ALEJANDRO L. VASQUEZ,         :
                 Claimant,                :
            vs.                           :      File Nos. 924090
                                          :                970006
            H. J. HEINZ,                  :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
            COMPANY,                      :
                 Insurance Carrier,       :
                 Defendants.              :
                              STATEMENT OF THE CASE
                 This decision concerns two proceedings in arbitration 
            brought by Alejandro L. Vasquez against his employer, H. J. 
            Heinz, and its insurance carrier, Liberty Mutual Insurance 
            Company.  The claims are based upon admitted injuries of 
            June 29, 1989 and October 20, 1990.  Claimant seeks 
            additional weekly benefits for healing period and permanent 
            partial disability.  He has not, however, specified the 
            periods of time for which he claims additional healing 
            period compensation.  The employer denies that the first 
            injury caused any permanent disability but it agrees that 
            the second caused some permanent disability.  The employer 
            contends that it has paid in full all amounts which the 
            claimant is entitled to receive as a result of either of the 
            two injuries.
                 The case was heard and fully submitted at Davenport, 
            Iowa, on march 26, 1992.  The evidence consists of joint 
            exhibits A through K; and testimony from Alejandro L. 
            Vasquez, Beatrice Vasquez, David Marler, and Kendall Kelly.
                                 FINDINGS OF FACT
                 Having considered all the evidence received, together 
            with the appearance and demeanor of the witnesses, the 
            following findings of fact are made.
                 It is found that Alejandro L. Vasquez suffers from 
            chronic back pain.  He is a 38-year-old married man who was 
            born in Mexico and then moved to the United States at age 
            16.  He attended six years of school in Mexico but has no 
            further formal education.  He speaks English poorly but 
            demonstrated sufficient proficiency in order to participate 
            in the hearing of this case.  He appears to have sufficient 
            spoken English language proficiency to function adequately 
            Page   2
            in industrial plant settings.  He would be unlikely, 
            however, to be able to function sufficiently well to engage 
            in any occupation where average proficiency in verbal 
            communication in the English language was a job requirement.  
            His ability to read and write in English is much lower than 
            his ability to converse.  It is extremely unlikely that he 
            could perform any job where reading or writing in English 
            was a substantial part of the job.
                 Since coming to the United States, all of claimant's 
            employments have consisted entirely of physical labor.  He 
            was hired by Heinz in 1977 but quit after approximately two 
            years to move to the Quad Cities.  He returned to the 
            Muscatine area and was re-employed by Heinz in 1981.  He has 
            remained employed by Heinz since 1981.
                 On June 27, 1989, claimant injured his back when his 
            foot slipped on a wet floor while he was pushing racks.  He 
            was initially seen by the company nurse and then referred to 
            orthopedic surgeon Ralph H. Congdon, M.D.  It was initially 
            suspected that claimant had a herniated lumbar disc but 
            diagnostic testing failed to definitely identify any such 
            condition.  Claimant was off work under the care of Dr. 
            Congdon from July 10, 1989 through September 4, 1989, when 
            he returned to work with a 40 pound lifting restriction 
            (Exhibit F, page 13).  On October 30, 1989, Dr. Congdon 
            authorized claimant to resume full duty work (Ex. F, p. 14).  
            While claimant was off work he was paid temporary total 
            disability benefits.  While working under restriction, he 
            was paid temporary partial disability benefits according to 
            testimony from Kendall Kelly.  There is no evidence in the 
            record to show whatever amounts were paid were incorrect.
                 After returning to work following the 1989 injury, 
            claimant moved into a higher paying position.  He worked for 
            approximately a year without exhibiting any notable problems 
            with regard to his back.  While he testified at hearing that 
            his back never completely recovered, the record does not 
            show any distinct manifestations of any disability affecting 
            his back between the time he returned to work following the 
            1989 injury and the date that the 1990 injury occurred more 
            than one year later.  It is therefore found that the June 
            29, 1989 injury did not cause any permanent disability 
            though it might have caused some chronic discomfort.
                 On October 20, 1990, claimant was working on the second 
            shift repairing pallets.  He carried a pallet which needed 
            repair and when setting it down, he experienced an onset of 
            pain in his lower back.  He reported the incident to the 
            nurse.  Eventually he was referred to the company physician, 
            William Catalona, M.D., a board certified orthopedic 
            surgeon.  Claimant was again taken off work and treated 
            conservatively.  Diagnostic tests were conducted but showed 
            no degenerative disc disease (Ex. G, pp. 5 and 9).
                 A second opinion was sought from Robert O. Crous, III, 
            M.D.  By December 12, 1990, Dr. Crous had released claimant 
            to resume full duty work (Ex. G, p. 12).
                 Claimant was also referred for evaluation to Bakkim 
            Page   3
            Subbiah, M.D., a neurologist.  Dr. Subbiah diagnosed 
            claimant as having degenerative disc disease without nerve 
            root compression (Ex. H, pp. 1 and 2).  A myelogram was 
            performed which was interpreted as being normal except for 
            degenerative disc disease (Ex. H, p. 6).  EMG tests were 
            interpreted as being normal.  Dr. Subbiah noted that 
            claimant could return to work without restrictions (Ex. H, 
            p. 7).  Dr. Subbiah also assigned a permanent impairment 
            rating of 7 percent of the whole person (Ex. H, p. 8).
                 Dr. Catalona rated claimant as having a 5 percent 
            permanent impairment, he felt that the rating was not 
            inconsistent with that made by Dr. Subbiah (Ex. K, pp. 7-9).  
            Dr. Catalona felt that claimant should follow activity 
            restrictions in the nature of avoidance of lifting more than 
            25 pounds (Ex. K, p. 11).  He felt that the restrictions 
            should be applied because it was his opinion that claimant 
            did not have the physical capacity to perform heavier work 
            as a result of instability in his spine and that the 
            restrictions were imposed due to that instability (Ex. K, 
            pp. 15, 16 and 19).  Dr. Catalona apparently found the case 
            somewhat perplexing because none of the diagnostic tests 
            revealed the cause of claimant's backache (Ex. K. pp. 6-7).  
            Claimant did not improve significantly from any of the 
            treatment which had been provided (Ex. D, p. 4).
                 Following recuperation from the second injury, claimant 
            resumed work and has continued to work at a higher paying 
            job than the one he held at the time of the first injury.  
            Claimant customarily performs jobs which require a 
            relatively high degree of physical effort.  It appears as 
            though he does not follow the restrictions recommended by 
            Dr. Catalona and that the employer does not limit claimant's 
            activities to those which fall within the restrictions 
            recommended by Dr. Catalona.
                 Claimant has restricted his recreational activities and 
            such is evidence that the symptoms and discomfort of which 
            he complained at hearing are real and bonafide.  As 
            indicated by Dr. Catalona, the case is somewhat perplexing 
            in the sense that no cause for the back pain, other than 
            degenerative disc disease, has been identified.  The only 
            physician who treated claimant after the first injury 
            released him to return to work without any restriction.  
            Both of the physicians to whom claimant was referred by Dr. 
            Catalona following the second injury have released him to 
            return to work without restriction.  It is only Dr. Catalona 
            who has recommended any activity restrictions.  Dr. Catalona 
            does not relate those restrictions directly to either of the 
            injuries so much as he relates them to the claimant's 
            expressed symptoms.  Claimant, himself, does not follow 
            those recommended restrictions as evidenced by the fact that 
            he has attempted to move into a position which has high 
            exertional requirements than the position he normally holds 
            and also by his volunteering to work double shifts.  While 
            some restriction of claimant's activities is likely 
            appropriate the degree of that restriction is not as severe 
            Page   4
            as what Dr. Catalona recommended.
                 It is also recognized that claimant in his case is a 
            married man with four dependent children.  His job with 
            Heinz likely pays considerably better than any other job he 
            would be likely to obtain or perform with any other employer 
            in the vicinity where he resides.  Claimant is uneducated 
            and untrained but he is apparently intelligent enough to 
            realize that the alternatives to remaining at Heinz are 
            quite undesirable.  His limited English language skills 
            effectively restrict him to positions which consist entirely 
            of physical activity.
                 The impairment ratings which have been entered into the 
            record appear to be based upon his symptomatic degenerative 
            disc disease.  As explained by Dr. Catalona, performance of 
            heavy activity has the propensity to aggravate degenerative 
            disc disease and lumbar instability (Ex. K, pp. 13, 14, 16 
            and 17).  It is found in this case that the injury claimant 
            sustained on October 20, 1990, permanently aggravated those 
            underlying conditions and caused them to become symptomatic.  
            It is further found that there is a wide disparity among the 
            three physicians in regards to their recommendations for 
            activity restrictions.  Two have recommended full duty work 
            while Dr. Catalona recommends a 25 pound restriction.  These 
            assessments are irreconcilable.  When viewed in relation to 
            the claimant's symptomatology and also his actual 
            accomplishments, it is found that he has lost some of his 
            physical capabilities but that those recommended by Dr. 
            Catalona are overly cautious.  It is therefore found that 
            the claimant's lack of English language skills makes any 
            impairment whatsoever of his physical capacity a quite 
            serious factor when his earning capacity is evaluated.  It 
            is found that he has experienced a 10 percent reduction in 
            his earning capacity as a result of the October 20, 1990 
                                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's claim for additional healing period or 
            temporary partial disability should be denied in both files.  
            He has not specified any particular periods of time for 
            which he seeks additional recuperation benefits and the 
            record does not show any clear basis for finding an 
            entitlement to additional healing period, temporary total or 
            temporary partial disability benefits.
                 The claimant has the burden of proving by a 
            preponderance of the evidence that the injury is a proximate 
            cause of the disability on which the claim is based.  A 
            cause is proximate if it is a substantial factor in bringing 
            about the result; it need not be the only cause.  A 
            preponderance of the evidence exists when the causal 
            connection is probable rather than merely possible.  
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
            Page   5
            (Iowa 1974).
                 The claimant has not introduced sufficient evidence to 
            prove that the 1989 injury caused any permanent partial 
            disability.  He is therefore not entitled to any additional 
            recovery based upon the June 29, 1989 injury.  The employer 
            has fully paid to the claimant every benefit which he is 
            entitled to as a result of that injury.
                 Aggravation of a preexisting condition is one manner of 
            sustaining a compensable injury.  While a claimant is not 
            entitled to compensation for the results of a preexisting 
            injury or disease, its mere existence at the time of a 
            subsequent injury is not a defense.  Rose v. John Deere 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
            claimant had a preexisting condition or disability that is 
            materially aggravated, accelerated, worsened or lighted up 
            so that it results in disability, claimant is entitled to 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
            253 Iowa 369, 112 N.W.2d 299 (1961).
                 Industrial disability or loss of earning capacity is a 
            concept that is quite similar to impairment of earning 
            capacity, an element of damage in a tort case.  Impairment 
            of physical capacity creates an inference of lessened 
            earning capacity.  The basic element to be determined, 
            however, is the reduction in value of the general earning 
            capacity of the person, rather than the loss of wages or 
            earnings in a specific occupation.  Post-injury earnings 
            create a presumption of earning capacity.  The earnings are 
            not synonymous with earning capacity and the presumption may 
            be rebutted by evidence showing the earnings to be an 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
            57.21 and 57.31.
                 There are a number of rules for evaluating industrial 
            disability.  No single rule is absolutely conclusive 
            notwithstanding the ruling in the case Bearce v. FMC 
            Corporation, 465 N.W.2d 531 (Ia. App. 1991).  The fact that 
            Bearce had returned to work without any activity 
            restrictions and without any loss of income is certainly 
            strong evidence of a lack of industrial disability.  The 
            burden of proof differs somewhat when dealing with 
            apportionment of disability for a preexisting condition.  
            That case is not construed as overruling prior precedents 
            which have indicated there can be a loss of earning capacity 
            even though actual earnings have not been reduced.  It is 
            determined that Alejandro L. Vasquez has a 10 percent loss 
            of earning capacity and a 10 percent industrial disability 
            under the provisions of Iowa Code section 85.34(2)(u).  This 
            entitles him to recover 50 weeks of permanent partial 
            Page   6
            disability compensation, 20 weeks more than that which has 
            been voluntarily paid by the employer.  It should be noted 
            that the claimant's substandard English language skills 
            makes the degree of industrial disability considerably 
            greater than what it would be if his language skills were 
            comparable to those normally possessed by most Iowa 
            employees.  It makes him suitable only for work which 
            consists of physical labor or physical activity.  It does 
            not permit him access to any portion of the job market which 
            would otherwise be available to individuals who have better 
            language skills.
                 Since defendants have prevailed in file No. 924090, 
            claimant will not be entitled to recover any costs incurred 
            in that case.  Since claimant has prevailed in file No. 
            970006, he will be entitled to recover costs associated with 
            that proceeding.  Those costs are as follows:  Filing fee 
            $65; service cost $2; impairment evaluation and report by 
            Dr. Catalona $150; expert witness fee, Dr. Catalona $150; 
            reporting fee for Dr. Catalona's deposition $119.75, for a 
            total of $486.75.
                 THEREFORE, it is ordered:
                 That in file number 970006 defendants pay Alejandro L. 
            Vasquez fifty (50) weeks of compensation for permanent 
            partial disability at the rate of three hundred fifty and 
            50/100 dollars ($350.50) payable commencing June 10, 1991.  
            Defendants are granted full credit for the thirty (30) weeks 
            of permanent partial disability compensation previously 
            paid.  The remaining twenty (20) weeks are now all past due 
            and owing and shall be paid in a lump sum together with 
            interest pursuant to Iowa Code section 85.30 computed from 
            the date each weekly payment became due until the date of 
            actual payment.
                 IT IS FURTHER ORDERED:
                 That all claims made in file No. 924090 are denied as 
            are all claims made by the claimant for any other weekly 
            compensation in file No. 970006.
                 IT IS FURTHER ORDERED:
                 That the costs in file No. 924090 are assessed against 
            the claimant.
            Page   7
                 That the costs in file No. 970006 in the amount of four 
            hundred eight-six and 75/100 dollars ($486.75) are assessed 
            against defendants.
                 IT IS FURTHER ORDERED:
                 That defendants file claim activity reports as 
            requested by this agency pursuant to rule 343 IAC 3.1.
                 Signed and filed this ____ day of September, 1992.
                                          MICHAEL G. TRIER
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies To:
            Mr John D Stonebraker
            Attorney at Law
            P O Box 2746
            Davenport IA 52809
            Mr Greg A Egbers
            Attorney at Law
            600 Union Arcade Bldg
            111 E Third St
            Davenport IA 52801-1596
                                             5-1402.40; 5-1803
                                             Filed September 24, 1992
                                             Michael G. Trier
            ALEJANDRO L. VASQUEZ,         :
                 Claimant,                :
            vs.                           :      File Nos. 924090
                                          :                970006
            H. J. HEINZ,                  :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
            COMPANY,                      :
                 Insurance Carrier,       :
                 Defendants.              :
            5-1402.40; 5-1803
            Claimant could not identify periods for which he sought 
            additional healing period and temporary partial disability.  
            None was awarded.
            Claimant with poor English languish skills awarded 10% 
            permanent partial disability even though his earnings had 
            increased since the injury and the evidence was conflicting 
            upon the issue of activity restrictions.  He was rated as 
            having a 5 to 7 percent permanent impairment.
            JIMMIE L. BAILEY,   
                                          File Nos. 970243 & 991508
                                            A R B I T R A T I O N
                                              D E C I S I O N
            NATIONAL UNION FIRE,     
                 Insurance Carrier,  
                 This is a proceeding in arbitration filed by Jimmie L. 
            Bailey, claimant, against Roberts Dairy Company, employer, 
            and National Union Fire, insurance carrier, defendants, for 
            benefits as the result of two injuries.  One of the injuries 
            occurred on December 3, 1990 when claimant slipped and fell 
            on his back (file number 991508).  The other injury occurred 
            on December 8, 1990 when claimant strained his back pulling 
            a heavy stack of milk cartons.   A hearing was held in Des 
            Moines, Iowa, on August 27, 1993, and the case was fully 
            submitted at the close of the hearing.  Claimant was 
            represented by Max J. Schott.  Defendants were represented 
            by Stephen W. Spencer.  The hearing, which was scheduled for 
            three hours, actually consumed approximately six and 
            one-half hours and generated a 296 page transcript.  The 
            record consists of claimant's exhibits 1 through 76 (minus 
            exhibits 8 through 13), defendants' exhibits A through F, 
            the testimony of Jimmie L. Bailey, claimant, Carol M. 
            Bailey, claimant's wife, Roger Marquardt, vocational 
            rehabilitation consultant for claimant, David Greimann, 
            vocational rehabilitation consultant for defendants, and 
            Lori Lien, claims supervisor.  The deputy ordered a 
            transcript of the hearing.
                 The parties stipulated to the following matters at the 
            time of the hearing.
                 That claimant sustained an injury on December 3, 1990 
            when he slipped and fell and injured his back which arose 
            out of and in the course of employment with employer.  
                 That claimant sustained an injury on December 8, 1990 
            to his back and legs while pulling cases of heavy cartons of 
            milk which arose out of and in the course of employment with 
            Page   2
                 That these injuries were the cause of temporary and 
            permanent disability.
                 That claimant is entitled to and was paid healing 
            period benefits for the period from December 9, 1990 through 
            July 27, 1992 and that claimant's entitlement to healing 
            period benefits is no longer in dispute.  
                 That the type of permanent disability, if any, is 
            industrial disability to the body as a whole.
                 The sole issue for determination is whether claimant is 
            entitled to permanent disability benefits, and if so, the 
            extent of benefits to which he is entitled.
                                 FINDINGS OF FACT
                 It is determined that the injury was the cause of 
            permanent disability, that claimant has sustained a 45 
            percent industrial disability to the body as a whole, and 
            that claimant is entitled to 225 weeks of permanent partial 
            disability benefits. 
                 Claimant, born June 30, 1960, was 50 years old at the 
            time of these injuries and 53 years old at the time of the 
            hearing.  Because claimant was at or near the peak of his 
            earnings career, at least chronologically by age, his 
            industrial disability is greater than it would be for an 
            older or younger employee (Transcript page 22).  Becke v. 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
            782670 & 805200 (App. Dec. 1989). 
                 Claimant has a limited formal education.  He dropped 
            out of high school in the ninth grade.  He has not obtained 
            a GED.  He has not acquired any additional formal education 
            but has learned a number of skills and semi-skills through 
            experience on many of his prior employments (Tran. p. 24).  
            Claimant's lack of formal education tends to decrease his 
            employability which tends to increase his industrial 
            disability, particularly at his age in the lower fifties.  
            At the same time, claimant's excellent work history and past 
            admirable work ethic tends to increase his employability and 
            concommittently decreases his industrial disability.  
            However, an older worker with a back injury without a high 
            school education will find his or her employment 
            opportunities limited.  A good work record is helpful but 
            employers will more likely hire a younger and healthier 
            worker before hiring an older, injured and less educated 
                 Claimant is probably not suitable for retraining of an 
            Page   3
            academic nature but has proven his ability to adapt to and 
            learn job skills through on-the-job training and experience.  
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
            Commissioner Report 74, 89 (1984).
                 With respect to claimant's past employments, claimant 
            is now foreclosed from performing those functions which 
            require heavy lifting and other strenuous activity.  At the 
            same time he has acquired many skills which he could use in 
            other employments which are available in the job market at 
            this time.  
                 Claimant's past employments are as follows.
                 Claimant first performed farm work after he dropped out 
            of school in the ninth grade.  Claimant would be limited on 
            the farm work that he could perform after these injuries.
                 Claimant was a boiler tender in the Navy where he read 
            charts and gauges, performed calculations and kept records 
            on fuel and fresh water (Tran. p. 25).  Claimant is probably 
            capable of performing similar work again if he could find 
            such employment and if he chose to do so.  
                 Claimant has been a carpenter and said that he carried 
            140-pound bundles of shingles up onto a roof.  Claimant is 
            now foreclosed by these injuries from performing heavy work.  
            Furthermore, the skilled occupation of carpentry as a 
            general rule requires heavy lifting, bending, stooping and 
            repetitive pounding which claimant is now restricted from 
                 Claimant has worked as an over-the-road truck driver of 
            general freight in 17 states.  His current restrictions 
            probably foreclose him from most forms of truck driving, 
            especially those that require loading and unloading.  
            Claimant stated that he lifted 200 to 250 pounds as a truck 
            driver (Tran. p. 28).  
                 Claimant learned to operate a lathe and become a 
            machinist. Eventually he became employed as a journeyman 
            machinist and worked for one employer for ten years as a 
            machinist.  Claimant maintained that as a machinist he 
            lifted 300 pounds of cold steel by himself.  Claimant added 
            that lifting weights of over 100 pounds was not uncommon in 
            an average workday (Tran. pp. 29-34).  There are 
            transferable skills which claimant used as a machinist which 
            would be helpful to him in finding machinist related work.  
            At the same time, claimant's restrictions foreclose him from 
            being in a position where heavy lifting is required.  
                 Claimant has performed work as a heavy equipment 
            operator.  He has operated D-9 Cats, backhoes, cherry 
            pickers and cranes.  Claimant averred that this job also 
            required him to lift 300-pound pieces of steel (Tran. p. 
            34).  Claimant is probably proscribed by his restrictions 
            from operating heavy equipment because he is foreclosed from 
            performing heavy work.  
                 Claimant worked as a machinist a second time 
            Page   4
            supervising 65 other employees.  In this job he claimed that 
            he routinely lifted 100 to 150 pounds (Tran. pp. 32-42).  
            Claimant is probably capable of supervisory work in areas 
            where he has prior knowledge and experience but he would not 
            be able to do the heavy lifting.  
                 Claimant worked in the oil fields in California for 
            seven years as a production superintendent, which meant 
            keeping the wells operating.  He said that he fixed some 
            things himself.  For other problems, he called in a repair 
            crew.  Claimant contended that he lifted pipe joints in this 
            job which weighed 250 to 300 pounds.  Claimant's mechanical 
            skills are transferable in some degree.  He is prohibited 
            from heavy lifting now.  
                 Just prior to this employment claimant drove a truck 
            over- the-road again which involved loading and unloading 
            weights of 200 to 250 pounds by himself without equipment 
            assistance (Tran. pp. 47 & 48).  Claimant can no longer do 
            this kind of work without significant job accommodations or 
                 Claimant's past employments are also described in more 
            detail in a number of the exhibits (Ex. 1, p. 3, Ex. 77, & 
            Ex. E).  Claimant testified that he did not have and there 
            is no evidence of any significant work limitations prior to 
            these two injuries (Tran. p. 50).  Claimant testified that 
            he has never had a workers' compensation claim before these 
            two injuries (Tran. p. 51).  This was verified by an 
            investigative check for prior workers' compensation claims 
            by employer through an agency who does this research.  The 
            report verified that claimant had no prior workers' 
            compensation claims (Ex. 7).  Claimant also had a clean 
            driving record free of violations, suspensions, or 
                 Claimant's application for employment with employer 
            shows no prior injuries, illness, or work limitations.  
            Claimant stated on the application that he was physically 
            capable of manual labor (Ex. 2).  A physical examination 
            performed for the Iowa Department of Transportation on 
            October 11, 1990, did not disclose any spinal injuries (Ex. 
                 When claimant fell on December 3, 1990, he did not see 
            a doctor and did not lose any time from work.  After he 
            strained his back on December 8, 1992, he was examined at 
            the emergency room by Barbara K. Moats, M.D., who diagnosed 
            acute back pain (Ex. 17).  An x-ray on December 8, 1990, 
            disclosed (1) mild degenerative changes at L3-4 and 4-5, (2) 
            no spinal compression fractures and (3) some calcification 
            of the distal abdominal aorta (Ex. 18).  
                 Dr. Moats referred claimant to Michael J. Makowsky, 
            M.D., an occupational and sports medicine doctor, who took 
            claimant off work on December 9, 1990 (Ex. 19).  Claimant 
            has not returned to work since that date (Tran. pp. 55 & 
                 Dr. Makowsky ordered an MRI on December 10, 1990, which 
            Page   5
            revealed (1) a diffuse bulge at the L4-5 disc without focal 
            herniation as well as (2) hypertrophic facet joint changes 
            and (3) hypertrophy ligamentum flavum changes at L4-5 which 
            produced moderate to marked spinal stenosis (Exs. 20 & 32).  
            Claimant reported pain in both legs to Dr. Makowsky on 
            December 14, 1990 (Tran. p. 27).  On December 21, 1990, Dr. 
            Makowsky said that claimant's chief problem was spinal 
            stenosis and degenerative disc disease (Ex. 27).
                 Dr. Makowsky saw claimant several times from December 
            of 1990 to May of 1991.  He prescribed medications, physical 
            therapy, work-hardening, a TENS unit and epidural steroid 
            injections.  Several times Dr. Makowsky commented that 
            claimant would not be able to return to his former 
            employment or to heavy work.  Dr. Makowsky's office notes 
            show that claimant continued to complain of pain but that 
            Dr. Makowsky could find no objective or physical findings to 
            support the reason for his pain (Exs. 26-41).  
                 On June 24, 1991, Dr. Makowsky wrote to the disability 
            examiner for the Disability Determination Services Bureau at 
            the Division of Vocational Rehabilitation Services that 
            claimant's diagnoses were (1) degenerative spondylolisthesis 
            at L4-L5 and (2) acquired spinal stenosis.  Dr. Makowsky 
                    "I do not think that Mr. Bailey is capable of 
                 returning to work at Robert's Dairy.  I think he 
                 is probably qualified for Light Work; that is:
                    1.  Maximum lifting of no more than 20 lbs. 
                 with frequent lifting up to 10 lbs.
                    2.  No repetitive bending at the waist.
                    3.  No repetitive pushing or pulling (Ex. 42, 
                 p. 2)
                 On the same date, June 24, 1991,  Dr. Makowsky wrote to 
            the insurance carrier representative that claimant had 
            reached maximum medical improvement earlier on May 1, 1991.  
            Dr. Makowsky further stated,
                    You have requested an evaluation for a 
                 permanent impairment rating.  As we discussed on 
                 the telephone, this is very difficult since most 
                 of his problem is probably pre-existing.  However, 
                 his work apparently aggravated his problem.  I 
                 would like to suggest that his partial-permanent 
                 impairment is 10% of the body as a whole with 
                 about half of this permanency (5%) being secondary 
                 to his work related injury (Ex. 43, p. 1).
                 Dr. Makowsky recommended no further treatment at that 
            time Ex. 43, p. 2).  
                 In a letter to claimant's counsel, dated September 25, 
            1991, Dr. Makowsky stated that claimant's underlying 
            degenerative spondylolisthesis at L4-L5 and spinal stenosis 
            Page   6
            were not work-related conditions, however, according to the 
            patient they became symptomatic on December 8, 1990, when he 
            experienced back pain while pulling heavy milk cartons.  Dr. 
            Makowsky then stated, "At that time, I felt his work injury 
            aggravated a pre-existing problem."
                 Dr. Makowsky said that based on his recommendation 
            claimant returned to work on April 4, 1991 but that he 
            reaggravated his condition after having returned to work for 
            only five hours (Ex. 47, p. 2).  Dr. Makowsky again causally 
            related the employment to this injury in these words, 
            "Within a reasonable degree of medical certainty, the 
            symptom complex currently being experienced by Jimmie Bailey 
            is consistent with the injury that he sustained at Robert's 
            dairy together with his underlying medical conditions 
            previously stated." (Ex. 47, p. 2).
                 Dr. Makowsky repeated his split impairment rating, but 
            added that there is no medical way he could scientifically 
            determine what percent of his impairment was related to this 
            injury versus his underlying condition, but he estimated 
            that 5 percent of the overall 10 percent was work-related 
            (Ex. 47, p. 2).
                 In the course of Dr. Makowsky's treatment he referred 
            claimant to Daniel J. McGuire, M.D., an orthopedic surgeon, 
            who saw claimant on February 18, 1991 and March 18, 1991.  
            On both occasions Dr. McGuire indicated (1) that he did not 
            believe that claimant would be able to return to a heavy 
            manual labor job with or without surgery and (2) he did not 
            believe that surgery was recommended at that time.  
                 Then on May 1, 1991, Dr. Makowsky was talking in terms 
            of maximum medical improvement and issuing a permanent 
            impairment rating.  At about that same time claimant applied 
            for social security benefits on May 28, 1991.  His 
            application was initially denied on August 7, 1991.  And it 
            was denied again on September 9, 1991 (Ex. 71).
                 Claimant then returned to see Dr. McGuire on November 
            14, 1991 indicating that his symptoms were severe enough at 
            that time that he wanted surgical intervention (Ex. 52).
                 Dr. McGuire performed the surgery on December 10, 1991.  
            He described the surgery as follows.
                    Posterior decompression L4-L5 with exploration 
                 of the L4, L5, and S1 nerve roots; posterior 
                 spinal fusion L4 to L5 with iliac bone graft; 
                 posterior segmental instrumentation at L4-L5 with 
                 steffe plates; and harvesting of cortical 
                 cancellous bone graft right posterior ilium (Ex. 
                 23, p. 1).
                 On August 6, 1992, Dr. McGuire gave the following 
                    The permanent partial disability associated 
                 with his surgical intervention was 12%.  This is 
                 based on the decompression and one level fusion.  
            Page   7
                 He also has some persistent symptoms.  Of this, 6% 
                 of this is pre-existing disease and 6% of this is 
                 related to the aggravation and actual surgical 
                    From my standpoint, he is released to return to 
                 work.  We are unable to get a good idea of 
                 restrictions that we can place on him because he 
                 did not complete the FCE.  Realistically speaking, 
                 he could lift in the 50-70 pound range.  I would 
                 keep him away from a lot of vibration, such as 
                 driving a truck.  I would try to avoid excessive 
                 bending, lifting and twisting (Ex. 56).  
                 The reason that claimant did not complete the 
            functional capacity examination was because the insurance 
            company representative did not authorize payment for the 
            motel reservations for the entire course of his treatment 
            (Tran. pp. 208-213).  Claimant, who did not want to be at 
            the evaluation in the first place, because he was already 
            drawing social security benefits as well as workers' 
            compensation benefits, took advantage of the situation and 
            went home.  
                 Claimant was examined by his own independent medical 
            examiner, Martin S. Rosenfeld, D.O., on September 15, 1992.  
            In his report Dr. Rosenfeld stated,
                    X-rays brought with the patient as noted in the 
                 chart show a single fusion with a double level 
                 decompression at L4 and L5.  The films of 05/04/92 
                 do not show complete bridging, especially on the 
                 left side, but the area is, of course, stable with 
                 the plates intact.
                    I feel the patient has severe residuals with 
                 pain and stiffness, but fortunately has had relief 
                 of his radiculopathy.
                    In view of the amount of pain and spasm and 
                 rigidity that Mr. Bailey is suffering, I doubt 
                 that he will be able to return to work doing any 
                 type of labor or any type of sedentary work (Ex. 
                 67, pp. 1 & 2).
                 Dr. Rosenfeld assessed his impairment rating as 
                    "In regard to your questions, I feel over all 
                 that Mr. Bailey has a twenty-five (25%) percent 
                 permanent physical impairment to the body as a 
                 whole as a result of the build up of spinal 
                 stenosis, the on-the-job injury, and subsequent 
            Page   8
                    Based on the history and x-rays, it is my 
                 feeling that a significant amount of his 
                 impairment is due to the on-the-job injury 
                 although some of his impairment is due to the 
                 pre-existing and developmental problems.  I would 
                 rate his impairment due to the injury at thirteen 
                 (13%) percent using the AMA Guides (Ex. 67, p. 2). 
                 On May 28, 1993, claimant was examined by Gordon M. 
            Mead, M.D., a board certified orthopedic surgeon since 1979, 
            who was an independent medical examiner for defendants.  Dr. 
            Mead stated that claimant moved to Louisiana because it was 
            cheaper to live there.  Dr. Mead opined, 
                    According to the AMA Guides to the Evaluation 
                 of Permanent Impairment, 3rd Edition, this 
                 gentleman has a 12% impairment of the whole 
                 person.  This is a permanent condition. ... He 
                 will not be able to return to truck driving.  He 
                 would not be able to do anything other than 
                 essentially light or light/medium type work.  He 
                 would not be able to do any repeated bending or 
                 lifting." (Ex. 68, p. 2).
                 Dr. Mead gave a telephonic deposition shortly before 
            the hearing on August 11, 1993.  Dr. Mead stated that the 
            fusion appeared to be solid to him but it was difficult to 
            tell from the plain x-rays (Ex. 74, p. 8).  The doctor 
            further related that claimant had almost complete limitation 
            of any motion of his back because of his pain complaints 
            (Ex. 74, p. 9).  He did not perform any new x-rays.
                 Dr. Mead said that the total lack of bending was not 
            compatible with the one level fusion, because all of the 
            other levels of the spine should be mobile.  He said that 
            fusing one segment would eliminate a small amount of the 
            motion but certainly not to the extent that claimant states 
            his motion was limited.
                 Also, Dr. Mead stated that claimant had pain in his 
            back on range of motion of his hips but he did not know of 
            any anatomical basis for that because there really is no 
            correlation between motion of the hips and back pain (Ex. 
            74, p. 12).  
                 Also, claimant complained of pain in his back on the 
            straight leg raising test which the doctor said did not have 
            any significance because the straight leg raising test is to 
            see if claimant had leg pain from an irritated nerve in his 
            back.  To find back pain on straight leg raising really did 
            not mean very much.  He said this was not compatible with a 
            one segment fusion (Ex. 74, p. 13).
                 Likewise, he said that the fact that claimant could not 
            heel or toe walk had no significance with respect to a one 
            level fusion because what he was looking for was weakness in 
            the dorsiflexors of the foot or the plantar flexors of the 
            foot (Ex. 74, pp. 12-14).  
            Page   9
                 Dr. Mead found no neurologic involvement at the time of 
            his examination (Ex. 74, p. 14).  Dr. Mead stated that if a 
            person had severe back pain over a long period of time he 
            would expect to find some atrophy of the muscles in the 
            extremity but he did not find any atrophy upon claimant's 
            examination (Ex. 74, p. 14).
                 Dr. Mead explained his terminology of light/medium 
            work, "Light medium work is defined as lifting 30 pounds 
            maximum with frequent lifting and/or carrying of objects 
            weighing up to 20 pounds."  The doctor pointed out that he 
            also recommended a restriction against repeated bending or 
            lifting and defined repeated as three times within an hour 
            (Ex. 74, pp. 16 & 17).
                 The doctor said claimant should be allowed to move 
            around and alternate standing, sitting and walking.  Dr. 
            Mead said that he was surprised that claimant contends that 
            he could not bend at the waist at all (Ex. 74, pp. 18 & 19).  
            With respect to pain the doctor stated, "He expressed more 
            pain than I would judge to be reasonable for someone who's 
            had that kind of surgery." (Ex. 74, pp. 20 & 23).  
                 Roger Marquardt, rehabilitation consultant, performed 
            an evaluation of claimant and made a report on June 22, 
            1993.  He interviewed claimant by telephone.  Marquardt 
            questioned whether claimant could work six to eight hours 
            Page  10
            per day, five days a week. Therefore because of his 
            continuing severe pain Marquardt said claimant would be 
            restricted from competitive employment of even a light or 
            sedentary nature (Ex. 70, p. 4).  Marquardt testified at the 
            hearing that he was relying on claimant's testimony as to 
            this limitation (Tran. p. 180).  He also stated that an 
            older worker has more difficulty in adjusting to new and 
            unique working situations (Tran. p. 180).  He recommended 
            against schooling (Tran. p. 181).  He said that claimant's 
            limited education makes rehabilitation more difficult (Tran. 
            p. 181).  Marquardt was asked and answered as follows, 
                    Q. If we accept Mr. Bailey's subjective 
                 complaints of pain as you've heard them testified 
                 to today, is there work in the competitive 
                 employment sector that Mr. Bailey can perform?  
                    A. In my opinion, no, sir. 
                    Q.  What in particular are you focusing on?  
                 What are the particular limitations that are most 
                 meaningful for you in that regard with respect to 
                 his testimony? 
                     A.  The person's ability to sustain a work 
                 task at a competitive rate, six to eight hours a 
                 day, 40 hours a week." (Tran. pp. 200 201).
                 The difficulty with Marquardt's opinion is the fact 
            that it is based almost entirely upon claimant's subjective 
            complaints of pain and inability to work. 
                 On August 12, 1993, Sonya K. Simms, a vocational 
            consultant for Crawford and Company, in Shreveport Louisiana 
            concluded there were a number of jobs which claimant could 
            perform in that locality (Exs. C & D).
                 On August 13, 1993, David L. Greimann, another 
            vocational consultant for Crawford and Company in Des 
            Moines, Iowa concluded that when claimant's work 
            restrictions were combined with the wide range of skills 
            that he has developed in several industries that there are a 
            number of positions available which claimant could perform 
            within his medical restrictions.  Like Simms, he gave a 
            listing of some of the jobs.  Greimann added that these jobs 
            are typically within the light duty lifting range which most 
            of the physicians said claimant could perform (Exs. A & B).  
                 At the time of Marquardt's telephone examination of 
            claimant he extracted a number of subjective physical 
            limitations that claimant related to him (Ex. F, p. 16-20).  
            Marquardt did take into consideration Dr. Rosenfeld's 
            evaluation, who was a one-time examiner for the purposes of 
            litigation (Ex. F, p. 37).  He also took into consideration 
            the information of the Social Security Administrative Law 
            Judge.  However, the administrative law judge found as 
            Page  11
                    The claimant has the residual functional 
                 capacity to perform the physical exertional and 
                 nonexertional requirements of work except for 
                 lifting and carrying more than five pounds; 
                 sitting more than 15 to 20 minutes at a time; 
                 standing more than 15 to 20 minutes at a time; 
                 walking more than one-half block; any climbing on 
                 ladders, ropes, or scaffolds; any bending; more 
                 than occasional balancing, stooping, crouching, 
                 crawling; and any repetitive use of push and pull 
                 controls (Ex. 71, p. 5).
                 However, these restrictions were not voiced by any of 
            the doctors in this case or any of the vocational 
            rehabilitation consultants in this case.  Therefore this 
            deputy has no direct evidence from any professional medical 
            authority that these limitations are anything other than 
            what claimant subjectively feels he can and cannot do.  The 
            vocational rehabilitation person who appeared at the social 
            security hearing has not given any testimony in this case.  
            And if she had testified to the above quotation it would 
            still be at odds with the other medical and vocational 
            rehabilitation evidence introduced into evidence in this 
            case, except for Mr. Marquardt's acceptance of these 
                 Greimann testified at the hearing that he did not 
            personally interview claimant (Tran. p. 219), but rather 
            examined most of the significant medical evidence in this 
            case.  Greimann testified that it was his practice with 
            respect to subjective complaints of pain to encourage the 
            person to seek medical treatment for them (Tran. p. 222).  
            He said they need to be evaluated by the appropriate medical 
            professionals if they are of a medical nature (Tran. p. 
            223).  Greimann stressed that the majority of physicians 
            concluded that claimant could perform medium level work 
            which is defined by the United States Department of Labor as 
            ranging from 20 to 50 pounds (Tran. p. 225).  He found that 
            claimant had a number of transferable skills (Tran. p. 226), 
            that qualified claimant for a number of jobs (Tran. p. 227).  
            He itemized a number of these jobs (Tran. p. 229 & 230).  He 
            said a large number of jobs were available in both the light 
            and medium category (Tran. p. 232).
                 With respect to claimant's age he said it would not 
            decrease claimant's access to the labor market because there 
            was a high demand for mature workers with a lot of 
            experience by employers today (Tran. pp. 234 & 235).  
            Greimann said classifications of work top out at the very 
            heavy classification at 100 pounds.  There are no 
            classifications for 200 or 300 or more pounds (Tran. p. 
            236).  He said there are virtually no jobs that have that 
            requirement (Tran. p. 236).  He has never heard of a 
            machinist being required to lift 300 pounds in his total of 
            15 years of vocational rehabilitation experience (Tran. p. 
                 Greimann did a labor market survey in the Des Moines 
            area and found a number of jobs for machinists.  He said 
            that they are wanted in other states also (Tran. pp. 243 & 
            Page  12
            244).  A number of the machines are now what he described as 
            CNC (computer numerical controlled) machines (Tran. p. 244).  
            He said claimant's job history shows that he is adaptable to 
            new lines of work (Tran. p. 244).  Machinist jobs range 
            between $7 per hour and $20 per hour (Tran. 246).  Claimant 
            was earning $11 per hour at the time of this injury (Tran. 
            p. 52).  He said the last survey for Polk County showed that 
            machinists made $13.97 per hour which is an annual salary of 
            $29,057 (Tran. p. 247).  Greimann acknowledged his 
            evaluation did not take into account pain (Tran. p. 253).  
            After hearing claimant's testimony he said that he would not 
            change his opinion (Tran. p. 255 & 260).
                 Dr. McGuire testified by deposition shortly before the 
            hearing on August 11, 1993, that he is a board certified 
            orthopedic surgeon with subspecialty interest and training 
            in adult spine problems.
                 Dr. McGuire stated that prior to his surgery he would 
            have rated claimant's impairment at zero because the x-ray 
            changes predated the on-the-job injury (Ex. 73, p. 17).  He 
            said that on November 14, 1991, claimant was hurting bad 
            enough that he wanted surgery (Ex. 73, p. 18).  The doctor 
            said that claimant's MRI did not show a herniation of a disk 
            and that fit because he did not have any neurological 
            deficit (Ex. 73, p. 19).  Dr. McGuire said the pressure on 
            the nerve roots was coming from behind.  He said it was not 
            a herniated disk in front pushing backwards.  Therefore, he 
            did a posterior nerve root decompression and a fusion at 
            L4-L5 where he had the worst problems (Ex. 73, p. 20).  
                 Dr. McGuire was very critical of the finding of the 
            Social Security Administrative Law Judge.  When it was 
            presented to him Dr. McGuire stated, "I don't mean to hurt 
            your feelings, but who wrote that crock of shit?"  Dr. 
            McGuire then proceeded to criticize these findings in some 
            detail (Ex. 73, p. 32).  The doctor was surprised to learn 
            that somebody had made this evaluation while he was still 
            treating claimant (Ex. 73, p. 33).  
                 In his deposition Dr. McGuire talked about restrictions 
            against working around vibrating equipment and to avoid 
            lifting things more than 20 to 40 pounds maybe 50 pounds.  
            He said he should avoid repetitive bending, lifting all day 
            long (Ex. 73, p. 36).  Dr. McGuire could not explain why 
            claimant could not bend at the waist at all (Tan. p. 37).  
            He said that bending is performed at the hips and he never 
            claimed any injury to his hip sockets (Ex. 73, p. 38).  
                 Dr. McGuire repeated that claimant's impairment based 
            on the AMA Guides would be about 12 percent, maybe 14 
            percent.  He added that about a half or two-thirds of this 
            impairment would be related to the work incident (Ex. 73, p. 
            42).  One-half of 14 percent is 7 percent.  Two-thirds of 14 
            percent would be about 9 percent.  
                 Dr. McGuire granted that something caused his back 
            condition to become symptomatic (Ex. 74, p. 44).  He said he 
            would rely on Dr. Makowsky's records as to what caused that 
            (Ex. 73, p. 45).  Dr. McGuire, granted that claimant slipped 
            Page  13
            and landed on his back and that appears to be a work-related 
            incident.  The doctor agreed that a significant portion of 
            claimant's disability would relate to the two incidents at 
            work (Ex. 73, p. 47).  
                 Dr. McGuire agreed that he was doubtful from the 
            beginning that claimant would be able to return to work for 
            employer or to any kind of labor that he was performing at 
            the time of this injury (Ex. 73, p. 51).  Dr. McGuire was 
            skeptical of claimant's pain complaints for the reason that 
            a neurological injury was never identified and he never 
            really documented any true damage like a neurological 
            deficit (Ex. 37, p. 57).  Dr. McGuire agreed that he could 
            live with Dr. Makowsky's weight restriction of 15 to 20 
            pounds (Ex. 73, p. 60).  Contrary to Dr. Rosenfeld, Dr. 
            McGuire never found any spasm but he did find rigidity 
            because claimant asserted that he was not able to bend at 
            the waist (Ex. 73, p. 61).
                 In summary then the permanent impairment ratings are as 
            follows:  (1) Dr. Makowsky 5 percent, (2) Dr. McGuire 6 
            percent, 7 percent and 9 percent, (3) Dr. Rosenfeld 13 
            percent, and (4) Dr. Mead 12 percent.  All of the doctors 
            agreed that claimant was foreclosed from manual labor in the 
            heavy work and very heavy work classification that claimant 
            had performed most of his adult life.  Most of the doctors 
            agreed that claimant could perform light or light/medium 
            classification of work.  Dr. Rosenfeld thought claimant 
            should be restricted to sedentary work.
                 Thus, there is substantial evidence that claimant is 
            capable of performing medium work, which in the opinion of 
            this deputy is the ability to lift up to 50 pounds 
            occasionally and 20 pounds frequently.  It has been 
            demonstrated that there are several jobs for this work 
            classification in the competitive labor market.  
                 It has been further demonstrated that claimant is 
            capable of light work which in the opinion of this deputy 
            would be lifting up to 20 pounds occasionally and lifting 10 
            pounds frequently.  There are even more jobs available in 
            the competitive labor market for this job classification.
                 With respect to impairment ratings and restrictions the 
            opinions of Dr. Makowsky and Dr. McGuire are preferred over 
            the opinion of Dr. Rosenfeld, who was a one time examiner, 
            who evaluated claimant for purposes of litigation.  Dr. 
            Makowsky and Dr. McGuire were responsible for the ultimate 
            success or failure of claimant's treatment.  Their opinions 
            are reinforced by that of Dr. Mead.  Rockwell Graphics 
            Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
                 With respect to vocational rehabilitation counselors 
            the opinions of Greimann and Simms are preferred over the 
            opinion of Marquardt.  Marquardt admits that his opinion is 
            focused on the subjective symptoms that claimant related to 
            him as well as the opinion of Dr. Rosenfeld and the Social 
            Security Administrative Law Judge.  There is no evidence in 
            this record that any medical professional care provider in 
            the evidence of record in this case found the subjective 
            Page  14
            findings that the administrative law judge found in making 
            his determination.  
                 Claimant did not seriously seek work.  On the contrary, 
            he sought social security disability benefits rather than 
            attempt to return to work.  Claimant has not been motivated 
            to return to work.  This appears to be a conscious choice on 
            his part.  He is certainly entitled to make this decision 
            and has good reasons for doing so.  However, employers are 
            responsible for the reduction in earning capacity caused by 
            the injury.  They are not responsible for a reduction in 
            actual earnings because the employee resists returning to 
            work.  Williams v. Firestone Tire and Rubber Co., III Iowa 
            Industrial Commissioner Report 279 (1982).  
                 In most cases, an employee making a claim for 
            industrial disability will benefit by showing some attempt 
            to find work.  Hild v. Natkin & Co., I Iowa Industrial 
            Commissioner Report 144 (Appeal Decision 1981); Beintema v. 
            Sioux City Engineering Co., II Iowa Industrial Commissioner 
            104 (1976);  Cory v. Northwestern States Portland Cement 
            Company, Thirty-third Biennial Report of the Industrial 
            Commissioner 104 (1976). 
                 Claimant asserts that he is permanently and totally 
            disabled due to his subjective symptoms of pain.  This 
            proposition has been rejected by the industrial commissioner 
            numerous times and these precedents would fill a large book.  
            A long time standard of the industrial commissioner is that 
            pain that is not substantiated by clinical findings is not a 
            substitute for impairment.  Waller v. Chamberlain 
            Manufacturing, II Iowa Industrial Commissioner Report 419, 
            425 (1981).  
                 Dr. Mead found that several of claimant's complaints 
            did not correlate with the type of injury he sustained for a 
            one level fusion.  He had absolutely no explanation for 
            claimant's inability to bend.  He further stated that one or 
            more of claimant's lower extremities should be atrophied if 
            claimant has had as much pain as he asserts for as long as 
            he asserts.  But he said there was no atrophy in his lower 
                 An employee's approaching retirement may also be taken 
            into consideration.  Lawyer and Higgs, Iowa Workers' 
            Compensation--Law and Practice, (2d ed.) section 13-5 at 
            page 131.  Claimant has moved home to Louisiana where he has 
            purchased a home on a lake and operates a boat with power 
            equipment with a power lift to get it into and out of the 
            water.  He and his wife also maintain a garden and flower 
                 Claimant's earnings at the time of the injury were $11 
            per hour.  Greimann testified that claimant could earn 
            someplace between $7 and $20 an hour at the present time.  
            Greimann said that claimant could earn $13 an hour in 
            certain machinist jobs.  
                 Thus, even though claimant has a substantial loss of 
            earning capacity, his actual earnings loss is either 
            Page  15
            negligible or none.
                 Wherefore, based upon (1) claimant's age in the early 
            fifties, (2) his lack of a high school education but also 
            considering his transferable skills as a machinist, (3) 
            considering that his permanent impairment ratings range from 
            5 percent by Dr. Makowsky, somewhere between 6 percent and 7 
            or 9 percent by Dr. McGuire, 12 percent by Dr. Mead and 13 
            percent from Dr. Rosenfeld, (4) based upon the fact that 
            claimant is foreclosed from returning to his employment with 
            this employer and that his job market has been reduced from 
            all of the jobs that were available in the very heavy 
            classification and heavy classification and he is now 
            restricted to either the medium or light/medium or the light 
            classification of jobs, (5) based on the fact that there are 
            jobs available in the competitive employment market 
            according to Simms and Greimann, (6) based upon the fact 
            that claimant has not seriously sought employment since this 
            injury and it appears as though claimant has retired, (7) 
            that claimant has elected to receive social security 
            disability benefits, has returned home and appears to be 
            living in retirement, (8) based upon the fact that claimant 
            has not made a diligent search to find employment, (9) based 
            upon all the factors used to determine industrial 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
            of Iowa Industrial Commissioner Decisions 529 (App. Dec. 
            March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, 
            no. 3 State of Iowa Industrial Commissioner Decisions 654, 
            658 (App. Dec. February 28, 1985) and (10) applying agency 
            expertise (Iowa Administrative Procedure Act 17A.14(5) it is 
            determined that claimant has sustained a 45 percent 
            industrial disability to the body as a whole and is entitled 
            to 225 weeks of permanent partial disability benefits.  
                 Although claimant's work history is excellent and his 
            work ethic prior to this injury were commendable this injury 
            did result in an extensive spine surgery which has severely 
            decreased claimant's employability because of the fact he is 
            no longer able to perform manual labor, heavy and very heavy 
            types of work as he has performed for most of his life prior 
            to this injury.
                 Taken into consideration also is that claimant has 
            several severe preexisting back conditions and a heart 
            condition that he was not aware of until the time of this 
            injury.  It is considered that this injury was not the 
            entire cause of claimant's lack of employability, access to 
            the labor market and loss of earnings capacity.  
                                CONCLUSIONS OF LAW
                 Wherefore, based upon the foregoing and following 
            principles of law, these conclusions of law are made:
                 That claimant did sustain the burden of proof by a 
            preponderance of the evidence that these two injuries of 
            December 3, 1990 and December 8, 1990 were the cause of 
            permanent impairment and permanent disability.  Bodish v. 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
            Page  16
                 That claimant has sustained the burden of proof by a 
            preponderance of the evidence that he sustained a 45 percent 
            industrial disability to the body as a whole and is entitled 
            to 225 weeks of workers' compensation benefits.  Iowa Code 
            section 85.34(2)(u).
                 THEREFORE, IT IS ORDERED:
                 That defendants pay to claimant two hundred twenty-five 
            (225) weeks of permanent partial disability benefits at the 
            stipulated rate of three hundred six and 41/100 dollars 
            ($306.41) per week and in the total amount of sixty-eight 
            thousand nine hundred forty-two and 25/100 dollars 
            ($68,942.25) commencing on July 28, 1992, as stipulated to 
            by the parties.
                 That defendants are entitled to a credit for permanent 
            partial disability benefits paid to claimant prior to 
            hearing which at that time totaled fifteen thousand six 
            hundred ninety and 39/100 dollars ($15,690.39) and any 
            additional permanent disability benefits paid to claimant 
            since the time of hearing.
                 That interest will accrue pursuant to Iowa Code section 
                 That all accrued benefits are to be paid in a lump sum.
                 That the costs of this action, including the cost of 
            the attendance of the court reporter at hearing and the 
            transcript of hearing, are charged to defendants pursuant to 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
                 That defendants file claim activity reports as 
            requested by this agency pursuant to rule 343 IAC 3.1.
                 Signed and filed this ____ day of March, 1994.
                                          WALTER R. McMANUS, JR.
                                          DEPUTY INDUSTRIAL COMMISSIONER    
            Copies to:
            Mr. Max Schott
            Attorney at Law
            6959 University Ave.
            Des Moines, IA  50311
            Mr. Stephen W. Spencer
            Attorney at Law
            218 6th Ave, Ste 300
            P.O. Box 9130
            Des Moines, IA  50306
                                                Filed March 31, 1994
                                                Walter R. McManus, Jr.
            JIMMIE L. BAILEY,   
                                             File Nos. 970243 & 991508
                                               A R B I T R A T I O N
                                                 D E C I S I O N
            NATIONAL UNION FIRE,     
                 Insurance Carrier,  
            Claimant, in his early fifties, with a ninth grade 
            education, who was foreclosed from most of his prior 
            employments because he was restricted to light to medium 
            work, with permanent impairment ratings from 5 percent to 13 
            percent, who appeared to be retired after this injury on 
            social security disability, who had a prior excellent work 
            history and work ethic, was awarded a 45 percent industrial 
            Claimant contended that he was permanently and totally 
            disabled based on intractable pain.  His contention was 
            rejected because his pain was not supported by any objective 
            evidence, but on the contrary, many of his complaints did 
            not track with common medical experience and knowledge.
            JOYCE HOSTETTER,    
                                             File Nos. 970497
                 Claimant,                             985188
            PARKVIEW CARE CENTER,    
                                           A R B I T R A T I O N
                                              D E C I S I O N
                 Insurance Carrier,  
                           STATEMENT OF THE CASE
                 This is a proceeding in arbitration brought by 
            claimant, Joyce Hostetter, against her former employer, 
            Parkview Care Center, and its insurance carrier, Employers' 
            Mutual Insurance Companies.  
                 A hearing was held before the undersigned deputy 
            industrial commissioner on August 25, 1994, at Oskaloosa, 
                 The record in the case consists of testimony from the 
            claimant, and Janice Orndoff (defendant employer's 
            administrative secretary); and, joint exhibits 1-6.  
                 For agency file number 985188 (alleged injury date of 
            January 10, 1991), the parties submitted the following 
            issues for resolution:
                 1.  Whether claimant sustained an injury on January 10, 
            1991, which arose out of and in the course of her 
                 2.  Whether the injury caused a permanent disability; 
                 3.  Whether claimant filed her petition within two 
            years of the date of the injury, as governed by Iowa Code 
            section 85.26.  It should be noted that no workers' 
            compensation benefits were paid to claimant for this injury 
                 For agency file number 985189 (alleged injury date of 
            May 10, 1991), in addition to the issues listed above, the 
            parties submitted the following additional issue for 
            Page   2
                 1.  Whether claimant's injury is to a scheduled member, 
            or to the body as a whole.
                 For agency file number 970497 (alleged injury date of 
            February 12, 1991), the parties submitted the following 
            issues for resolution:
                 1.  Whether claimant is entitled to industrial 
            disability benefits.
                                 FINDINGS OF FACT
                 The undersigned deputy, having reviewed all of the 
            evidence received, finds the following facts:
                 Claimant, Joyce Hostetter, was born on July 30, 1937.  
            At the time of the hearing, she was 57 years of age.  She is 
            married to James Hostetter. 
                 Claimant completed the eighth grade in school.  She 
            attended courses at Indian Hills Community College and 
            obtained a certification as a nurse's aid in 1986.  
                 Employment history includes positions as private 
            nursing for two years; as a nanny for 5 years; and, as a 
            certified nurse's aid for 9 years.  
                 Claimant worked for the defendant employer from October 
            of 1990 to June of 1991.  
                 On January 10, 1991, claimant was working for the 
            defendant employer.  She and a coworker (Mindy) were 
            attending to a resident, when Mindy accidentally pushed the 
            bed, which hit claimant's right leg, specifically the right 
            knee.  Claimant reported the incident to Sue Sedore, the 
            supervisor, but did not secure any medical attention.  
            Claimant did not miss any time from work as a result of the 
            accident.  At the hearing, claimant stated that she 
            occasionally takes Motrin for pain in the knee, which "comes 
            and goes."  
                 On February 12, 1991, claimant was taking out the 
            garbage, which was contained in a plastic garbage sack.  She 
            fell on the way to the dumpster, and landed on her back.  
            She filled out an accident report, and was sent to Donald 
            Berg, M.D., an orthopedic specialist.  His notes indicated 
            that a CT scan performed in July 1991 showed evidence of a 
            herniated disc at the L5-S1 level and a bulging disc at the 
            L4-5 level.  After a trial period of epidural injections, 
            claimant underwent laminectomies to repair both discs.  
            These were performed on September 5, 1991.  (Joint Exhibit 
            1, p. 8)  She was released to return to work, with a 50-
            pound lifting restriction, on January 20, 1992.  (Jt. Ex. 1, 
            p. 7)
                 Following the surgeries, claimant had several episodes 
            of falling.  In March, 1992, Dr. Berg's notes provide the 
            following information:
            Page   3
                 I feel because of her symptoms she is having 
                 although she is not having leg symptoms per say 
                 [sic] outside of the giving way.  I feel an MRI 
                 could be done to see if there is an occult problem 
                 here and will schedule this but I do not feel she 
                 will need any surgical procedure in the future.
            (Jt. Ex. 1, p. 7)
                 Chad Abernathey, M.D., reviewed the results of the 
            scan, and found no specific neurologic dysfunctions or 
            neural compressions.  He favored conservative treatment.  
            (Jt. Ex. 5)
                 In July of 1992, Dr. Berg was of the opinion that 
            claimant had a 9 percent impairment to the body as a whole 
            due to the herniated discs and resulting surgeries.  (Jt. 
            Ex. 1,  p. 5)
                 In October of 1992, he indicated to the social security 
            disability determination board that claimant was restricted 
            to lifting only 20 pounds on an occasional basis.  
            Apparently, some of the limitations addressed claimant's 
            arthritic condition in her cervical spine.  (Jt. Ex. 1, p. 
                 In January of 1993, Michael Pogel, M.D., conducted an 
            independent medical evaluation, and offered that claimant 
            had "an impairment of 11% to the whole body, as applied to 
            her back."  (Jt. Ex. 2, p. 5)  He did not relate to the back 
            injury any of the problems claimant was experiencing with 
            her feet.  (Jt. Ex. 2, p. 1)
                 In August of 1994, Dr. Berg provided the following 
                    I reviewed your list of activities which she 
                 would be involved in and I would state most of 
                 these on the cleaning schedule I think she could 
                 do.  The only problems she would have is if she 
                 has to twist and bend to get into these areas to 
                 do the cleaning and doing frequent twisting 
                 motions I think she would have problems with.  
                 Most of these types of activities one would allow 
                 her to do but would have top go on the basis of 
                 how she feels if she continued to do these.  They 
                 certainly are not heavy activities but I am 
                 concerned some about the twisting motion.  As far 
                 as setting the tables, wrapping the silverware and 
                 setting up carts, I think this is possible for 
                 her.  I feel she would have trouble with sweeping 
                 floors and activities which would require a lot of 
                 bending and twisting of her back when she is doing 
                 cleaning such as leaning over chairs or tables.  I 
                 think if she stays under the 10 lb. lifting limit 
                 I think this would be advisable and also avoiding 
                 the frequent bending and twisting activities.
            (Jt. Ex. 1, pp. 1-2).
            Page   4
                 The list of activities referred to by Dr. Berg are 
            included as joint exhibit 1, pages 3-4.
                 In May of 1991, claimant noticed pain in both feet, 
            which manifested itself after she was bumped by the bed in 
            the knee in January of 1991.  Various physicians' notes with 
            respect to treatment of this condition are found at joint 
            exhibit 4.  While the notes are somewhat confusing, and the 
            physicians involved ran numerous tests to address claimant's 
            myriad of complaints (ranging from wrist pain, shoulder and 
            neck pain, ulcers, leg pain and swelling, Lyme disease, 
            etc.), the final diagnosis on the feet seems to be arthritis 
            and/or metatarsal disease.
                 Claimant has had a full array of physical problems, 
            including tumors on one lung (for which she underwent 
            surgery), connective tissue disorder, hip and leg pain, 
            thumb and right arm pain, etc.  (Jt. Ex. 3).  
                          ANALYSIS AND CONCLUSIONS OF LAW
                 With respect to agency file number 985188, the first 
            issue to address is whether claimant sustained an injury 
            which arose out of and in the course of her employment. 
                 The party who would suffer loss if an issue were not 
            established has the burden of proving that issue by a 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
                 The claimant has the burden of proving by a 
            preponderance of the evidence that the alleged injury 
            actually occurred and that it arose out of and in the course 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
            the cause or source of the injury.  The words "in the course 
            of" refer to the time, place and circumstances of the 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
                 The evidence supports a finding that on January 10, 
            1991, claimant was performing her regular job duties at the 
            Parkview Care Center, which included attending to residents 
            and their hospital beds.   A coworker accidentally pushed a 
            bed into claimant's shin.  Claimant reported the incident to 
            the appropriate people.  Apparently, the pain was not severe 
            enough to warrant medical treatment, but nonetheless, 
            claimant did sustain an injury which arose out of and in the 
            course of her employment. 
                 The next issue to address is whether claimant filed her 
            petition within the two-year statute of limitations, found 
            at Iowa Code section 85.26.  
                 An original proceeding for benefits must be commenced 
            within two years from the date of the occurrence of the 
            injury for which benefits are claimed or within three years 
            from the date of the last payment of weekly compensation 
            benefits if weekly compensation benefits have been paid 
            under Iowa Code section 86.13.  Section 85.26(1).  A 
            Page   5
            proceeding in review-reopening must be commenced within 
            three years from the date of the last payment of weekly 
            benefits under either an award for payments or an agreement 
            for settlement.  Section 85.26(2).  The "discovery rule" may 
            extend the time for filing a claim where weekly benefits 
            have not yet been paid.  The rule does not extend the time 
            for filing a claim where benefits have been paid.  Orr v. 
            Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980).  Under 
            the rule, the time during which a proceeding may be 
            commenced does not begin to run until the claimant, as a 
            reasonable person, should recognize the nature, seriousness 
            and probable compensable character of the condition.  The 
            reasonableness of claimant's conduct is to be judged in 
            light of the claimant's education and intelligence.  
            Claimant must know enough about the condition to realize 
            that it is both serious and work connected.  Orr, 298 N.W.2d 
            at 261; Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 
                 Failure to timely commence an action under the 
            limitations statute is an affirmative defense which 
            defendants must prove by a preponderance of the evidence.  
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
                 Claimant was injured on January 10, 1991.  She filed 
            her petition on April 8, 1993, which is more than two years 
            after the injury.  As a result, her petition is dismissed.
                 With respect to file number 970497, the only issue to 
            address 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; 
            Page   6
            age; education; motivation; functional impairment as a 
            result of the injury; and inability because of the injury to 
            engage in employment for which the employee is fitted.  Loss 
            of earnings caused by a job transfer for reasons related to 
            the injury is also relevant.  These are matters which the 
            finder of fact considers collectively in arriving at the 
            determination of the degree of industrial disability.
                 There are no weighting guidelines that indicate how 
            each of the factors are to be considered.  There are no 
            guidelines which give, for example, age a weighted value of 
            ten percent of the total value, education a value of fifteen 
            percent of total, motivation - five percent; work experience 
            - thirty percent, etc.  Neither does a rating of functional 
            impairment directly correlate to a degree of industrial 
            disability to the body as a whole.  In other words, there 
            are no formulae which can be applied and then added up to 
            determine the degree of industrial disability.  It therefore 
            becomes necessary for the deputy or commissioner to draw 
            upon prior experience, general and specialized knowledge to 
            make the finding with regard to degree of industrial dis
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
            (Appeal Decision, March 26, l985).
                 Claimant is 57 years of age.  She has an eighth grade 
            education.  Retraining for any type of position would be 
            highly unlikely. 
                 Her overall physical condition is very poor; some of 
            her ailments are directly related to the work injury of 
            February of 1991, and some were preexisting.   Her recovery 
            from the back surgery seemed to progress well, with no major 
            complications or setbacks noted in the record.  
                 Most of claimant's work experience, which apparently 
            spans approximately 15 years, has been in the nursing area, 
            either as a private nurse or certified nurse's aid.  
                 Currently, claimant has lifting restrictions including 
            no lifting of more than 20 pounds on an occasional basis.  
            Obviously, nurse's aid work is more demanding, and requires 
            lifting, pushing or pulling of more than 20 pounds on a 
            regular basis.  
                 The employer has not reinstated claimant, although 
            claimant appears very reluctant to return to work.  
                 After considering all of the factors enumerated above, 
            it is determined that claimant has sustained a 35 percent 
            industrial disability. 
                 Agency file number 985189, the petition is dismissed.  
            There is no evidence that claimant's foot problems are 
            associated with any work injuries.  
                 THEREFORE, it is ordered:
            Page   7
                 That claimant take nothing for file numbers 985188 and 
                 That defendants shall pay claimant one hundred seventy-
            five (175) weeks of permanent partial disability benefits at 
            the rate of one hundred fifty and 38/100 dollars ($150.38) 
            per week commencing July 5, 1992.
                 That defendants shall pay accrued benefits in a lump 
            sum, and shall receive credit for benefits previously paid.
                 That defendants shall pay interest on the award, as 
            governed by Iowa Code section 85.30.
                 That defendants shall pay the costs of this action.
                 That defendants shall file a claims activity report as 
            required by the agency.
                 Signed and filed this ____ day of October, 1994.
                                          PATRICIA J. LANTZ
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Page   8
            Copies To:
            Mr H Edwin Detlie
            Attorney at Law
            114 N Market 
            Ottumwa IA 51501
            Mr Steven E Ort
            Attorney at Law
            121 W Main St
            New London IA 52645
                                               Filed October 26, 1994
                                               Patricia J. Lantz
            JOYCE HOSTETTER,    
                                              File Nos. 970497
                 Claimant,                              985188
            PARKVIEW CARE CENTER,    
                                            A R B I T R A T I O N
                                               D E C I S I O N
                 Insurance Carrier,  
            Claimant awarded 35% industrial disability.