BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SANDRA BRYAN,    
 
                        
 
                 Claimant,                    File No. 974416
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            FARMLAND FOODS, INC.,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 11, 1994 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                         BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen M. Engelhardt
 
            Attorney at Law
 
            P.O. Box 217
 
            Denison, Iowa 51442
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102-3086
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1402.40
 
                                           Filed August 11, 1994
 
                                           Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SANDRA BRYAN,    
 
                        
 
                 Claimant,                   File No. 974416
 
                        
 
            vs.                                A P P E A L
 
                        
 
            FARMLAND FOODS, INC.,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            5-1402.40
 
            
 
            Claimant failed to prove a condition of disability was 
 
            causally related to work injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SANDRA BRYAN,                 :
 
                                          :
 
                 Claimant,                :      File Nos. 974416
 
                                          :
 
            vs.                               A R B I T R A T I O N
 
                                          :
 
            FARMLAND FOODS, INC.,                 D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Sandra Bryan against her 
 
            self-insured employer, Farmland Foods, Inc.  Ms. Bryan 
 
            sustained an injury when she was struck in the left thigh by 
 
            a falling cutting board on January 21, 1991.  She now seeks 
 
            benefits under the Iowa Workers' Compensation Act.
 
            
 
                 A hearing was accordingly held in Sioux City, Iowa on 
 
            January 24, 1994.  The record consists of joint exhibits 
 
            1-50, defendant's exhibit A, claimant's exhibits 51 and 52 
 
            and the testimony of claimant, Jerry Bryan, Steve Kimpson, 
 
            Nancy Wiese and Becky Jacobsen.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on January 
 
                    21, 1991;
 
            
 
                    2.  The proper rate of compensation is 
 
                    $278.79;
 
            
 
                    3.  Although defendant disputes whether 
 
                    medical treatment was reasonable and 
 
                    necessary, the medical providers of disputed 
 
                    treatment would testify as to the 
 
                    reasonableness of fees and treatment and 
 
                    defendant offered no contrary evidence.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the subject work injury caused 
 
                    either temporary or permanent disability;
 
            
 
                    2.  The extent of entitlement to temporary 
 
                    total or healing period (on or after 
 
                    November 5, 1991);
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                    3.  The nature and extent of permanent 
 
                    disability, if any;
 
            
 
                    4.  Entitlement to medical benefits 
 
                    including whether they are causally 
 
                    connected to the work injury and whether 
 
                    they are authorized by defendant; and,
 
            
 
                    5.  Whether defendant is entitled to credit 
 
                    for sick pay benefits totalling $4,563.72 
 
                    under Iowa Code section 85.38(2).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Sandra Bryan, 36 years of age at hearing, is a 1975 
 
            high school graduate without further education.  Ms. Bryan 
 
            worked as a waitress from 1974 until 1987, then accepted 
 
            work with Farmland Foods, Inc., a meat packing operation.  
 
            Claimant worked a number of jobs, including meat cutting, 
 
            preparation of boxes and packing.
 
            
 
                 The stipulated work injury apparently occurred on 
 
            January 24, 1991, based on contemporaneous nurses' notes 
 
            incorporated in exhibit 36, but not otherwise identified as 
 
            to source.  The note for January 25, 1991 reflects that 
 
            claimant was struck by a falling cutting board "yesterday 
 
            morning", resulting in lower back and knee soreness.
 
            
 
                 The first physician to see claimant for this problem 
 
            was D. W. Crabb, M.D., a family practitioner who testified 
 
            by deposition on June 3, 1993.  Dr. Crabb's chart notes of 
 
            January 28, 1991 reflect that claimant injured her left leg 
 
            and expressed complaints of hip and knee pain.  By January 
 
            31, Dr. Crabb charted that claimant's sacroiliac area was 
 
            still "pretty sore."
 
            
 
                 In the meantime, claimant had been undergoing regular 
 
            physical therapy sessions since at least December 1990 for 
 
            shoulder, mid scapular and cervical problems.  Physical 
 
            therapy progress notes of January 25 prepared by Cindy 
 
            Stessman, PT, reflect that claimant was seen for cervical 
 
            and both shoulder areas.  No mention of lumbar discomfort 
 
            appears.  On January 28, Ms. Stessman again treated claimant 
 
            for cervical and shoulder problem, reporting that claimant 
 
            had sustained injury to the left knee and hip "today" and 
 
            was favoring the left hip and knee.  No mention of back pain 
 
            was made.  Ms. Stessman also made no mention of lumbar 
 
            problems in physical therapy progress notes of January 29, 
 
            January 30 and January 31, 1991.
 
            
 
                 Dr. Crabb saw claimant again on March 12, when 
 
            complaints were made of some tingling and irritation in the 
 
            leg, although no mention of lumbar problems appears.  On 
 
            October 1, claimant was seen for a possible urinary tract 
 
            infection, but made no complaint of lumbar pain worth 
 
            charting.
 
            
 
                 On November 5, 1991, claimant was seen again with 
 
            complaints of left hip, leg and back pain.  Dr. Crabb took 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            her off work (she has never returned) and referred her for 
 
            consultation to Dr. Rassekh, who recommended a return to 
 
            work with restrictions.  Claimant did not wish to return to 
 
            Dr. Rassekh because, she reports, he appeared overly eager 
 
            to perform surgery.
 
            
 
                 On December 3, 1991, claimant was seen by a 
 
            neurosurgeon, John L. Fox, M.D., who carried out a myelogram 
 
            and post-myelogram CT scan of the lumbar spine.  Dr. Fox 
 
            reported the studies were normal and he was at a loss to 
 
            explain the cause of her present problem.  His diagnosis was 
 
            "psychophysiologic musculoskeletal reaction," a diagnosis 
 
            heretofore unfamiliar to this writer, but which presumably 
 
            is a polite way of suggesting psychological overlay of some 
 
            kind.  Dr. Fox saw no reason why claimant could not return 
 
            to work and did not suggest a return appointment since she 
 
            did not require any neurological surgical care.
 
            
 
                 In the meantime, claimant continued treating with Dr. 
 
            Crabb (primarily anti-inflammatory medications and physical 
 
            therapy) and, at her own initiative, with a chiropractor, 
 
            Steve Oatman, D.C.  Dr. Crabb has repeatedly suggested 
 
            steroid injections, but claimant has rejected this advice.
 
            
 
                 Dr. Crabb finds claimant to be severely disabled and 
 
            ascribes causation to the January 1991 work injury.  Absent 
 
            objective signs, he believes claimant has sustained a soft 
 
            tissue injury to the back, probably from jerking away in an 
 
            attempt to avoid the falling cutting board.  He has rated 
 
            impairment at 46 percent of the leg, equating to 18 percent 
 
            impairment of the whole person, which he rounds to 20 
 
            percent of the body as a whole.
 
            
 
                 Dr. Oatman concludes that claimant has a bulging disc, 
 
            which he attributes to the subject work injury.
 
            
 
                 Claimant has also been evaluated by Lawrence Donovan, 
 
            D.O., a board certified orthopedic surgeon.  Dr. Donovan, 
 
            who evaluated claimant on December 20, 1993, authored a 
 
            report of the same date and testified by deposition on 
 
            January 4, 1994. 
 
            
 
                 Dr. Donovan was unable to find objective signs of 
 
            injury, and developed an impression of symptom magnification 
 
            syndrome.  Not only did claimant fail to demonstrate 
 
            objective signs of injury, but testing revealed 
 
            unreproducible and nonphysiologic responses.
 
            
 
                 Dr. Donovan gave detailed testimony concerning various 
 
            parts of the so called "Wadell test," developed by a Dr. 
 
            Wadell to identify nonanatomical symptoms: those which can 
 
            be attributable to either hysterical complaints or actual 
 
            malingering.  He found that claimant tested positive on 
 
            seven parts and equivocal on one part of the eight part 
 
            test.  For example, claimant's sensation was increased, 
 
            rather than decreased as is typical in cases of herniated 
 
            disc or lumbar radiculopathy.  And, she demonstrated a 
 
            "stocking-glove" distribution (distribution over the entire 
 
            leg, as if one wore a stocking).  Such a distribution of 
 
            neurological symptoms is most abnormal, and when present, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            typically due to a massive disc lesion effecting several 
 
            levels.  Radiographic testing has established that claimant 
 
            has no such multi-level disc problem.  Straight leg raising 
 
            was inconsistent in the sitting and supine positions, 
 
            whereas a positive response in one position is normally 
 
            associated with a positive response in any position.  
 
            Dorsiflexion of the ankle should make pain worse, but did 
 
            not in claimant's case.  Limitation in range of motion of 
 
            the lumbar spine was inconsistent and nonreproducible.  
 
            Claimant's limp was questionably reproducible.  Claimant 
 
            demonstrated equivocal "cog-wheel" weakness (normally, 
 
            muscular resistance to increasing pressure falls away at a 
 
            smooth rate, not in an abrupt "giving way").  Claimant had 
 
            positive response to torso rotation and cervical spine 
 
            compression, maneuvers that Dr. Donovan says "anatomically 
 
            cannot cause pain or cannot cause enough force to cause 
 
            significant discomfort or pain in the lumbar spine."
 
            
 
                 It is noted that claimant gave a greatly exaggerated 
 
            history to Dr. Donovan of immediate onset of low back pain 
 
            and numbness.  If claimant had reported such dramatic 
 
            symptoms to Dr. Crabb or her physical therapist, there can 
 
            be little doubt but that they would have charted.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980);  Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The record shows that claimant sustained a bruise 
 
            injury to her leg in January 1991, with brief complaints of 
 
            back pain, but not the immediate onset of pain and numbness 
 
            reported to Dr. Donovan.  Thereafter, she bid into a 
 
            different job, but also a strenuous job, which entailed 
 
            carrying 75-90 pounds of scrap meat in boxes to a scale.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            She was able to do this until at least November 1991, some 
 
            ten months after the initial soft tissue injury to her leg.  
 
            Only then did Dr. Crabb take her off work, and in the 
 
            absence of significant objective signs of injury.
 
            
 
                 In agency experience, a "hard tissue" injury to the 
 
            back can often be manifested at a substantial delay from 
 
            initial injury, such as where a herniated disc suddenly 
 
            shifts and pinches a nerve weeks or even months after an 
 
            initial herniation.  On the other hand, this pattern is not 
 
            so typical of "soft tissue" injuries, such as Dr. Crabb 
 
            believes claimant suffers.  Dr. Oatman incorrectly 
 
            attributes her problems to a bulging disc, whereas multiple 
 
            CAT scans show otherwise.  With all due respect to the 
 
            opinion of Dr. Crabb, his qualifications for diagnosis in 
 
            this area do not match up well with the two specialists, 
 
            neurosurgeon Dr. Fox and board certified orthopedic surgeon 
 
            Dr. Donovan.  Those two doctors, whose views are accepted as 
 
            having the greater weight here, do not find permanent 
 
            impairment or need for physical restrictions.
 
            
 
                 Pain that is not substantiated by clinical findings is 
 
            not a substitute for impairment.  Waller v. Chamberlain 
 
            Mfg., II Iowa Industrial Commissioner Report 419 (1989).
 
            
 
                 It is also noted that claimant has conducted herself 
 
            with this litigation very definitely in mind.  From November 
 
            1991 until December 1993, she made no applications for 
 
            employment whatsoever, except for asking her present 
 
            attorney for a job.  In December 1993, a bare month before 
 
            trial, claimant applied for several jobs.  It is an 
 
            inescapable inference that she was motivated to do so by the 
 
            looming trial date.
 
            
 
                 Given the record as a whole, it is concluded that 
 
            claimant has failed to establish that any condition of 
 
            disability on and subsequent to November 5, 1991 (when she 
 
            left work at Dr. Crabb's advice) is causally related to the 
 
            initial work incident of January 24, 1991.  Accordingly, 
 
            defendants prevail.  Other issues are rendered moot by the 
 
            same logic as this holding.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Stephen M Engelhardt
 
            Attorney at Law
 
            30 South 14th Street
 
            PO Box 217
 
            Denison Iowa 51442
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1402.40
 
                                                Filed April 11, 1994
 
                                                DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SANDRA BRYAN,                 :
 
                                          :
 
                 Claimant,                :      File Nos. 974416
 
                                          :
 
            vs.                               A R B I T R A T I O N
 
                                          :
 
            FARMLAND FOODS, INC.,         :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            
 
            5-1402.40
 
            Claimant failed to prove a condition of disability was 
 
            causally related to work injury.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JESSE EDWARDS,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 974969
 
         MASON HANGER-SILAS MASON,     :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         TRAVELERS INSURANCE CO.,      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Jesse Edwards, against his employer, Mason Hanger-Silas 
 
         Mason, and its insurance carrier, Travelers Insurance Company, 
 
         defendants.  The case was heard on June 26, 1992 at the Des 
 
         Moines County Courthouse.  The record consists of the testimony 
 
         of claimant.  The record also consists of joint exhibits 1-3.
 
         
 
                                      ISSUE
 
         
 
              The sole issue to be determined is:
 
         
 
              The nature and extent of claimant's permanent partial 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 61 years old and right hand dominant.  He com
 
         menced his employment with defendant-employer in January of 1986.  
 
         On July 16, 1990, claimant sustained a work-related injury.  At 
 
         the time of the work injury, claimant was operating a piece of 
 
         machinery whereby claimant was required to feed shells into an 
 
         automatic machine.  Claimant was new to the operation of the 
 
         machine and the machine crushed the distal end of the right index 
 
         finger.
 
         
 
              Claimant was transported to the Burlington Medical Center 
 
         where Mitchell Paul, D.O., amputated the distal end of the right 
 
         index finger.  Dr. Paul's examination found "...a volar oblique 
 
         skin injury with the skin devitalized at the level of the 
 
         mid-portion of the middle phalanx and the bone being amputated at 
 
         the level of the DIP joint."  (Exhibit 3, page 1)
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
              Subsequent to the amputation, claimant experienced pain in 
 
         his right palm at the base of his right index finger.  Dr. 
 
         Mitchell opined that claimant was experiencing "a painful stump 
 
         of the profundus tendon which is probably being hooked on to by 
 
         either lumbrical or by a vinculae."  (Ex. 3, p. 3)
 
         
 
              Dr. Paul performed a second surgery.  The procedure con
 
         sisted of:  "Excision of profundus tendon, both of finger and 
 
         palm, with suturing of the profundus to the sublimis tendon at 
 
         the level of the wrist."  (Ex. 3, p. 5)
 
         
 
              As of January 8, 1991, Dr. Paul opined:
 
         
 
              PLAN AT THIS TIME:  Follow the patient only on a prn 
 
              basis.  It should be noted that all of the pain in his 
 
              palmer region is completely resolved and his functional 
 
              capacity is significantly improved since this secondary 
 
              procedure was performed.
 
         
 
         (Ex. 3, p. 7)
 
         
 
              On March 6, 1991, Dr. Paul examined and evaluated claimant.  
 
         He wrote in his report of that date:
 
         
 
              The patient postoperatively did well although has had 
 
              some degree of weakness but no pain within the palm 
 
              area.  At the present time, he does have some degree of 
 
              impairment regarding his hand related both to the ampu
 
              tation itself as well as to the weakness that he is 
 
              experiencing in his index finger.
 
         
 
              Utilizing the AMA guidelines for permanent impairment, 
 
              the patient's impairment of his index finger is approx
 
              imately 75% which represents 15% of the hand which is 
 
              14% of the upper extremity which, utilizing the conver
 
              sion chart, is 8% of the whole person deficit.
 
         
 
         (Ex. 3, p. 8)
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The right of an employee to receive compensation for 
 
         injuries sustained is statutory. The statute conferring this 
 
         right can also fix the amount of compensation payable for differ
 
         ent specific injuries.  The employee is not entitled to compensa
 
         tion except as the statute provides.  Soukup v. Shores Co., 222 
 
         Iowa 272, 268 N.W. 598 (1936).
 
         
 
              Compensation for permanent partial disability begins at 
 
         termination of the healing period.  Section 85.34(2).  Permanent 
 
         partial disabilities are classified as either scheduled or 
 
         unscheduled.  A specific scheduled disability is evaluated by the 
 
         functional method; the industrial method is used to evaluate an 
 
         unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 
 
         886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
         1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
         (1960).
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects or compensatory change, result in permanent impairment of 
 
         the body as a whole.  Such impairment may in turn be the basis 
 
         for a rating of industrial disability.  It is the anatomical 
 
         situs of the permanent injury or impairment which determines 
 
         whether the schedules in section 85.34(2)(a) - (t) are applied.  
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
         Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              A wrist injury generally is an injury to the hand, not the 
 
         upper extremity.  The hand extends to the distal end of the 
 
         radius and ulna, including the carpus or wrist.  Elam v. Midland 
 
         Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981).
 
         
 
              In the case before the undersigned, claimant had undergone 
 
         two surgical procedures.  One procedure was to the right index 
 
         finger.  The other surgery was a procedure which resulted in a 
 
         scar involving the palm of the hand and a horizontal scar at the 
 
         wrist area.  The tendon at the wrist was involved.  Claimant 
 
         testified that his right hand grip had lessened since the work 
 
         injury and that he had to hold a screwdriver in his left hand.  
 
         At the hearing, claimant demonstrated that he could not pull his 
 
         fingers to the palm of his right hand.  Claimant also testified 
 
         that he had experienced difficulties with his right hand in oper
 
         ating power tools.  Claimant's work injury affected more than his 
 
         right index finger.  Claimant's right hand had been affected too.  
 
         
 
              It appears to this deputy that claimant's work injury is an 
 
         injury to the right hand.  Dr. Paul assesses the injury as a 15 
 
         percent injury to the right hand.  His medical opinion is uncon
 
         troverted.
 
         
 
              Therefore, it is determined that claimant is entitled to a 
 
         15 percent permanent partial disability to the right hand.  His 
 
         weekly benefits are computed according to section 85.34(a)(1).  
 
         The computation is:  .15 x 190 weeks = 28.5 weeks.  Claimant has 
 
         previously received 17.571 weeks.  He is owed 10.929 weeks of 
 
         benefits at the stipulated rate of $224.18 per week commencing 
 
         from November 19, 1990.
 
         
 
                              
 
         
 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
                                 ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are liable for twenty-eight point five (28.5) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred twenty-four and 18/l00 dollars ($224.18) per 
 
         week commencing from November 19, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code as amended.
 
         
 
              Defendants shall receive credit for all benefits previously 
 
         paid
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 
         Attorney at Law
 
         P O Box 821
 
         205 Washington Street
 
         Burlington, Iowa  52601
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Building
 
         Davenport, Iowa  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 1803.1
 
                                                 Filed July 21, 1992
 
                                                 MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JESSE EDWARDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 974969
 
            MASON HANGER-SILAS MASON,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803; 1803.1
 
            Claimant was awarded a 15 percent permanent partial 
 
            disability to the right hand.  Claimant's right index finger 
 
            was crushed by a machine in defendant-employer's plant.  The 
 
            injury not only affected the right index finger, but it also 
 
            affected the tendons in the right palm and wrist area.  The 
 
            injury was deemed to be an injury to the hand.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
RANDY SCHULTZEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 975078
 
JOHN MORRELL & CO.,     
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
HOME INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
Randy Schultzen, claimant, has filed a petition in arbitration and 
 
seeks workers compensation benefits from John Morrell & Co., defendant 
 
employer, and Home Insurance Co., defendant insurance carrier, for an 
 
injury that occurred on January 30, 1991.  The hearing was held before 
 
the undersigned on January 11, 1995 at Sioux City, Iowa.  The evidence 
 
in this case consists of the testimony of claimant, Beverly Schultzen, 
 
Marla McMonigal, Tracy Godsey; claimant's exhibits 1 through 12 and 
 
defendants' exhibits A through D.  The case was considered fully 
 
submitted at the close of the hearing.
 
 
 
                          ISSUES
 
 
 
The parties presented the following issues for resolution:
 
 
 
1.  Whether claimant's injury is the cause of any permanent disability;
 
 
 
2.  Whether claimant is entitled to healing period benefits; and,
 
 
 
3.  Whether claimant is entitled to permanent partial disability 
 
benefits, and, if so, the appropriate commencement date for benefits.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner, having reviewed all of 
 
the evidence received, finds the following facts:
 
 
 
On the day of the hearing claimant was 36 years old and married with 
 
three children, all of whom were still living with him and his wife.
 
Claimant graduated from high school in 1976.  He took one class in 
 
electronics at Western Iowa Technical College after graduating from 
 
high school.  
 
 
 
Claimant began with Flavorland Industries as a meat cutter in 1976.  He 
 
remained there for a year and a half.  He was paid $5.53 per hour and 
 
left when the company closed down after a strike.  
 
 
 
Claimant next worked for Woolworth Construction performing general 
 
carpentry work.  He stayed with Woolworth Construction for 
 
approximately a year and a half and was paid $4.50 per hour.  He left 
 
Woolworth Construction when the business closed down.  
 
 
 
He next worked for Siouxland Beef.  He earned between $8.00 and $8.50 
 
per hour while employed for Siouxland.  Claimant performed mainly knife 
 
work and headed cattle while employed there.  He left when the company 
 
was closed down and went to work immediately at Floyd Valley, also a 
 
meat processing plant.  While at Floyd Valley he primarily worked at 
 

 
 
 
 
 
 
 
 
 
skinning and boning hams.  He left Floyd Valley when they had the 
 
annual summer layoff.  
 
 
 
After being off work for two or three months he began his employment 
 
with defendant employer in 1981.  When he started with defendant 
 
employer he was paid $8.53 per hour and at the time of his injury in 
 
January of 1991 he was paid $8.75 per hour.  At the time of his 
 
deposition in March of 1993 he was being paid $9.10 per hour.  
 
 
 
In 1986 claimant reported to the company nurse that he had a ruptured 
 
disc.  (Defandants' Exhibit A, page 12)  Claimant had been told that 
 
his disc was ruptured by a chiropractor who was treating him for low 
 
back strain.  No objective evidence indicates that claimant had a 
 
ruptured disc in 1986.  Even if he did have a ruptured disc, it is 
 
clear he completely recovered before his January 30, 1991 injury.  
 
Claimant was able to work for almost five years after his 1986 low back 
 
strain, performing heavy lifting between 70 and 90 pounds on a 
 
consistent daily basis with absolutely no problems.  His low 
 
back strain in 1986 had no impact on his 1991 injury that is 
 
the subject of this case.
 
 
 
On January 30, 1991, claimant was working at the Vac Pac machine.  He 
 
was lifting baskets of hams that weighed between 80 and 90 pounds onto 
 
a conveyor belt, when he felt something in his back give as he lifted 
 
one of the baskets.  He reported to the foreman and then reported to 
 
the company nurse for treatment.  (Claimant's Exhibit 1)
 
 
 
An MRI of February 18, 1991 revealed that claimant had a large 
 
herniated disc centrally and on the left at L5_S1.  (Cl. Ex. 2, p. 2)
 
Claimant was taken off work from January 30, 1991 through April 4, 
 
1991.  He returned to light duty work on April 5, 1991.
 
 
 
On June 24, 1991, he was examined by and his care was assumed by Ralph 
 
F. Reeder, M.D., a neurosurgeon, who noted that claimant has left-sided 
 
sciatica with pain radiating down to the thigh and calf.  Dr. Reeder 
 
prescribed bed rest and a regimen of steroid treatment.  If bed rest 
 
and drug therapy were unsuccessful, Dr. Reeder wanted to consider 
 
surgical decompression.  (Cl. Ex. 3, p. 2)
 
 
 
At a recheck visit on July 17, 1991, Dr. Reeder noted that claimant had 
 
improved with bed rest and drug therapy.  He was kept off work until 
 
July 29, 1991.  On July 29, 1991, claimant was allowed to return to 
 
light duty work with the restriction that he lift no more 10 pounds. 
 
(Cl. Ex. 4)
 
 
 
Dr. Reeder determined that claimant had reached maximum medical 
 
improvement on August 29, 1991 and he was allowed to return to work 
 
with the permanent work restriction that he lift no more than 50 
 
pounds.  Dr. Reeder determined that claimant had a 0 percent permanent 
 
impairment rating based on the AMA Guides To The Evaluation of 
 
Permanent Impairment.  However, he did note that claimant may suffer 
 
recurrent leg discomfort that may require an amendment of his 
 
impairment rating.  (Cl. Ex. 5)
 
 
 
When claimant returned to work in August of 1991 he was given a job as 
 
a box maker that complied with his work restrictions.  Claimant 
 
characterized the physical demands of the box making job as light to 
 
medium work.  (Def. Ex. C, p. 56)  He was not able to return to the job 
 
he had performed prior to work injury because he was unable to lift 
 
greater than 50 pounds.  He has not missed any work because of his back 
 
injury since August of 1991.  (Def. Ex. C, p. 46)  He currently takes 
 
no prescription medication for his back.  No back surgery is planned.
 
 
 
In August of 1992 claimant injured his knee while playing volleyball.  
 
His knee was surgically repaired and claimant remained off work for a 
 
period of time to allow his knee to heal.  Claimant was able to play 
 
coed volleyball during 1992 and 1993 with minimal discomfort to his 
 
back. (Def. Ex. C)
 
 
 
In March of 1993 claimant was evaluated for a disability determination 
 
at the request of defendants by Joel T. Cotton, M.D.  Dr. Cotton 
 
determined claimant had no permanent disability, although he agreed 
 
with Dr. Reeder's restriction of a 50 pound lifting requirement for 
 
claimant.  (Cl. Ex. 6)
 
 
 
In December of 1993 claimant began experiencing pain in his shoulder 
 

 
 
 
 
 
 
 
 
 
arm and hands.  Any injury to his shoulder, arms and hands is not at 
 
issue in this case.  Ultimately, his shoulder and arm problems resulted 
 
in his being taken off work from February 7, 1994 through the date of 
 
the hearing.  He has not been allowed to return to work for defendant 
 
employer as a result of his shoulder, arm and hand complaints, not 
 
because of any problems with his back.  He still considers himself an 
 
employee of defendant employer.
 
 
 
Claimant currently works for a construction company owned by his 
 
brother.  He is paid $500.00 per week and is able to remain within his 
 
50 pound lifting restriction.
 
 
 
                 ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to be determined is whether claimant's injury of 
 
January 30, 1991 has resulted in any permanent disability.  
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 
 
220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 
 
217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 
 
516, 133 N.W.2d 867 (1965).
 
 
 
The fact that both Dr. Reeder and Dr. Cotton have determined that 
 
claimant has a permanent 50 pound lifting restriction indicates that 
 
claimant's injury has resulted in permanent disability.  Claimant is no 
 
longer able to perform the job he was able to do before he suffered the 
 
ruptured disc.  The fact that no doctor has provided a functional 
 
impairment rating does not mean that claimant does not suffer from 
 
permanent disability.  The disability exists whether a physician 
 
provides an impairment rating or not.  Because claimant has 
 
permanent work restrictions that will be with him for the rest 
 
of his life, it is determined that his injury has resulted in 
 
permanent disability. 
 
 
 
The second issue to be determined is claimant's entitlement to healing 
 
period benefits.  
 
 
 
Having determined that claimant's injury did result in permanency, and 
 
in light of the stipulation on the hearing report, defendants are 
 
liable for healing period benefits from January 30, 1991 through April 
 
4, 1991 and from June 21, 1991 through July 28, 1991.  Defendants are 
 
also liable for temporary partial disability benefits from July 2, 1991 
 
through August 25, 1991.
 
 
 
The final issue to be determined is claimant's entitlement to permanent 
 
partial disability benefits.
 
 
 
Since claimant's injury is to his back an evaluation of his industrial 
 
disability is mandated.
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 

 
 
 
 
 
 
 
 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability 
 
is proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a 
 
result of the injury; and inability because of the injury to 
 
engage in employment for which the employee is fitted.  
 
 
 
Loss of earnings caused by a job transfer for reasons related to the 
 
injury is also relevant.  Likewise, an employer's refusal to give any 
 
sort of work to an impaired employee may justify an award of 
 
disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 
 
 
 
 These are matters which the finder of fact considers collectively in 
 
arriving at the determination of the degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  
 
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
Claimant was 34 years old on the date of the hearing.  His back injury 
 
has resulted in minor loss of earning capacity because heavy lifting 
 
jobs are not foreclosed to him.  Until he hurt his knee, shoulder, arm, 
 
and hands, claimant was able to work for defendant employer with no 
 
lost time attributable to his back since August 1991.  His ruptured 
 
disc does make him a less attractive potential employee to prospective 
 
employers and he does have many years left in the work force.  
 
 
 
His injury has not required surgical intervention.  He no longer takes 
 
prescription medication for his pain.  Although he still suffers from 
 
occasional discomfort, his healing period was relatively brief.
 
 
 
After considering all of the factors used to determine industrial 
 
disability, it is the decision of the undersigned that claimant has 
 
sustained a 10 percent industrial disability.  The appropriate 
 
commencement date for permanent partial disability benefits to begin is 
 
August 29, 1991, the date that Dr. Reeder determined claimant had 
 
reached maximum medical improvement.  
 
 
 
                                ORDER
 
 
 
THEREFORE, IT IS ORDERED:
 
 
 
That defendants shall pay claimant fifty (50) weeks of permanent 
 
partial disability at the rate of two hundred eighty_three and 39/100 
 
dollars ($283.39).
 
 
 
That defendants shall pay claimant fourteen point seven one four 
 
(14.714) weeks of healing period at the rate of two hundred 
 
eighty_three and 39/100 dollars ($283.39).
 
 
 
That defendants shall pay accrued benefits in a lump sum, and shall 
 

 
 
 
 
 
 
 
 
 
receive credit for benefits previously paid.
 
 
 
That defendants shall pay interest on the award, as governed by Iowa 
 
Code section 85.30.
 
 
 
That defendants shall pay the costs of this action.
 
 
 
That defendants shall file claim activity reports as requested by the 
 
agency.
 
 
 
Signed and filed this ____ day of April, 1995.         
 
                             ________________________________        
 
                             TERESA K. HILLARY        
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Ms Kay E Dull
 
Attorney at Law
 
509 9th St
 
P O Box 3107
 
Sioux City IA 51102
 
 
 
Mr Thomas M Plaza
 
Attorney at Law
 
701 Pierce St  Ste 200
 
P O Box 3086
 
Sioux City IA 51102-3086
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                   5-1803
 
                                   Filed April 20, 1995
 
                                   Teresa K. Hillary
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
RANDY SCHULTZEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 975078
 
JOHN MORRELL & CO.,     
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                        D E C I S I O N
 
and       
 
          
 
HOME INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
5-1803:
 
Thirty-four year old claimant with ruptured disc at L5-S1 and with 
 
permanent 50 pound lifting restriction given a 10 percent industrial 
 
disability award.  Claimant had no surgery and required none, took no 
 
prescription pain medication and had minimal loss of earnings.  His 
 
inability to work was due to other injuries unrelated to his back 
 
injury.
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARY KENT,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                        
 
            CHARITON MANOR CARE CENTER,          File Nos. 
 
                                                       975093/1013393
 
                        
 
                 Employer,                           A P P E A L
 
                        
 
            and                                   D E C I S I O N
 
                        
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This decision will be based upon the agency record and 
 
            evidence that has been admitted into evidence.  Only those 
 
            facts and conclusions of law necessary to resolve the issues 
 
            raised on appeal will be discussed.
 
            
 
                                      ISSUES
 
            
 
            The dispositive issues on appeal are:  Has claimant met her 
 
            burden of proving that she suffered an injury arising out of 
 
            and in the course of her employment May 7, 1990 and the 
 
            extent of claimant's industrial disability from an injury on 
 
            January 27, 1991.
 
            
 
                                FINDINGS OF FACT
 
            
 
            Mary Kent (hereinafter claimant or Kent) was born on 
 
            December 12, 1947.  She worked for Chariton Manor (defendant 
 
            employer), was terminated for excess absenteeism in March 
 
            1988 (transcript, page 72) and was rehired in January 1989 
 
            to work as a nurse assistant.  (Tr., p. 49)  Claimant worked 
 
            an average of 30 hours a week earning $4.42 - $4.96 per 
 
            hour.  (Tr., pp. 73-74)  Prior to her employment with 
 
            Chariton Manor she held unskilled jobs including factory 
 
            jobs, nursing homes (tr., p. 30), waitressing (tr., p. 31), 
 
            and sharecropping with her parents (tr., p. 56).  She was 
 
            paid $4 - $5 per hour for jobs prior to working for Chariton 
 
            Manor.  (Tr., p. 47)  Kent initially testified she injured 
 
            her wrist on or about May 7, 1990 (tr., pp. 18-19) but was 
 
            uncertain of the exact date (tr., p. 50).  She testified she 
 
            kept working (tr., p. 50) but the injury later developed 
 
            into elbow and shoulder problems (tr., p. 19).  She stated 
 
            she also reported the incident that bothered her shoulder 
 
            elbow, and neck.  (Tr., p. 19)  She was absent from work on 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            May 8, 1990.  (Defendants' Exhibit C., p. 96)  She stated 
 
            the injury occurred when a patient twisted her arm.  (Tr., 
 
            pp. 18-19)  She said she sought medical treatment from Dr. 
 
            Rasmussen and a year later from Rodney E. Johnson, M.D.  
 
            (Tr., p. 20)  She stated, "my shoulder's always hurt" (tr., 
 
            p. 21) and that she did not take time off at the time of the 
 
            injury (tr., pp. 19 and 50).  
 
            
 
            On January 27, 1991 when Kent and three other aides were 
 
            walking a patient back to his room, the patient shoved Kent.  
 
            She hit her back on a feeding table and she went over 
 
            backward.  (Tr., p. 21)  Claimant sought medical treatment 
 
            and was off work until March 1991 when she unsuccessfully 
 
            attempted to return to work.  (Tr., pp. 23-24)  She stated 
 
            that if she stands for a long period of time her back 
 
            bothers her and her left leg swells. (Tr., p. 30)
 
            Claimant has a ninth grade education and has no GED.  
 
            Training at Chariton Manor (tr., p. 32) led to claimant 
 
            receiving a certificate as a nursing assistant (tr., p. 45).  
 
            She received a certificate as a medical aide in 1990.  (Tr., 
 
            p. 45)  Claimant's typical day consists of having coffee, 
 
            sitting around smoking, occasionally crying, sometimes 
 
            feeling sorry for herself and having trouble sleeping.  
 
            (Tr., pp. 32-33)
 
            
 
            Claimant has not made application for employment since 
 
            leaving work following her January 27, 1991 injury.  (Tr., 
 
            p. 52)  On February 4, 1991 claimant filed an application 
 
            for disability benefits under the Social Security Act.  The 
 
            application was approved by an Administrative Law Judge on 
 
            March 26, 1993 who decided the benefits should commence 
 
            January 31, 1991.
 
            
 
            The evidence in the record contains no evidence of medical 
 
            treatment for claimant prior to January 27, 1991.
 
            Following the work incident on January 27, 1991 claimant was 
 
            seen by Timothy Kenney, M.D.  On March 4, 1991 Dr. Kenney 
 
            released claimant to return to work (tr., p. 23) with 
 
            restrictions which include no lifting over 15 pounds, no 
 
            repetitive bending, stooping or twisting activities.  (Def. 
 
            Ex. B, p. 94)  There are no records from Dr. Kenney in 
 
            evidence.  Likewise, there are no medical records in 
 
            evidence from Richard Tunkel, M.D., Craig Dubois, M.D., and 
 
            Sam Graham, Ph.D., clinical psychologist who claimant also 
 
            saw.  (Tr., p. 23 and Def. Ex. B, p. 92)
 
            
 
            On April 15, 1991 an MRI of the lumbar spine revealed severe 
 
            degenerative facet arthropathy at L4-5 and L5-S1, moderately 
 
            advanced degeneration of the L5-S1 disc, mild degeneration 
 
            of the L3-4 disc and a smooth and diffuse disc protrusion at 
 
            L5-S1. (Def. Ex. B, pp 2-3)  On May 30, 1991 claimant was 
 
            seen by Daniel J. McGuire, M.D.  Dr. McGuire noted back pain 
 
            and believed claimant had to be pushed hard at physical 
 
            therapy.  Claimant failed to keep an appointment with Dr. 
 
            McGuire on June 13, 1991.  (Def. Ex. B, p. 45)  On June 24, 
 
            1991 Dr. McGuire noted that claimant was making no progress.  
 
            Claimant was given return to work guidelines.  Claimant told 
 
            him that she could not do any of the jobs under the return 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to work guidelines.  Dr. McGuire noted "with that mind 
 
            set...we are going to have a very difficult time winning 
 
            this ball game."  (Def. Ex. B, p. 44)
 
            
 
            On September 27, 1991 Thomas W. Bower, L.P.T., evaluated 
 
            claimant.  Mr. Bower noted past treatment had been primarily 
 
            conservative although the patient had not responded.  All of 
 
            the physical finds were completely disproportionate to the 
 
            subjective complaints.  Pain levels were extremely high and 
 
            also disproportionate to the heart rate and visual findings.  
 
            To Mr. Bower claimant appeared to be very definitely a 
 
            symptom magnifier and the testing was considered invalid.  
 
            (Def. Ex. B, pp. 18-19)  Mr. Bower saw claimant again on May 
 
            20, 1992.  Mr. Bower rated the overall impairment of the 
 
            lumbar spine at nine percent of the whole body.  (Def. Ex. 
 
            B, p. 13)
 
            
 
            Claimant was examined by John H. Kelley, M.D., on September 
 
            10, 1992.  Dr. Kelley rated claimant as having an eight 
 
            percent impairment of the body as a whole because of her 
 
            lower back condition.  (Def. Ex. B, p. 41)  In a letter 
 
            dated December 3, 1992 Dr. Kelley indicated that pain in 
 
            claimant's back limited her ability to work and could be 
 
            aggravated by long hours of work both standing and sitting 
 
            and that periodic position changes would be necessary.  
 
            (Def. Ex. B, p. 35)
 
            
 
            On July 23, 1993 Rodney E. Johnson, M.D., wrote that 
 
            defendants' counsel's letter of July 14, 1993 accurately 
 
            reflected Dr. Johnson's opinion.  The July 14, 1993 letter 
 
            indicated that the last time Dr. Johnson saw claimant was 
 
            June 10, 1992 and Dr. Johnson encouraged claimant to work.  
 
            (Def. Ex. B, p. 7)
 
            
 
            In a letter dated August 22, 1993 Daniel J. McGuire, M.D., 
 
            expressed his disappointment that claimant was not 
 
            participating in her health care and was not doing her 
 
            exercises.  Dr. McGuire thought that claimant could return 
 
            to work on June 24, 1991 but claimant was "quite 
 
            recalcitrant to any ideas about work."  (Def. Ex. B, p. 31)  
 
            He assigned claimant a five percent permanent partial 
 
            disability based on her subjective complaints of low-back 
 
            pain.  (Def. Ex. B, p. 31)
 
            
 
            Jack E. Reynolds, M.S., C.R.C., a vocational 
 
            rehabilitationist, began working with claimant on December 
 
            4, 1992.  He met with claimant twice and was to help her 
 
            acquire a GED and obtain suitable employment.  (Def. Ex. B, 
 
            pp. 89, 91)  Pursuant to claimant's counsel's request on 
 
            December 22, 1992 Mr. Reynolds suspended contact with 
 
            claimant until further notice.  On September 3, 1993 
 
            claimant was offered a job with defendant employer as a 
 
            laundry aide beginning September 11, 1993 working 24 hours a 
 
            week earning $4.65 per hour.  (Def. Ex. B, p. 50 and Tr., 
 
            pp. 77-78)  Drs. Johnson and McGuire and Mr. Bower thought 
 
            that claimant could do the job offered.  (Def. Ex. B, pp. 5, 
 
            29, and 9)  Claimant did not take the job offer.  (Tr., p. 
 
            77 and Def. Ex. E, p. 105)  Defendant employer is willing to 
 
            employ and accommodate claimant.  (Tr., pp. 78 and 85)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The first issue to be resolved is whether claimant has met 
 
            her burden of proving that she suffered an injury arising 
 
            out of and in the course of her employment May 7, 1990.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Claimant plead a traumatic injury occurred on May 7, 
 
            1990.  Her recollection of the date when the incident 
 
            occurred was vague and she did not know the date when it 
 
            occurred.  Her alleged symptoms from injury were also vague.  
 
            She first indicated that she hurt her wrist but this 
 
            allegedly later affected her elbow, shoulder and neck.  
 
            There is no evidence that she sought medical treatment for 
 
            any of the symptoms.  There is no reliable corroboration of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the alleged injury.  The only possible corroboration is that 
 
            claimant was absent from work on May 8, 1990 (the day after 
 
            the alleged injury) but claimant testified that she did not 
 
            miss work because of the injury.  Under the facts in this 
 
            record it cannot be said that claimant has met her burden of 
 
            proof.  Claimant did not suffer an injury on May 7, 1990 
 
            which arose out of and in the course of her employment.
 
            
 
                 It should be noted that the conclusion above would be 
 
            the same whether or not a first report of injury indicating 
 
            an injury date of May 18, 1990 was filed.  Iowa Code section 
 
            86.11 provides in relevant part:  
 
            The report to the industrial commissioner of injury shall be 
 
            without prejudice to the employer or insurance carrier and 
 
            shall not be admitted in evidence or used in any trial or 
 
            hearing before any court, the industrial commissioner or a 
 
            deputy industrial commissioner except as to the notice under 
 
            section 85.23.
 
            
 
            A first report of injury is not to be used in evidence to 
 
            determine if an injury arose out of and in the course of 
 
            employment.  In addition, the injury date of May 18, 1990 is 
 
            obviously different from an alleged traumatic injury date of 
 
            May 7, 1990.
 
            
 
            The second issue to be resolved is the extent of claimant's 
 
            industrial disability resulting from her January 27, 1991 
 
            injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
            Claimant was 44 years old at the time of her injury.  She 
 
            has a functional impairment of the lumbar spine of five to 
 
            nine percent.  She has limited formal education.  Her work 
 
            experience is unskilled jobs where she was paid at or about 
 
            minimum wages.  She was working 30 hours per week when 
 
            injured.  She has not had surgery.  She has not cooperated 
 
            with medical treatment to improve her condition.  She is 
 
            poorly motivated to return to work and apparently was 
 
            discouraged from attempting to find employment by her 
 
            lawyer.  She has not returned to work although it was 
 
            medically indicated that she could do so as early as March 
 
            1991.  Her post injury earnings are not known because she 
 
            has not returned to work.  Her inability to work is due in 
 
            part to her self-limitation and physical condition not 
 
            related to her January 27, 1991 injury.  The employer is 
 
            willing to rehire her and to accommodate her.
 
            When all relevant factors are considered claimant has proved 
 
            that she has a 20 percent industrial disability resulting 
 
            from her January 27, 1991 injury.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            Regarding the May 7, 1990 injury (File No. 1013393):
 
            That claimant shall take nothing from these proceedings.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            That claimant pay the costs.
 
            Regarding the January 27, 1991 injury (File No. 975093):
 
            That defendants are to pay unto claimant healing period 
 
            benefits from January 27, 1991 until June 10, 1992, at the 
 
            rate of ninety and 74/100 dollars ($90.74) per week.
 
            That defendants are to pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of ninety and 74/100 dollars ($90.74) per week from June 11, 
 
            1992.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants are to be given credit for benefits 
 
            previously paid.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            That defendants pay the six hundred dollar ($600) bill of 
 
            Dr. Kelley.
 
            Signed and filed this ____ day of June, 1994.
 
            
 
            
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Garry D. Woodward
 
            Attorney at Law
 
            200 Flynn Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                        5-1100; 5-1402.20; 5-1803
 
                                        Filed June 28, 1994
 
                                        Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARY KENT,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                        
 
            CHARITON MANOR CARE CENTER,          File Nos. 
 
                                                     975093/1013393
 
                        
 
                 Employer,                         A P P E A L
 
                        
 
            and                                  D E C I S I O N
 
                        
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1100; 5-1402.20
 
            Claimant failed to prove a traumatic injury occurred on the 
 
            date alleged.  There was no corroboration that the injury 
 
            occurred.  Claimant was vague about when injury occurred and 
 
            what were the resulting symptoms.
 
            
 
            5-1803
 
            Claimant was 44 years old with a ninth grade education.  She 
 
            had no surgery, was poorly motivated, did not cooperate with 
 
            medical treatment, had a functional impairment of 5-9 
 
            percent of the lumbar spine and she had discontinued working 
 
            with a vocational rehabilitationist on the advice of her 
 
            attorney.  She was found to have a 20 percent industrial 
 
            disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY KENT,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 975093
 
                                          :               1013393
 
            CHARITON MANOR CARE CENTER,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These cases came on for hearing on November 3, 1993, at 
 
            Des Moines, Iowa.  These are proceedings in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on May 7, 1990 (File No. 1013393) and January 27, 
 
            1991 (File No. 975093).  The record in the proceeding 
 
            consists of the testimony of the claimant; claimant's 
 
            husband, Vernon Kent; claimant's mother, Tonia Boren; Stan 
 
            Vander-Woude, and Jack Reynolds; claimant's exhibits 3 and 
 
            4; and, defendants' exhibit 1, parts A-E.
 
            
 
                                     ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 Regarding File No. 1013393:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on May 7, 1990;
 
            
 
                 2.  Whether there is a causal connection as to any 
 
            temporary total disability or healing period or any 
 
            permanency and claimant's alleged May 7, 1990 injury;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability, if any, and entitlement to disability benefits;
 
            
 
                 4.  Whether claimant gave timely notice under Iowa Code 
 
            section 85.23; and,
 
            
 
                 5.  Iowa Code section 85.39 independent medical exam: 
 
            Whether defendants should pay a $650 bill for such an exam;
 
            
 
                 Regarding File No. 975093:
 
            
 
                 1.  Whether there is a causal connection as to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's alleged injury and any healing period or 
 
            temporary total disability and any permanent disability;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits; and,
 
            
 
                 3.  Iowa Code section 85.39 issue as to an independent 
 
            medical exam by Dr. Kelley, M.D., and whether defendants 
 
            should pay the $650 bill.  This is the same bill as set out 
 
            in the issues in the previous file.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 45-year-old who went through the ninth 
 
            grade and does not have a GED.  She testified as to her work 
 
            history which began with her working the fields as a 
 
            sharecropper and doing restaurant work, serving in the 
 
            factories, sewing and cutting chickens.  On two occasions, 
 
            she worked for defendant employer, the first in December of 
 
            1987, and she was terminated in March of 1988 for excessive 
 
            absenteeism.  Claimant was then rehired again by defendant 
 
            employer in January of 1989.  Claimant said her most skilled 
 
            job was her nursing home job and that she obtained a medical 
 
            assistance certificate at Indian Hills Community College in 
 
            1989 through help by the defendants.
 
            
 
                 Claimant described her work duties at defendant 
 
            employer which included getting people up, feeding them, 
 
            dressing them, taking them to their rooms, carrying for the 
 
            elderly.
 
            
 
                 Claimant testified as to her May 7, 1990 alleged 
 
            injury.  She indicated that her arm was injured when she was 
 
            taking a patient to the bathroom and the patient jumped up 
 
            and twisted her arm.  She indicated that her wrist and elbow 
 
            started hurting and then her shoulder and neck began 
 
            hurting.  She reported this to the employer and did not have 
 
            any time off.  She related some of the medical services 
 
            rendered to her for this alleged injury.  Claimant said that 
 
            her shoulder never was repaired and that it hurts in the 
 
            middle of her shoulder down to the middle of her back.  She 
 
            indicated that surgery was recommended but she was not able 
 
            to be assured as to whether her pain would stop so claimant 
 
            decided not to have the surgery if she was going to have the 
 
            pain anyway.
 
            
 
                 Claimant then testified as to her January 27, 1991 
 
            alleged injury which claimant said occurred when she and 
 
            three aides were walking a patient to his room and claimant 
 
            was shoved against a table and went over it.  Claimant 
 
            worked four more days and then eventually had physical 
 
            therapy and was put in traction.  She said she did not get 
 
            any results from this medical treatment.  Claimant related 
 
            the medical services she obtained.  Claimant said she was 
 
            off January 27, 1991 to March 1991 for this 1991 injury and 
 
            tried to go back to work around March 4, 1991.  Claimant 
 
            said she worked two and one-half hours and was pushing a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            patient and her back hurt.  She left work and has not worked 
 
            since.  Claimant said she is on social security disability 
 
            now because of these injuries.
 
            
 
                 She related that a Dr. Kenney released her to work on 
 
            March 4, 1991, and she then called him when she didn't think 
 
            she could work after trying and he withdrew the release and 
 
            claimant has not worked since March 4, 1991.
 
            
 
                 Claimant acknowledged that she has had a right elbow 
 
            cubital tunnel surgery from which she has not yet been 
 
            relieved of problems.  She emphasized that she is not 
 
            claiming anything from this problem and that her right elbow 
 
            and surgery has nothing to do with any injury in this case 
 
            at bar.
 
            
 
                 Claimant said she has trouble standing and sitting for 
 
            long periods of time and her legs swell.  Claimant related 
 
            she saw a psychiatrist for problems she feels is related to 
 
            her injuries.
 
            
 
                 Claimant said she used to be very active, always on the 
 
            go, and can't play with her children as she used to go 
 
            bowling, camping, etc.  She emphasized that she would work 
 
            if she could and didn't want to get psychiatric treatment.  
 
            It appears to the undersigned her reason for that is she 
 
            didn't want to believe she had psychiatric problems and the 
 
            stigma that might go along with it.
 
            
 
                 Claimant indicated she cries a lot and her typical day 
 
            is getting up, having coffee, smoking, sitting around, lying 
 
            down, and sometimes feels sorry for herself and gets 
 
            depressed.  She said she doesn't sleep with her husband as 
 
            she does not sleep well at night.
 
            
 
                 Claimant acknowledged that she has made no employment 
 
            applications since she was hurt in January 1991 to the 
 
            present.
 
            
 
                 Claimant was asked whether she met with Jack Reynolds, 
 
            who was at the court hearing, as to returning claimant to 
 
            work.  There were two meeting considering this.  She was 
 
            asked whether her lawyer told her not to work with Mr. 
 
            Reynolds.  Claimant said she didn't remember.  Claimant did 
 
            acknowledge that defendant employer did offer her a job in 
 
            September of 1993 and gave her a date and time for her to 
 
            return to the job they had and that she didn't go back to 
 
            work.  Claimant admitted that if she goes back to work she 
 
            will lose her social security.
 
            
 
                 Vernon Kent, claimant's husband, testified that he is 
 
            living with claimant and that he hasn't slept with her since 
 
            the injury.  He said claimant is more on the couch than in 
 
            the bed.  She doesn't sleep well and lies on the couch and 
 
            watches television.  He indicated she does very little 
 
            housework and that he does the cooking with the help of his 
 
            daughter.
 
            
 
                 Mr. Kent said claimant has a changed personality now 
 
            since the injury, a shorter temper and not a happy-go-lucky 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            person.  He emphasized again that she stays home watching 
 
            television.  Mr. Kent further indicated that claimant used 
 
            to like to have her grandchildren around but doesn't enjoy 
 
            this now and would rather have them stay away.  He said his 
 
            wife gets upset and cries.  He said she wanted to be a 
 
            registered nurse and would like to work and take care of old 
 
            people but now she can't.  He said his wife feels as if part 
 
            of her life has been taken away.  She is depressed and 
 
            stares into space.  He said she used to enjoy cooking and 
 
            that now the family brings in the food for a potluck since 
 
            his wife can't cook.
 
            
 
                 Tonia Boren, claimant's mother, testified that she is 
 
            in claimant's home often and that claimant sits most of the 
 
            time but cannot sit or stand too long.  She said claimant is 
 
            depressed a lot and doesn't do a lot and cries a lot.  Ms. 
 
            Boren said that before claimant's injuries she was very 
 
            active.  She bowled, painted and fished but can't do these 
 
            anymore.  She said that claimant does not want to see her 
 
            five grandchildren now as she is in pain.  She said she 
 
            knows claimant is in pain by looking at her.   Ms. Boren 
 
            said she, herself, worked for defendant employer until she 
 
            quit on October 16, 1993.
 
            
 
                 Stan Vander-Woude is defendant employer's nursing home 
 
            administrator and has worked there 17 years.  He generally 
 
            oversees the operation of the nursing home.  He knows 
 
            claimant.  He said claimant was employed there on two 
 
            different occasions.  She was a good worker and was a good 
 
            employee and did her work.  He said claimant still had an 
 
            absenteeism problem after she was rehired in January 1989.
 
            
 
                 Mr. Vander-Woude said that claimant is still considered 
 
            an employee of defendant employer and that she was never 
 
            terminated.  He said he met with Jack Reynolds and tried to 
 
            find a constructive job to get claimant back to work to see 
 
            what she could do.  He related the position to be laundry 
 
            aide and described the job.  He indicated it was light duty 
 
            work and that it was okayed by two doctors.  He said that 
 
            claimant could work 24 hours a week.
 
            
 
                 Mr. Vander-Woude said claimant was offered the job and 
 
            she never reported or called in.  The job is still available 
 
            right now.  He indicated the hourly wages as $4.65 per hour 
 
            and that when claimant last worked, she was making $4.96, 
 
            the last increase from the $4.65 to the $4.96 rate.  He 
 
            acknowledged that he said claimant tried to work and stayed 
 
            for two and one-half hours.  He didn't recall the day but 
 
            thought it was approximately three weeks after her injury 
 
            date which would have been the January 27, 1991 date.
 
            
 
                 Jack Reynolds, a vocational rehabilitation consultant, 
 
            testified that his job was to assist an injured individual 
 
            and return them to an appropriate employment.  He said he 
 
            reviewed the medical records.  He indicated that he was 
 
            contacted by defendants' attorney and that he was requested 
 
            to assist the claimant in trying to get the appropriate 
 
            employment with either defendant employer or another 
 
            company.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Mr. Reynolds said that an appointment was set up for 
 
            October 28, 1992, with claimant at her attorney's office and 
 
            that he, claimant and her attorney were all present along 
 
            with claimant's husband.  He said claimant was cooperative 
 
            and he had obtained the information as to claimant's final 
 
            limitations, her vocational and education history.  He said 
 
            he gave claimant a survey to complete so as to find 
 
            claimant's vocational interest.
 
            
 
                 He said a second meeting was set up around December 4, 
 
            1992. Mr Reynolds said he had the results of the career 
 
            assessment and inventory identifying jobs within claimant's 
 
            limitations and that he was trying to find jobs for 
 
            claimant's interest.  He said claimant was cooperative at 
 
            the second meeting.
 
            
 
                 Mr. Reynolds then had a third contact with the claimant 
 
            around December 22, 1992, in which he called the claimant 
 
            and was told by claimant's husband to call her attorney, Mr. 
 
            Woodward.  Mr. Reynolds said he was told by claimant's 
 
            attorney to suspend work with the claimant and that there 
 
            was no job she could do and that he would produce medical 
 
            records to show that.
 
            
 
                 Mr. Reynolds indicated that he then met with Mr. 
 
            Vander-Woude to see if a job was available within defendant 
 
            employer for which claimant was capable of performing.  Mr. 
 
            Reynolds said the employer was very cooperative even though 
 
            the claimant wasn't going to cooperate.  The laundry aide 
 
            job was identified and Mr. Reynolds said he observed the job 
 
            and determined how it could be handled.  Mr. Reynolds said 
 
            he heard Mr. Vander-Woude testify at the hearing and the 
 
            testimony is correct as he knew it.  Mr. Reynolds proceeded 
 
            to send a job description to Rodney E. Johnson, M.D.,  and a 
 
            Dr. McGuire.  Mr. Reynolds said these two doctors approved.  
 
            He also sent it to Tom Bower, a physical therapist, and he 
 
            okayed it.  Mr. Reynolds said since a job was offered to 
 
            claimant, she did not go to work or contact defendant 
 
            employer, or himself.  Mr. Reynolds said he understands the 
 
            defendant employer is still ready to put claimant back to 
 
            work and that it would be for 24 hours a week at a minimum 
 
            wage of $4.65 per hour.  Mr. Reynolds said that claimant 
 
            could sit or stand at this job and that either option is 
 
            available or both are available.
 
            
 
                 Mr. Reynolds referred to a December 23, 1992 letter 
 
            written by Mr. Reynolds to claimant's attorney (Defendants' 
 
            Exhibit B, page 88), in which Mr. Reynolds referred to the 
 
            fact that he is to suspend working with claimant because Mr. 
 
            Woodward did not believe there is a job she can perform and 
 
            she was going to forward additional medical reports to Mr. 
 
            Reynolds' attention to support claimant's position.  Mr. 
 
            Reynolds said that he never did receive any medical records 
 
            or information from claimant or claimant's attorney that 
 
            would indicate claimant could not work.
 
            
 
                 Claimant then testified again on rebuttal and stated 
 
            that she recalled a meeting at her attorney's office with 
 
            Mr. Reynolds and that she was given the impression that she 
 
            wasn't as disabled as she said she was and that Mr. Reynolds 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            gave the impression that claimant was exaggerating and felt 
 
            sorry for herself and was focusing on her pain and, 
 
            therefore, claimed she didn't have as much pain as she 
 
            thought.
 
            
 
                 Defendants' exhibit 1B, pages 46 through 95, and IE, 
 
            pages 102-104, is the rehabilitation consultants records, 
 
            notes and reports which support Mr. Reynold's testimony and 
 
            also supports Mr. Vander-Woude's testimony.  Claimant was 
 
            and has continued to be offered a job and it appears this 
 
            job is within her restrictions and that she at least has not 
 
            attempted to try the job and cooperate with the defendant 
 
            employer to try to work into the job, and that for the most 
 
            part claimant's attorney has, as it appears from the 
 
            evidence, impeded and prevented the rehabilitation 
 
            consultant from proceeding any further in trying to help 
 
            this claimant find a job or to be become employed.
 
            
 
                 It is obvious that the claimant's conduct is also based 
 
            on claimant's exhibit 4 in which she is determined to be 
 
            totally disabled for social security purposes.  As one 
 
            knows, the criteria for determining disability with social 
 
            security and workers' compensation is different in many 
 
            respects.  Likewise, the undersigned realizes that it is 
 
            common that once one is on social security disability they 
 
            lose all incentives usually to try to obtain employment or 
 
            get back to work because of their losing their social 
 
            security benefits.  This is even more common where we have 
 
            one making a small wage, minimum or slightly larger, and 
 
            whose work history would indicate that that would be the 
 
            type of job one would be most likely able to continue to 
 
            obtain.  Many claimants feel that they can make as much or 
 
            live suitably on the welfare system rather than attempt to 
 
            work for wages that is minimum but is in accordance with 
 
            their capabilities.  In this particular case, it looks like 
 
            claimant's capabilities are even more based on her school 
 
            experience and the ability to get good grades but it looks 
 
            like claimant now has put that aside and resting on hoping 
 
            to receive weekly or monthly payments from as many sources 
 
            as possible.
 
            
 
                 In looking at the evidence concerning claimant's 
 
            alleged May 7, 1990 injury, the undersigned finds nothing as 
 
            to showing claimant incurred an injury that arose out of and 
 
            in the course of her employment nor has there been any 
 
            medical evidence showing any causal connection as to that 
 
            alleged injury and complaints to which claimant alleges 
 
            today or disabilities which she claims exists.  Other than 
 
            claimant's testimony and some reference in some medical 
 
            after claimant's alleged injury of January 27, 1991, there 
 
            are no reports dated prior to January 27, 1991, at which 
 
            time claimant alleges an injury occurred at work to her 
 
            back.
 
            
 
                 The claimant sets out as an issue a desire to have the 
 
            $650 bill of Dr. Kelley paid which was incurred for an 
 
            independent medical examination in reference to the May 7, 
 
            1990 alleged injury.  The undersigned sees no impairment 
 
            determined as to that injury that is specifically in 
 
            reference thereto.  Claimant's exhibit 3 is a bill from Dr. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Kelley for an independent medical examination for $600 and 
 
            not $650, and the date of services rendered is September 10, 
 
            1990.  On this exhibit there is no reference to any 
 
            particular accident that might have been pertinent thereto.  
 
            The undersigned is going to consider that in reference to 
 
            claimant's January 27, 1991 injury and deny claimant's 
 
            reimbursement for the same or having the same paid in 
 
            reference to the May 7, 1990 alleged injury.
 
            
 
                 Claimant's exhibit 1A, pages 2 and 3, is radiology 
 
            reports concerning the claimant dated April 15, 1991.  Said 
 
            reports note severe degenerative facet arthropathy for the 
 
            patient's age noted at L4-L5 and L5-7 levels contributing to 
 
            foraminal narrowing at the latter level.  Said reports 
 
            indicate a moderately advanced disc degeneration at those 
 
            levels for the patient's age.  There was additional 
 
            degeneration noted in L3-L4 discs. (Cl. Ex. 1A, pp. 4 and 5)
 
            
 
                 On July 23, 1993, Rodney E. Johnson, M.D., wrote a 
 
            letter to defendants' attorney indicating that defendant 
 
            attorney's letter of July 14, 1993 actually reflected the 
 
            doctor's opinion of claimant's complaints.  The doctors' 
 
            opinion thus reflected that he felt that claimant's elbow 
 
            and hand complaints which involved the cubital tunnel and 
 
            the ulnar neuropathy  was causally related to any work 
 
            injury or work incident.  He also opined that as to 
 
            claimant's upper extremity/shoulder problems, he felt that 
 
            any permanent impairment is in the arm or extremity and does 
 
            not involve the body as a whole.  The doctor confirmed the 
 
            last time he saw the claimant was on June 10, 1992, at which 
 
            time she was to return on an as-needed basis.  He encouraged 
 
            her to work and be productive and placed a no lifting over 5 
 
            or 10 pounds overhead restriction right side only.  She was 
 
            also to avoid repetitious pushing and pulling on the right 
 
            side such as vacuuming.  He did permit her to go back to 
 
            work and do nurse's aide work which would include making 
 
            beds, feeding patients, handling medication, moving trays, 
 
            etc.
 
            
 
                 Dr. Johnson's August 13, 1993 letter indicated he 
 
            reviewed the job description that was supplied to him and he 
 
            believed that claimant should be able to do the work without 
 
            difficulty.  This description was reflected in the 
 
            rehabilitation consultant's records that have previously 
 
            been referred to. (Def. Ex. 1B)
 
            
 
                 Thomas W. Bower, a physical therapist, on September 9, 
 
            1993 also opined that the position of laundry aide would 
 
            appear to be suitable for the claimant based on the 
 
            estimated functional capacities which he had done on 
 
            claimant.  He also indicated that claimant showed submaximal 
 
            effort and that claimant was not disabled as perhaps she may 
 
            be attempting to convey.
 
            
 
                 Mr. Bower's May 6, 1993 report indicated claimant had a 
 
            9 percent impairment to the whole body regarding her back 
 
            condition but indicated there was a preexisting degenerative 
 
            disc disease.  He was unable to apportion out what might 
 
            have been preexisting but took a theoretical position that 
 
            is taken by some that there would be 50 percent apportioned 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            out.  He also again indicated the evaluation was clearly 
 
            invalidated by claimant's submaximal effort and symptoms 
 
            manifestations tendencies and he questioned the restrictions 
 
            placed at that time because of that.  He also opined that 
 
            claimant had a 7 percent impairment given to the upper 
 
            extremity because of her impingement problems and he did not 
 
            believe claimant's injury to the right upper extremity 
 
            extended into the body as a whole.
 
            
 
                 The medical evidence or the reports are confusing in 
 
            that they do not specifically refer to an injury date.  One 
 
            does not know from the May 6, 1993 letter whether Mr. Bower 
 
            is referring to the effects of a January 27, 1991 injury or 
 
            a May 7, 1990 injury.  One can help resolve this by 
 
            referring to Mr. Bower's May 20, 1992 letter in which he 
 
            referred to the fact that he indicated claimant had both 
 
            injuries to her lower back and lower shoulder.
 
            
 
                 Mr. Bower on more than one occasion refers to the fact 
 
            that claimant's physical findings appear to be completely 
 
            disproportioned to the subjective complaints.  There appears 
 
            to be a definite symptoms magnifier situation here.  In 
 
            looking at the file 1013393 in regards to the alleged May 7, 
 
            1990 injury, claimant was alleging a neck, shoulder, wrist 
 
            and elbow injury, whereas in file 975093, she was alleging a 
 
            lower back injury on January 27, 1991.
 
            
 
                 Defendants' exhibit 1A, pages 30 through 34, is letters 
 
            and reports concerning the evaluation of claimant by Daniel 
 
            J. McGuire, M.D.  From his report, it appears he was having 
 
            difficulty concerning time sequences in claimant's medical 
 
            history.  He felt back in the summer of 1991 that claimant 
 
            should attempt to work.  He assigned a maximum of 5 percent 
 
            permanent impairment on claimant based on subjective 
 
            complaints.  He also noted claimant had spondylolisthesis as 
 
            others noted which was preexisting and didn't rate it.  As 
 
            mentioned earlier, he was confused as to when claimant's 
 
            shoulder problems began or at what alleged injury date they 
 
            occurred.  The undersigned had that same problem in looking 
 
            at the record.
 
            
 
                 Defendants' exhibit 1A, pages 35 through 42, is the 
 
            reports or records in which Dr. Kelley was involved 
 
            concerning the treatment or evaluation of claimant.  He is a 
 
            partner with the same professional medical company as Dr. 
 
            McGuire.  Dr. Kelley in his history mentions both the 
 
            January 1991 and the May 1990 alleged injuries but he does 
 
            not causally connect any problems claimant may have with her 
 
            right shoulder including any impingement syndrome or 
 
            impairment to a May 1990 injury.  He only indicates that 
 
            claimant's condition may have developed after an injury to 
 
            the right arm in May of 1990 and he opined that she has a 15 
 
            percent impairment of the right upper extremity using the 
 
            AMA Guides to the Evaluation of Permanent Impairment.  It 
 
            also refers to claimant's preexisting Grade I 
 
            spondylolisthesis. (Def. Ex. 1A, p. 41)  The doctor then in 
 
            his report used the combined charts to reach a body as a 
 
            whole impairment combining both the right shoulder injury 
 
            and the low back injury.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 As to claimant's alleged May 7, 1990 injury, the 
 
            undersigned finds that claimant has failed to carry her 
 
            burden to show that an injury to her wrist or elbow or right 
 
            shoulder arose out of and in the course of her employment 
 
            and that any such incident caused claimant to have her 
 
            currently alleged problems.  We have claimant's very sparse 
 
            testimony concerning the alleged incident of May 7, 1990, 
 
            but the medical records mentioned little concerning that and 
 
            nothing prior to claimant's alleged January 27, 1991 injury.  
 
            The doctors, if they mentioned any May 7, 1990 event, do not 
 
            causally connect claimant's problems to any injury but also 
 
            they are strictly relying on claimant's history given to 
 
            them by the claimant.  It appears in every instance that any 
 
            history concerning a May 1990 incident was given after 
 
            claimant sought treatment for her alleged January 27, 1991 
 
            injury.  Defendants raised a question that they did not have 
 
            notice of claimant's May 7, 1990 injury.  The undersigned 
 
            finds that defendants have sustained their burden to prove 
 
            this affirmative defense.  There is no testimony from the 
 
            claimant that she notified anyone of said injury and as 
 
            indicated earlier, it does not show up in any medical or any 
 
            other documents in evidence that claimant was either getting 
 
            treatment or that the employer knew of any May 7, 1990 
 
            incident in a timely manner as provided under Iowa Code 
 
            section 85.23.  The undersigned therefore finds that 
 
            claimant takes nothing as to her alleged May 7, 1990 injury, 
 
            represented by file 1013393.
 
            
 
                 As to claimant's alleged January 27, 1991 low back 
 
            injury, represented by file 975093, the parties did 
 
            stipulate that an injury did arise out of and in the course 
 
            of claimant's employment.  There is dispute as to whether 
 
            claimant incurred any healing period or temporary total 
 
            disability or any permanent partial disability.  The only 
 
            indication in the record that claimant was in a healing 
 
            period that ended is the letter defendants' attorney wrote 
 
            to Dr. Johnson, who is the treating specialist, asking him 
 
            to either affirm the contents of the letter or write his own 
 
            report.  The doctor affirmed the fact that the last time he 
 
            saw the claimant was on June 10, 1992, when she was returned 
 
            to see him on an as-needed basis and he indicated that he 
 
            encouraged claimant to work and be productive and he set out 
 
            certain restrictions he would place on her.  He also 
 
            understood that claimant was permitted to go back and do 
 
            nurses' aide work which included making beds, feeding 
 
            patients, handling medication, moving trays, etc.  
 
            Defendants had paid 71 weeks of healing period.  Although 
 
            defendants take the position that they have overpaid any 
 
            healing period, and although the law is that voluntary 
 
            payment of healing period or benefits is not to be held 
 
            against the defendants, it would appear from the evidence 
 
            and page 7 of defendants' exhibit 1A, that claimant's 
 
            healing period was January 27, 1991 through June 10, 1992.
 
            
 
                 The undersigned arrives at a total of 71.286 weeks of 
 
            healing period.  The undersigned finds that this healing 
 
            period was caused by claimant's January 27, 1991 low back 
 
            injury.
 
            
 
                 Claimant has had permanent impairment ratings on his 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            low back injury of 5 percent up to 9 percent, and in each of 
 
            those cases there is reference to claimant's preexisting 
 
            degenerative disc condition and spondylolisthesis, and in 
 
            none of these cases do the doctors mention whether such 
 
            preexisting condition was aggravated or not but it appears 
 
            from the record that claimant was not being bothered by 
 
            these conditions or at least being treated for any of these 
 
            preexisting conditions until she actually had her injury on 
 
            January 27, 1991.  The doctors do not address what is 
 
            obvious to the experience of this agency that one can have 
 
            rather severe degenerative, arthritic or spondylolisthesis 
 
            conditions and have had no trouble with them until a back 
 
            injury occurred.  It is also obvious that such degenerative 
 
            arthritic conditions are not caused by an injury and that it 
 
            is something that builds up over a period of time and 
 
            increases with age.  As we know, the defendants take 
 
            claimant as she is with any preexisting situations and in 
 
            this case the undersigned finds that the preexisting 
 
            conditions of claimant were latent and were not active until 
 
            claimant's January 27, 1991 injury.
 
            
 
                 It is also apparent by the medical reports that various 
 
            tests for determining impairment or the extent of impairment 
 
            are somewhat invalidated by the medical provider's 
 
            determination that claimant was either performing 
 
            submaximally or is a symptoms magnifier.
 
            
 
                 The claimant has no motivation to find work and it 
 
            would appear any motivation she may have had has been 
 
            considered to be sedated by the fact that social security 
 
            has determined her to be totally disabled.  Of course, 
 
            social security has a different criteria in determining 
 
            disability in many respects than the determination of 
 
            industrial disability or total permanent disability under 
 
            the workers' compensation law.  There is no medical evidence 
 
            that points to the fact that claimant is totally disabled or 
 
            isn't able to go back to work on at least some light duty or 
 
            at least try to go back to work.  The defendant employer has 
 
            been accommodating and has a job currently open to the 
 
            claimant which has been opened for the claimant for over a 
 
            year and claimant has chosen not to attempt to work.  The 
 
            overwhelming medical evidence shows that the job description 
 
            given by the employer and passed through the doctors would 
 
            indicate that claimant is able to perform the work so 
 
            described.
 
            
 
                 The undersigned is also concerned by the evidence in 
 
            the record and the testimony of the rehabilitation 
 
            consultant of the claimant's attorney subduing, preventing 
 
            or advising claimant not to cooperate and basically not 
 
            attempting to go back to work.  It appears the 
 
            rehabilitation consultant provided for by the employer has 
 
            sincerely attempted to work with the claimant and get her 
 
            back to work, and that he has been able to work with his 
 
            client, defendant employer, who has cooperated in trying to 
 
            get this claimant back to work.  The undersigned finds that 
 
            claimant's attorney has done the claimant a disfavor in this 
 
            regard and that claimant, herself, has hurt her case by not 
 
            attempting to go back to work.  Claimant cannot expect to be 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            free from pain.  She has a permanent impairment that the 
 
            undersigned has found in his findings and with that 
 
            impairment, she still can be expected to work.  The 
 
            undersigned finds that claimant has no motivation to work.  
 
            The longer she convinces herself and others convince her 
 
            that she cannot work or that she has pain which she is 
 
            magnifying in her own mind and as long as she is out of the 
 
            job market, the greater the claimant will feel sorry for 
 
            herself.
 
            
 
                 The claimant desires the bill of Dr. Kelley in the 
 
            amount of $650 be paid by the defendants.  In looking at 
 
            claimant's exhibit 3 it appears that the independent medical 
 
            examination was $600 and not $650.  It appears that this 
 
            medical exam took place after there had been prior 
 
            impairment determinations made by defendants' authorized 
 
            doctors, namely, Dr. Johnson, and said same letter was 
 
            signed by Thomas Bower, the physical therapist. (Def. Ex. 
 
            1A, pp. 12, 13, 14)  The undersigned finds that defendants 
 
            shall pay the bill of Dr. Kelley for the independent medical 
 
            examination which is reflected on claimant's exhibit 3 and 
 
            in the amount of $600.  The undersigned is presuming the 
 
            $165 shown thereon as to x-rays for the spine and shoulder 
 
            is not in dispute as there is no reflection of those being 
 
            in dispute on the hearing report.
 
            
 
                 Taking into consideration claimant's age; intelligence; 
 
            medical and work history before and after her January 27, 
 
            1991 injury; her work experience; length of healing period; 
 
            location and severity of her injury; her motivation or lack 
 
            thereof; her education; functional impairment; and the 
 
            employer's willingness and effort to accommodate claimant 
 
            and provide a job for her, the undersigned finds claimant 
 
            has a 20 percent industrial disability.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 It is concluded that:
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of May 7, 
 
            1990 and/or January 27, 1991, are 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 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 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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.
 
            
 
                 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 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            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 fCo. v. Liddy, 207 N.W.2d 27 (Iowa 
 
            1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury no compensation shall 
 
                 be allowed.
 
            
 
                 It is further concluded:
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 As to the alleged May 7, 1990 injury, file No. 1013393, 
 
            it is concluded that claimant did not carry her burden to 
 
            show that an injury arose out of and in the course of her 
 
            employment on May 7, 1990, and claimant did not carry her 
 
            burden to show that said alleged injury caused claimant her 
 
            impairment or disability to her wrist, hand, arm or 
 
            shoulder.
 
            
 
                 Claimant did not give timely notice under the 
 
            provisions of Iowa Code section 85.23.
 
            
 
                 Claimant is not entitled to a reimbursement or have a 
 
            bill from Dr. Kelley in the amount of $650 paid which was 
 
            allegedly for an independent medical examination.
 
            
 
                 As to the January 27, 1991 injury, file No. 975093, it 
 
            is concluded that claimant incurred an impairment which was 
 
            caused by her work injury to her lower back on January 27, 
 
            1991, and that this work injury caused claimant to incur a 
 
            20 percent industrial disability.
 
            
 
                 Claimant incurred a healing period beginning January 
 
            27, 1991 to and including June 10, 1992, involving 71.286 
 
            weeks at the weekly rate of $90.74.
 
            
 
                 Claimant's preexisting condition to her back involving 
 
            degenerative disc disease and spondylolisthesis was 
 
            materially and substantially aggravated, heightened and 
 
            lighted up by claimant's January 27, 1991 work injury, and 
 
            defendants failed to carry their burden to show that any 
 
            preexisting impairment existed which could be apportioned 
 
            out.
 
            
 
                 Defendants are to pay the $600 bill of Dr. Kelley for 
 
            an independent medical exam.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding the May 7, 1990 injury (File NO. 1013393)
 
            
 
                 Claimant takes nothing.
 
            
 
                 Claimant to pay the costs.
 
            
 
                 Regarding the January 27, 1991 injury (File No. 
 
            975093):
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of ninety and 74/100 dollars ($90.74) 
 
            for the period of January 27, 1991 to and including June 10, 
 
            1992, involving seventy-one point two eight six (71.286) 
 
            weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            (100) weeks of permanent partial disability benefits at the 
 
            rate of ninety and 74/100 dollars ($90.74) per week 
 
            beginning June 11, 1991.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid 
 
            seventy-one (71) weeks of healing period and forty-eight 
 
            (48) weeks of permanent partial disability benefits a the 
 
            rate of ninety and 74/100 dollars ($90.74).
 
            
 
                 That defendants are to pay the six hundred dollar 
 
            ($600) bill of Dr. Kelley.
 
            
 
                 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 these actions, 
 
            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 December, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Garry Woodward
 
            Attorney at Law
 
            700 Walnut St  Ste 203
 
            Des Moines IA 50309
 
            
 
            Mr E J Kelly
 
            Attorney at Law
 
            2700 Grand Ave  Ste 111
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100; 5-2800
 
                                           5-1108; 5-1803
 
                                           Filed December 14, 1993
 
                                           Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY KENT,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 975093
 
                                          :               1013393
 
            CHARITON MANOR CARE CENTER,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            As to case number 1013393:
 
            
 
            5-1100; 5-2800
 
            Found claimant did not incur an injury that arose out of and 
 
            in the course of her employment and also claimant did not 
 
            give timely notice.
 
            
 
            As to case number 975093:
 
            
 
            5-1108; 5-1803
 
            Found claimant suffered an injury that arose out of and in 
 
            the course of her employment that caused claimant to incur a 
 
            healing period and a 20% industrial disability .
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BRENDA CASILLAS,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 975164
 
            PARKVIEW GARDENS CARE CENTER,   
 
                                                     A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                                                  A N D   R U L I N G
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            RULING ON MOTION FOR SANCTIONS
 
            The record in this matter shows the following.  On November 
 
            24, 1993 John E. Behnke (hereinafter Behnke), pro se, filed 
 
            a notice of appeal of the ruling of a deputy industrial 
 
            commissioner filed November 9, 1993 which has sustained 
 
            defendant's motion to dismiss the petition filed by Behnke.  
 
            On February 4, 1994 Parkview Gardens Care Center, Employer, 
 
            and Wausau Insurance Companies, insurance carrier, 
 
            (defendants) filed a motion for sanctions requesting that 
 
            Behnke's appeal be dismissed.  On March 3, 1995 Behnke filed 
 
            a resistance to defendants' motion for sanctions.  
 
            Defendants' motion is considered.
 
            Rule 343 IAC 4.28(1) provides:
 
               
 
               Appellant shall serve its brief within fifty days after 
 
            the date on which notice of appeal was filed, or within 
 
            twenty days after filing of the hearing transcript, 
 
            whichever date is later.  Appellee shall serve its brief 
 
            within twenty days after service of the brief of appellant.  
 
            If appellant serves a reply brief, it shall be done within 
 
            ten days after service of appellee's brief.
 
            
 
            There has been no hearing in this matter and the filing of 
 
            transcript is not applicable.  Therefore, Behnke's appeal 
 
            brief, as appellant, was to be served within 50 days after 
 
            the date of the notice of appeal.  Behnke has not done so.  
 
            Failure to timely serve and file an appeal brief is not 
 
            grounds for dismissal of an appeal.  However, a untimely 
 
            brief that is objected to will not be considered.  
 
            Therefore, defendants' motion to dismiss is overruled but 
 
            this matter will be considered without briefs.
 
            issues on appeal
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The issue on appeal is whether defendants' motion to dismiss 
 
            Behnke's petition should be granted.
 
            
 
                                FINDINGS OF FACT
 
            
 
            On August 10, 1992 Behnke notified defendants' counsel that 
 
            because of Behnke's suspension he could not represent Brenda 
 
            Casillas (hereinafter claimant) in this case.  On February 
 
            1, 1993 this agency approved a compromise special case 
 
            settlement in which claimant was paid $2,910.70 for all 
 
            workers' compensation liability for an injury of August 17, 
 
            1990.  The attorney for the claimant in the compromise 
 
            special case settlement was Sharon McMullin, who is not 
 
            associated with Behnke.
 
            On October 13, 1993 Behnke, as petitioner filed an original 
 
            notice and petition stating the dispute was an attorney fee 
 
            dispute.  The injury date on the petition was August 17, 
 
            1990.  Also filed on October 13, 1993 was a request for 
 
            allowance of attorney lien signed by Behnke but not signed 
 
            by claimant.
 
            
 
            On October 25, 1993 defendants filed a pre-answer motion to 
 
            dismiss.  On October 27, 1993 claimant filed an answer to 
 
            notice and request for allowance of attorney lien.
 
            Iowa Code section 86.39 provides:
 
               
 
               All fees or claims for legal, medical, hospital, and 
 
            burial services rendered under this chapter and chapters 85, 
 
            85A, 85B, and 87 are subject to the approval of the 
 
            industrial commissioner, and no lien for such service is 
 
            enforceable without the approval of the amount of the lien 
 
            by the industrial commissioner.  For services rendered in 
 
            the district court and appellate courts, the attorney's fee 
 
            is subject to the approval of a judge of the district court.
 
            
 
            No lien for legal services is enforceable without the 
 
            approval of the amount of the lien by the industrial 
 
            commissioner.
 
            "In ordinary use a lien is a charge upon property for the 
 
            payment of a specific obligation that is independent of the 
 
            lien."  Federal Land Bank of Omaha v. Boese, 373 N.W.2d 118, 
 
            120 (Iowa 1985).  "A lien is incident to and dependent upon 
 
            the right ... to recover but the right to recover ... is not 
 
            dependent upon the lien....  [F]ailure of the lien does not 
 
            prevent recovery on the obligation ... since it may exist 
 
            without the security the lien provides."  Armour-Dial, Inc. 
 
            v. Lodge & Shipley Co., 334 N.W.2d 142, 145 (Iowa 1983).
 
            In this case Behnke has requested, among other things that 
 
            will be discussed below, that a lien be approved.  However, 
 
            in making payment to claimant pursuant to the special case 
 
            settlement defendants have fulfilled their obligation to 
 
            claimant.  Defendants' obligation to pay claimant was 
 
            satisfied prior to the time Behnke filed his request to have 
 
            a lien approved.  Because defendants have no further 
 
            obligation to pay claimant, Behnke's request for attorney 
 
            lien against defendants is inappropriate.  Defendants' 
 
            motion to dismiss the petition as it relates to the 
 
            defendants should be and is hereby granted.  Also, Behnke's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            request for attorney lien is not appropriate against these 
 
            defendants. 
 
            
 
            In this case, because claimant was the injured employee who 
 
            has already received a special case settlement and because 
 
            there is no present indication that Behnke's entitlement to 
 
            payment of legal fees is not secure, a lien against any 
 
            proceeds of claimant is also not appropriate.
 
            
 
            Although Behnke's pleadings are not particularly clear, it 
 
            can be reasonably concluded that he is also seeking a 
 
            determination of the appropriate amount of legal fees.  This 
 
            dispute would be one between the claimant and Behnke.  This 
 
            is a dispute that is within the jurisdiction of this agency 
 
            pursuant to Iowa Code section 86.39 and rule 343 IAC 4.1(9).  
 
            This agency has jurisdiction to determine the correct amount 
 
            of legal fees, if any.  That portion of Behnke's petition 
 
            seeking a determination of legal fees in a dispute with 
 
            claimant should not be dismissed.  Therefore, this matter 
 
            should be remanded to the regular hearing assignment for 
 
            purposes of disposing of this matter by means of an 
 
            evidentiary hearing.  This appeal decision makes no 
 
            determination on the Behnke's entitlement to nor the amount 
 
            of appropriate legal fees.
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That Behnke's petition against Parkview Garden Care Center, 
 
            employer, and Wausau Insurance Companies, insurance carrier, 
 
            is dismissed.
 
            That Behnke's request for lien is not approved.
 
            That the matter between Behnke and claimant for 
 
            determination of legal fees shall be remanded to the regular 
 
            hearing assignment for disposition.
 
            That Behnke shall pay all costs of this matter.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
                                
 
            Copies To:
 
            
 
            Mr. John E. Behnke
 
            Box F
 
            Parkersburg, Iowa 50665
 
            
 
            Mr. Richard Betterton
 
            Attorney at Law
 
            P.O. Box 2787
 
            Waterloo, Iowa 50704-2787
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Ms. Valerie A. Landis
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                               1000
 
                                               Filed March 17, 1994
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BRENDA CASILLAS,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 975164
 
            PARKVIEW GARDENS CARE CENTER,   
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                                                A N D   R U L I N G
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1000
 
            A request for attorney lien was denied.  The request for 
 
            lien was filed by the employee's previous attorney after a 
 
            special case settlement had been approved.  The employee was 
 
            represented by a different attorney in the application for 
 
            special case settlement.  The employer and insurance 
 
            carrier's motion to dismiss the attorney lien request was 
 
            granted.
 
            
 
            The matter was remanded to the regular hearing assignment to 
 
            determine the correct amount of legal fees.  That dispute 
 
            would be between the employee and the employee's attorney.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
BRENDA CASILLAS,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 975164
 
PARKVIEW GARDENS CARE,  
 
CENTER                              ARBITRATION DECISION
 
          
 
     Employer,                     (ATTORNEY FEE DISPUTE)
 
          
 
and       
 
          
 
WAUSAU INSURANCE COMPANY,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This case came on for hearing on March 21, 1995, at Waterloo, Iowa.  
 
This is a proceeding in which the former attorney for the claimant, who 
 
was suspended by the Iowa State Bar Association during the pending of 
 
this case, seeks attorney fees from the claimant's successor attorney 
 
pursuant to an award settlement which successor attorney obtained for 
 
the claimant.  The record in the proceeding consists of the testimony 
 
of Richard Betterton, attorney and member of the law firm that was 
 
successor attorney for the claimant; John E. Behnke, the prior attorney 
 
for the claimant and attorney Behnke's exhibits A and B.
 
 
 
                            ISSUES
 
 
 
The issue for resolution is:  Whether John Behnke is entitled to any 
 
additional attorney fees.
 
 
 
                        FINDINGS OF FACT
 
 
 
The undersigned deputy having heard the testimony and considered all 
 
the evidence finds that the dispute herein is strictly between John 
 
Behnke, former attorney for the claimant, who was suspended by the Iowa 
 
Bar Association and therefore, could no longer practice law and handle 
 
this case, and claimant's successor attorney from the lawfirm of 
 
Johnston, Potterfield, & Nathanson, P.C.  
 
 
 
Mr. Behnke stated that he felt he was entitled to one-third of the 
 
settlement that was obtained by the claimant in the amount of 
 
$2,910.70.  This latter amount was in addition to any money previously 
 
received by the claimant or through Mr. Behnke on behalf of the 
 
claimant.  The $2,910.70 was received pursuant to an application for 
 
approval of a compromised special case settlement, which was approved 
 
by this agency and which application has the signatures of attorneys 
 
and parties not including John Behnke.  Mr. Behnke presented his 
 
exhibit A which had eight hours itemized in which he wanted $80.00 per 
 
hour totalling $640.00.  He also had some expenses set out and also 
 
wanted one-third of an $854.64 check allegedly received by the 
 
claimant.
 
 
 
The undersigned took official notice of the total file.  In the file 
 
there is a request for allowance of attorney fees which is not signed 
 
by the claimant and never approved.
 
 
 
At the time the special case compromise was obtained by the successor 
 

 
 
 
 
 
 
 
 
 
attorneys, Mr. Behnke was not authorized to practice law and was under 
 
suspension.  Mr. Behnke offered his exhibit B, which he contends 
 
entitles him to attorney fees earned or incurred before his suspension.
 
 
 
Mr. Behnke was receiving one-third of those amounts received by the 
 
claimant during the time he was handling this case and it would appear 
 
to the undersigned that Mr. Behnke got paid adequately for the services 
 
he rendered.  Mr. Behnke was not prepared to relate what he had 
 
received to date or the amount of payments he received on behalf of the 
 
claimant in which he took one-third.  From his statement, it appears 
 
that one of his problems of being suspended was his poor accounting or 
 
bookkeeping and this problem was further evident in his presenting his 
 
case herein.
 
 
 
It was solely Mr. Behnke's fault that he was suspended and this caused 
 
additional problems for the claimant in trying to get her case 
 
litigated.  She was required to obtain new counsel.
 
 
 
The undersigned believes the record speaks for itself.  The undersigned 
 
finds that Mr. Behnke is not entitled to any additional attorney fees.  
 
It was undisputed that he did not seek, nor was he entitled to any fees 
 
from the claimant herself.  Whatever she may have owed has been paid to 
 
him during the time he was representing her.  He had withheld his fee 
 
from the weekly payments she was getting during that time.  The 
 
undersigned therefore finds that Mr. Behnke takes nothing from this 
 
proceeding and has been paid in full for any and all moneys due him in 
 
regard to any representation he did for or any participation he did in 
 
this case herein including any expenses he incurred on behalf of 
 
claimant.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
It is concluded that claimant takes nothing from these proceedings.
 
 
 
                              ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
John Behnke is entitled to no additional fees, compensation or expense 
 
reimbursement in this matter.
 
 
 
John Behnke is to pay the costs in this action.
 
 
 
Signed and filed this _____ day of March, 1995.        
 
                                   ______________________________          
 
                                   BERNARD J. O'MALLEY      
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr. Richard Betterton
 
Attorney at Law
 
PO Box 2787
 
Waterloo, Iowa 50704-2787
 
 
 
Mr. John E. Behnke
 
Attorney at Law
 
Box F
 
Parkersburg, Iowa 50665
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1000
 
                                     Filed March 30, 1995
 
                                     BERNARD J. O'MALLEY
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
BRENDA CASILLAS,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 975164
 
PARKVIEW GARDENS CARE, 
 
CENTER                               ARBITRATION DECISION
 
          
 
     Employer,                      (ATTORNEY FEE DISPUTE)
 
          
 
and       
 
          
 
WAUSAU INSURANCE COMPANY,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
5-1000
 
Former claimant's attorney awarded no additional attorney fees.