.  Whether claimant is an odd-lot candidate.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 35 years old and completed the eighth grade 
 
            and failed the ninth grade.  Claimant obtained her GED but 
 
            has no other formal education.
 
            
 
                 Claimant listed several drugs that she used with her 
 
            former husband who she indicated was a drug user.  Claimant 
 
            used drugs for approximately two and one-half years but 
 
            contends she was never arrested and has no criminal 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            background.
 
            
 
                 Claimant has seen a psychiatrist and psychologist prior 
 
            to her November 5, 1990 injury.
 
            
 
                 Claimant indicated she was diagnosed with a panic 
 
            disorder in 1985 and an anxiety disorder in 1988.  Claimant 
 
            said that she was treated from February 1990 through May 
 
            1990 for swelling behind the knee and needed a bone scan.  
 
            During this period, she had pain in her neck and back, also.
 
            
 
                 Claimant was asked concerning the cause of those 
 
            symptoms and she indicated she began working for Swiss 
 
            Colony and she was sitting at a desk using the phone a lot.
 
            
 
                 Claimant described her anxiety disorder as an 
 
            overreaction of the adrenaline glands and that she gets 
 
            headaches, her neck becomes stiff and affects her ears, she 
 
            begins sweating and has difficulty breathing.  She indicated 
 
            that when anxiety comes on, her head feels swollen and this 
 
            extends into the neck muscles and into the shoulder and 
 
            back.  Claimant said her anxiety disorder came to a head in 
 
            1988 and she was hospitalized in June of 1988.
 
            
 
                 Claimant stated that prior to November 1990, she was 
 
            never injured or had prior muscular complaints and never 
 
            went to a neurologist or orthopedist.
 
            
 
                 Claimant's attention then was called to joint exhibit M 
 
            in which she went to the chiropractor on March 25, 1988 with 
 
            complaints of ear, head, shoulder and back pain and pain in 
 
            the upper neck right side.  She had been dizzy and short of 
 
            breath with anxiety and abdominal pain.  She indicated she 
 
            had first noticed her symptoms of pain in the neck, 
 
            shoulders and back one month earlier.  Claimant contended 
 
            that this treatment was not for her low back and that page 4 
 
            of said exhibits shows the adjusted area, which is the 
 
            cervical area.  Claimant said she was never treated for low 
 
            back problems prior to November 1990.
 
            
 
                 Claimant then was specifically questioned as to joint 
 
            exhibit W which is a list of businesses she worked at during 
 
            her work history.  She went into detail as to the nature of 
 
            the job and what it entailed.  Claimant indicated that from 
 
            1975 through 1990, she basically had steady employment.  She 
 
            said she worked up to three jobs a day during the 1980 to 
 
            1982-1983 period which encompassed about 16 hours per day.  
 
            Claimant said that the job with defendant employer was the 
 
            best job she ever had, which paid $8.15 per hour.  Prior to 
 
            that her best job was a $6 per hour job at Swiss Colony.  
 
            She also indicated that she got more benefits with defendant 
 
            employer.
 
            
 
                 Prior to claimant beginning work with defendant 
 
            employer on August 6, 1990, she had two interviews and an 
 
            extensive physical.  This physical included a driving test 
 
            and exercises (including setups and 15 pushups) at a clinic.
 
            
 
                 Claimant described the nature of her work with 
 
            defendant employer.  She described the weights that this job 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            required her to lift, the required bending of her low back, 
 
            extending her arms, and holding things in her arms.
 
            
 
                 Claimant described how she was injured on November 5, 
 
            1990.  It occurred while she was lifting a corner of a 450 
 
            pound object to get it over a crack and felt a sharp pain in 
 
            her back radiating down to her left.  She saw the doctor on 
 
            November 5, 1990.  He recommended light duty and no lifting 
 
            over 10 pounds and no pulling, pushing or bending.  She was 
 
            to come back in 10 days.  Claimant came back in 10 days.  
 
            She told the doctor her employer did not honor the 
 
            restrictions and that she had been lifting 20 pound parts 
 
            out of boxes and showed the doctor how she was bending and 
 
            twisting.  The doctor again, as reflected in his notes, 
 
            wrote that she was not to lift over 10 pounds for a week.  
 
            (Jt. Ex. H)
 
            
 
                 On November 24, 1990, claimant was laid off with 16 
 
            other people.  Claimant felt this was a general layoff but 
 
            found out later that they had abolished her job.  She said 
 
            when she was trained she had been trained to do several 
 
            other jobs, also.
 
            
 
                 On December 26, 1990, John M. O'Shea, M.D., released 
 
            claimant to return to work on December 31, 1990.  The 
 
            doctor's notes further reflect that on December 31, 1990, he 
 
            then referred claimant to an orthopedic surgeon since 
 
            claimant wasn't responding to conservative treatment and he 
 
            took claimant off work until she saw a Dr. Ginther.  
 
            Defendants contend that this ended claimant's healing period 
 
            and claimant contends it does not.  There were several other 
 
            notes or letters in joint exhibit H in which Dr. O'Shea 
 
            refers to claimant returning to work on December 31; yet, 
 
            these seem inconsistent with him recommending her to stay 
 
            off work and see Dr. Ginther.
 
            
 
                 Claimant then went to work hardening which occurred 
 
            over the period from February 4, 1991 to March 14, 1991, 
 
            involving 18 sessions out of 27 scheduled sessions.  
 
            Claimant described what her sessions were comprised of but 
 
            they were set up to help her get back to the physical status 
 
            necessary to do the job she had at the time of her injury. 
 
            (Jt. Ex. K)  After the last of the sessions, the physical 
 
            therapist indicated claimant will be returning to Dr. 
 
            Ginther for re-evaluation and they will wait for the orders 
 
            regarding her future care.  Dr. Ginther's' notes are joint 
 
            exhibit N.
 
            
 
                 Claimant indicated that the defendants hired a 
 
            rehabilitation person for her and that that person went with 
 
            her, set up the doctor appointments, and went with her to 
 
            the doctor, including Dr. Ginther.  They were aware that Dr. 
 
            Ginther sent her to a work hardening program but they 
 
            discontinued her benefits through November 27, 1991, anyway.
 
            
 
                 Claimant testified that she was sent to a neurologist, 
 
            Michael L. Cullen, M.D., and the appointment was set up by 
 
            the rehabilitation consultant.  Claimant indicated the 
 
            doctor didn't do much but did an evaluation and examined her 
 
            and took a history.  As reflected on page 2 of joint exhibit 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            O, the doctor opined claimant had a 5 percent impairment of 
 
            the whole person due to her November 5, 1990 injury.  He 
 
            also indicated in this April 11, 1991 report that she was 
 
            limited as to what she could lift, frequency, etc. (Jt. Ex. 
 
            O, pp. 1-2)
 
            
 
                 Claimant then testified that the doctor's secretary 
 
            told her that if the claimant wanted to see an attorney, she 
 
            did not have to come back to them and indicated they fired 
 
            her as a patient.  This is supported by the March 4, 1992 
 
            letter of joint exhibit O wherein the doctor indicated he 
 
            found it very difficult to function when the first 
 
            individual that the claimant calls for medical advice is her 
 
            attorney and that he recommended, therefore, she seek 
 
            medical care elsewhere.  The undersigned finds nowhere in 
 
            the record in which the first person claimant called for 
 
            medical advice was her attorney.  The doctor, as indicated 
 
            earlier, had written a report on April 11, 1991.
 
            
 
                 Joint exhibit P is the records of W. John Robb, M.D.  
 
            In a letter dated May 30, 1991, he was unable to rate 
 
            claimant but indicated that she had not received full 
 
            recovery and that she would reach maximum recovery within 
 
            the next six to nine months.
 
            
 
                 In his June 25, 1991 notes, he indicated he had told 
 
            the rehabilitation consultant, Barbara Laughlin, that it was 
 
            going to be two to three months of dedicated exercise 
 
            routine that is going to result in improvement of claimant's 
 
            ability to return to some type of work.  He then set up 
 
            physical therapy for claimant. 
 
            
 
                 Defendants' exhibit P contains a December 2, 1991 
 
            letter of Dr. Robb in which he opines claimant has a 5 
 
            percent permanent impairment of her body as a whole and 
 
            indicated she could do light work and lifting 10 to 20 
 
            pounds on an occasional basis at first and then heavier 
 
            weights could be attempted.  He didn't think she would ever 
 
            be able to return to lifting over 50 pounds.  Defendants 
 
            also indicated that claimant's complaint at that time was in 
 
            her neck and shoulders and that the lumbosacral spine strain 
 
            had recovered.
 
            
 
                 Claimant then related that her own attorney sent her to 
 
            Robert J. Chesser, M.D., who opined in his June 5, 1992 
 
            letter encompassed in joint exhibit R that claimant had a 9 
 
            percent permanent impairment to her body as a whole.  She 
 
            also had restrictions.  In a November 18, 1993 letter, Dr. 
 
            Robb then withdrew his previous 5 percent permanent 
 
            impairment and indicated claimant did not have any 
 
            impairment from her November 1990 accident.  He changed his 
 
            mind based on what he indicated was further review of the 
 
            additional extensive medical history of claimant based on 
 
            her subjective complaints.  This change of mind is 
 
            questionable under the circumstances and being so close to 
 
            the hearing.
 
            
 
                 After claimant's release by Dr. Robb to return to light 
 
            duty on November 27, 1991, claimant said she didn't look for 
 
            work right away and disagreed with Dr. Robb.  Claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            indicated she started looking for work in February 1992.  
 
            Claimant then related the various places she contacted for 
 
            employment.  Claimant indicated she likes factory work 
 
            because the time goes faster and strange people affect her 
 
            and her anxiety gets high.  She indicated that in a factory 
 
            setting, the anxiety situation is better once she gets use 
 
            to the place.  She related any job she tried and her reason 
 
            for not being able to continue working.  She cited her 
 
            restrictions as being a limiting factor.  She went through 
 
            vocational rehabilitation and indicated that they would call 
 
            her if they found something and they have never called her. 
 
            (Jt. Ex. V)  Claimant indicated that any job she obtained 
 
            was on her own and that the defendant employer has done 
 
            nothing to help her get a job nor have the rehabilitation 
 
            people hired by defendant employer.  She indicated she 
 
            couldn't do her prior job with defendant employer.  She 
 
            acknowledged she is currently going to a Dr. Kayo.  She is 
 
            on Xanax to keep her from getting panic attacks.  She 
 
            acknowledged that she is addicted to Xanax but indicated it 
 
            helps her panic attacks and it is monitored by the doctor 
 
            once a month.  She indicated she couldn't drive before it 
 
            was regulated.  She indicated that her panic attacks cause 
 
            different muscles to be affected versus her activity when 
 
            she works.  It seems like Xanax affects her neck area and 
 
            the muscles.  She emphasized that the panic attacks do not 
 
            affect her low back.  Claimant emphasized that the only 
 
            injury she is claiming in this case is to her low back and 
 
            not anywhere else.  She also does not contend that her panic 
 
            attacks are caused by her work injury of November 5, 1990.  
 
            She said she was originally contending her upper back was 
 
            also involved but has dropped that from this case.
 
            
 
                 On cross-examination, claimant denied that she has a 
 
            substance abuse problem.  She indicated that she is only 
 
            addicted to Xanax.  She disagreed that she has alcohol abuse 
 
            problems.
 
            
 
                 Joint exhibit A is the records of L.B. Hussey, M.D., 
 
            and covers a period of time up to September 20, 1988.  There 
 
            is no question from these records that claimant has been on 
 
            a considerable amount of medication and drugs.
 
            
 
                 The records of Dr. Benjamin Sy are in joint exhibit B.  
 
            They cover a period of time up to November 22, 1989.  Again, 
 
            there is no question that claimant has been on medication 
 
            for her anxiety and depression.  It appears any mention of 
 
            pain involves the neck or mid-back.
 
            
 
                 The records of Pragna Bhatt, M.D., are reflected in 
 
            joint exhibit C.  Joint exhibit E is the records of Grey M. 
 
            Woodman, M.D., and they go to a period of July 20, 1989.  
 
            Joint exhibit F is the records of Dr. Ruperall, of the 
 
            Morrison Hospital, and they go to February 24, 1990.  Joint 
 
            exhibit G is the records of B.G. Lambos, M.D.  Joint exhibit 
 
            H is the records of John M. O'Shea, M.D., which has been 
 
            referred to in more detail earlier.  Joint exhibit I is 
 
            Samaritan Health System records.  Joint exhibit P is the 
 
            record of W. John Robb, M.D., which has been previously 
 
            referred to.  Joint exhibit K is the Work Hardening and 
 
            Fitness Center records and L is the records of Sinnissippi 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mental Health Center.  These records involve claimant's 
 
            anxiety and panic problems in 1992 and also part of 1988.  
 
            They reflect what has also been testified to by the claimant 
 
            that she was suffering from her anxiety disorders prior to 
 
            and after her November 5, 1990 injury.  She also testified 
 
            that she currently is troubled by these same problems.  She 
 
            emphasized she wasn't making claims for these problems.
 
            
 
                 Joint exhibit M is the records of Associated 
 
            chiropractors.  Joint exhibit N is the records of Dr. 
 
            Ginther, which have been previously referenced to.  Joint 
 
            exhibit O is the records of Michael L. Cullen, M.D., who had 
 
            given claimant a 5 percent impairment due to her November 5, 
 
            1990 injury and was previously referred to.  Joint exhibit P 
 
            is the record of W. John Robb, M.D., which has previously 
 
            been referenced.
 
            
 
                 The defendants stipulated that the injury arose out of 
 
            and in the course of claimant's employment on November 5, 
 
            1990.  The dispute is the extent of healing period or 
 
            temporary total disability, any permanent disability, if 
 
            any, and the causal connection as to the same.
 
            
 
                 Claimant contends the healing period should begin 
 
            November 24, 1990, which is the date claimant was off work 
 
            which actually was a layoff through November 27, 1991.  
 
            Defendants contend claimant's healing period began November 
 
            24, 1990 through December 31, 1990.  Defendants rest their 
 
            position on the fact that Dr. O'Shea in November of 1990 
 
            indicated claimant could return to work on December 31, 
 
            1990.  There is also reference at that time that he decided 
 
            to send her to Dr. Ginther and that she was to be off work 
 
            until she saw him.  Claimant without question was off work 
 
            through a doctor's orders.  There are actually several 
 
            periods one could probably pick thereafter to determine 
 
            claimant's healing period.  Claimant ended her work 
 
            hardening on March 14, 1991, and there is indication that 
 
            her healing period therefore ended April 11, 1991.  Dr. 
 
            Robb, in joint exhibit P, indicated on May 30, 1991, that 
 
            claimant had not yet reached recovery yet and it might be 
 
            six to nine months thereafter until she reached maximum 
 
            recovery.  Dr. Robb, on May 9, 1991, indicated claimant 
 
            couldn't return to work but maybe she could on September 9.  
 
            There is a December 2, 1991 letter in which on November 27, 
 
            1991, the doctor said claimant could return to light work.  
 
            In that same letter, Dr. Robb opined a 5 percent permanent 
 
            impairment to claimant's body as a whole.
 
            
 
                 The undersigned believes without question that the 
 
            healing period did not end on December 31, 1990, as 
 
            defendants contends as the overwhelming medical evidence 
 
            shows that she wasn't able to and, in fact, the doctor who 
 
            made that comment referred her to another doctor and 
 
            indicated she should be off work until she saw that doctor.  
 
            There is no indication that that doctor then put her back to 
 
            work at a time even close to Dr. O'Shea's comments in 
 
            November of 1990.  The undersigned finds the greater weight 
 
            of medical testimony shows that claimant was in a healing 
 
            period through November 27, 1991, as reflected in Dr. Robb's 
 
            December 2, 1991 letter.  When the claimant was in his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            office on November 27, 1991 for evaluation, he then made the 
 
            conclusions referred to above.  The undersigned realizes 
 
            claimant has anxiety and panic disorder attacks and these 
 
            have had an effect on her.  The fact is the record is 
 
            overwhelming that claimant has had these problems for years 
 
            and was in fact working and able to work notwithstanding 
 
            these attacks.
 
            
 
                 Claimant has not made a big effort to try to find 
 
            employment.  This is particularly unfortunate under the 
 
            current status of the law in regards to the Americans With 
 
            Disabilities Act in which certain questions can not be asked 
 
            of a potential employee as far as their past medical until 
 
            after a job has been offered to her.  It is also obvious 
 
            that claimant's panic attacks and anxiety disorder has and 
 
            is affecting her ability to either get a job or the type of 
 
            job due to the fact that her association with people, the 
 
            numbers, etc. can set off her attacks.  She is making no 
 
            claim that these are the result of her November 5, 1990 
 
            injury.
 
            
 
                 Claimant is not an odd-lot candidate.
 
            
 
                 As to claimant's permanent disability, the undersigned 
 
            finds that in addition to her November 5, 1990 injury having 
 
            caused claimant to concur an extensive healing period, it 
 
            also caused claimant to incur industrial disability.  The 
 
            undersigned finds that the greater weight of testimony 
 
            reflects that claimant did incur an injury on November 5, 
 
            1990 which resulted in claimant receiving a permanent 
 
            impairment to her body as a whole but also considerable 
 
            rigid restrictions of which there is no evidence they have 
 
            currently been removed.  Several doctors had the same or 
 
            similar restrictions for the claimant as far as lifting, 
 
            twisting, etc.  There is no evidence that claimant could 
 
            perform the job she was performing at the time of her 
 
            November 5, 1990 injury and that it is undisputed that 
 
            claimant was doing her job at the time of her injury.  The 
 
            evidence is also clear on the present record that after 
 
            claimant's injury, she was sent back to work with 
 
            restrictions and that the employer did not obey those 
 
            restrictions and allowed the claimant to proceed as if there 
 
            were no restrictions.  Claimant continued to do her same job 
 
            that caused her injury originally and it is undisputed and 
 
            obvious to the undersigned that claimant was doing lifting 
 
            many times a day, sometimes several hundred times, all in 
 
            violation of her restrictions.  The undersigned additionally 
 
            feels that this aggravated claimant's condition and made it 
 
            worse and made it more severe than it might have been had 
 
            the employer followed the restrictions.
 
            
 
                 The undersigned might note that an R. Bruce Havens, the 
 
            director of personnel for defendant employer, was in the 
 
            courtroom through the whole proceedings.  Before the 
 
            defendants rest their case, he was asked by defendants' 
 
            attorney as to whether he wanted to testify or as to whether 
 
            he wanted to add anything further and he said he didn't.  
 
            The undersigned therefore presumes that Mr. Havens could not 
 
            dispute the contentions claimant made as far as her work 
 
            conditions and the company violating her restrictions, etc.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Otherwise, it is presumed by the undersigned he would have 
 
            testified under oath contrary to claimant's testimony if he 
 
            found it to be untrue.
 
            
 
                 There is no evidence that the rehabilitation expert or 
 
            consultant hired by the defendants made any effort to find 
 
            claimant a job or to try to get her back to work with 
 
            defendant employer.  The claimant indicated that factory 
 
            work is what she would like to do if she was able to do 
 
            anything because of her panic attacks and disorder and the 
 
            necessity of being either more by herself or with people she 
 
            is familiar with and not with a lot of people in a lot of 
 
            contact communications.  Defendant employer has done nothing 
 
            since her layoff in this regard.  Claimant has not been able 
 
            to hold a job that she is able to do.  Again, as mentioned 
 
            earlier, things other than her work injury is contributing 
 
            to this.  There is no question claimant has a long history 
 
            of care concerning her panic attacks and anxiety disorder.  
 
            It is also evident that claimant was operating 
 
            notwithstanding the same until her injury and at least until 
 
            she was laid off.  Defendants also contend that the Xanax 
 
            that claimant is taking and is addicted to is really causing 
 
            claimant's low back problems and as claimant testified, she 
 
            is not contending that she has taken Xanax because of her 
 
            work injury.  There is no proof that the Xanax is in fact 
 
            causing claimant's low back problems.  There is evidence 
 
            that when claimant has an attack, her neck muscles in the 
 
            cervical area and in her shoulder area tighten up and are 
 
            affected.  As claimant testified, she is not claiming any 
 
            cervical injury.  There is considerable medical evidence as 
 
            to claimant's cervical problems and claimant has withdrawn 
 
            her claim that those are caused mostly by her work injury.  
 
            The undersigned believes that claimant would still be 
 
            working with defendant employer notwithstanding her anxiety 
 
            or panic attacks had she not been injured on November 5, 
 
            1990 and had the employer not obeyed her restrictions and 
 
            kept her working at the same job until she was laid off 
 
            around November 24, 1990.  As indicated earlier, defendants 
 
            had an opportunity to deny this occurred.  This continuing 
 
            work in violation of restrictions occurred.  Claimant has a 
 
            loss of income.
 
            
 
                 Taking into consideration claimant's medical history 
 
            prior to and after her November 5, 1990 injury, her work 
 
            experience prior to the injury and after injury; her 
 
            rehabilitation; extent of her healing period, her age, 
 
            education, emotional and physical state; her wages prior to 
 
            her injury and after her injury; her inability to engage in 
 
            employment for which she is fitted as a result of her 
 
            injury; the location and severity of her injury; her 
 
            motivation; education; functional impairment; and the 
 
            refusal of employer to give claimant any work after her 
 
            injury, the undersigned finds claimant has incurred a 35 
 
            percent industrial disability.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 
                 It is further concluded that claimant's November 5, 
 
            1990 injury caused claimant to incur a healing period 
 
            beginning November 24, 1990 through November 27, 1991, 
 
            encompassing 52.714 weeks.
 
            
 
                 It is further concluded that claimant incurred an 
 
            industrial disability of 35 percent with benefits to begin 
 
            on November 28, 1991.
 
            
 
                 It is further concluded that all benefits shall be paid 
 
            at the weekly rate of $220.66.  The parties stipulated to a 
 
            $225.32 rate but claimant is single with one dependent 
 
            child.
 
            
 
                 It is further concluded that claimant is not an odd-lot 
 
            candidate and is not entitled to recover benefits under the 
 
            odd-lot theory.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred twenty and 66/100 
 
            dollars ($220.66) for the period beginning November 24, 1990 
 
            through November 27, 1991, encompassing fifty-two point 
 
            seven one four (52.714) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred twenty and 66/100 
 
            dollars ($220.66) beginning November 28, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The undersigned 
 
            understands from the statement of counsel that twenty-three 
 
            thousand eight dollars and 66/100 dollars ($23,008.66) has 
 
            previously been paid by the defendants.
 
            
 
                 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 January, 1994.
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            500 Firstar Bank Bldg
 
            P O Box 2107
 
            Cedar Rapids IA 52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed January 4, 1994
 
                                            Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BONNIE ENGALDO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 968978
 
            IPSCO STEEL, INC.,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 35% industrial disability.