Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY BAKER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 974019
 
            SILGAN CONTAINERS CORPORATION,:
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Shirley 
 
            Baker, claimant, against Silgan Containers Corporation, 
 
            employer, and CNA Insurance Company, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an alleged injury sustained 
 
            on July 5, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on March 18, 
 
            1992, in Burlington, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The record consists 
 
            of testimony from claimant, Mark Coppler, Jim Nichols, Ron 
 
            Hill, and Anthony Hanson; claimant's exhibits 1 through 2 
 
            and 5 through 14; and defendants' exhibits A through G.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            18, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 .  Whether claimant sustained an injury on July 5, 
 
            1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 .  Whether the alleged injury was the cause of 
 
            temporary and permanent disability;
 
            
 
                 .  The extent of entitlement to permanent disability, 
 
            and; 
 
            
 
                 .  Whether claimant's gross weekly earnings should 
 
            include a regularly paid quarterly bonus.
 
            
 
                 Claimant's claim for penalty benefits under Iowa Code 
 
            section 86.13 has been bifurcated.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 21, 1942, and completed the 
 
            twelfth grade of school.  Prior to working for employer, 
 
            claimant worked as a machine operator, line worker and 
 
            school bus driver.  She commenced working for employer on 
 
            September 12, 1978.  Her job duties have been as an 
 
            inspector/packer utility person, machine operator and 
 
            shipper/warehouser.  She was promoted from utility person to 
 
            machine operator in December 1983 and worked in that 
 
            capacity until April 2, 1990.  As a machine operator, she 
 
            assembled boxes and put them on conveyor belts.  She 
 
            testified that she assembled three layers of boxes which 
 
            were filled with cans.  After putting a lid on top of the 
 
            layered boxes, she pushed them into the aisle for the 
 
            forklift driver to pick up.  There were four boxes of cans 
 
            to one layer.  Claimant testified that a full box weighed 
 
            between 32 and 35 pounds.  This was refuted by Ron Hill who 
 
            testified that a full box weighed 28 pounds.  In any event, 
 
            this work required repetitive bending, pushing, pulling, and 
 
            lifting.  On April 2, 1990, claimant bid for the shipper/ 
 
            warehouser job.  This job required operating a forklift six 
 
            out of eight hours a day and other duties as required.  
 
            Claimant was taken off work on July 5, 1990, due to back 
 
            pain.  She had surgery on January 3, 1991, and was released 
 
            to return to work on May 15, 1991, with physical 
 
            restrictions.  Employer has not been able to accommodate 
 
            claimant's permanent restrictions and has not returned her 
 
            to work.  Claimant admitted that she has not looked for 
 
            other work since being released for work.  There is no 
 
            communication between claimant and employer regarding her 
 
            employment status.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen by Richard Berge, M.D., at the Steindler 
 
            Orthopedic Clinic on July 5, 1990, for evaluation of lower 
 
            back and right leg pain.  After conducting a comprehensive 
 
            physical examination and reviewing the results of 
 
            lumbosacral spine x-rays, Dr. Berge concluded that claimant 
 
            had a radiculopathy of the right L5-S1 or L4-L5 dermatome.  
 
            He prescribed Ibuprofen and exercise therapy.  Claimant 
 
            returned to Dr. Berge on July 26, 1990.  At the request of 
 
            the company doctor, an MRI scan was performed on July 11, 
 
            1990, and a lumbar CT scan was taken on July 19, 1990.  
 
            There was no evidence of disc protrusion or extrusion on CT 
 
            scan.  Mild degenerative and hypertrophic changes involving 
 
            the facet joints were noted.  Her physical examination on 
 
            July 26, 1990, revealed pain down the right hip, right thigh 
 
            and posterior calf.  Physical therapy was reinstituted after 
 
            having been denied by the company doctor.  
 
            
 
                 When seen by Dr. Berge on August 27, 1990, claimant's 
 
            condition had not improved.  An epidural steroid injection 
 
            at L3-4 was administered on August 29, 1990, at Mercy 
 
            Hospital in Iowa City, Iowa.  This was performed by R. F. 
 
            Beckman, M.D.  The injection worked for a few days, but she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            experienced a recurrence of her pain shortly thereafter.  
 
            Dr. Beckman performed a repeat epidural injection on 
 
            September 26, 1990.  Claimant reported to Dr. Berge on 
 
            October 11, 1990, that this injection gave her no relief 
 
            whatsoever.
 
            
 
                 On November 9, 1990, claimant was admitted to Mercy 
 
            Hospital.  On November 10, 1990, she underwent a lumbar 
 
            myelography and follow-up CT scan.  Test results revealed 
 
            stenosis at the L4-5 level, the right side somewhat worse 
 
            than the left.  The CT scan looked even worse than the 
 
            myelographic picture.  On November 20, 1990, Dr. Berge 
 
            scheduled claimant for surgery with Edward Lash, M.D.  
 
            
 
                 Dr. Lash admitted claimant to Mercy Hospital on January 
 
            3, 1991, where she underwent L3 and L4 laminectomies and 
 
            lateral decompressions.  She was discharged on January 12, 
 
            1991.  
 
            
 
                 On May 15, 1991, Dr. Lash reported that claimant had 
 
            reached maximum medical improvement.  He gave her a 20 
 
            percent impairment rating and restricted her to light duty 
 
            with no lifting in excess of 20 pounds and no vigorous 
 
            activities such as jumping or working from heights.  Dr. 
 
            Lash reported that the 20-pound lifting restriction was 
 
            permanent.  However, in a letter addressed "To Whom It May 
 
            Concern" dated May 15, 1991, Dr. Lash reported that claimant 
 
            was released for light duty on May 16, 1991.  Restrictions 
 
            against climbing ladders, repetitive bending, stooping or 
 
            lifting over 25 pounds were imposed (defendants' exhibit D).
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 5, 1990, 
 
            which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); 
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The Iowa Supreme Court has defined a personal injury 
 
            for the purposes of workers' compensation cases.  Almquist 
 
            v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In 
 
            this case the court found that a personal injury, is an 
 
            injury to the body, the impairment of health, or a disease, 
 
            not excluded by the Workers' Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workers' Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The supreme court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The record indicates that claimant was relatively 
 
            asymptomatic prior to July 5, 1990.  A preemployment 
 
            physical on September 12, 1978, revealed no abnormalities of 
 
            the lumbar spine.  For 13 years with employer she performed 
 
            strenuous manual labor requiring repetitive bending, 
 
            stooping, climbing, lifting, and carrying.  She lost no time 
 
            from work due to back problems, nor was she ever placed on 
 
            light duty because of a back condition.  On or about July 5, 
 
            1990, claimant began to experience severe and intractable 
 
            lower back and right leg pain.  Dr. Berge took her off work 
 
            in order to more effectively treat her symptoms.  It is 
 
            evident that claimant suffered from a gradual injury that 
 
            developed over the course of time during the performance of 
 
            heavy work activity with employer.  Claimant's injury arose 
 
            out of and in the course of her employment with employer.  
 
            Arising out of implies some causal connection between the 
 
            employment and the injury.  Volk v. International Harvester 
 
            Co., 252 Iowa 298, 106 N.W.2d 649 (1960).  In the course of 
 
            relates to the time, place and employment circumstances 
 
            surrounding the injury.  Sister M. Benedict v. St. Mary's 
 
            Corp., 124 N.W.2d 548 (1963).  Claimant has met her burden 
 
            of proof in this regard.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of July 5, 1990, is causally related to the disability on 
 
            which she now bases her claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Iowa Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The record clearly indicates that claimant has a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            permanent back condition and permanent restrictions as a 
 
            result of that condition.  Dr. Lash testified in a 
 
            deposition on September 16, 1991, that claimant's long 
 
            history of heavy labor contributed to her present condition.  
 
            He stated that there is a definite association between 
 
            degenerative type back conditions and heavy labor.  He also 
 
            clarified that claimant has a permanent lifting restriction 
 
            of 20 pounds.  He gave her a permanent functional impairment 
 
            rating of 20 percent based on limited spine extension and 
 
            forward flexion as well as loss of motion (exhibit 13).
 
            
 
                 James Cannenberg, M.D., employer's company physician, 
 
            testified in a deposition dated January 28, 1992.  He stated 
 
            that he had no doubt that claimant was injured at work.  
 
            After reviewing claimant's prior medical records, he agreed 
 
            that she had a healthy back condition until 1983.  At that 
 
            time, she started working as a machine operator.  He noted 
 
            that the heavy work she performed with employer contributed 
 
            to her spinal stenosis.  He testified that, although there 
 
            are a variety of causes for spinal stenosis, all except 
 
            heavy work over a long period of time can be ruled out in 
 
            claimant's case (exhibit 12).
 
            
 
                 Claimant has met her burden of proof in demonstrating 
 
            that she has suffered a permanent impairment which is 
 
            causally related to her employment with employer.  
 
            
 
                 The next question to be resolved is the extent of 
 
            claimant's industrial disability.  Industrial disability was 
 
            defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 
 
            899, 902 (Iowa 1935) as loss of earning capacity and not a 
 
            mere `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal person.  The essence of an earning capacity inquiry 
 
            then, is not how much has the claimant been functionally 
 
            impaired, but whether that impairment, in combination with 
 
            the claimant's age, education, work experience, pre and post 
 
            injury wages, motivation and ability to get a job within her 
 
            restrictions, if any restrictions have been imposed, have 
 
            caused a loss of earning capacity.  Olson v. Goodyear 
 
            Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich, 
 
            258 N.W.2d at 902;  Peterson v. Truck Haven Cafe, Inc., 1 
 
            Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); 
 
            Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. 
 
            No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christensen, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Claimant was born on March 21, 1942, and was 48 years 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            old at the time of her injury.  The fact that claimant was 
 
            disabled in the peak earning years of her employment career 
 
            makes her disability worse than it would be for a younger or 
 
            older employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (App. 
 
            Decn. 1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981); McCoy v. Donaldson Co., File 
 
            Nos. 782670 and 805200 (App. Decn. 1989).
 
            
 
                 Claimant's work history has consisted primarily of 
 
            factory/laborer type jobs.  Claimant has made no attempt to 
 
            participate in vocational rehabilitation or additional skill 
 
            training through educational pursuits.  Claimant is a high 
 
            school graduate and appeared very articulate at the hearing.  
 
            She demonstrated little motivation to return to work other 
 
            then with employer and has made no attempt whatsoever to 
 
            seek employment.  These facts tend to lower her industrial 
 
            disability.  
 
            
 
                 Claimant's functional impairment rating is 20 percent.  
 
            She has significant permanent restrictions which would 
 
            preclude her from performing her past work as a machine 
 
            operator and as a forklift operator.  Employer contends that 
 
            permanent light-duty jobs do not exist at the plant.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            50 percent industrial disability.  It is evident that 
 
            claimant has suffered a loss of earnings as well as a loss 
 
            of earning capacity as a result of surgery and permanent 
 
            restrictions.  At the time of her injury, claimant was 
 
            earning $10 an hour.
 
            
 
                 The final issue to be determined in this case is the 
 
            proper rate of compensation.
 
            
 
                 Compensation rates are based on an employee's earnings 
 
            and the maximum number of exemptions to which the employee 
 
            is entitled.  Iowa Code section 85.36 sets out alternate 
 
            methods of determining earnings for the purpose of computing 
 
            compensation rates, dependent upon the method of payment of 
 
            wages and, in some cases, upon the classification of the 
 
            employee.
 
            
 
                 If the employee worked full-time at the time of the 
 
            injury, earning the same amount each pay period, the method 
 
            of computation depends on the length of time between pay 
 
            periods.  Iowa Code sections 85.36(1) through (5) provide 
 
            the following:
 
            
 
                 Weekly pay period -- gross weekly earnings equal the
 
                    weekly gross amount.
 
                 Biweekly pay period -- gross weekly earnings equal the
 
                    biweekly gross amount divided by 2.
 
                 Semimonthly pay period -- gross weekly earnings equal
 
                    the semimonthly gross amount multiplied by 24 and
 
                    divided by 52.
 
                 Monthly pay period -- gross weekly earnings equal the
 
                    monthly gross amount multiplied by 12 and divided by
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    52.
 
                 Yearly pay period -- gross weekly earnings equal the
 
                    yearly gross amount divided by 52.
 
            If the employee worked full-time at the time of the injury, 
 
            earning different amounts based on the employee's output 
 
            each pay period, Iowa Code sections 85.36(6) and (7) provide 
 
            that the gross weekly earnings equal the total earnings 
 
            (from the employer for whom the employee was working at the 
 
            time of the injury) during the 13 weeks prior to the injury, 
 
            divided by 13.  The total earnings should exclude premium 
 
            pay, but include overtime hours at the straight time hourly 
 
            rate.  If the employee has not worked for the employer for a 
 
            13-week period prior to the injury, the gross weekly 
 
            earnings are to be computed by determining the total amount 
 
            the employee would have earned had he been employed (and 
 
            worked when work was available to similar employees) and 
 
            dividing that amount by 13.
 
            The record in this case clearly indicates that claimant 
 
            received the same gross wages each pay period.  She worked a 
 
            total of 84 hours each pay period at the hourly rate of 
 
            $10.8570 or $911.99 per pay period.  Claimant's gross weekly 
 
            wages equal $455.99 rounded out to $456.00 per week ($911.99 
 
            divided by 2).
 
            In addition to receiving the same gross wages each pay 
 
            period, claimant received a regular quarterly bonus.  
 
            Although the amount of the bonus varied every three months, 
 
            it was paid regularly.  On June 20, 1990, claimant received 
 
            a bonus of $483.61.
 
            A bonus which is paid regularly, even though in varying 
 
            amounts, is properly included in the determination of rate 
 
            under Iowa Code section 85.61(12).  Marcks v. Richman 
 
            Gordman, File No. 679369 (App. Decn., June 29, 1988).  
 
            Claimant is entitled to the bonus even though it was 
 
            established unilaterally by the employer.  Hendrickson v. 
 
            Keller Industries, File No. 931142 (Arb. Decn., December 21, 
 
            1990).
 
            A bonus which is an integral part of the defendants' overall 
 
            compensation system paid to all employees, which is 
 
            available to be paid quarterly, is a regular bonus to be 
 
            included in the calculation of rate.  Lewis v. Dee Zee Mfg., 
 
            File No. 797154 (Arb. Decn., September 11, 1989).  
 
            Claimant's testimony established that the bonus was a 
 
            regular bonus and not an irregular bonus.  The bonus was 
 
            available to all employees who qualified and it was paid 
 
            every three months.  The bonus provisions were in effect for 
 
            each and every pay period.  Claimant's testimony was not 
 
            controverted, contradicted, rebutted or refuted.
 
            Thus, including the bonus in the rate calculation, 
 
            claimant's gross weekly wage would be $493.00 per week 
 
            ($483.61 divided by 13 equals $37.20 plus $456.00 equals 
 
            $493.00).
 
            Including the bonus in the rate calculation, claimant's 
 
            gross weekly wage would be $493.00 per week and her rate 
 
            would be $309.87 based upon a married person with three 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            exemptions.  Guide to Iowa Workers' Compensation Claim 
 
            Handling, July 1, 1990.
 
            Wherefore, it is determined that claimant is entitled to a 
 
            rate of $309.87 per week.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-four point eight 
 
            five seven (44.857) weeks of healing period benefits at the 
 
            rate of three hundred nine and 87/100 dollars ($309.87) per 
 
            week from July 6, 1990 through May 15, 1991, when Dr. Lash 
 
            indicated that she had reached maximum medical improvement.
 
            
 
                 That defendants pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred nine and 87/100 dollars ($309.87) per week 
 
            commencing May 16, 1991.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a nonoccupational 
 
            group plan.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency.
 
            
 
                 That this file is returned to docket for scheduling for 
 
            prehearing and hearing on the bifurcated issue of penalty 
 
            benefits under Iowa Code section 86.13.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Robert N Johnson, III
 
            Attorney at Law
 
            627 Avenue G
 
            P.O. Box 388
 
            Fort Madison, Iowa  52627-0388
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                               5-1100; 5-1802; 5-1803
 
                                               3001
 
                                               Filed March 31, 1992
 
                                               JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY BAKER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 974019
 
            SILGAN CONTAINERS CORPORATION,:
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Defendants dispute that claimant sustained an injury to her 
 
            back arising out of and in the course of employment with 
 
            employer.  The evidence clearly demonstrates that claimant 
 
            was asymptomatic prior to July 5, 1990.  She had a long 
 
            history of heavy work activity with employer and expert 
 
            medical evidence established that her back condition was a 
 
            result of heavy lifting over a long period of time.
 
            
 
            5-1802
 
            Claimant found entitled to healing period benefits from the 
 
            time she was taken off work to the time she reached maximum 
 
            medical improvement.  
 
            
 
            5-1803
 
            Claimant awarded 50 percent industrial disability based on 
 
            her age (48 years old); education (high school graduate); 
 
            inability to return to her prior work as a laborer; 
 
            employer's refusal to accommodate her work restrictions; 
 
            permanent restrictions of no repetitive bending, stooping, 
 
            climbing, or lifting more than 20 pounds; and her lack of 
 
            motivation in pursuing other employment.
 
            
 
            3001
 
            
 
                 Claimant received a regular quarterly bonus in addition 
 
            to her weekly wages.  Defendants argue that the bonus should 
 
            not be included in claimant's gross weekly earnings.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant prevails on this issue.  A bonus which is paid 
 
            regularly, even though in varying amounts, is properly 
 
            included in the determination of rate under Iowa Code 
 
            section 85.61(12).  Marcks v. Richmond Gordman, File No. 
 
            679369 (App. Decn., June 29, 1988).  Claimant is entitled to 
 
            the bonus even though it was established unilaterally by the 
 
            employer.  Hendrickson v. Keller Industries, File No. 931142 
 
            (Arb. Decn., December 21, 1990).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH SUCHAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974030
 
            PENFORD PRODUCTS/PENWEST,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Joseph 
 
            A. Suchan, claimant, against his employer, Penford 
 
            Products/Penwest, and The Hartford, insurance carrier, as 
 
            defendants.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant; and, joint exhibits A through L.  The case was 
 
            heard on June 23, 1992, at Cedar Rapids, Iowa.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            28, 1989, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits, or permanent partial 
 
            disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            provided under Iowa Code section 85.27; and,
 
            
 
                 5.  Whether defendants are entitled to credit for 
 
            benefits previously paid under Iowa Code section 85.38(2).
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Claimant, Joseph Suchan, was 51 years old at the time 
 
            of the hearing.  He received a high school diploma, and has 
 
            taken several courses at the Kirkwood Community College.  He 
 
            has received certificates for various maintenance trades, 
 
            including sheet metal work, welding, electronics repair and 
 
            carpentry.
 
            
 
                 In the early 1960's, claimant worked at the Weyerhauser 
 
            Company, in Wisconsin, and after one year began working for 
 
            Farmstead Foods in Cedar Rapids, Iowa.  During 26 1/2 years 
 
            with the company, claimant worked in the production area for 
 
            eight years, sheet metal for 14 years and the electrical 
 
            department for five years.  Prior to the plant closure, 
 
            claimant secured employment with the defendant, Penford 
 
            Products/Penwest, where he was hired as a maintenance man in 
 
            1987.  Initially hired on the second shift, claimant 
 
            currently works the day shift.  Claimant's position as a 
 
            maintenance person requires him to repair and adjust various 
 
            machines located throughout the plant.  The plant, which 
 
            manufactures cornstarch, contains various chemical.  
 
            Potential exposure to these chemicals requires various 
 
            personnel to use protective devices such as special suits, 
 
            respirators, air packs, goggles, gloves and boots.  At 
 
            various times, the plant has experienced chemical leaks.
 
            
 
                 On February 28, 1989, claimant was performing his 
 
            duties during his regularly scheduled night shift.  He 
 
            became aware that an exhaust fan on a grinding machine was 
 
            not working correctly.  Claimant was to check the circuits 
 
            and switches to the fan, and proceeded to take a man lift up 
 
            four floors of the plant to the roof to check the electrical 
 
            circuits and switches leading to the fan.
 
            
 
                 As claimant was working on the switch to the exhaust 
 
            fan, he noticed sulfur dioxide (SO2) emitting from a vent 
 
            pipe located a short distance behind him.  The SO2 came out 
 
            of the pipe, but vaporized when it hit the air temperature.  
 
            It becomes heavier than air and stays close to the ground 
 
            while creating a cloud.  SO2 is hazardous to breathe and has 
 
            a very pungent odor.  Safety instructions require that 
 
            workers wear masks when working around the gas.
 
            
 
                 The SO2 immediately started to cover the roof area, and 
 
            claimant experienced breathing difficulties.  He was located 
 
            on the southeast end and knew there was an escape ladder on 
 
            the north side of the roof.  As claimant tried to move over 
 
            to the north side of the roof, he continued to experience 
 
            breathing problems.  He tried to contact his supervisor on a 
 
            two way portable radio, and finally had to lean over the 
 
            roof in order to gain access to fresh air.  Eventually, 
 
            claimant's supervisor and several co-workers came up to the 
 
            roof and all of them were able to locate the escape ladder 
 
            on the north end of the building.  Claimant estimated that 
 
            he was exposed to the SO2 vapors for five to ten minutes.
 
            
 
                 Once on the ground, claimant was helped to the break 
 
            room and was taken by cab to the trauma center at Mercy 
 
            Hospital in Cedar Rapids, Iowa.  Claimant testified he was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            at the hospital for several hours (although Joint Exhibit K 
 
            indicates he was at the hospital for approximately one 
 
            hour), received medications and oxygen.  Emergency room 
 
            personnel assessed his condition as "sodium dioxide 
 
            inhalation exposure with reactive airway component, 
 
            responding to inhalation therapy." (Jt. Ex. K, p. 1).  He 
 
            was released to return to work on March 1, although claimant 
 
            had previously requested three days of vacation and had been 
 
            scheduled for four days off prior to the accident.  During 
 
            the week he was off of work, claimant stated that he had a 
 
            "raspy" throat and continued to cough up phlegm.
 
            
 
                 After one week, claimant returned to work in his same 
 
            capacity.
 
            
 
                 During the next several months, claimant continued to 
 
            have shortness of breath, coughing spells, a tightness in 
 
            his chest, and experienced increased symptoms when subjected 
 
            to small amounts of SO2.  The company refused to provide 
 
            appropriate medical treatment, and claimant visited his 
 
            family physician, Donald W. Hilliard, M.D., in July of 1989.  
 
            From July through October, claimant was treated by Dr. 
 
            Hilliard who was of the opinion that claimant's problems 
 
            were caused by asthma and allergies aggravated by contact 
 
            with SO2.  Claimant was placed on an extensive program of 
 
            steroid therapy and various inhalers.  In November 1989, 
 
            claimant suffered another toxic exposure, this time to 
 
            hydrochloric acid (HCL).  He was exposed to the fumes for 
 
            approximately 10-15 minutes, and was taken to the emergency 
 
            room at the Mercy Hospital.  He did not experience great 
 
            improvement, and was referred to Richard Zeaske, M.D., for 
 
            treatment of an unusual intermittent coughing and wheezing 
 
            (Jt. Ex. C, pp. 1-5).
 
            
 
                 Although some of the doctors indicated that claimant 
 
            had preexisting rspiratory problems, claimant denies the 
 
            same.  Nothing in claimant's past medical records indicates 
 
            he sought or received treatment for respiratory problems 
 
            prior to the exposure to SO2 (Jt. Ex. A).  Dr. Zeaske 
 
            performed an allergy workup, the results of which revealed 
 
            that claimant was allergic to grasses, ragweed, house dust, 
 
            grain mill dust and cat dander (Jt. Ex. E).  Claimant was 
 
            unaware of these allergies, although admitted that when he 
 
            was 14 or 15 years old, he would sometimes cough after 
 
            helping to clean out a grain bin.
 
            
 
                 Dr. Zeaske's diagnosis was that of asthma and acute 
 
            bronchitis, and treated claimant with antibiotics, steroids 
 
            and various inhalers.  In July of 1990, claimant was 
 
            referred to Darrell Dennis, M.D., a specialist in pulmonary 
 
            medicine.  After several appointments, Dr. Dennis agreed 
 
            with Dr. Hilliard's diagnosis of obstructive airway disease 
 
            (extrinsic asthma) and offered that his pulmonary symptoms 
 
            were exacerbated by nonspecific irritants as well as 
 
            chemical exposures in the work place including sulfur 
 
            dioxide and hydrogen chloride.  While admitting that sulfur 
 
            dioxide was well-recognized as a factor which can exacerbate 
 
            obstructive airway disease, Dr. Dennis was unable to state 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that work exposures were a major contributing factor to 
 
            claimant's persistent pulmonary symptomatology.  It should 
 
            be noted that in the history given to Dr. Dennis, claimant 
 
            denied past symptoms of emphysema; bronchitis; asthma; 
 
            bronchiectasis; thromboembolic pulmonary disease; 
 
            occupational lung disease; pleural disease; pneumothoraces; 
 
            tuberculoses; or unusual pulmonary infections.  Results of 
 
            x-rays taken by Dr. Dennis were unremarkable (Jt. Ex. D, pp. 
 
            1-5).
 
            
 
                 In April of 1990, claimant saw Joseph Quetsch, M.D., 
 
            and William Dull, M.D.  Dr. Quetsch stated that while 
 
            claimant's history of allergies was a possible contributing 
 
            factor to his respiratory problems, he felt claimant's 
 
            exposure to the SO2 was the "proximate cause" of claimant's 
 
            health problems.  Dr. Quetsch recommended that claimant 
 
            minimize his ongoing exposure to SO2, and be followed 
 
            annually by a pulmonologist (Jt. Ex. F, pp. 1-2).  Dr. Dull 
 
            comes to a somewhat different conclusion, and states that 
 
            claimant has a prior history of asthma, although he has no 
 
            pulmonary function tests to substantiate his conclusion.  He 
 
            believes that the exposure to the SO2 and the HCL 
 
            exacerbated a preexisting condition.  He recommended that 
 
            claimant avoid future exposure, or consider another 
 
            occupation (Jt. Ex. G, pp. 1-3).  In December 1990, claimant 
 
            sought treatment from the University of Iowa Hospitals and 
 
            Clinics.  Pope Moseley, M.D. provided treatment from 
 
            December 1990 through March 1992.  Claimant's symptoms, 
 
            persistent cough, shortness of breath and chest tightness 
 
            and his treatment, steroid inhalers, bronchodilator 
 
            inhalers, Prednisone and various other medications remained 
 
            essentially the same.  Claimant's therapy has included 
 
            treatment of intense dosages of Prednisone for an extended 
 
            period of time, followed by several weeks of lesser dosages.  
 
            The records corroborate claimant's testimony that when he 
 
            begins a "taper" of the drug, his symptoms usually increase.  
 
            A report from Dr. Moseley, dated March 10, 992, confirmed 
 
            his final diagnosis of reactive airways disease which was 
 
            either caused by or exacerbated by claimant's exposure to 
 
            the SO2.  He went on to state that because claimant had 
 
            required medication to prevent coughing and wheezing over 
 
            the past three years, it would be likely that claimant would 
 
            continue to require medications for an indeterminate period 
 
            of time.  Furthermore, Dr. Moseley stated that nonspecific 
 
            irritants could induce episodes of wheezing and coughing, 
 
            and suggested that claimant remain in a relatively dust and 
 
            fume-free environment, or be provided with appropriate 
 
            respiratory protection if exposed to dust and fumes (Jt. Ex. 
 
            I, pp. 15-16).  A subsequent report dated May 19, 1992, 
 
            confirmed Dr. Moseley's diagnosis of reactive airway 
 
            dysfunction syndrome, secondary to sulfur dioxide exposure 
 
            (Jt. Ex. L, pp. 1-2).
 
            
 
              
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                        ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 28, 1989, which arose out of 
 
            and in the course of his  employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 On February 28, 1989, claimant was working as a 
 
            maintenance person during the night shift for the defendant 
 
            employer.  His job duties included, but were not limited to, 
 
            investigating and repairing various electrical systems and 
 
            appliances throughout the manufacturing plant.  As claimant 
 
            was attempting to repair a broken exhaust fan located on the 
 
            plant premises, clearly, claimant was at an appropriate time 
 
            and place to fulfill his job duties and he was performing 
 
            these duties in a manner suited to perform his assigned job 
 
            duties. Therefore, claimant's injury was in the course of 
 
            his employment.  Furthermore, claimant's injury is found to 
 
            have arisen out of his employment, as claimant's exposure to 
 
            the sulfur dioxide was a direct result of his job duties.
 
            
 
                 The next issue to be addressed is whether a causal 
 
            relationship exists between claimant's injuries and his 
 
            disability and the nature and extent of entitlement to 
 
            benefits, if any.
 
            
 
                 Claimant urges that his continued respiratory problems 
 
            are due to the exposure to SO2 on February 28, 1989.  In 
 
            accordance with Langford v. Kellar Excavating & Grading, 
 
            Inc., 191 N.W.2d 667 (Iowa 1971), since the exposure to the 
 
            SO2 is the substantial factor in sensitizing claimant to 
 
            further aggravation of his obstructive airways disease, 
 
            defendants are liable for causing permanent disability to 
 
            claimant entitling him to industrial disability benefits.  
 
            Defendants contend that claimant suffered an aggravation of 
 
            a preexisting condition that did not cause a permanent 
 
            injury to claimant's lungs.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            28, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employee's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment caused 
 
            by the aggravation.  Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
            704, 707 (1965).
 
            
 
                 In the instant case, some of the doctors submit that 
 
            claimant's current respiratory problems were preexisting, 
 
            and aggravated by his exposure to SO2 while on the job.  
 
            Mostly, they diagnose his physical ailment as asthma, and 
 
            some place emphasis on allergic reactions.  Dr. Moseley felt 
 
            that the exposure to SO2 caused claimant's respiratory 
 
            problems.  The difficulty in assessing the amount of 
 
            disability sustained by claimant due to the exposure to the 
 
            sulfur dioxide lies with the absence of any physician 
 
            involved in the case to adequately assess claimant's 
 
            permanent condition.  Claimant continues to receive 
 
            treatment for his respiratory problems.  Small amounts of 
 
            toxic gases caused exacerbations, yet the record id devoid 
 
            of any evidence that claimant is temporarily or permanently 
 
            disabled by the after effects of the exposures.  Claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            has missed a total of nine days due to various medical 
 
            appointments, not because of any impairment or disability.  
 
            And, it appears that when claimant is not directly exposed 
 
            to any chemical irritants, or when he is taking his 
 
            medications, claimant's respiratory problems have been 
 
            relieved.
 
            
 
                 The only evidence which may suggest that claimant has a 
 
            permanent condition is a report from Dr. Moseley, claimant's 
 
            treating physician for the past several years, which states 
 
            that claimant may need medication for an "indeterminate" 
 
            period of time.
 
            
 
                 Therefore, it is concluded that claimant's injury has 
 
            caused periodic medical treatment for an indeterminate 
 
            period of time.  However, claimant has failed to prove by a 
 
            preponderance of the evidence that he ha sustained a 
 
            permanent disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                 Defendants are required to continue to pay for medical 
 
            treatment necessary to treat respiratory problems.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall provide appropriate medical 
 
            treatment as provided for under Iowa Code section 85.27.
 
            
 
                 That defendants shall pay the costs of this 
 
            proceedings.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  Ste 114
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Cedar Rapids IA 52404
 
            
 
            Mr Greg Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                                  5-1100
 
                                                  Filed July 28, 1992
 
                                                  Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH SUCHAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974030
 
            PENFORD PRODUCTS/PENWEST,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained a permanent disability related to exposure 
 
            to toxic gas at a corn processing plant.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH SUCHAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974030
 
            PENFORD PRODUCTS/PENWEST,     :
 
                                          :
 
                 Employer,                :     R E H E A R I N G
 
                                          :
 
            and                           :      D E C I S I O N
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 An arbitration decision proposed by the undersigned 
 
            deputy industrial commissioner was filed on July 28, 1992.
 
            
 
                 On August 3, 1992, claimant filed a motion for 
 
            rehearing for the following reasons:
 
            
 
                 1.  That the evidence presented and in the Analysis and 
 
            Conclusion of Law on page 7 of the Arbitration Decision 
 
            finds that the claimant has missed a total of nine days of 
 
            work due to various medical appointments.
 
            
 
                 2.  The Arbitration Decision orders the defendants to 
 
            provide the appropriate medical treatment as provided in the 
 
            Iowa Code section 85.27.
 
            
 
                 3.  Claimant submits that further clarification should 
 
            be provided with respect to providing "appropriate medical 
 
            treatment."  Claimant submits the defendants are responsible 
 
            for past medical expenses incurred with respect to the 
 
            compensable condition, including compensation for the nine 
 
            days missed for medical appointments, and that the 
 
            defendants are responsible for any an all ongoing medical 
 
            expenses, including time missed from work for appointments.
 
            
 
                 Defendants resisted the motion for rehearing, but the 
 
            undersigned granted the motion for a rehearing.
 
            
 
                 To clarify the decision and address claimant's motion, 
 
            this writer will briefly analyze the issue on several 
 
            levels.
 
            
 
                 The first issue to be addressed is whether claimant's 
 
            nine days off of work should be compensated as a medical 
 
            benefit.
 
            
 
                 In order for claimant to recover compensation for time 
 
            missed due to medical appointments, he must fall within the 
 
            provisions of Iowa Code section 85.27, which states in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services....
 
            
 
                    ....
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.
 
            
 
                 Clearly, time off from work was not intended to fall 
 
            within the provisions of medical benefits.  The statute 
 
            provides no such benefits for time off of work to visit a 
 
            doctor for treatment of a work injury, but merely allows an 
 
            injured worker to receive reasonable transportation 
 
            expenses.  Claimant is seeking disability for the time off 
 
            of work and is attempting to label the compensation as a 
 
            medical benefit.  Absent statutory direction or case law 
 
            authority for such an award, claimant is not entitled to 
 
            compensation as a medical benefit for lost time from work 
 
            due to medical appointments.
 
            
 
                 Neither is claimant entitled to healing period benefits 
 
            for the time off of work due to medical appointments.  
 
            Claimant has failed to prove by a preponderance of the 
 
            evidence that he sustained a permanent injury and would 
 
            therefore not be entitled to healing period benefits.  
 
            Likewise, recent case law has been instructive in denying 
 
            healing period benefits for time off of work necessitated by 
 
            medical appointments.  See, Thilges v. Snap-On Tools 
 
            Corporation, File Nos 857208, 894337, 896606, 905195, 905196 
 
            (Arbitration Decision September 27, 1991).
 
            
 
                 Likewise, temporary total disability benefits are not 
 
            awarded where an injured worker misses work due to doctor 
 
            appointments.  Temporary total disability benefits 
 
            contemplate payments to an employee who is disabled and 
 
            unable to return to regular work or work substantially 
 
            similar to the employment in which claimant was engaged at 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the time of the injury.
 
            
 
                 Additionally, it should be noted that if claimant 
 
            received sick leave for the time missed, this would 
 
            constitute salary in lieu of workers' compensation, and the 
 
            employer would receive credit for money paid.
 
            
 
                 Claimant Suchan will not be able to recover 
 
            compensation for the nine days of work missed due to medical 
 
            appointments, nor will he be able to recover or receive 
 
            compensation for future time missed due to doctor/medical 
 
            appointments.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  Ste 114
 
            Cedar Rapids IA 52404
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801-1596
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN R. CURTIS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 974044
 
            NORTHERN GRAVEL,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by John 
 
            Curtis, claimant, against Northern Gravel Company, employer, 
 
            hereinafter referred to as Northern Gravel and Liberty 
 
            Mutual Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on July 31, 1990.  On September 16, 1992, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  If the alleged injury is found to have caused per
 
            manent disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 2.  At the time of injury claimant was single and he 
 
            was entitled to one exemption.
 
            
 
                 3.  With reference to the requested medical benefits, 
 
            it was stipulated that the medical providers in this case 
 
            would testify that their charges were reasonable and defen
 
            dants are not offering contrary evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility and the credibility 
 
            of claimant's wife at issue during cross-examination as to 
 
            the nature and extent of the injury and disability and the 
 
            relative severity of an intervening injury at home while 
 
            installing a screw into a wall.  From observing their 
 
            demeanor while testifying, claimant and his wife are found 
 
            credible.
 
            
 
                 Claimant worked for Northern Gravel from January 1990 
 
            until approximately one week after the alleged work injury 
 
            herein.  At Northern Gravel, claimant was a laborer whose 
 
            dues involved filing and palletizing sand bags and driving a 
 
            fork lift truck.
 
            
 
                 On or about July 31, 1990, claimant injured his back 
 
            while loading 100 pound sand bags into a customer's vehicle.  
 
            This injury arose out of and in the course of claimant's 
 
            employment at NG.  Claimant's testimony about this incident 
 
            which he said was witnessed by a fellow employee and 
 
            reported to his supervisor was unrebutted by defendants.  
 
            Claimant received immediate treatment for this injury and a 
 
            history of this injury was provided to the treating 
 
            physician.
 
            
 
                 At the time of injury, claimant experienced severe back 
 
            pain and a fellow employee completed loading the customer's 
 
            bags.  After resting, claimant continued to work the rest of 
 
            the day on light duty driving a fork lift.
 
            
 
                 Claimant was first treated by Ronald Olson, M.D., for 
 
            thoracic lumbar strain.  Dr. Olson did not identify any 
 
            other cause for the injury other than claimant's lifting 
 
            incident at work.  After returning to work the following 
 
            Monday, he could not finish and left to go home and rest.  
 
            He then returned to work on August 6 and worked until the 
 
            13th.
 
            
 
                 On the 13th, claimant experienced another episode of 
 
            severe back pain while attempting to install a screw into a 
 
            plaster board wall at home.  Claimant stated that it felt 
 
            like he had "strangled" a nerve in his leg.  Claimant went 
 
            to a hospital emergency room the next day for treatment.  
 
            The emergency room report states that claimant denied any 
 
            recent injury to his back and only related the onset of pain 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            following the incident at home on the 13th.
 
            
 
                 The injury of July 31, 1990 was a significant causative 
 
            factor in precipitating claimant's absence from work from 
 
            August 13, 1990 through May 1, 1991 at which time he was 
 
            released to return to work by his treating physicians.  On 
 
            the 13th, claimant went to William Catalona, M.D., reporting 
 
            the incident the night before.  Dr. Catalona referred 
 
            claimant to the Spinal Diagnostic and Treatment Center in 
 
            the Orthopedic Department of the University of Iowa 
 
            Hospitals and Clinics.  Claimant was ultimately diagnosed as 
 
            suffering from recurrent herniation of the disk and from 
 
            development of scar tissue from a previous surgery.  
 
            Claimant ultimately was treated with additional surgery.  
 
            After a prolonged recovery, part of which involved wearing a 
 
            body cast, claimant returned to work as a pest exterminator, 
 
            a job he had held in the past.
 
            
 
                 The finding of causation connection between the July 
 
            31, 1990 injury and the surgery in 1990 was based upon the 
 
            views of the treating physician, James N. Weinstein, D.O., a 
 
            professor of orthopedic medicine at University Hospitals.  
 
            Dr. Weinstein noted that claimant had prior back surgery as 
 
            a result of a high school football injury in 1980 and was 
 
            susceptible to further injury.  He also noted that claimant 
 
            had recurrent back pain between 1980 and 1990.  Although 
 
            there was an intervening event involving screwing a screw 
 
            into a wall, Dr. Weinstein stated that these herniations are 
 
            not the result of any one event but a series of events.  It 
 
            is clear that the lifting of 100 pound bags of sand is at 
 
            least one of the significant events immediately prior to the 
 
            onset of the severe pain which necessitated the additional 
 
            surgery.  Dr. Catelona's opinion that it was not possible to 
 
            opine which event caused the herniation was not as convinc
 
            ing as the more qualified Dr. Weinstein.
 
            
 
                 It is also found that the work injury of July 31, 1990 
 
            was a significant causative factor in precipating signifi
 
            cant additional permanent impairment to the body as a whole.  
 
            Dr. Weinstein estimated that the impairment would be approx
 
            imately 20-22 percent, 8-10 percent due to the prior 1980 
 
            surgery and 10-12 percent due to the new injury and result
 
            ing 1990 surgery.  The exact impairment rating is unneces
 
            sary to an industrial disability case such as the one at 
 
            bar.  More importantly, claimant is now permanently 
 
            restricted to lifting under 50 pounds, a restriction he did 
 
            not have prior to the injury herein.
 
            
 
                 With reference to industrial disability factors other 
 
            than impairment, claimant's physical limitations today pre
 
            vent a return to the Northern Gravel job he had at the time 
 
            of the injury or to any other heavy labor job requiring 
 
            lifting over 50 pounds.  Claimant has only an eleventh grade 
 
            education, having dropped out of high school in his senior 
 
            year.  Claimant's past employment consists largely of heavy 
 
            duty work he cannot perform.
 
            
 
                 However, claimant had potential for vocational rehabil
 
            itation and has done so.  He has returned to a former job of 
 
            pest exterminator and was able to obtain the certifications 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            necessary to maintain this job.  This job is suitable to his 
 
            disability as he is not required to lift over 25 pounds.  
 
            The job appears stable.
 
            
 
                 Claimant has not suffered a loss of earnings from the 
 
            injury other than for the time lost from work during treat
 
            ment of the injury.  At Northern Gravel, he earned $4.36 per 
 
            hour and worked irregular hours from 32 to 44 hours a week.  
 
            At his pest exterminator job, he earns $6.50 per hour with a 
 
            regular work week of 40 hours with 10-25 overtime hours on a 
 
            "pretty consistent" basis.  Clearly, claimant is earning 
 
            much more today than he ever has in the past.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of July 31, 
 
            1990 was a cause of only a mild three percent loss of earn
 
            ing capacity.
 
            
 
                 It is found that the medical expenses requested are 
 
            causally connected to the July 31, 1990 injury.  Due to the 
 
            fact that they were rendered by clearly well qualified 
 
            physicians, absent contrary evidence, it is found that the 
 
            treatment was reasonable and necessary.
 
            
 
                 From a review of exhibit 10, it is found that 
 
            claimant's gross earnings in the 13 weeks prior to the work 
 
            injury averaged $172.22 per week.  There was a total of 487 
 
            straight time hours and 26.5 overtime hours.  The average 
 
            was computed using the straight time rate for overtime 
 
            hours.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            arising out of and in the course of employment.  The words 
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments.  A work connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106  N.W.2d  591 (1961), and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, claimant demonstrated a work 
 
            injury by a preponderance of the credible evidence from his 
 
            own testimony and the views of his treating physician at the 
 
            University.
 
            
 
                  II.  As the claimant has shown that the work injury 
 
            was a cause a permanent physical impairment or limitation 
 
            upon activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  Examina
 
            tion of several factors determines the extent to which a 
 
            work injury and a resulting medical condition caused an 
 
            industrial disability.  These factors include the employee's 
 
            medical condition prior to the injury, immediately after the 
 
            injury and presently; the situs of the injury, its severity 
 
            and the length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  See 
 
            Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985).
 
            
 
                 A showing that claimant had no loss of actual earnings 
 
            does not preclude a finding of industrial disability. See 
 
            Michael v. Harrison County, 34 Bien Rep., Ia Ind. Comm'r 
 
            218, 220 (Appeal Decision 1979).  Bearce v. FMC Corp., 465  
 
            N.W.2d  531 (Iowa 1991) only held that continued employment 
 
            with no loss of earnings is significant evidence that should 
 
            not be overlooked in measuring loss of earning capacity.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a three percent loss of his earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 15 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 
 
            three percent of 500 weeks, the maximum allowable number of 
 
            weeks for an injury to the body as a whole in that 
 
            subsection. 
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  It was found that 
 
            claimant was off work from August 13, 1990 through May 1, 
 
            1991 and benefits will be awarded accordingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420  N.W.2d  463 (Iowa 
 
            1988).  The expenses requested will be awarded to claimant.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 IV.  The parties' dispute as to rate of compensation 
 
            centers around the calculation of his gross wages.  As 
 
            claimant's hours varied greatly from week to week, the pre
 
            vious 13 weeks must be utilized to calculate the rate under 
 
            Iowa Code section 85.36(6).  However, overtime pay is 
 
            included only at the straight time pay rate.  Rule 343 IAC 
 
            8.2.
 
            
 
                 It was found that claimant's gross earnings averaged 
 
            $172.22 per week.  It was stipulated that claimant was sin
 
            gle and entitled to one exemption at the time of injury.  
 
            Therefore, according to the Industrial Commissioner's pub
 
            lished rate booklet for this injury, claimant's weekly rate 
 
            of compensation is $110.82.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant fifteen (15) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred ten and 82/l00 dollars ($110.82) per week from May 
 
            2, 1991.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from August 13, 1990 through May 1, 1991 at the 
 
            rate of one hundred ten and 82/l00 dollars ($110.82) per 
 
            week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. John E. Wunder
 
            Attorney at Law
 
            210 Cedar Street
 
            Muscatine, Iowa  52761
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. David W. Newell
 
            Attorney at Law
 
            323 East Second Street
 
            P O Box 175
 
            Muscatine, Iowa  52761
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 29, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN R. CURTIS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 974044
 
            NORTHERN GRAVEL,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                  Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EARL HAMILTON,   
 
                        
 
                 Claimant,                         File No. 974052
 
                        
 
            vs.                                   D E N I A L   O F
 
                        
 
            SMITHWAY DRIVER LEASING, INC.       P E T I T I O N   F O R
 
            and SMITHWAY MOTOR EXPRESS      
 
            INC.,                               D E C L A R A T O R Y
 
                              
 
                 Employers,                        R U L I N G
 
                        
 
            and         
 
                        
 
            CIGNA INSURANCE COMPANY and     
 
            ROYAL INSURANCE COMPANY OF      
 
            AMERICA,    
 
                        
 
                 Insurance Carriers,   
 
                 Defendants.      
 
            ____________________________________________________________
 
            The Petitioner, Royal Insurance Company (hereinafter 
 
            Petitioner-Royal), seeks a declaratory ruling.  
 
            Petitioner-Royal presents the following question:
 
            In the event that the Insurance Company of North America 
 
            (CIGNA) and its insured, the actual employer of the 
 
            Claimant, Smithway Driver Leasing, Inc., have their Motion 
 
            for Summary Judgment, filed recently (served October 1, 
 
            1992), sustained on the basis of the statute of limitations 
 
            under Section 85.26, the Code, and, the Commissioner 
 
            determines that Smithway Motor Express is the employer of 
 
            this Claimant for compensation purposes because of the event 
 
            of February 27, 1989, would the Insurance Company of North 
 
            America (CIGNA) nonetheless still be responsible to pay for 
 
            any benefits ordered to be paid to the Claimant under the 
 
            Iowa Workers' Compensation Laws under the circumstances of 
 
            this case?
 
            A response to the petition filed by Petitioner-Royal has 
 
            been filed by CIGNA Insurance Company.  The record in this 
 
            matter also shows that on October 13, 1992 the motion for 
 
            summary judgment was denied.
 
            Declaratory rulings are governed by rule 343 IAC 5 and rule 
 
            343 IAC X (Declaratory Rulings).  Rule 343 IAC X.5 
 
            (Declaratory Rulings) provides in relevant part:
 
               The agency may refuse to issue a declaratory ruling for 
 
            good cause.  Good cause includes, but is not limited to, the 
 
            following reasons:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            ....
 
            4.  The questions presented by the petition are also 
 
            presented in a current rule making, contested case, or other 
 
            agency or judicial proceeding, that may definitively resolve 
 
            them.
 
            5.  The questions presented by the petition would more 
 
            properly be resolved in a different type of proceeding or by 
 
            another body with jurisdiction over the matter.
 
            ....
 
            7.  There is no need to issue a ruling because the questions 
 
            raised in the petition have been settled due to a change in 
 
            circumstances.
 
            ....
 
            9.  The petition requests a declaratory ruling that would 
 
            necessarily determine the legal rights, duties, or 
 
            responsibilities of other persons who have not joined in the 
 
            petition or filed a similar petition and whose position on 
 
            the questions presented may fairly be presumed to be adverse 
 
            to that of petitioner.
 
            The petition is refused for the following reasons.  The 
 
            petition and agency records clearly indicate that there is a 
 
            dispute as to whether the claimant (Earl Hamilton) in the 
 
            contested case currently pending before the agency, was an 
 
            employee of Smithway Motor Express (SMX) or Smithway Driver 
 
            Leasing Inc. (SDL) or both.  Various filings have indicated 
 
            that there are three possible insurance carriers for SMX.  
 
            There appears to be a dispute not only which employer may be 
 
            liable but also which insurance carrier is the employer's 
 
            insurance carrier at the time of the injury.
 
            The question presented by Petitioner-Royal is also presented 
 
            in a contested case and that contested case may resolve the 
 
            question.  The question presented by the petitioner would 
 
            more properly be resolved in a contested case hearing where 
 
            the parties have an opportunity to present evidence and 
 
            engage in discovery and cross-examination.
 
            The question raised in the ruling assumed that the motion 
 
            for summary judgment would be sustained.  The motion for 
 
            summary judgment was denied and therefore there has been a 
 
            change in circumstances.
 
            Petitioner-Royal requests a determination of the 
 
            responsibilities of another insurance company, Insurance 
 
            Company of North America (CIGNA).  CIGNA's response to the 
 
            declaratory ruling clearly indicates that its position is 
 
            adverse to Petitioner-Royal.
 
            Ruling on Petitioner-Royal's petition for declaratory ruling 
 
            is therefore refused.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James C. Huber
 
            500 Liberty Bldg.
 
            418 6th Ave.
 
            Des Moines, Iowa 50309-2421
 
            
 
            Mr. Jerry L. Schnurr III
 
            P.O. Box 952
 
            Fort Dodge, Iowa 50501-3954
 
            
 
            Ms. Deborah A. Dubik
 
            Mr. Craig A. Levien
 
            600 Union Arcade Bldg.
 
            111 East 3rd St.
 
            Davenport, Iowa 52801-1596
 
            
 
            Mr. Tito Trevino
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             4300
 
                                             Filed November 4, 1992
 
                                             Byron K. Orton
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EARL HAMILTON,   
 
                        
 
                 Claimant,                         File No. 974052
 
                        
 
            vs.                                   D E N I A L   O F
 
                        
 
            SMITHWAY DRIVER LEASING, INC.      P E T I T I O N   F O R
 
            and SMITHWAY MOTOR EXPRESS      
 
            INC.,                              D E C L A R A T O R Y
 
                              
 
                 Employers,                        R U L I N G
 
                        
 
            and         
 
                        
 
            CIGNA INSURANCE COMPANY and     
 
            ROYAL INSURANCE COMPANY OF      
 
            AMERICA,    
 
                        
 
                 Insurance Carriers,   
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            4300
 
            Petition for declaratory ruling refused on the grounds of 
 
            rule 343 IAC X.5(4), (5), (7) and (9).  Question asked by 
 
            petitioner would be better resolved in a contested case 
 
            proceeding.  There was a factual dispute who the employer 
 
            was and who the insurance carrier was.  The petition 
 
            requested a determination of the responsibilities of an 
 
            insurance company who disputed its liability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LORA CLAYTON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974059
 
            MIDLAND INTERNATIONAL         :
 
            TILEWORKS,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Lora 
 
            Clayton against Midland International Tileworks, employer, 
 
            and Home Insurance Company, insurance carrier, both as 
 
            defendants.  Ms. Clayton bases her claim upon an alleged 
 
            injury occurring on October 5, 1990.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on July 1, 1992.  The record consists of testimony 
 
            from the claimant, Russell Jones, Nemat Emamian, and Glen 
 
            Strang; and, joint exhibits 1 through 11.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on October 5, 
 
            1990, which arose out of and in the course of her employment 
 
            with Midland International Tileworks;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits or permanent partial 
 
            disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27; and,
 
            
 
                 5.  Claimant's correct workers' compensation rate.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, Lora Clayton, was born on September 16, 1960.  
 
            At the time of the hearing, she was 31 years of age.  
 
            Currently, she is not married and has two dependent 
 
            children, ages 13 and 9.
 
            
 
                 Claimant did not graduate from high school, but 
 
            obtained her GED in October of 1985.  She has taken 
 
            correspondence courses in bookkeeping and general 
 
            accounting, and is familiar with a ten key adding machine.
 
            
 
                 Claimant's employment history has been concentrated in 
 
            day care and house cleaning services.  As a day care worker, 
 
            her duties have included meal preparation and supervising 
 
            children.  Currently, claimant has been establishing her own 
 
            business improvising housekeeping services.
 
            
 
                 In June of 1990, claimant began working for the 
 
            defendant, Midland International Tileworks, a company that 
 
            manufactures ceramic floor tiles.  Her beginning wages were 
 
            $6.45 per hour, and after an initial 90 day probationary 
 
            period, she received a $.54 per hour increase.
 
            
 
                 Claimant's job duties on the production line included 
 
            watching the equipment to insure that it ran properly; 
 
            stacking tiles that had been glazed; and, maintaining the 
 
            large tanks that held the colored glaze.  Claimant's 
 
            position required her to fill the glazing machines, called 
 
            agitators, by lifting five gallon buckets filled with liquid 
 
            glaze that was poured into the machine.
 
            
 
                 Tiles that were deemed unsuitable for sale were taken 
 
            off of the assembly line and thrown in a dumpster.  Claimant 
 
            would either throw the defective tile over the conveyor line 
 
            or walk around the line and put it in the dumpster.  The 
 
            number of discarded tiles varied on a daily basis.
 
            
 
                 On October 5, 1990, claimant was using a five gallon 
 
            bucket to fill an agitator tank filled with glaze.  She 
 
            climbed a three foot stepladder and steadied herself with 
 
            her left hand while using her right arm to pour the contents 
 
            of the bucket into the tank.  As claimant was pouring the 
 
            glaze into the agitator, she "noticed" a severe pain, 
 
            numbness and tingling in her right arm and shoulder.
 
            
 
                 Claimant continued to work and on October 7, 1990, went 
 
            to see her family physician at the Redfield Clinic, Narong 
 
            Jarasvivoj, M.D.  After an examination, the doctor thought 
 
            claimant had a shoulder strain and prescribed Voltaren for 
 
            relief.  Claimant returned to the clinic the following day 
 
            with persistent right shoulder pain.  Dr. Jarasvivoj 
 
            administered ultrasound and told claimant to see an 
 
            orthopedic specialist.  results of the x-rays taken of the 
 
            right shoulder on October 13, 1990, were unremarkable.  
 
            Claimant continued to seek treatment at the clinic, and was 
 
            taken off of work until October 15, 1990 (Jt. Ex. 5, pp. 56-
 
            59, 66).
 
            
 
                 On October 25, 1990, claimant visited Rodney Johnson, 
 
            M.D., an orthopedic specialist at Central Iowa Orthopedics, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            in Des Moines, Iowa.  After an examination revealed pain at 
 
            the acromioclavicular joint, Dr. Johnson ordered an MRI of 
 
            the cervical spine and a bone scan of the right shoulder.  
 
            Included in Dr. Johnson's notes is claimant's history of 
 
            intermittent discomfort of the neck muscles of the right 
 
            side, the muscles of the trapezium and occasional aching in 
 
            the right shoulder.  His notes go on to state that these 
 
            symptoms became worse when claimant was lifting at work.
 
            
 
                 Results of the MRI showed disc degeneration at the C5-6 
 
            level, but no herniation.  The bone scan showed increased 
 
            uptake at the AC joint.  Dr. Johnson related the symptoms to 
 
            claimant's work activities of repetitive movements.  She was 
 
            released to return to work (Jt. Ex. 6, pp. 70-73).
 
            
 
                 From October 12 through October 29, 1990, claimant 
 
            underwent physical therapy (Jt. Ex. 9, pp. 94-98).
 
            
 
                 Claimant sought a second opinion from Kevin Smith, M.D.  
 
            His notes dated November 6, 1990, indicate that claimant 
 
            displayed full range of motion of the shoulder but that 
 
            there was tenderness in the anterior part of the shoulder 
 
            joint.  Claimant also stated that her right hand and arm 
 
            occasionally became numb.  Dr. Smith released claimant to 
 
            return to work but restricted her work activities to no 
 
            overhead lifting (Jt. Ex. 7, pp. 74-75).
 
            
 
                 Claimant returned to the clinic on November 9 and 
 
            displayed full range of motion but still had persistent 
 
            pain.  Her work restrictions were expanded to include no 
 
            lifting of more than ten pounds with her right hand.  When 
 
            claimant returned to the clinic on November 16, she 
 
            complained that her job duties at the plant required her to 
 
            work outside of her restrictions, but that she was willing 
 
            to be released to return to work without restriction.  An 
 
            examination showed that claimant had full range of motion of 
 
            her shoulder and decreased pain (Jt. Ex. 7, p. 76).
 
            
 
                 Claimant returned to Dr. Smith during November and 
 
            December 1990.  Although he released her to return to 
 
            regular duties, he emphasized that she should not be lifting 
 
            more than 30 pounds and should be performing no overhead 
 
            work.  In January of 1991, Dr. Smith noted that claimant had 
 
            quit her job because functions of her position required 
 
            physical activities outside of her restrictions.  She 
 
            continued with home exercises and heat therapy, and visited 
 
            the clinic on a monthly basis through May of 1991, when she 
 
            received a trigger point injection (Jt. Ex. 7, pp. 81-84).
 
            
 
                 There is a notation that claimant exacerbated her 
 
            symptoms while scrubbing floors in February of 1991 (Jt. Ex. 
 
            7, p. 81).
 
            
 
                 In July 1991, claimant underwent an independent medical 
 
            evaluation performed by Jerome Bashara, M.D., an orthopedic 
 
            specialist.  He ordered an MRI of the right shoulder, the 
 
            results of which showed an incomplete tear of the rotator 
 
            cuff with a mild impingement syndrome.  Dr. Bashara also 
 
            diagnosed chronic rotator cuff tendinitis related to her 
 
            work activities.  Based on his findings, he gave claimant an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            8 percent permanent partial impairment rating of the right 
 
            upper extremity; 6 percent was assessed to restricted range 
 
            of motion and 2 percent was assessed for pain in the partial 
 
            tear (Jt. Ex. A, pp. 90-93).
 
            
 
                 In June 1992, claimant underwent a functional capacity 
 
            evaluation administered by Dr. Smith.  He reviewed the MRI 
 
            of the cervical spine and diagnosed rotator cuff tendinitis, 
 
            a work-related permanent condition.  Based on various tests, 
 
            which demonstrated loss of motion, function and strength of 
 
            claimant's right shoulder, he was of the opinion that she 
 
            had a 4 percent functional impairment of the right upper 
 
            extremity.  She was able to perform jobs in the medium heavy 
 
            category, described as lifting 50 to 80 pounds maximum, with 
 
            frequent lifting of 40 pounds (Jt. Ex. 7, pp. 85-89).
 
            
 
                 Claimant's past medical problems include a history of 
 
            headaches, for which claimant has been admitted to an 
 
            emergency room on at least one occasion, and persistent neck 
 
            pain (Jt. Exs. 10 and 11).
 
            
 
                 Russell Jones, an employee who works on the glaze line 
 
            at Midland's plant, testified on behalf of defendants.  He 
 
            explained that his job was similar to claimant's and that he 
 
            did not consider the duties to be repetitive, and stressed 
 
            that the job did not require overhead work.  Mr. Jones 
 
            offered that he became aware of claimant's physical problems 
 
            when he and other co-workers were told by the supervisors to 
 
            help her if she asked for help to perform her duties.
 
            
 
                 Nemat Emamian, the second shift supervisor at the 
 
            plant, also testified for defendants.  He remembered that 
 
            claimant reported a work injury on a Monday, but that she 
 
            also told him that she had had shoulder problems for the 
 
            past two years.  Mr. Emamian did not think that claimant had 
 
            sustained a work injury because she had been to see her 
 
            family physician.  Later, claimant was sent to the company 
 
            physician, Dr. Smith.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on October 5, 1990, which arose out of 
 
            and in the course of her employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on October 5, 
 
            1990, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. 
 
            
 
                 Claimant's job required her to fill an agitator tank 
 
            with liquid glaze.  To perform this job, claimant used a 
 
            five gallon bucket and a three foot stepladder to gain 
 
            access to the opening of the tank.  Although the company 
 
            taught and encouraged employees to use hoses instead of 
 
            buckets to fill the tanks, the bucket provided a quicker 
 
            method to perform this particular job duty.  Claimant stated 
 
            that she had to refill the agitator tanks anywhere from one 
 
            to five times per day.
 
            
 
                 Claimant's description of the injury has remained 
 
            consistent throughout the medical records.
 
            
 
                 After considering claimant's job duties and recognizing 
 
            that she had physical problems prior to the October 5, 1990 
 
            incident, it is found that claimant did sustain an injury 
 
            which arose out of and in the course of her employment.  The 
 
            injury is consistent with the type of work claimant 
 
            performed on a daily basis.
 
            
 
                 Likewise, claimant was attending to her duties at the 
 
            appropriate location and during her assigned shift.  She was 
 
            performing her duties in a manner consistent with the 
 
            requirements of the job, and it is found that claimant's 
 
            injury was in the course of her employment.
 
            
 
                 Therefore, claimant has sustained her burden of proof 
 
            and has shown that she sustained an injury on October 5, 
 
            1990, which arose out of and in the course of her 
 
            employment.
 
            
 
                 The next issue to be address is whether there is a 
 
            causal relationship between claimant's injury and her 
 
            alleged disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 5, 
 
            1990, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Dr. Smith, who both treated and evaluated claimant, 
 
            offered his opinion that claimant's rotator cuff tendinitis 
 
            was caused by her work at Midland.  Results of his 
 
            evaluation led Dr. Smith to give claimant a 4 percent 
 
            permanent impairment of the right upper extremity.
 
            
 
                 Dr. Bashara also established a nexus between claimant's 
 
            work activities at Midland and her condition of a slight 
 
            tear of the rotator cuff and chronic rotator cuff 
 
            tendinitis, and gave claimant and 8 percent permanent 
 
            impairment of the right upper extremity.
 
            
 
                 Likewise, Dr. Johnson related claimant's symptoms to 
 
            the lifting, pushing and pulling activities she performed at 
 
            work.
 
            
 
                 As a result, it is found that claimant has sustained 
 
            her burden of proof, and has shown by a preponderance of the 
 
            evidence that there is a causal relationship between her 
 
            injury and a permanent disability.
 
            
 
                 The next issue to be addressed is the nature and extent 
 
            of claimant's permanent disability.
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 Claimant has sustained injury to the rotator cuff; 
 
            therefore, she has sustained an injury to the body as a 
 
            whole.  As such, an evaluation of her industrial disability 
 
            is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 31 years of 
 
            age.  Although not working full time, she was attempting to 
 
            start a house cleaning business.
 
            
 
                 Claimant's work history is unstable.  Although she has 
 
            held a number of jobs, she has limited experience in 
 
            maintaining full-time employment for an extended period of 
 
            time.  Claimant's motivation to acquire and maintain 
 
            employment is questionable.
 
            
 
                 Her past medical history for the last twelve years 
 
            reveals a woman who regularly sought medical treatment for 
 
            various ailments.  She has been treated for neck and 
 
            shoulder problems in the past which she related to stress.  
 
            Midland required pre-employment physicals which claimant 
 
            passed in June of 1990.  Her current physical health is good 
 
            although she has a permanent disability between 4 and 8 
 
            percent to the shoulder.
 
            
 
                 Midland's response to claimant's injury, treatment, and 
 
            her resulting work restrictions appears to be very informal.  
 
            Although the company continued to employ claimant, attempts 
 
            at accommodating her restrictions such as telling her to get 
 
            help if and/or when she needed it were casual, at best.  
 
            Yet, claimant quit of her own volition.  No doctor ever 
 
            recommended or advised her to seek other employment.  It is 
 
            puzzling that claimant indicated her job required lifting of 
 
            more than 30 pounds, yet the tiles weighed two pounds or 
 
            less and claimant was provided with other means to perform 
 
            the job demanding the heaviest lifting, cleaning the 
 
            agitator tank.  Additionally, it seems claimant's job at the 
 
            plant required little overhead work.
 
            
 
                 Claimant's restrictions will, however, prevent her from 
 
            performing some jobs she has had in the past, such as child 
 
            care for larger children.
 
            
 
                 Although difficult to evaluate actual loss of earnings 
 
            due to claimant's unstable work record and due to her 
 
            limited income from a newly formed business, it would appear 
 
            that claimant's income while at Midland ($6.89 per hour) and 
 
            the average of other wages earned in the past ($5.00 per 
 
            hour) would total actual loss of earnings of 28 percent.
 
            
 
                 After considering all of the factors that comprise her 
 
            loss of earning capacity, it is found that claimant has 
 
            sustained a 15 percent industrial disability.
 
            
 
                 Another issue issued on the hearing assignment order is 
 
            claimant's correct workers' compensation rate, although the 
 
            undersigned is confused as to why this has been disputed.  
 
            The parties agree that claimant's gross weekly earnings 
 
            total $265.09 per week.  They also agree that she is single 
 
            and is entitled to three exemptions.  Pursuant to the 1990 
 
            Guide to Iowa Workers' Compensation Claim Handling, her 
 
            correct workers' compensation rate is $174.74 per week.
 
            
 
                 Claimant's entitlement to medical benefits is also 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disputed.  And, although defendants raise the issue of 
 
            whether the expenses were authorized, they have denied 
 
            liability and therefore cannot raise authorization as a 
 
            defense.
 
            
 
                 Iowa Code section 85.27 provides the following 
 
            guidance:
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 As claimant sustained a compensable work injury, she is 
 
            entitled to medical benefits under the appropriate code 
 
            section.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for seventy-five (75) weeks at the rate 
 
            of one hundred seventy-five and 74/100 dollars ($175.74) 
 
            commencing on February 18, 1991.
 
            
 
                 That defendants shall pay medical benefits incurred by 
 
            claimant to treat the work-related injury.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Harry Dahl III
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed September 15, 1992
 
                                             Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LORA CLAYTON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974059
 
            MIDLAND INTERNATIONAL         :
 
            TILEWORKS,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained an injury to the rotator cuff.
 
            Industrially, her loss was 15% based on analysis of relevant 
 
            factors:  31 years of age; no motivation to work; impairment 
 
            ratings of 4% and 8%; and, sporadic history of manual labor 
 
            employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1800
 
                                          Filed February 28, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURIE LAPPIN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974061
 
            UNIVERSAL HOME HEALTH CARE,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL INSURANCE         :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant was injured while working as a nurse's aide.
 
            The employer offered work that accommodated her 
 
            restrictions, but offered less hours than the average number 
 
            of hours she worked prior to the accident.
 
            Claimant awarded 15% industrial disability.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOU ANN HACKFORT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974069
 
            PAT'S CASINO CAFE,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Lou Ann 
 
            Hackfort, claimant, against Pat's Casino Cafe, employer, and 
 
            Iowa Mutual Insurance, insurance carrier, defendants, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an alleged injury sustained on March 2, 1989.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on May 13, 1992, in Fort 
 
            Dodge, Iowa.  The record was considered fully submitted at 
 
            the close of the hearing. 
 
            
 
                 The parties are aware that the notice of assignment for 
 
            hearing, in accordance with the provisions of Iowa Code 
 
            section 86.19(1), ordered the defendants to arrange for the 
 
            attendance of a certified shorthand reporter and that a 
 
            certified shorthand reporter was not used to record this 
 
            contested case proceeding.  The parties stipulated pursuant 
 
            to Iowa Code section 17A.10(2) that they waive the 
 
            requirements for recording oral proceedings and maintaining 
 
            the record of oral proceedings contained within Iowa Code 
 
            section 17A.12(7).
 
            
 
                 The parties further stipulated that no official 
 
            verbatim record of the oral proceeding will be made or 
 
            maintained and that for purposes of review or appeal the 
 
            only official record of the oral proceeding will be the 
 
            exhibits received into evidence and the written decision of 
 
            the undersigned deputy industrial commissioner,
 
            
 
                 The record in this case consists of joint exhibits 1 
 
            through 13 and A through Q.  The claimant was present and 
 
            testified.  Also present and testifying were Ruby Heun and 
 
            Patricia Wieland.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated May 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            13, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 2, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits;
 
            
 
                 4.  The time off work for which claimant now seeks 
 
            either temporary total disability or healing period 
 
            benefits;
 
            
 
                 5.  The extent of entitlement to weekly compensation 
 
            for permanent disability;
 
            
 
                 6.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded; and
 
            
 
                 7.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on December 22, 1953, and completed 
 
            the twelfth grade of school.  She obtained a nurse's aide 
 
            certificate after completing a 12-week course in 1979.  
 
            After graduation she worked on the family farm for two 
 
            years.  After receiving her nurse's aide certificate she 
 
            worked as a nurse's aide and home health aide in Carroll, 
 
            Iowa.  In January 1989 she commenced working for employer as 
 
            a dishwasher/cook's assistant.  In March 1992, she became a 
 
            full-time cook with employer.  Claimant testified that while 
 
            working for Carroll Health Center, she hurt her back.  
 
            Surgery was performed on August 26, 1988.  She stated that 
 
            she reinjured her back on March 2, 1989, in the process of 
 
            leaning over the kitchen sink cleaning chickens for 20 
 
            minutes.  She lost no time from work as a result of this 
 
            alleged injury until April 1990 when she took time off to 
 
            rest her back.  At the time of the March 1989 injury, 
 
            claimant was earning $3.57 per hour and now earns $4.25 per 
 
            hour.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was referred by Robert Christensen, M.D., to John 
 
            L. Greene, M.D., neurological surgeon for evaluation on 
 
            August 18, 1988.  She presented with complaints of low back 
 
            and right buttock pain radiating down the posterior thigh 
 
            and calf towards the foot and the right great toe.  An MRI 
 
            and CAT scan showed a herniation of the fifth lumbar disc on 
 
            the right extending out into the foramen (exhibit 3, page 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            10).  
 
            
 
                 Dr. Greene admitted claimant to Bishop Clarkson 
 
            Memorial Hospital on August 25, 1988, and a laminotomy and 
 
            microdiscectomy at L-5 on the right was performed.  
 
            Postoperatively, she had relief of right lower extremity 
 
            pain.  She was discharged on August 31, 1988, with final 
 
            diagnosis of herniated fifth lumbar disc (exs. 3 and 4).
 
            
 
                 On November 30, 1988, claimant was seen by Charles 
 
            Denhart, M.D., for evaluation.  On examination, she appeared 
 
            in no acute distress.  She had a normal gait and was able to 
 
            heel and toe walk without difficulty.  Her range of motion 
 
            was restricted.  She was able to bend forward to about 70 
 
            degrees, backwards to 20 degrees and side-to-side 20 
 
            degrees.  Based on surgery and decreased range of motion, 
 
            Dr. Denhart gave her a permanent partial disability rating 
 
            of 10 percent.  She was restricted from repeated bending 
 
            over, squatting or crawling and lifting more than 40 pounds 
 
            occasionally and 25 pounds frequently (ex. 5).
 
            
 
                 Claimant began working in a light duty position at 
 
            Carroll Health Center on November 14, 1988.  However, she 
 
            was terminated from employment by the nursing home allegedly 
 
            because they had no permanent need for her position.  On 
 
            January 26, 1989, she started part-time employment with 
 
            Pat's Casino.  She began full-time duties at the cafe on 
 
            February 15, 1989.  Her work hours were from 8 a.m. to 3:30 
 
            p.m.  On March 17, 1989, claimant met with David Mitchell, 
 
            rehabilitation consultant, and stated that everything was 
 
            going fine and the people with whom she worked were flexible 
 
            (ex. 10, p. 95).  On May 17, 1989, Mr. Mitchell closed 
 
            claimant's case file because she expressed satisfaction with 
 
            her work as a kitchen helper and dishwasher and she had 
 
            declined to look for any other jobs (ex. 10, p. 101).
 
            
 
                 Claimant underwent physical therapy from August 12, 
 
            1988 through January 23, 1989.  She received no medical 
 
            treatment thereafter until September 7, 1989, when Raymond 
 
            Meylor, chiropractor, referred claimant to Thomas Ferlic, 
 
            M.D., for evaluation.  Claimant presented to Dr. Ferlic with 
 
            complaints of intense pain in her right back, groin, hip, 
 
            and buttock.  Claimant related to Dr. Ferlic that a few 
 
            weeks prior to this visit, she was cleaning chickens at work 
 
            and developed intense pain afterwards.  Clinical findings 
 
            revealed right-sided sciatica.  Medication and a stretching 
 
            program were prescribed (ex. 11).
 
            
 
                 On March 22, 1990, claimant was examined by Robert 
 
            Carlstrom, M.D.  Claimant presented with complaints of pain 
 
            in her back radiating to the left groin, right groin and 
 
            posteriorly down the left leg.  On examination, she had 
 
            diminished range of motion of her neck and negative straight 
 
            leg raising.  Her neurological examination was normal except 
 
            for possibly a slightly diminished left achilles reflex.  
 
            Dr. Carlstrom reviewed an MRI scan taken on September 19, 
 
            1989, and a CT scan taken on December 20, 1989, and found 
 
            both studies inconclusive (ex. 12, p. 104).
 
            
 
                 Claimant was admitted to Iowa Methodist Medical Center 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            on September 10, 1990, for a myelogram.   According to Dr. 
 
            Carlstrom, the myelogram showed definite abnormalities at 
 
            L4/5 and possibly at L3/4.  However, the CT scans did not 
 
            look as bad as the myelogram.  Dr. Carlstrom decided to 
 
            continue conservative management of claimant's back problem 
 
            (ex. 12, p. 108).  
 
            
 
                 Claimant was seen at the Meylor Chiropractic Clinic on 
 
            December 18, 1989, with complaints of left lumbar and 
 
            bilateral leg pain.  Dr. Meylor reported the date of injury 
 
            as December 16, 1989 (ex. 12, p. 127).  Dr. Meylor 
 
            subsequently treated claimant, however, his note are 
 
            illegible and unreadable.  On July 10, 1991, Dr. Meylor gave 
 
            claimant a 26 percent impairment rating (ex. 12, pp. 
 
            153-154).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 2, 
 
            1989, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 2, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 The evidence clearly demonstrates that claimant 
 
            suffered a back injury in August 1988 which required surgery 
 
            on August 26, 1988.  Claimant returned to light duty on 
 
            November 14, 1988, and was terminated in January 1989.  She 
 
            commenced working part-time for employer on January 26, 
 
            1989, and full time on February 15, 1989.  She continues to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            work for employer and has lost no time from work as the 
 
            result of an alleged injury on March 2, 1989.  Claimant 
 
            testified that she reinjured her back on March 2, 1989, when 
 
            she was leaning over a sink cleaning chickens.  The medical 
 
            evidence is silent as to any treatment or complaints to 
 
            physicians at or near the time of the alleged injury.  In 
 
            fact, when interviewed by a rehabilitation consultant on 
 
            March 17, 1989, claimant indicated that everything was just 
 
            fine and that she was not having any problems at work.  
 
            
 
                 The record contradicts claimant's testimony as to her 
 
            alleged injury date.  She told Dr. Ferlic in September 1989 
 
            that she strained her back a few weeks prior.  She told Dr. 
 
            Meylor in December 1989 that she strained her back on 
 
            December 16, 1989.  Claimant's testimony is not supported by 
 
            the evidence.  No physician who has treated and examined 
 
            claimant attributes her current symptoms to a work-related 
 
            injury with employer on March 2, 1989.  The veracity of 
 
            claimant's testimony concerning a March 2, 1989, injury is 
 
            suspect.  Numerous inconsistencies in claimant's testimony, 
 
            her inability to remember certain events, and the conflict 
 
            between claimant's testimony and other credible evidence in 
 
            the record, casts doubt on claimant's credibility.  
 
            Claimant's inconsistent statements make it impossible to 
 
            support a recovery in this case.  It is therefore found that 
 
            claimant has not met her burden of proof that she sustained 
 
            an injury on March 2, 1989, arising out of and in the course 
 
            of employment with employer.
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis in unnecessary.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Joseph Halbur
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            529 N West St.
 
            Carroll, Iowa  51401
 
            
 
            Mr. Jeffrey Minnich
 
            Mr. Patrick Hall
 
            Attorneys at Law
 
            PO Box 367
 
            Carroll, Iowa  51401
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51402.20
 
                                          Filed May 27, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOU ANN HACKFORT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 974069
 
            PAT'S CASINO CAFE,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51402.20
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that she sustained an injury on March 2, 1989, arising out 
 
            of and in the course of employment with employer.