BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       DONALD BAKER,       
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                          File No. 980571
 
       HUMBOLDT SAUSAGE CO.,    
 
                                            A P P E A L
 
          Employer,   
 
                                          D E C I S I O N
 
       and            
 
                 
 
       HOME INSURANCE COMPANY,       
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
          The record, including the transcript of the hearing before 
 
       the deputy and all exhibits admitted into the record, has been 
 
       reviewed de novo on appeal.  The decision of the deputy filed 
 
       November 21, 1994 is affirmed and is adopted as the final agency 
 
       action in this case with the following additional analysis:
 
       
 
          Defendants do not seek a credit under Iowa Code section 
 
       85.38(2) for short term disability benefits paid, but do seek 
 
       such a credit for long term disability benefits paid.  Defendants 
 
       are entitled under 85.38(2) to a credit for the "amount" paid.  
 
       That section does not speak in terms of weeks.  Defendants are 
 
       entitled to a credit against the award for the amount of long 
 
       term disability benefits paid to claimant, after taxes, on a 
 
       dollar for dollar basis.  See Lytle v. Hormel Corporation, (App. 
 
       June 12, 1985).
 
       
 
          Defendants shall pay the costs of the appeal, including the 
 
       preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of May, 1995.
 
       
 
       
 
       
 
       
 
                               ________________________________
 
                                      BYRON K. ORTON
 
                                 INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Robert E. McKinney
 
       Attorney at Law
 
       480 Sixth Street
 
       P O Box 209
 
       Waukee, Iowa  50263-0209
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Ms. Judith Ann Higgs
 
       Attorney at Law
 
       P.O. Box 3086
 
       Sioux City, Iowa 51102-3086
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         1701
 
                                         Filed May 31, 1995
 
                                         BYRON K. ORTON
 
          
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                 
 
         DONALD BAKER,     
 
                 
 
          Claimant,   
 
                 
 
         vs.          
 
                                           File No. 980571
 
         HUMBOLDT SAUSAGE CO.,       
 
                                            A P P E A L
 
          Employer,   
 
                                          D E C I S I O N
 
         and          
 
                 
 
         HOME INSURANCE COMPANY,     
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
         ____________________________________________________________
 
         1701
 
         Credit under 85.38(2) granted as a dollar for dollar basis, 
 
         not number of weeks.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       ____________________________________________________________
 
               
 
       DONALD BAKER,    
 
               
 
          Claimant, 
 
               
 
       vs.          
 
                                          File No. 980571
 
       HUMBOLDT SAUSAGE CO.,  
 
                                       A R B I T R A T I O N
 
          Employer, 
 
                                          D E C I S I O N
 
       and          
 
               
 
       HOME INSURANCE COMPANY,    
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ___________________________________________________________
 
       
 
                         STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by Donald Baker, 
 
       claimant, against Humboldt Sausage Company, employer, hereinafter 
 
       referred to as Humboldt, and Home Insurance Company, insurance 
 
       carrier, defendants, for workers' compensation benefits as a 
 
       result of an alleged injury on December 10, 1990.  On November 1, 
 
       1994 a hearing was held on claimant's petition and the matter was 
 
       considered fully submitted at the close of this hearing.
 
            
 
            The parties have submitted a hearing report of contested 
 
       issues and stipulations which was approved and accepted as a part 
 
       of the record of this case at the time of hearing.  The oral 
 
       testimony and written exhibits received during the hearing are 
 
       set forth in the hearing transcript.
 
            
 
            According to the hearing report, the parties have stipulated 
 
       to the following matters:
 
            
 
            1.  An employee-employer relationship existed between 
 
       claimant and Humboldt at the time of the alleged injury.
 
            
 
            2.  If defendants are liable for the alleged injury, 
 
       claimant is entitled to temporary total or healing period 
 
       benefits from December 11, 1990 through April 23, 1991.
 
            
 
            3.  If the alleged injury is found to have caused permanent 
 
       disability, the type of disability is an industrial disability to 
 
       the body as a whole.
 
            
 
            4.  If permanent partial disability benefits are awarded, 
 
       they shall begin as of April 24, 1991.
 
            
 
            5.  At the time of injury claimant's gross rate of weekly 
 
       compensation was $365.00; he was married; and, he was entitled to 
 
       two exemptions.  Therefore, claimant's weekly rate of 
 

 
 
 
 
 
 
 
 
 
       compensation is $232.60 according to the Industrial 
 
       Commissioner's published rate booklet for this injury.
 
            
 
            6.  The medical expenses requested by claimant at the 
 
       hearing are fair and reasonable and causally connected to the 
 
       medical condition upon which the claim herein is based but that 
 
       the issue of their causal connection to any work injury remains 
 
       an issue to be decided herein.
 
       
 
                                   ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       in this proceeding:
 
            
 
              I.  Whether claimant received an injury arising out of and 
 
       in the course of employment; 
 
            
 
             II.  The extent of claimant's entitlement to disability 
 
       benefits, and
 
            
 
            III.  The extent of claimant's entitlement to medical 
 
       benefits.
 
       
 
                            FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            A credibility finding is necessary to this decision as 
 
       defendants placed claimant's credibility at issue during cross- 
 
       examination as to the nature and extent of the injury and 
 
       disability.  From his demeanor while testifying, claimant is 
 
       found credible.
 
            
 
            Claimant worked for Humboldt from June 1978 until the 
 
       alleged work injury herein in various manual labor jobs involved 
 
       in the processing of meat products.  Claimant testified that all 
 
       of the jobs he held at Humboldt were physically demanding.  At 
 
       the time of the alleged injury, claimant was working in the dry 
 
       room hanging meat.  This job involved a considerable amount of 
 
       repetitive bending over, lifting, and twisting while handing 
 
       sticks of meat, weighing 40-60 pounds each, to other employees 
 
       both below and at shoulder height.  It is found that this job 
 
       placed stress on the neck from head movement in the form of 
 
       repetitive stretching and turning.  Claimant left his employment 
 
       at Humboldt at the time of the alleged work injury and never 
 
       returned upon the recommendations of Thomas Wilson, M.D., a 
 
       treating physician.
 
            
 
            On or about December 10, 1990, after handing meat, claimant 
 
       and his fellow employees in the dry room crawled to an adjacent 
 
       work area and after standing up, claimant became faint, dizzy and 
 
       weak and began to perspire excessively.  His neck became stiff 
 
       and he developed nausea.  He also stated that his left arm and 
 
       foot began to ache.  Claimant stated to physicians that he had 
 
       suffered from severe headaches for three weeks prior to this 
 
       incident.  Claimant stated that due to these complaints he ended 
 
       his work and immediately sought medical treatment at a local 
 
       hospital emergency room to find out what was going on.  Claimant 
 
       was then hospitalized for testing.  After his discharge, claimant 
 
       had subsequent episodes and today complains of continued symptoms 
 
       of dizziness after quick head movements, headaches, arm and 
 
       shoulder aching, and numbness in the buttocks and left foot.  As 
 
       his job involved working in high areas and repetitive stretching 
 
       of the neck, upon the recommendations of Dr. Wilson, he has not 
 
       returned to his former job at Humboldt.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            This was not the first time claimant experienced similar 
 
       complaints of nearly fainting and excessive sweating in 
 
       conjunction with headaches.  Claimant suffered near faintness, 
 
       weakness, left shoulder discomfort in July 1983 and he sought 
 
       medical treatment.  At that time, physicians could offer no cause 
 
       for these complaints and thought it may be due to excessive sugar 
 
       levels in claimant's body.  Three months later he was diagnosed 
 
       as suffering from cephalic with a reported history of headaches.  
 
       In 1985 he suffered from a two week bout with headaches and in 
 
       1989 he complained of a sudden onset of a migraine type of 
 
       headache.  At hearing, claimant testified that his past headaches 
 
       differed greatly from those he has experienced in the three week 
 
       period before the December 10, 1990 incident at work, not only in 
 
       intensity, but in the location of the pain in his head.
 
            
 
            The fighting issue in this case is whether or not claimant 
 
       suffered any work injury on December 10, 1990.  Claimant relies 
 
       upon the opinions of Dr. Wilson, a board certified neurologist, 
 
       who examined claimant initially during the December 1990 
 
       hospitalization and again in January, 1991.  According to Dr. 
 
       Wilson, claimant suffered a vertebral artery dissection or stroke 
 
       which was evidenced by his headaches during the three week period 
 
       prior to December 10, 1990.  The doctor states that his 
 
       dissection or breakdown of the artery wall ultimately led to a 
 
       blockage and the symptoms complained of by claimant.  He also 
 
       opines that this condition was caused by claimant's strenuous 
 
       lifting and use of his neck while working in his job at Humboldt.
 
            
 
            The defense relies upon the views of J. W. Freeman, M.D., a 
 
       neurosurgeon.  According to Dr. Freeman, his views were shared 
 
       with his associate K. Gene Koob, M.D., another neurosurgeon, who 
 
       agrees with him.  The defense has also sought causal connection 
 
       opinions from Paul From, M.D., an internist, and another board 
 
       certified neurologist, Joel Cotton, M.D.  Both Drs. From and 
 
       Cotton were retained by defendants solely for litigation 
 
       purposes.  Claimant was initially seen by Dr. Freeman after the 
 
       first hospitalization by his family physician, Steve Carlson, 
 
       D.O.  Only the depositions of Drs. Wilson, From and Cotton were 
 
       submitted into evidence.
 
            
 
            Dr. Freeman states in written reports that he believes that 
 
       claimant may have suffered migraine headaches on December 10, 
 
       1990 and the episodes, rather than artery dissection, especially 
 
       in light of a history of prior headaches.  Drs. From and Cotton 
 
       also disagree with the views of Dr. Wilson.
 
            
 
            At first glance, one would expect that the weight of 
 
       evidence is against claimant as only one physician out of four 
 
       support the claim of injury.  However, decisions of this deputy 
 
       are not made on the basis of sheer volume of opinion but their 
 
       quality.  The greater weight of the credible evidence in this 
 
       case lies in favor of claimant's claim.
 
            
 
            First, the views of Dr. Wilson are unequivocal and strongly 
 
       supportive of claimant's claims herein.  His views are based on 
 
       multiple, very thorough examinations upon his neurological 
 
       findings from personal observation during these exams.  Given his 
 
       length of experience and superb qualifications, his views cannot 
 
       be taken lightly.  On the other hand, each and every opinion 
 
       expressed by those physicians relied upon by the defense are 
 
       significantly flawed and must be rejected in each case.
 
            
 
            As explained in his deposition, crucial to Dr. Wilson's 
 
       opinions, was a subsequent review in March 1991 of angiographic 
 
       studies performed during the December 1990 hospitalization by 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       David E. Tubman, M.D., and which were also viewed by Dr. Wilson 
 
       personally which demonstrated radiographic evidence consistent 
 
       with Dr. Wilson's diagnosis.  Despite several reports detailing 
 
       various diagnostic studies during the December 1990 
 
       hospitalization by Dr. Freeman, no mention is made by him of any 
 
       review of angiographic studies.  Consequently, this deputy 
 
       commissioner is uncertain whether Dr. Freeman or his associate 
 
       had ever seen these studies.  Also, there is no question that 
 
       neither Dr. Freeman or his associate had the benefit of the 
 
       subsequent reviews by Dr. Wilson and Dr. Tubman in March 1991.  
 
       Finally, although claimant at hearing admitted to prior 
 
       headaches, these differed from headaches he experienced prior to 
 
       and after December 1990.  Also, Dr. Wilson was aware of these 
 
       past headaches, his current headaches and other events and did 
 
       not retreat from his diagnosis.  As Dr. Freeman did not have the 
 
       benefit of subsequent examinations; may not have seen the 
 
       angiographic studies; and, definitely did not have the benefit of 
 
       subsequent reviews of those studies, his views cannot be given 
 
       greater weight over the other physicians rendering opinions in 
 
       this case.
 
            
 
            Turning to the views of Drs. From and Cotton, it is clear 
 
       that they were defense retained one time evaluators whose 
 
       opinions at onset cannot be given the same weight as a treating 
 
       physician.  However, apart from that aspect, their views are 
 
       rejected on the basis of the quality of their opinions.
 
            
 
            Dr. From is not a neurologist but an internist.  As clearly 
 
       pointed out by Dr. Cotton, the diagnosis of vertebral arterial 
 
       dissection is primarily a call for neurologists as it involves 
 
       neurological testing.  Although Dr. From is certainly a well 
 
       qualified physician and internist, his views cannot stand up to 
 
       those of a neurologist on diagnosing these types of conditions.
 
            
 
            Therefore, we are down to a judgment call between two board 
 
       certified neurologists, Drs. Wilson and Cotton.  Again, Dr. 
 
       Cotton is only a one-time evaluator and did not have the benefits 
 
       of multiple examinations of claimant's symptoms.  However, both 
 
       had equal assess to the results of neurological testing, 
 
       including the March review of the angiographic studies and both 
 
       based their opinions on more recent exams.  However, after a 
 
       careful reading of both depositions, Dr. Wilson's views must be 
 
       given greater weight over those of Dr. Cotton for a variety of 
 
       reasons.
 
            
 
            First of all, Dr. Cotton appeared quite combative with 
 
       claimant's counsel when his views were challenged.  As a result 
 
       he never fully explained why he rejected the findings in the 
 
       review of angiographic studies.  He also makes mention on more 
 
       than one occasion of a supposed initial view of Dr. Wilson during 
 
       the December 1990 hospitalization that claimant had no 
 
       dissection.  However, such an opinion does not appear of record 
 
       and is not mentioned in any of the hospital records or those of 
 
       Dr. Freeman.  Finally, and most importantly, Dr. Cotton rejects 
 
       the proposition that dissection can be caused by strenuous 
 
       activity at work as opposed to blunt trauma but only on the basis 
 
       that he had not seen this in his practice.  In other words, if he 
 
       has not seen it, it does not exist.  Such a narrow viewpoint must 
 
       be rejected.  Even Dr. From referred to several credible research 
 
       articles on such a possible causal connection.
 
            
 
            Therefore, the views of Dr. Wilson are found to be the most 
 
       credible and sufficient to support a finding of an injury on 
 
       December 10, 1990 which arose out of and in the course of 
 
       claimant's employment.
 
            
 

 
 
 
 
 
 
 
 
 
            Given the finding of a work injury and the stipulations of 
 
       the parties with reference to temporary weekly and medical 
 
       benefits, no further findings are necessary on such issues.
 
            
 
            With reference to claimant's industrial disability, given 
 
       the views of Dr. Wilson in his April 21, 1992 letter report, 
 
       joint exhibit 11, it is found that the work injury of December 
 
       10, 1990 is a cause of a significant permanent impairment to the 
 
       body as a whole.  The exact percentage is unimportant in this 
 
       industrial case.  More importantly, claimant is permanently 
 
       restricted by his primary treating physician, Dr. Wilson, from 
 
       returning to his dry room job at Humboldt.  In addition, claimant 
 
       is restricted from any other job involving repetitive and 
 
       strenuous neck movements.  Although claimant had prior carpal 
 
       tunnel syndrome and a rotator cuff condition, claimant had no 
 
       prior permanent impairment according to the medical records 
 
       submitted into evidence.
 
            
 
            Although claimant cannot return to his work in the dry job, 
 
       the record is a little hazy on his abilities to perform other 
 
       jobs at Humboldt.  At hearing he expressed no prior problems with 
 
       many of his past Humboldt jobs.  There was some evidence to 
 
       suggest claimant considered returning to other jobs but did not 
 
       do so.  On the other hand, Humboldt never actively recruited 
 
       claimant for suitable employment subsequent to the injury.
 
            
 
            Prior to his Humboldt employment, claimant was a auto body 
 
       and frame repair person which required lifting tires.  He also 
 
       was a motorcycle mechanic which require lifting.  Obviously, 
 
       these jobs require strenuous neck movement.  However, for a 
 
       considerable amount of time he was a service manager at the 
 
       motorcycle shop.
 
            
 
            Claimant is 44 years of age.  Claimant has a high school 
 
       education.  A vocational assessment was procurred by defendants 
 
       which revealed numerous transferable skills and the ability to 
 
       return to the work force but active vocational rehabilitation was 
 
       not pursued.  Claimant has not actively sought replacement 
 
       employment but is currently in the process of retraining to be a 
 
       radiologist.  Claimant is expected to graduate and obtain an 
 
       Associate of Science Degree next summer.  It is found that it is 
 
       likely he will complete this program as currently he is not 
 
       experiencing any difficulties with attendance or the program's 
 
       intellectual demands.  Claimant today has a 3.0 average grade 
 
       level.  Claimant expects to find employment at least in the $20-
 
       24,000 range with potential for higher salaries upon a 
 
       specialization.
 
            
 
            From examination of all of the factors of industrial 
 
       disability, it is found that the work injury of December 10, 1990 
 
       was a cause of a 20 percent loss of earning capacity.
 
       
 
                         CONCLUSIONS OF LAW
 
            
 
              I.  Claimant has the burden of proving by a preponderance 
 
       of the evidence that claimant received an injury arising out of 
 
       and in the course of employment.  The words "out of" refer to the 
 
       cause or source of the injury.  The words "in the course of" 
 
       refer to the time and place and circumstances of the injury. See 
 
       generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 
 
       (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
       N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
       active or dormant health impairments. A work connected injury 
 
       which more than slightly aggravates the condition is considered 
 
       to be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
       620, 106 N.W.2d 591 (1961), and cases cited therein.
 

 
 
 
 
 
 
 
 
 
            
 
            It is not necessary that claimant prove his disability 
 
       results from a sudden unexpected traumatic event.  It is 
 
       sufficient to show that the disability developed gradually or 
 
       progressively from work activity over a period of time.  McKeever 
 
       Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
       McKeever court also held that the date of injury in gradual 
 
       injury cases is the time when pain prevents the employee from 
 
       continuing to work.  In McKeever the injury date coincided with 
 
       the time claimant was finally compelled to give up his job.
 
            
 
            The question of causal connection is essentially within the 
 
       domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
       Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
       experts need not be couched in definite, positive or unequivocal 
 
       language and the expert opinion may be accepted or rejected, in 
 
       whole or in part, by the trier of fact. Sondag v. Ferris 
 
       Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
       such an opinion is for the finder of fact to determine from the 
 
       completeness of the premise given the expert or other surrounding 
 
       circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
       867 (1965).
 
            
 
            Furthermore, if the available expert testimony is 
 
       insufficient alone to support a finding of causal connection, 
 
       such testimony may be coupled with non-expert testimony to show 
 
       causation and be sufficient to sustain an award.  Giere v. Aase 
 
       Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) 
 
       Such evidence does not, however, compel an award as a matter of 
 
       law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974).  
 
       To establish compensability, the injury need only be a 
 
       significant factor, not be the only factor causing the claimed 
 
       disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
       354 (1980).  In the case of a preexisting condition, an employee 
 
       is not entitled to recover for the results of a preexisting 
 
       injury or disease but can recover for an aggravation thereof 
 
       which resulted in the disability found to exist.  Olson v. 
 
       Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
            In the case sub judice, a work injury was found on December 
 
       10, 1990 based primarily upon an analysis of controverted medical 
 
       opinion.  Although claimant experienced pain for three weeks 
 
       prior to this time, the actual injury did not occur until the 
 
       onset of more severe symptoms preventing further work.
 
            
 
             II.  As the claimant has shown that the work injury was a 
 
       cause of a permanent physical impairment or limitation upon 
 
       activity involving the body as a whole, the degree of permanent 
 
       disability must be measured pursuant to Iowa Code section 
 
       85.34(2)(u).  However, unlike scheduled member disabilities, the 
 
       degree of disability under this provision is not measured solely 
 
       by the extent of a functional impairment or loss of use of a body 
 
       member.  A disability to the body as a whole or an "industrial 
 
       disability" is a loss of earning capacity resulting from the work 
 
       injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
       N.W. 899 (1935).  A physical impairment or restriction on work 
 
       activity may or may not result in such a loss of earning 
 
       capacity.  Examination of several factors determines the extent 
 
       to which a work injury and a resulting medical condition caused 
 
       an industrial disability.  These factors include the employee's 
 
       medical condition prior to the injury, immediately after the 
 
       injury and presently; the situs of the injury, its severity and 
 
       the length of healing period; the work experience of the employee 
 
       prior to the injury, after the injury and potential for 
 
       rehabilitation; the employee's qualifications intellectually, 
 
       emotionally and physically; earnings prior and subsequent to the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       injury; age; education; motivation; functional impairment as a 
 
       result of the injury; and inability because of the injury to 
 
       engage in employment for which the employee is fitted.  Loss of 
 
       earnings caused by a job transfer for reasons related to the 
 
       injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
       Vol. 1, No. 3 Iowa Industrial Commissioner Decisions 654, 658 
 
       (Appeal Decision, February 28, 1985).
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
       a 20 percent loss of his earning capacity as a result of the work 
 
       injury.  Such a finding entitles claimant to 100 weeks of 
 
       permanent partial disability benefits as a matter of law under 
 
       Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, 
 
       the maximum allowable number of weeks for an injury to the body 
 
       as a whole in that subsection. 
 
            
 
            As a compensable work injury was found to have occurred, an 
 
       award of healing period benefits will be made pursuant to the 
 
       parties' stipulations in the hearing report.
 
            
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
       entitled to payment of reasonable medical expenses incurred for 
 
       treatment of a work injury.  As a work injury was found, the 
 
       medical benefits listed in the hearing report will be awarded 
 
       pursuant to the parties' stipulations.
 

 
 
 
 
 
 
 
 
 
       
 
                                  ORDER
 
            
 
            1.  Defendants shall pay to claimant one hundred (100) weeks 
 
       of permanent partial disability benefits at a rate of two hundred 
 
       thirty-two and 60/l00 dollars ($232.60) per week from April 24, 
 
       1991.
 
            
 
            2.  Defendants shall pay to claimant healing period benefits 
 
       from December 11, 1990 through April 23, 1991 at the rate of two 
 
       hundred thirty-two and 60/l00 dollars ($232.60) per week.
 
            
 
            3.  Defendants shall pay the medical expenses listed in the 
 
       prehearing report.
 
            
 
            4.  Defendants shall pay accrued weekly benefits in a lump 
 
       sum and shall receive credit against this award for all benefits 
 
       previously paid.
 
            
 
            5.  Defendants shall receive credit for previous payments of 
 
       benefits under the non-occupational group insurance plan under 
 
       Iowa Code section 85.38(2), less any tax deductions, if any, from 
 
       those payments.
 
            
 
            6.  Defendants shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30. 
 
            
 
            7.  Defendants shall pay the costs of this action pursuant 
 
       to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
       filing fee paid in this matter.
 
            
 
            8.  Defendants shall file activity reports on the payment of 
 
       this award as requested by this agency pursuant to rule 343 IAC 
 
       3.1.
 
       
 
       
 
       
 
          Signed and filed this ____ day of November, 1994.
 
       
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
       Copies To:
 
       
 
       Mr. Robert E. McKinney
 
       Attorney at Law
 
       480 6th St
 
       PO Box 209
 
       Waukee  IA  50263
 
       
 
       Mr. Judith Ann Higgs
 
       Attorney at Law
 
       701 Pierce St  STE 200
 
       PO Box 3086
 
       Sioux City  IA  51102-3086
 
               
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1803
 
                                     Filed November 21, 1994
 
                                     LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         DONALD BAKER,  
 
               
 
          Claimant, 
 
               
 
         vs.        
 
                                           File No. 980571
 
         HUMBODLT SAUSAGE CO.,    
 
                                        A R B I T R A T I O N
 
          Employer, 
 
                                           D E C I S I O N
 
         and        
 
               
 
         HOME INSURANCE COMPANY,  
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         5-1803
 
          Non-precedential, extent of disability case.
 
 
 
 
 
 
 
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
_________________________________________________________________
 
DONALD BAKER,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 980571
 
HUMBOLDT SAUSAGE CO.,      
 
                                          R U L I N G
 
     Employer,   
 
                                              O N
 
and         
 
                                        R E H E A R I N G
 
HOME INSURANCE COMPANY,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
The appeal decision filed May 31, 1995 affirms and adopts the 
 
arbitration decision filed November 21, 1994 and the rehearing 
 
ruling of January 20, 1995.
 
 
 
Signed and filed this ____ day of June, 1995.          
 
                              ________________________________                 
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert E. McKinney
 
Attorney at Law
 
480 Sixth Street
 
P O Box 209
 
Waukee, Iowa  50263-0209
 
 
 
Ms. Judith Ann Higgs
 
Attorney at Law
 
P.O. Box 3086
 
Sioux City, Iowa 51102-3086
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2402 - 1806
 
                      Filed September 24, 1991
 
                      BYRON K. ORTON
 
                      WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            E. KENNETH JONES,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 908648
 
            CONTINENTAL BAKING COMPANY,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2402
 
            Claimant drove a bread delivery truck and injured his knee 
 
            when stepping out of the truck.  The medical evidence showed 
 
            that claimant, whose work involved stepping in and out of 
 
            the truck up to 100 times daily, began experiencing a 
 
            grinding sensation several months later.  A physician opined 
 
            that claimant's knee "wore out."  Claimant filed his 
 
            petition beyond the statute of limitations for the traumatic 
 
            injury, but claimed the discovery rule.  Held that the 
 
            nature and seriousness of claimant's initial traumatic 
 
            injury was known to claimant from the date of the injury, 
 
            and a claim for that injury was barred by the statute of 
 
            limitations.  However, the wearing out of the knee from the 
 
            subsequent stepping in and out of the truck  constituted a 
 
            separate, cumulative injury and claimant's petition was 
 
            timely filed for that injury.
 
            
 
            1806
 
            Although an apportionment between the disability caused by 
 
            claimant's initial traumatic knee injury and his later 
 
            cumulative knee injury might be appropriate if both injuries 
 
            had caused disability, under Bearce v. FMC Corporation, 465 
 
            N.W.2d 531 (Iowa 1991) there was no direct disability from 
 
            the initial injury, and thus all of claimant's present 
 
            disability is compensable.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ROBERT E. GRUBB,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 980682
 
         CLARINDA TREATMENT CENTER,      
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         STATE OF IOWA,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 2, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1994.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                    BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100; 5-1108; 5-4000.2
 
                                           Filed March 28, 1994
 
                                           Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ROBERT E. GRUBB,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 980682
 
            CLARINDA TREATMENT CENTER,      
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1100; 5-1108; 5-4002.2
 
            The state was barred from any activity and presenting any 
 
            evidence after failing to comply with order to produce 
 
            medical and wage records to claimant.
 
            Claimant was awarded 22 weeks permanent partial disability 
 
            for a left knee injury found to have been caused by a work 
 
            injury.
 
            Claimant was not awarded penalty benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT E. GRUBB,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 980682
 
            CLARINDA TREATMENT CENTER,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This case came on for hearing on October 20, 1993, at 
 
            Council Bluffs, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on March 30, 1991.  The record in the proceeding 
 
            consists of the testimony of the claimant and claimant's 
 
            exhibits 1 through 10.  The defendants was barred from any 
 
            activity or presentation of evidence pursuant to a ruling on 
 
            June 26, 1992.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant is entitled to a 10 percent loss 
 
            of his left leg; and,
 
            
 
                 2.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13;
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant was employed with defendants at Clarinda, 
 
            Iowa, on March 30, 1991, and is still employed there.  
 
            Claimant's exhibit 2 is a report claimant made to the 
 
            employer which sets out how claimant injured his left knee 
 
            on March 30, 1991.  At that time claimant was making a fire 
 
            security check and as he passed his desk, his left leg gave 
 
            out causing him to fall.  A few hours previous to this, as 
 
            he was turning around, his left foot had caught in a crack 
 
            in the tile and he twisted his left knee.
 
            
 
                 The same exhibit 2, dated March 31, 1991, also reflects 
 
            the supervisor's report which indicates claimant informed 
 
            the supervisor of his injury.  The supervisor also wrote 
 

 
            
 
            Page   2
 
            
 
            
 
            that claimant appeared to be walking as well then as when he 
 
            came to work.  Claimant's exhibit 4 is a report by Bruce D. 
 
            Smith, M.D., an orthopedic surgeon, in which he opined that 
 
            claimant had a 10 percent loss of function related to his 
 
            injury of March 30, 1991 which was incurred while he was at 
 
            work.
 
            
 
                 Claimant testified that when he reported his injury to 
 
            the state within minutes when he injured his left knee, he 
 
            said he had also on the date, March 30, 1991, told the state 
 
            that he had injured his right knee at home the previous day 
 
            but was not claiming an injury to his right knee.
 
            
 
                 Claimant's exhibit 5 is the medical bills in the amount 
 
            of $9,181.15.
 
            
 
                 Claimant's exhibit 6 is the mileage claimant incurred 
 
            in relation to his medical care in connection with his left 
 
            knee injury.  Said amount totaled 2,400 miles.  At 21 cents 
 
            a mile this would amount to $504.
 
            
 
                 Claimant testified that claimant's exhibit 7 sets out 
 
            the healing period that claimant incurred as a result of 
 
            this injury, those periods being April 3, 1991 through May 
 
            14, 1991; August 19, 20, 22, 23, 24, 1992; September 30, 
 
            1992; October 21, 1992; October 29 through December 16, 
 
            1992; and, May 14, 15 and 16, 1993.  Claimant's exhibit 8 is 
 
            a letter from the State of Iowa denying his claim.
 
            
 
                 Claimant's exhibit 1, which was a report he filed March 
 
            31, 1991, asking for leave because of twisting his knee on 
 
            March 29, 1991 at home does not say which knee or that it 
 
            occurred at home.   Claimant testified that it was his right 
 
            knee and indicated that the state was told that.  Claimant 
 
            did not explain at the hearing as to why he didn't refer to 
 
            his right knee in that report or that it occurred at home as 
 
            it obviously does add confusion to the record.  With the 
 
            state being barred from presenting any evidence or 
 
            participating in this hearing, of course, this could not be 
 
            clarified other than accepting claimant's testimony.  One 
 
            could also see that one could conjecture that the fall on 
 
            the left knee was a sequela of the claimant's injury to the 
 
            right knee approximately 24 hours earlier as per exhibit 1.
 
            
 
                 Claimant's exhibit 9 is a letter to Richard Andrews, of 
 
            the Department of Personnel, and indicates claimant hurt his 
 
            right knee on March 28 but this appears to be his right knee 
 
            at home on March 28.  This appears to be contrary to what 
 
            claimant indicated in his application for leave which refers 
 
            to March 29 and doesn't say where it occurred.
 
            
 
                 Claimant requested the undersigned to take official 
 
            notice of the file and all prior letters and orders that 
 
            might be in the file and the undersigned agreed to do so.
 
            
 
                 Claimant's exhibit 9 is one of the series of exhibits 
 
            or letters that resulted in the undersigned's June 26, 1992 
 
            ruling barring defendants from any further activity and 
 
            presentation of evidence.  There is nothing in the record or 
 
            file that would indicate any responsible response to 
 

 
            
 
            Page   3
 
            
 
            
 
            claimant's attorney in the claimant's attorney's attempt to 
 
            either work something out on this case or determine all of 
 
            the facts so as to prevent this case from going to 
 
            litigation.
 
            
 
                 A May 7, 1992 letter written by Assistant Attorney 
 
            General Joanne Moeller was apparently in response to the 
 
            undersigned's May 5, 1992 ruling ordering the employer to 
 
            send all medical records in its possession and the 
 
            claimant's wage statement one year prior to March 30, 1991, 
 
            to the claimant's attorney within ten days from the date of 
 
            the ruling.  It appears from the record that it had never 
 
            been done but Ms. Moeller obviously in her May 7, 1992 
 
            letter apologized for the claimant receiving no response 
 
            from Dick Andrews.  Ms. Moeller goes on to say "as you can 
 
            imagine they are very short staffed over there, and cases 
 
            are overlooked occasionally."  While this is no excuse with 
 
            the number of correspondence or the nature of the orders 
 
            herein, it is hard for the undersigned to believe that this 
 
            case has been so grossly overlooked.
 
            
 
                 The undersigned is in no respect blaming the Attorney 
 
            General's Office or Joanne Moeller for any conduct referred 
 
            to herein as shown.  In Ms. Moeller's May 7, 1992 letter 
 
            which has previously been referred to, she starts as "as the 
 
            lucky attorney assigned to this case."  It is obvious she 
 
            does not like to deal with a case that has such conduct and 
 
            results in such sanctions.  As the attorney in the Attorney 
 
            General's Office that must defend state cases, this includes 
 
            conduct of certain state employees.  The fact is her apology 
 
            does not remedy or solve the conduct the Department of 
 
            Personnel has rendered against this claimant.
 
            
 
                 Whether the Department of Pesonnel is being short 
 
            staffed, inefficient, incompetent, lack of leadership, these 
 
            are not excuses for the treatment this claimant received.  
 
            Good faith action or courtesy by the Department of Personnel 
 
            could have warranted different conduct than was exhibited in 
 
            this case.  The requests made by claimant's attorney to get 
 
            to the bottom of this matter would take rather simple action 
 
            on behalf of the state and would not have taken much time or 
 
            effort.  Such conduct in future cases could have more 
 
            detrimental effect both to the interest of the claimant and 
 
            the State of Iowa.  The undersigned finds that such conduct 
 
            normally would warrant a penalty in addition to the benefits 
 
            awarded herein, but exhibit 1 does raise suspicion and doubt 
 
            since it doesn't relate that claimant injured his right knee 
 
            at home and claimant files it the same day he files a claim 
 
            for his left knee.  The claim is fairly debatable.
 
            
 
                 The undersigned finds that claimant was an employee on 
 
            March 30, 1991, with the State of Iowa, at which time he 
 
            incurred an injury to his left knee that arose out of and in 
 
            the course of his employment.  The left knee injury which 
 
            resulted in a 10 percent permanent impairment to said leg 
 
            was caused by claimant's fall at work on March 30, 1991.  
 
            This injury caused claimant to incur a healing period of 
 
            April 3, 1991 through May 14, 1991; August 19, 20, 22, 23, 
 
            24, 1992; September 30, 1992; October 21, 1992; October 29 
 
            through December 16, 1992; and, May 14, 15 and 16, 1993.
 

 
            
 
            Page   4
 
            
 
                 Claimant's 10 percent impairment to his left leg 
 
            results in claimant being entitled to 22 weeks of permanent 
 
            partial disability benefits, payable at the weekly rate of 
 
            $265.82.  Said benefits will commence on May 15, 1991.
 
            
 
                 The undersigned further finds that defendants shall pay 
 
            claimant's medical bills as set out on claimant's exhibit 5 
 
            in the amount of $5,181.15, plus 2,400 miles at 21 cents per 
 
            mile and equals $504.  Both of these items are causally 
 
            connected to claimant's March 30, 1991 work injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 30, 
 
            1991, which arose out of and in the course of his 
 
            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 injury of March 30, 
 
            1991, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 A healing period may be interrupted by a return to 
 
            work.  Riesselman v. Carroll Health Center, III Iowa 
 
            Industrial Commissioner Report 09 (Appeal Decision 1982).
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 Iowa Code section 86.13 permits an award of up to 50 
 

 
            
 
            Page   5
 
            
 
            
 
            percent of the amount of benefits delayed or denied if a 
 
            delay in commencement or termination of benefits occurs 
 
            without reasonable or probable cause or excuse.  The 
 
            standard for evaluating the reasonableness of defendants' 
 
            delay in commencement or termination is whether the claim is 
 
            fairly debatable.  Where a claim is shown to be fairly 
 
            debatable, defendants do not act unreasonably in denying 
 
            payment.  See Stanley v. Wilson Foods Corp., File No. 753405 
 
            (App. August 23, 1990); Seydel v. Univ. of Iowa Physical 
 
            Plant, File No. 818849 (App. November 1, 1989).
 
            
 
                 It is further concluded that claimant incurred an 
 
            injury that arose out of and in the course of his employment 
 
            on March 30, 1991, which caused claimant to incur a 10 
 
            percent permanent impairment to his left leg and to incur 
 
            medical bills and mileage.
 
            
 
                 Claimant's work injury caused claimant to incur various 
 
            healing periods.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-five and 82/100 
 
            dollars ($265.82) for the periods of April 3, 1991 through 
 
            May 14, 1991; August 19, 20, 22, 23, 24, 1992; September 30, 
 
            1992; October 21, 1992; October 29 through December 16, 
 
            1992; and, May 14, 15 and 16, 1993, for a total of fourteen 
 
            point four two nine (14.429) weeks.
 
            
 
                 That claimant is entitled to twenty-two (22) weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            two hundred sixty-five and 82/100 dollars ($265.82), 
 
            beginning May 15, 1991 and are to be interrupted during any 
 
            additional healing period and then to continue at such time 
 
            as healing periods are not running until the permanent 
 
            partial disability benefits are paid.
 
            
 
                 That defendants are responsible for claimant's medical 
 
            bills as referred to in claimant's exhibit 5 in the amount 
 
            of nine thousand one hundred eighty-one and 15/100 dollars 
 
            ($9,181.15) and also as to mileage reflected on claimant's 
 
            exhibit 6 totaling two thousand four hundred (2,400) miles 
 
            times twenty-one cents ($.21) per mile, equaling five 
 
            hundred four dollars ($504).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record indicates no 
 
            benefits have previously been paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            Des Moines IA 50309
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1100; 5-1108
 
                                             5-4000.2
 
                                             Filed November 2, 1993
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT E. GRUBB,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 980682
 
            CLARINDA TREATMENT CENTER,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-100; 5-1108; 5-4002.2
 
            The state was barred from any activity and presenting any 
 
            evidence.
 
            Claimant was awarded 22 weeks permanent partial disability 
 
            for a left knee injury found to have been caused by a work 
 
            injury.
 
            Claimant was not awarded penalty benefits.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLES ANDERSON,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 980696
 
            MIDWEST JANITORIAL SERVICES,  
 
            INC.      
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            THE CINCINNATI INSURANCE 
 
            COMPANY   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Charles 
 
            Anderson, claimant, against Midwest Janitorial Services, 
 
            Inc., employer and The Cincinnati Insurance Company, 
 
            insurance carrier, defendants for benefits as the result of 
 
            an alleged injury which occurred on February 5, 1991.  A 
 
            hearing was held in Davenport, Iowa, on September 13,1993, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by James M. Hood.  
 
            Defendants were represented by Candy K. Pastrnak and Hector 
 
            Lareau.  The record consists of the testimony of Charles 
 
            Anderson, claimant, Randall Bernard, operations manager, 
 
            Jeff Riechman, insurance claim representative, Scott 
 
            Jackson, private investigator, Mary Cannon-James, job 
 
            service representative, joint exhibits 1 through 8 
 
            (Transcript page 7), claimant's exhibits A through G with 
 
            the exception of pages 5 through 19 in exhibit D, which were 
 
            withdrawn (Tran. pp. 8 & 9), and defendants' exhibits 1 
 
            through 9 (Tran. pp. 10, 13, 67 and 146).  Defendants' 
 
            exhibit 8 is a floor buffer and defendants were ordered to 
 
            maintain custody of the floor buffer until all appellate 
 
            periods have expired.  Defendants were further ordered to 
 
            photograph the floor buffer and send copies of the 
 
            photograph to the industrial commissioner's file and to 
 
            claimant, which defendants have done on September 23, 1993.  
 
            The deputy ordered a transcript of the hearing.  Both 
 
            attorneys submitted excellent post-hearing briefs.
 
            
 
                                  STIPULATIONS
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 (1)  That causal connection and entitlement to 
 
            temporary disability benefits were not in dispute;
 
            
 
                 (2)  That medical benefits were not in dispute;
 
            
 
                 (3)  That the rate of compensation in the event of an 
 
            award was stipulated to be $114.82 per week;
 
            
 
                 (4)  That the type of permanent disability, if the 
 
            alleged injury is found to be a cause of permanent 
 
            disability, is industrial disability to the body as a whole;
 
            
 
                 (5)  That the commencement date of permanent disability 
 
            benefits in the event of an award is August 3, 1991; and
 
            
 
                 (6)  That in the event of an award of permanent 
 
            disability benefits that defendants are entitled to a credit 
 
            in the amount of $628.08 for the overpayment of temporary 
 
            disability benefits at the rate of approximate $140.00, 
 
            whereas the correct rate should have been $114.81 per week 
 
            (Tran. p. 46).
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on February 5, 
 
            1991, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefit, and if so, the extent of benefits to which he is 
 
            entitled, to include whether claimant is an odd-lot 
 
            employee; and
 
            
 
                 Whether claimant is entitled to penalty benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      INJURY
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his lumbar spine on February 5, 1991, which arose out of and 
 
            in the course of employment with employer.  
 
            
 
                 Defendants dispute injury for the reason that the 
 
            accident that caused the injury was not witnessed.  They 
 
            assert that claimant's credibility negates the fact that 
 
            claimant received an injury as he described on February 5, 
 
            1991.  Defendants also contend that claimant's post-surgical 
 
            recovery was unusual and that it negates his credibility on 
 
            whether he received an injury and also his motivation to 
 
            return to work.  
 
            
 
                 It is true that claimant's credibility has been 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            impeached and his motivation to work has been impugned but 
 
            the weight of the evidence in the record supports the 
 
            proposition that claimant did in fact injure his lumbar 
 
            spine while operating a floor buffer while in the employment 
 
            of employer on February 5, 1991.  
 
            
 
                 Claimant denied and there is no evidence of any prior 
 
            back injuries (Tran. pp. 22 & 27; Jt. Ex. 2, p. 2; Jt. Ex. 
 
            5, p. 7; Jt. Ex 6, p. 3; Clmt's Ex. E, pp. 1 & 3).
 
            
 
                 Claimant started to work for employer on June 14, 1990 
 
            (Jt. Ex. 8).  He was assigned to perform the maintenance 
 
            duties at UPS (United Parcel Service).
 
            
 
                 Claimant testified that on February 4, 1991, his 
 
            supervisor, Randy Bernard, told him to machine scrub and 
 
            buff the customer service floor on the following day.  
 
            Claimant testified that at approximately 6:30 a.m. on 
 
            February 5, 1991, he was buffing the customer service floor 
 
            when "The whole buffer, it shot up and hit me in the 
 
            stomach.  And I went backwards into the counter there." 
 
            (Tran. pp. 25-27).
 
            
 
                 Claimant diagramed and made a rough sketch of the area 
 
            with defense counsel at the time of the hearing (Ex. 9).  
 
            Claimant further explained in some detail how the injury 
 
            occurred while referring to the diagram (Tran. pp. 65-79).  
 
            
 
                 Claimant related that no one was present with him when 
 
            the injury occurred (Tran. p. 77).  With respect to the 
 
            accident being unwitnessed claimant explained that everyone 
 
            was doing their own job and that he was doing his job and 
 
            that is why no one witnessed the injury (Tran. p. 78).  
 
            
 
                 Claimant said that he began to feel "... a little 
 
            burning on the right side of my back." (Tran. p. 27).
 
            
 
                 Claimant testified that he told Vern Pfieffer, a UPS 
 
            employee, what had happened and that he had hurt his back.  
 
            Claimant said that Pfieffer told claimant to report the 
 
            injury to Randy Bernard.  Claimant testified that he then 
 
            called the answering service and Bernard called him back at 
 
            approximately 8:00 a.m.  Claimant said that Bernard told him 
 
            to wait until he could get a replacement there and then 
 
            claimant was to go to the emergency room.  Claimant further 
 
            related that when the replacement arrived that he went to 
 
            the emergency room at Mercy Hospital where he was treated 
 
            and released (Tran. pp. 28 & 29).  Claimant testified that 
 
            the medical personnel at the emergency room at Mercy 
 
            Hospital took him off work for two days (Tran. p. 79).  
 
            
 
                 Bernard, the operations manager for employer for some 
 
            eight years, testified that claimant was performing his 
 
            assigned job on the morning of the injury.  Bernard 
 
            testified, "He told me but pretty much what he was saying 
 
            before.  He was running the machine.  He backed up -- 
 
            supposedly backed him up into the stainless steel counter, 
 
            and that's when he twisted his back."  (Tran. p. 94).  
 
            
 
                 Bernard testified that he asked around but could not 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            find anyone who witnessed the injury (Tran. p. 94).  Neither 
 
            claimant nor defendants introduced any evidence from Vern 
 
            Pfieffer which would either corroborate or refute claimant's 
 
            testimony at the hearing.  Bernard said that the foregoing 
 
            information was what he reported to the insurance company 
 
            when he was asked what had happened (Tran. p. 98).  Bernard 
 
            acknowledged that he got his account of the injury from 
 
            claimant (Tran. p. 99).
 
            
 
                 An incident report, that was labeled "Information 
 
            Needed for Workers' Compensation", asked the question, "What 
 
            was employee doing when injured?".  The response states, 
 
            "buffing the floors and buffer handle came back and he tried 
 
            to get out way and pulled his back out of place." (Jt. Ex. 
 
            8).  This report is signed by Randy Bernard.  
 
            
 
                 The Mercy Hospital emergency room records are not in 
 
            evidence in the record of hearing (Tran. p. 29).
 
            
 
                 Claimant testified that two days after the injury he 
 
            sought care from Michael K. Ang, D.C., at Hurst 
 
            Chiropractic.  Claimant averred that Bernard told him to see 
 
            a chiropractor (Tran. p. 30).  Bernard admitted that he did 
 
            recommend a chiropractor but denied that he specifically 
 
            recommended Hurst Chiropractic (Tran. p. 95).
 
            
 
                 The records of Hurst Chiropractic show that claimant 
 
            was examined by Dr. Ang on February 7, 1991 for complaints 
 
            of headache, pain in the right arm, lower back pain, pain in 
 
            the right leg, pain in the right knee and stiffness of the 
 
            neck.  Their medical records show that Dr. Ang's physical 
 
            examination demonstrated decreased lumbar flexion and 
 
            extension, lumbar spinal tenderness and positive right and 
 
            left straight leg raising.  Several orthopedic tests 
 
            demonstrated sensitivity of the lumbar and sacral area.  
 
            
 
                 Dr. Ang found cervical, brachial, thoracic, lumbar and 
 
            lumbosacral problems which required $1,745.00 worth of 
 
            chiropractic manipulation, passive motion therapy, 
 
            intersegmental traction and interferential therapy between 
 
            February 7, 1991 and February 22, 1991 (Ex. 6, pp. 1-5).  
 
            
 
                 On the workers' compensation questionnaire of Hurst 
 
            Chiropractic claimant appears to have reported in his own 
 
            handwriting the following, "The buffer I was running handle 
 
            is defective and the buffer's hande (sic) shot up at me and 
 
            I had to get out of the way." (Jt. Ex. 6, p. 9).  In 
 
            response to the question, "Where did you feel pain 
 
            immediately after the accident?", claimant responded in his 
 
            own handwriting "Felt burning in right side" (Ex. 6, p. 9).  
 
            Claimant further indicated on the questionnaire that Mercy 
 
            Hospital diagnosed a pulled muscle and prescribed a pain 
 
            killer (Ex. 6, p. 9).  
 
            
 
                 The medical records show that the lumbar spine films 
 
            taken at Hurst Chiropractic were underexposed and did not 
 
            establish an x-ray diagnosis (Ex. 6, p. 10).  Nevertheless, 
 
            Hurst Chiropractic charged $190.00 for A.P. and lateral and 
 
            full spine x-rays and another $50.00 to mark and interpret 
 
            the x-rays (Ex. 9, p. 7).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Ang continued to keep claimant off work from 
 
            February 7, 1991 through March 11, 1991 (Ex. 6, pp. 12-14).
 
            
 
                 Claimant testified that Jeff Riechman, the insurance 
 
            company claim representative, next sent him to Work Well 
 
            (Tran. pp. 30 & 31) where he was seen by Edwin A. Motto, 
 
            M.D., on March 1, 1991 (Ex. F, p. 1).  At Work Well claimant 
 
            was continued off work and an evaluation was requested from 
 
            Daniel B. Johnson, M.D., a neurologist (Ex. F, p. 1).  
 
            
 
                 Dr. Johnson saw claimant on March 1, 1991 and he 
 
            recorded, "... he is thirty-one-year old man who was buffing 
 
            a floor on 2/5/91 when the buffer backed up against him and 
 
            pushed him into a counter." (Ex. 7, p. 1).  Dr. Johnson 
 
            ordered an MRI and an EMG and prescribed physical therapy at 
 
            Quad City Spine (Tran. pp. 32 & 33).  On March 7, 1991 the 
 
            MRI revealed herniated L5-S1 disc (Ex. 7, pp. 1, 2 & 3).  On 
 
            March 26, 1991, Richard L. Vermeer, M.D., at Work Well, 
 
            continued claimant off work with a diagnosis of herniated 
 
            disc L5-S1 (Ex. F, p. 2).  
 
            
 
                 On March 27, 1991, Dr. Johnson referred claimant to 
 
            William R. Whitmore, M.D., an orthopedic surgeon (Ex. F, p. 
 
            4).  Dr. Whitmore saw claimant on March 25, 1991 (Jt. Ex. 1, 
 
            p. 1; Jt. Ex. 5, p. 5).  Dr. Whitmore testified by 
 
            deposition on March 18, 1993, that he has been a board 
 
            certified orthopedic surgeon since 1966.  Dr. Whitmore said 
 
            that the history that claimant gave have him was as follows, 
 
            "Mr. Anderson told me that he had twisted his back when he 
 
            was working as a custodian at the United Parcel.  He had 
 
            been buffing the floor, and it twisted.  And the buffer 
 
            somehow pushed him backwards.  He had to leave work after 
 
            that incident or episode." (Jt. Ex. 7, pp. 6 & 7).
 
            
 
                 Thus, claimant gave the same consistent history to 
 
            Bernard, Mercy Hospital, Hurst Chiropractic, Work Well, Dr. 
 
            Johnson, and Dr. Whitmore (Tran. pp. 32 & 33).  
 
            
 
                 Dr. Whitmore testified that he examined x-rays taken at 
 
            Mercy and they did not show any specific abnormalities.  The 
 
            MRI of Dr. Johnson showed a herniated disc at L5, S1.  The 
 
            EMG showed a right side radiculopathy at the S1 nerve root 
 
            (Jt. Ex. 5, p. 8).  The risks of surgery were explained and 
 
            compared with conservative care and claimant elected to have 
 
            surgery (Jt. Ex. 1, p. 1).
 
            
 
                 Dr. Whitmore testified that he explained to claimant 
 
            that the surgery would not provide a new back or a new disc 
 
            or preclude any problems after surgery.  The main reason for 
 
            the surgery was to relieve pressure on the nerve which 
 
            caused the radiating right leg pain (Ex. 5, pp. 11 & 12).  
 
            Dr. Whitmore further testified that he did tell claimant 
 
            that he would expect that claimant would be able to 
 
            participate in normal sorts of activities after the 
 
            surgeries (Jt. Ex. 5, p. 13).  
 
            
 
                 Dr. Whitmore performed a standard laminectomy on March 
 
            27, 1991 (Jt. Ex. 5, p. 14; Tran. p. 34).  The doctor 
 
            related that he removed a large fragment and several small 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            fragments from claimant's lumbar spine (Ex. 5, p. 14).
 
            
 
                 Dr. Whitmore testified that degenerative disc disease 
 
            was primarily the reason for the herniated disc and then the 
 
            episode with the buffer intervened and forced the disc 
 
            material out of its normal area (Jt. Ex. 5, p. 12).  
 
            
 
                 With respect to causal connection between claimant's 
 
            employment and the injury as well as the causal connection 
 
            between the injury and claimant's current impairment, this 
 
            colloquy took place,
 
            
 
                    Q.  Mr. Anderson gave you a history of buffing 
 
                 the floor at United Parcel and the buffer doing 
 
                 something.
 
            
 
                    Do you have an opinion within a reasonable 
 
                 degree of medical certainty as to whether that 
 
                 event that he told you about that's reflected in 
 
                 your notes was the cause of the herniated 
 
                 intervertebral disc?
 
            
 
                    A.  I have no reason to believe that it was due 
 
                 to anything else.  He didn't admit anything else 
 
                 to me.
 
            
 
                    Q.  There is a cause-and-effect relationship 
 
                 there?
 
            
 
                    A.  We have to assume that, yes.
 
            
 
                    Q.  And do you have an opinion within a 
 
                 reasonable degree of medical certainty as to 
 
                 whether or not the permanent impairment of 14 
 
                 percent was caused as a result of the incident 
 
                 with the buffer?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Yes, it is?
 
            
 
                    A.  Yes.  (Jt. Ex. 5, p. 45).
 
            
 
                 After the surgery claimant sought treatment at CHC 
 
            (Community Health Care) on September 17, 1991 and gave a 
 
            history of using a floor buffer.  There was a problem with 
 
            the handle.  Claimant was pushed against a stainless steel 
 
            counter and injured his back (Clm's Ex. E, p. 2).  When 
 
            claimant was seen by physician's assistant Jane Anderson at 
 
            the Community Health Care Clinic on September 17, 1991, she 
 
            noted that she discussed a referral of claimant to the 
 
            University of Iowa Orthopedic Department but that the 
 
            patient deferred this referral at that time (Ex. E, p. 2).
 
            
 
                 Defendants attacked claimant's credibility with respect 
 
            to certain remarks he made about his previous military 
 
            service and his previous employments.
 
            
 
                 It is the opinion of the deputy that claimant's 
 
            credibility was impeached on these collateral matters but 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that his lack of credibility on these points did not destroy 
 
            the overwhelming weight of the evidence summarized above 
 
            that indicates that claimant did in fact sustain an injury 
 
            as he described on February 5, 1991.  
 
            
 
                 Defendants' counsel understood at the time of 
 
            claimant's deposition that he indicated that he had received 
 
            an honorable discharge from the United States Army, but 
 
            claimant replied that he did not claim to have received an 
 
            honorable discharge, but rather he testified that he 
 
            received a discharge under other than honorable conditions 
 
            which claimant classified as an administrative discharge.  
 
            
 
                 Defendants' counsel did establish that claimant did not 
 
            tell the truth about the length of time that he was absent 
 
            without leave (AWOL) from the army.  At his deposition 
 
            claimant testified he was absent for about 300 days, 
 
            whereas, in fact claimant was absent without leave for two 
 
            years and seven months which is approximately 943 days.
 
            
 
                 To clarify the record, the facts of claimant's military 
 
            service are that he joined the United States Army on January 
 
            21, 1978 on the delayed entry program.  Claimant entered 
 
            into active duty on June 20, 1978.  Claimant went AWOL two 
 
            and one-half months later on September 5, 1978.  He was 
 
            dropped from rolls and classified as a deserter on October 
 
            4, 1978.  He was apprehended by military authorities on May 
 
            18, 1981.  Claimant requested to be discharged for the good 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of the military service and received a discharge under other 
 
            than honorable conditions on June 25, 1981 (Defs'. Ex. 1).  
 
            
 
                 Defendants' counsel established that claimant gave 
 
            apparent inconsistent testimony about his AWOL situation 
 
            with respect to the reason why he absented himself without 
 
            leave.  At the hearing claimant testified he went AWOL, 
 
            "Because my mom was stuck with my two younger sisters, and 
 
            they were having a real hard time making it." (Tran. p. 59).  
 
            However, while being terminated from the army in 1981, 
 
            claimant gave this written statement in his own handwriting 
 
            over his own signature, "I would not make a good soldier, I 
 
            can't take displine (sic).  I turn myself in to just get 
 
            this cleared so more doors would open up job wise.  I want 
 
            to go back to being a wrangler what I love to do.  Signed 
 
            Charles F. Anderson" (Jt. Ex. 1, p. 34; Tran. pp. 59 & 60).
 
            
 
                 Another apparent inconsistency about claimant's 
 
            military service was his testimony that he turned himself in 
 
            but the military records show that he was apprehended by 
 
            military authorities (Defs' Ex. 1, pp. 27 & 48; Tran, p. 
 
            61).
 
            
 
                 At the hearing claimant testified that almost all of 
 
            his previous employments required lifting of more than 50 
 
            pounds but when these employments were reviewed by 
 
            defendants' counsel it was apparent that this was not a 
 
            correct statement (Tran. pp. 24 & 62; Clmt's Ex. G).
 
            
 
                 It is the opinion of this deputy that claimant's 
 
            testimony was impeached and called into question on a number 
 
            of points on these collateral matters but, nevertheless, 
 
            this did not destroy the overwhelming evidence summarized 
 
            above that claimant did in fact injure his lumbar spine 
 
            while buffing a floor on February 5, 1991.
 
            
 
                 Defendants have also contended that claimant's recovery 
 
            behavior and return to work behavior after his lumbar 
 
            laminectomy was not credible and negates the fact that he 
 
            received a lumbar spine injury on February 5, 1991, as well 
 
            as any permanent disability from that injury.  
 
            
 
                 It is the opinion of this deputy that defendants' 
 
            counsel did impeach the credibility of claimant, and did 
 
            impugn his motivation with respect to making a normal return 
 
            to work based upon the established medical evidence, but 
 
            nevertheless, his lack of credibility and his lack of 
 
            motivation to return to work does not negate or destroy the 
 
            overwhelming evidence that he did sustain an injury to his 
 
            lumbar spine on February 5, 1991, while buffing the floor 
 
            during his employment for employer.
 
            
 
                 More specifically, these facts are as follows.
 
            
 
                 Dr. Whitmore released claimant to return to work light 
 
            duty on July 22, 1991 for two weeks and then full-time work 
 
            after that.  (See the request for medical report from Job 
 
            Service in the deposition exhibits, joint exhibit 5, which 
 
            is unnumbered, which appears to be completed on August 23, 
 
            1991.)  Claimant testified that the work was within his job 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            restrictions but that he tried to do the work for about an 
 
            hour and a half but that he was unable to do the work (Tran. 
 
            p. 82).  Claimant testified, "I was hurting so bad I had to 
 
            lay on the floor at the place I was cleaning.  And I called 
 
            Randy and told him I couldn't do it.  I was hurting too 
 
            much." (Tran. p. 35).
 
            
 
                 Claimant testified, "I tried very hard.  I got as much 
 
            as I could.  I hurried and tried to get as much clean as I 
 
            could, but the pain -- I was having to stop and lay down on 
 
            the floor to release some of the pain so that I could 
 
            continue and get back up and go and do some more." (Tran. p. 
 
            82).
 
            
 
                 With respect to this incident Bernard testified that he 
 
            assigned claimant to a job within his restrictions cleaning 
 
            a room, pushing a vacuum, emptying waste cans, cleaning 
 
            about four stools in restrooms, sweeping, mopping and no 
 
            heavy lifting whatsoever (Tran. p. 95).  Bernard testified 
 
            that according to his records claimant was paid for 30 
 
            minutes of work.  Bernard denied that claimant was 
 
            terminated.  Bernard testified, "No.  He walked off the job 
 
            that night saying that he couldn't do the job, and I 
 
            consider that quitting." (Tran. pp. 96 & 97).  Bernard 
 
            testified that the only restrictions were weight 
 
            restrictions of 30 pounds and nothing in that job exceeded 
 
            30 pounds (Tran. p. 97).  
 
            
 
                 Subsequent to that, on August 8, 1991, claimant wrote a 
 
            letter in his own handwriting to employer which reads as 
 
            follows,  "I writting (sic) to see if you found me something 
 
            in the office answering phones or something I can handle.  
 
            I'm suppose to be released for full time employment and I'm 
 
            broke.  I need work I can do.  Thanks Charles F. Anderson 
 
            (Clmt's Ex. C).  
 
            
 
                 Dr. Whitmore's testimony on this incident was as 
 
            follows, in response to a letter from Riechman.  
 
            
 
                 Riechman wrote to Dr. Whitmore on July 30, 1991.  
 
            
 
                    On July 26, 1991 Midwest Janitorial put Charles 
 
                 to work cleaning two offices.  His duties 
 
                 consisted of dusting, emptying trash cans that 
 
                 weigh at the very most 5 pounds, and vacuuming.  
 
                 The total time to clean these offices would have 
 
                 been about 3 hours, but after 30 minutes Charles 
 
                 quit saying the work was two (sic) hard for him.
 
            
 
                    Could you please advise me as to whether or not 
 
                 their (sic) is any medical reason, relating to his 
 
                 back injury, that he should not be able to do this 
 
                 type of work. (Riechman letter of July 30, 1991 to 
 
                 Dr. Whitmore, which is an unnumbered deposition 
 
                 exhibit in exhibit 5)
 
            
 
                 Dr. Whitmore responded to Riechman on August 5, 1991, 
 
            "The circumstances that you described in your letter of 30, 
 
            July 1991, in my opinion, falls within the limits outlined 
 
            for his abilities at this time." (August 5, 1991 letter of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Dr. Whitmore to Riechman, which is an unnumbered deposition 
 
            exhibit in joint exhibit 5).  In his deposition Dr. Whitmore 
 
            testified that these duties do fit his description of his 
 
            abilities (Jt. Ex. 5, p. 36).  
 
            
 
                 Defendants' counsel impeached claimant's credibility 
 
            with respect to the job search he had performed in this 
 
            case.  However, even though this may establish a lack of 
 
            motivation to return to work it does not destroy the 
 
            overwhelming evidence of injury summarized above.  This 
 
            evidence is as follows.
 
            
 
                 Claimant testified that he tried to find employment at 
 
            513 different places and made a list of them.  However, 
 
            defendants' counsel elicited on cross-examination that many 
 
            of these places were simply random cold calls who did not 
 
            actually have an opening for an employee and were not 
 
            actively seeking a new employee at the time claimant 
 
            contacted them (Tran. pp. 37, 38 & 84).  Claimant admitted 
 
            that only about 25 of these contacts were looking for an 
 
            employee and of those 25 he only generated 6 interviews 
 
            (Tran. pp. 38 & 39).  
 
            
 
                 Claimant admitted that he applied for construction jobs 
 
            even though he was not able to do them as well as other jobs 
 
            he probably could not perform (Tran. pp. 88-90).
 
            
 
                 Defendants' counsel impeached claimant's testimony with 
 
            respect to his 513 person job search by introducing a number 
 
            of affidavits from business persons where claimant had 
 
            indicated that he applied for employment.  These affidavits 
 
            indicated that the business had either (1) never heard from 
 
            claimant or (2) had no application from him (Defs' Ex. 3, 4, 
 
            5 & & 7) or (3) that these prospective employers never made 
 
            the statements that claimant attributed to them (Dets' Ex. 
 
            6).
 
            
 
                 The fact claimant received a discharge other than 
 
            honorable from the military service may have also been 
 
            affecting his ability to find employment.  In the letter he 
 
            wrote to military authorities at the time of his discharge 
 
            he indicated that it had given him problems in the past.
 
            
 
                 Defendants' counsel established through the testimony 
 
            of Mary Cannon-James, a job service representative, that 
 
            they understood that claimant was a veteran because he told 
 
            them he entered the service June 19, 1978 and was separated 
 
            on June 25, 1981.  Cannon-James explained that anyone who 
 
            serves over 180 days is classified as a veteran (Tran. pp. 
 
            135-138; Defs' Ex. 1, p. 2).  
 
            
 
                 The balance of the testimony of Cannon-James verifies 
 
            that claimant did advise them that his discharge was a 
 
            general discharge and that he had lifting restrictions of 30 
 
            pounds due to a ruptured disc in his back which occurred on 
 
            February 5, 1991 and that claimant was using a cane to get 
 
            around (Tran. p. 139; Ex. 2, p. 5).  
 
            
 
                 Cannon-James testified that claimant had been contacted 
 
            for a number of job openings but the record showed no 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            response (Tran. p. 141; Ex. 2, p. 6).  She testified that in 
 
            today's job market one has to be aggressively looking for 
 
            work in order to find employment (Tran. p. 142).  However, 
 
            she acknowledged that claimant could have responded to the 
 
            notices sent out by Job Service without going to Job Service 
 
            (Tran. p. 144). 
 
            
 
                 The testimony of Cannon-James may throw some doubt on 
 
            claimant's motivation to return to work but it does not rise 
 
            to the level of negating the overwhelming evidence that 
 
            claimant sustained an injury to his lumbar spine on February 
 
            5, 1991, as he described in his testimony and is documented 
 
            in all of the medical reports summarized above.  
 
            
 
                 Defendants' counsel attempted to show that claimant's 
 
            unusual and unexplainable pain behavior subsequent to the 
 
            surgery negated his credibility that he actually sustained 
 
            an injury on February 5, 1991, as he described.  It is the 
 
            opinion of the deputy that claimant's pain behavior may 
 
            reflect upon his motivation to work but does not negate the 
 
            overwhelming evidence that claimant sustained the injury 
 
            that he described based upon the overwhelming evidence 
 
            summarized above.
 
            
 
                 This evidence is as follows.
 
            
 
                 Dr. Whitmore testified that after the surgery when 
 
            claimant was in the hospital that claimant told him that his 
 
            leg pain was virtually gone.  Dr. Whitmore signified and his 
 
            office notes show that on April 16, 1991, claimant told him, 
 
            "lots better than before surgery" ... "90% better".  (Jt. 
 
            Ex. 1, p. 2; Jt. Ex. 5, p. 16 & 17).  On April 5, 1991, the 
 
            doctor noted that claimant said the pain down his leg was 
 
            only 50 percent of what it was before (Jt. Ex. 1, p. 2).  
 
            
 
                 At the same time Dr. Whitmore said that he began to 
 
            notice some unusual behavior on the part of claimant.  First 
 
            of all claimant began walking with a cane, even though he 
 
            had not prescribed a cane because it was not necessary (Ex. 
 
            1, p. 2; Ex. 5, p. 18).  Second, at times claimant would 
 
            appear to be comfortable and relaxed and in no distress and 
 
            during this same office visit at other times it would appear 
 
            as though he had considerable distress and was having a lot 
 
            of pain (Jt. Ex. 1, pp. 1 & 2; Jt. Ex. 5, p. 16).  Third, on 
 
            May 17, 1991, claimant continued to walk with a cane, and he 
 
            was also limping.  He acted frustrated, angry, distressed 
 
            and he was pessimistic.  
 
            
 
                 The doctor said that claimant's physical examination 
 
            was normal, the wound was well healed, reflexes were normal, 
 
            straight leg raising was normal, muscle strength was normal 
 
            and motion was normal.  Dr. Whitmore testified, "What you 
 
            saw and what objective things were did not correlate." (Jt. 
 
            Ex. 5, p. 21).  Dr. Whitmore said he recommended counseling.  
 
            The doctor said claimant agreed to counseling at first and 
 
            Dr. Whitmore made an appointment for counseling but 
 
            subsequently claimant declined to go.  The doctor said the 
 
            only reason that he was given by claimant was that the 
 
            insurance company had done something to make claimant angry 
 
            and that was the reason he did not go (Jt. Ex. 5, pp. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            21-23).
 
            
 
                 Dr. Whitmore said that at the time of the office visit 
 
            on June 7, 1991, claimant demonstrated even more unusual 
 
            postural findings.  He said that claimant was totally rigid 
 
            and complained that any motion whatsoever in his body caused 
 
            pain.  The doctor said he performed two tests which rarely 
 
            cause pain and that both tests produced significant 
 
            complaints of pain and pain reaction by claimant.  The 
 
            doctor said he asked claimant to heel and toe walk and 
 
            claimant told him that this was almost impossible for him to 
 
            do.  Dr. Whitmore said that even the slightest touch 
 
            produced a great deal of pain on claimant's part (Jt. Ex. 1, 
 
            pp. 3 & 4; Jt. Ex. 5, pp. 22 & 23).  
 
            
 
                 On June 6, 1991, Loren Arp, the physical therapist 
 
            wrote to Dr. Whitmore that he had performed a functional 
 
            capacity examination.  Arp said that claimant should have 
 
            more strength and endurance than he demonstrated compared to 
 
            his body weight.  Arp wrote that claimant's results "were 
 
            inconsistent which would note either a poor effort or a poor 
 
            understanding of the instructions for the test." (Jt. Ex. 3, 
 
            p. 2).  The functional capacity examination of Arp on June 
 
            6, 1991 indicates that claimant should be able to perform a 
 
            light duty job like employer offered him on July 26, 1991.
 
            
 
                 On June 11, 1991, Dr. Whitmore advised Arp of the 
 
            inconsistencies that he found on claimant's recent 
 
            examinations and Dr. Whitmore then noted that "I advised Mr. 
 
            Arp of the inconsistencies on his last physical exam and Mr. 
 
            Arp told me that his testing was inconsistent also.  
 
            Therefore I believe we should not input any more 
 
            physiotherapy at this time." (Jt. Ex. 1, p. 4).  
 
            
 
                 In the course of his treatment claimant related a 
 
            number of unusual pain experiences to Dr. Whitmore for which 
 
            the doctor had no medical explanation.  On April 2, 1991, 
 
            claimant reported that he rolled over on his stomach and had 
 
            an electric shock like pain shoot down his right leg to his 
 
            foot.  
 
            
 
                 On July 16, 1991, the doctor noted that claimant 
 
            reported playing Nintendo with his nephew for 45 minutes and 
 
            developed low back pain and had to lie down.
 
            
 
                 On August 20, 1991, claimant reported that on August 
 
            13, 1991, he reached his arms overhead to yawn and felt an 
 
            excruciating pain in his neck which lasted two or three 
 
            minutes.
 
            
 
                 On August 20, 1991, the doctor also related another 
 
            episode where claimant had a cramp that almost knocked him 
 
            down two or three days before he went back to work (Jt. Ex. 
 
            1, pp. 2, 4 & 5; Jt. Ex. 5, p. 31).
 
            
 
                 Dr. Whitmore testified that he made an appointment for 
 
            claimant on October 31, 1991 and claimant did not show up 
 
            for it and this concluded his treatment of claimant (Jt. Ex. 
 
            5, p. 32).
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 On June 20, 1991, Dr. Whitmore said that he had no 
 
            explanation for these inconsistencies in claimant's recovery 
 
            behavior.  He said there was nothing more that he could do 
 
            for claimant.  The doctor testified that he thought that 
 
            claimant should go back to work (Jt. Ex. 5, p. 29; Jt. Ex. 
 
            1, p. 5).
 
            
 
                 Robert J. Chesser, M.D., performed an independent 
 
            medical examination for claimant at claimant's request on 
 
            June 20, 1992.  Dr. Chesser related that the buffer started 
 
            to pin claimant against the wall and he twisted quickly to 
 
            get out of the way.  Thus, the history that claimant has 
 
            given to all of the doctors is consistent.  
 
            
 
                 Claimant related to Dr. Cheeser that he felt worse now 
 
            than before the surgery.  Normally, an injury is worse at 
 
            first and gradually improves over time with or without 
 
            medical treatment. 
 
            
 
                 Dr. Chesser ordered a repeat MRI with Gadolinium and a 
 
            repeat EMG in order to determine whether something had been 
 
            missed in claimant's treatment with Dr. Whitmore.  The MRI 
 
            showed no recurrent disc extradural defects but that 
 
            claimant did suffer from mild residual early degenerative 
 
            disc disease at L5, S1.  Dr. Chesser said the 
 
            electrodiagnostic testing was within normal limits (Jt. Ex. 
 
            5, p. 38).  Dr. Chesser did not attempt to give an 
 
            explanation or diagnosis for claimant's deteriorating and 
 
            unusual subjective pain complaints (Jt. Ex. 2, pp. 1-11).  
 
            
 
                 Dr. Whitmore said that the medical profession knows the 
 
            normal recovery for a herniated disc surgery and that his 
 
            objective testing showed that claimant's complaints of 
 
            severe pain and disability were not consistent with a 
 
            recovering herniated disc (Jt. Ex. 5, p. 33).  Dr. Whitmore 
 
            said that the maximum medical recovery should have occurred 
 
            on August 3, 1991 (Jt. Ex. 5, pp. 34 & 35).
 
            
 
                 Thus, even though defendants have successfully 
 
            impeached claimant's testimony on several points about his 
 
            military service and have impugned his motivation to return 
 
            to work by the foregoing evidence, nevertheless, this 
 
            evidence does not negate the fact that claimant sustained an 
 
            injury to his lumbar spine on February 5, 1991, as shown in 
 
            the previous summary of the evidence.
 
            
 
                 The historical chain that establishes injury is 
 
            unbroken.  
 
            
 
                 Claimant described an injury when the buffer forced him 
 
            against the stainless steel counter and he felt a burning 
 
            sensation on the right side of his back.  The injury was not 
 
            witnessed but this is not unusual.  As claimant pointed out, 
 
            everyone was doing their own job at that time and that he 
 
            was doing his job.  Claimant did say that he told a UPS 
 
            employee about the injury.  Claimant said he then reported 
 
            the injury to his supervisor, Bernard, who sent him to Mercy 
 
            Hospital emergency room.  Claimant later received care from 
 
            Hurst Chiropractic with the knowledge and implied consent of 
 
            Bernard.  The report of the incident, the Mercy treatment, 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            and the Hurst Chiropractic treatment for an injury that 
 
            occurred at work with a buffer was all verified by Bernard.  
 
            
 
                 Claimant has consistently given essentially the same 
 
            history to Bernard, Mercy Hospital, Dr. Ang, Dr. Motto, Dr. 
 
            Vermeer, Dr. Johnson, Dr. Whitmore, Community Health Care, 
 
            Dr. Chesser and Riechman.  Dr. Whitmore, who has a lot of 
 
            experience in these matters, and who was the treating 
 
            orthopedic surgeon said that he assumed that this history 
 
            was correct.  No doctor has suspicioned or suggested any 
 
            other cause for this injury.  The fact that claimant was 
 
            incorrect or possibly lied about collateral matters with 
 
            respect to his military service or certain aspects of it 
 
            have no bearing and do not controvert the overwhelming 
 
            evidence in this case of a work injury.  Therefore, the 
 
            deputy's determination that claimant was credible about this 
 
            injury coincides with all of the medical professionals who 
 
            examined or treated claimant.
 
            
 
                 The fact that claimant's recovery was inconsistent with 
 
            normal intervertebral herniated disc recovery, and that 
 
            claimant related a number of unusual pain experiences 
 
            related to his alleged disability, have no bearing on the 
 
            solid record in this case (1) that claimant was injured by 
 
            the buffer, and (2) that the injury was the cause of 
 
            aggravating claimant's preexisting degenerative disc disease 
 
            and made his intervertebral herniated disc symptomatic which 
 
            required the surgery of Dr. Whitmore.
 
            
 
                 Wherefore, even though defendants have successfully 
 
            impeached claimant's testimony on several points about his 
 
            military service and have impugned his motivation to work by 
 
            the foregoing evidence, nevertheless, this evidence does not 
 
            rise to the level of negating or destroying the overwhelming 
 
            chain of events that show that claimant did in fact sustain 
 
            an injury to his lumbar spine on August 5, 1991, that arose 
 
            out of and in the course of his employment with employer 
 
            while buffing the floor at UPS.
 
            
 
                casual connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of February 5, 1991 
 
            was the cause of permanent disability and that claimant has 
 
            sustained a 15 percent industrial disability to the body as 
 
            a whole and is entitled to 75 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                 It is further determined that claimant is not an 
 
            odd-lot employee.  
 
            
 
                 Claimant's young age of 31 at the time of the injury 
 
            and 33 at the time of the hearing does not increase but 
 
            rather tends to decrease, claimant's entitlement to 
 
            industrial disability.  Claimant is still young enough to 
 
            develop one or more careers that would provide gainful 
 
            employment and sufficient income to earn a livelihood for 
 
            him until the normal retirement age of approximately 60 or 
 
            65 years of age.  This gives claimant some 30 years yet to 
 
            be used to his advantage in earning a livelihood (Tran. p. 
 
            21).  Becke v. Turner-Busch, Inc., Thirty-fourth Biennial 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Report of the Industrial Commissioner 34 (Appeal Decision  
 
            1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981); McCoy v. Donaldson Company, 
 
            Inc., file numbers 782670 & 805200 (App. Dec. 1989).
 
            
 
                 Claimant's education does not increase his industrial 
 
            disability.  Claimant has a high school education and this 
 
            is the base line for employment in the competitive labor 
 
            market (Tran. p. 23).  Claimant is interested in study and 
 
            learning and it is determined that claimant is capable of 
 
            retraining.  Claimant attended airline travel and accounting 
 
            school, even though he dropped out because he found 
 
            accounting difficult.  This is not unusual; a lot of people 
 
            find accounting difficult.  Claimant appeared to be an 
 
            intelligent and articulate person at the time of the 
 
            hearing.  The deputy formed the opinion that claimant is 
 
            capable of either academic or on-the-job training to learn 
 
            one or more new careers.  In fact, claimant was attending 
 
            classes at the time of the hearing to learn how to become 
 
            self-employed and start his own business (Tran. pp. 49 & 
 
            50).  Likewise, claimant was exploring the possibility of 
 
            entering a training program to become a missionary at the 
 
            time of the hearing (Tran. p. 50). 
 
            
 
                 Claimant has demonstrated a flexibility and 
 
            adaptability for assimilating and learning new employments 
 
            prior to this injury.  Between 1977, when claimant was 17 
 
            years old, until the date of the injury in 1991, when 
 
            claimant was 31 years old, a period of 14 years, claimant 
 
            has performed 27 different employments in Illinois, Arizona, 
 
            Hawaii, American Samoa and Iowa (Clmt's Ex. G, pp. 1-4).  
 
            Many of claimant's past employments involved manual labor 
 
            and he has also worked as a security guard.  Whether 
 
            claimant could perform manual labor types of jobs in the 
 
            future would depend upon his motivation and his bona fide 
 
            attempt to perform them.  Based upon the information 
 
            supplied by the treating orthopedic surgeon, Dr. Whitmore, 
 
            claimant is able to work.
 
            
 
                 The disability issue, like the injury issue, requires 
 
            claimant to establish his disability by a preponderance or 
 
            weight of the evidence.  The burden of proof is upon 
 
            claimant to establish the extent of his industrial 
 
            disability.  Armstrong v. State of Iowa Building and 
 
            Grounds, 382 N.W. 2d 161, 166 (Iowa 1986).  Claimant's 
 
            inability to perform light housekeeping duties is not 
 
            supported by or explained by any medical or nonmedical 
 
            evidence in the record.  Claimant contended that he was 
 
            unable to perform these duties and found it necessary to lay 
 
            on the floor in pain.  However, the treating orthopedic 
 
            physician, Dr. Whitmore, stated in writing and testified by 
 
            deposition that claimant should be able to perform these 
 
            duties without difficulty.  
 
            
 
                 Claimant's supervisor, Bernard, though claimant should 
 
            be able to perform these duties without difficulty.  
 
            Claimant's own choice of physicians at the Community Health 
 
            Care and Dr. Chesser did not offer any explanation for pain 
 
            so severe that claimant was unable to perform light duty 
 
            work or light to medium work.  On the contrary, the repeat 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            MRI and EMG ordered by Dr. Chesser failed to disclose any 
 
            reason for such severe pain other than claimant's mild and 
 
            preexisting degenerative disc disease.  
 
            
 
                 The functional capacity examination performed by Arp on 
 
            June 6, 1991, would also permit claimant to perform 
 
            sedentary, light and light to medium work.  Arp indicated 
 
            that he actually believed that claimant could perform even 
 
            more work than this physical capacity examination showed.  
 
            Arp believed that claimant's ability to lift was 
 
            inconsistent with his body weight.  Arp is an expert in his 
 
            field and his opinion should be respected.  
 
            
 
                 Even with the limitations that Arp recorded based on 
 
            claimant's performance, Arp, nevertheless, found that 
 
            claimant was able to work eight hours per day and forty 
 
            hours per week.  He said claimant was capable of sitting for 
 
            four hours, standing four hours, and walking four hours.  
 
            
 
                 Based upon claimant's demonstrated performance Arp said 
 
            claimant should not climb at all.  He was not supposed to 
 
            carry or lift from the floor to waist more than 34 pounds.  
 
            He was not to lift more than 10 pounds overhead.  He was not 
 
            supposed to push or pull more than 50 pounds.  In his 
 
            closing paragraph Arp pointed out that these were not 
 
            permanent limitations but that claimant's ability could 
 
            increase if given a change due to patient progress, future 
 
            medical intervention or other circumstances.  Motivation 
 
            would fall under other circumstances (Ex. 3, pp. 1-5).
 
            
 
                 Claimant's own evaluating physician, Dr. Chesser, said 
 
            that claimant was capable of full-time work with a permanent 
 
            weight restriction of 30 pounds on an occasional basis which 
 
            he defined as ten times per hour.  Dr. Chesser also 
 
            recommended to alternate sitting and standing every 20 to 30 
 
            minutes, but it was only a recommendation, it was not 
 
            imposed as a hard, fast permanent restriction for all time.
 
            
 
                 Dr. Whitmore, the treating orthopedic surgeon, who 
 
            should be in the best position to know, testified that he 
 
            did not think any work restriction should be imposed on 
 
            claimant.  Dr. Whitmore further stated that lifting 
 
            restrictions of 30 pounds, 32 pounds or 35 pounds were 
 
            arbitrary (Jt. Ex. 5, p. 49).
 
            
 
                 In his deposition given on March 18, 1993, Dr. Whitmore 
 
            testified that claimant should be able to return to work.  
 
            His testimony on this point was as follows: 
 
            
 
                    Do you have an opinion within a reasonable 
 
                 degree of medical certainty as to whether or not 
 
                 Mr. Anderson should be able to return to work?  
 
            
 
                    A.  Based on the fact that he had a herniated 
 
                 intervertebral disc, had it treated and had no 
 
                 objective complications of the disease or the 
 
                 surgery, I see no reason why he couldn't go back 
 
                 to work.  
 
            
 
                 He should have no limitations based on those 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 things.  There is no reason why he couldn't go 
 
                 back to employment." (Jt. Ex. 5, pp. 41 & 42).
 
            
 
                 With respect to whether claimant should have any 
 
            lifting restrictions or not, the opinion of Dr. Whitmore is 
 
            preferred over the opinion of Dr. Chesser.  Dr. Whitmore has 
 
            been a board certified orthopedic surgeon since 1966, a 
 
            period of approximately 28 years.  Dr. Whitmore saw the 
 
            claimant on several occasions and monitored his recovery 
 
            closely.  As the treating physician Dr. Whitmore bears a 
 
            certain amount of responsibility for the ultimate success or 
 
            failure of claimant's recovery.  By comparison, Dr. Chesser, 
 
            a physical medicine physician, only examined claimant on one 
 
            occasion for the purpose of giving an opinion for the 
 
            purpose of litigation.  Rockwell Graphics Systems, Inc. v. 
 
            Prince, 366 N.W.2d 187, 192 (Iowa 1985).  The treating 
 
            orthopedic surgeon had more opportunity to form his expert 
 
            opinion than the one-time examiner of claimant.  Lemon v. 
 
            Georgia Pacific Corp., II Iowa Industrial Commissioner 
 
            Report 204, 205 (App. Dec. 1981); Clement v. Southland Corp, 
 
            I Iowa Industrial Commissioner Report 56, 58 (1981).  A 
 
            doctor's expertise and board certification may accord his 
 
            testimony greater weight.  Reiland v. Palco, Inc., 
 
            Thirty-second Biennial Report of the Industrial Commissioner 
 
            56 (1975); Dickey v. ITT Continental Baking Co., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            89 (1979). 
 
            
 
                 If there are psychological factors bearing on 
 
            claimant's disability claimant did not use the opportunity 
 
            to develop them.  Dr. Whitmore made an appointment for 
 
            psychological counseling and claimant initially agreed to 
 
            receive it, but eventually he declined this opportunity with 
 
            the stated reason that he became angry at the insurance 
 
            carrier.  Thus, there is no evidence of a professional 
 
            nature to support a claim for any psychological disability 
 
            in this case even though claimant was given the opportunity 
 
            to be examined and evaluated.
 
            
 
                 Dr. Whitmore said that he was unable to speculate on 
 
            what restrictions might be appropriate for psychological 
 
            reasons without a psychological examination (Jt. Ex. 5, p. 
 
            49).  
 
            
 
                 In a medical report to Job Service which claimant 
 
            authorized on August 22, 1991, in order to determine his 
 
            eligibility for unemployment compensation benefits, Dr. 
 
            Whitmore stated that claimant suffered a herniated 
 
            intervertebral disc at L5-S1, right which was employment 
 
            related, but that he did not advise claimant to quit his 
 
            job.  Dr. Whitmore did verify that claimant was unable to 
 
            perform his occupation from February 5, 1991 to July 22, 
 
            1991 due to the herniated disc surgery.  However, when asked 
 
            about restrictions, Dr. Whitmore wrote, "Released to part 
 
            time work with no strenuous lifting for two weeks, then full 
 
            time work." (Jt. Ex. 5, unnumbered deposition Ex.).
 
            
 
                 As a result of this report claimant was able to receive 
 
            unemployment compensation benefits in September of 1991 
 
            until June of 1993 (Tran. p. 89).  Thus, claimant's 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            contention that he was unable to perform any work and that 
 
            he is an odd-lot employee is irreconcilable with the opinion 
 
            of the treating orthopedic surgeon as well as his own 
 
            evaluating physician.  Also claimant's acceptance of 
 
            unemployment compensation benefits is based upon the fact 
 
            that he certifies to Job Service that he is able and 
 
            available to work.  
 
            
 
                 Claimant admitted that no doctor had prescribed a cane.  
 
            Claimant contended that he used the cane because he got bad 
 
            cramps in his back and spasms in his back and if he did not 
 
            have a cane he would be on the ground and he preferred not 
 
            to be on the ground (Tran. p. 43).  
 
            
 
                 No doctor ever explained why claimant should walk with 
 
            a limp.  Claimant testified that he continued to experience 
 
            a burning sensation in his right leg down into his toes as 
 
            well as cramping in his legs sometimes.  Claimant was not 
 
            taking any prescription medications at the time of the 
 
            hearing.  He said he only took Advil or Tylenol possibly 
 
            three times a day (Tran. pp. 44 & 45).  
 
            
 
                 Claimant said he went to Iowa Vocational 
 
            Rehabilitation.  They sent him to Skills Incorporated in 
 
            Moline.  Claimant said they had him stand for long periods 
 
            of time and if he stood for longer than 45 minutes the 
 
            cramps got so bad he had to lay down (Tran. p. 45).
 
            
 
                 Claimant explained that what bothered his back on his 
 
            trial return to work was bending to clean toilets and empty 
 
            trash and clean windows.  He said the difficulty was a lot 
 
            of bending and stretching and vacuuming (Tran. p. 36).
 
            
 
                 Scott Jackson, a private investigator, testified that 
 
            he was hired to observe claimant in February of 1993.  He 
 
            testified that he video taped claimant for approximately a 
 
            half-hour bent over at the waist approximately 90 degrees 
 
            working on the engine of a car with the hood up in front of 
 
            his residence.  Jackson testified that he saw claimant squat 
 
            and bend a number of times.  Jackson testified that 
 
            claimant's actions did not appear to be forced or restricted 
 
            in any way.  Jackson further testified that later in the day 
 
            he observed claimant work on another car for approximately 
 
            another half-hour.  The witness said that claimant moved his 
 
            body in an unrestricted fashion (Tran. pp. 102-117).  
 
            
 
                 Thus, claimant's testimony about his restricted 
 
            abilities to bend and stretch and perform sustained work has 
 
            been controverted, rebutted and contradicted by Jackson's 
 
            testimony.  Jackson further testified that he observed 
 
            claimant run errands without any apparent difficulty in his 
 
            movements.  
 
            
 
                 Even if it were to be assumed for purposes of argument, 
 
            that claimant is unable to work, claimant has not 
 
            established a large actual wage loss because all of his 
 
            previous employments were minimum wage jobs or entry level 
 
            wage jobs and he can still command those wages if he were to 
 
            return to work at practically any work today (Tran. p. 23).
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 Thus, it can be seen that claimant has not demonstrated 
 
            any psychological disability through professional medical 
 
            testimony. Nor has he established, by the weight of the 
 
            evidence, that he is unable to work for physical reasons 
 
            based upon the evidence of any of the medical professionals 
 
            who have testified or submitted evidence in this case.  
 
            Furthermore, since claimant has not actually performed any 
 
            work it is difficult if not impossible to ascertain how much 
 
            industrial disability, if any, that really exists in his 
 
            case.  Schofield v. Iowa Beef Processors, Inc., II Iowa 
 
            Industrial Commissioner Report 334, 336 (1981).  Thus, it 
 
            would appear that claimant's permanent disability is limited 
 
            to approximately his physical or functional impairment as 
 
            determined by the ratings of the two physicians that 
 
            evaluated him and supplied ratings for his permanent 
 
            impairment in this case.
 
            
 
                 Dr. Whitmore determined that claimant sustained a 10 
 
            percent permanent impairment on September 16, 1991, in 
 
            response to a letter from Riechman dated September 10, 1991 
 
            (Clmt's Ex. A, pp. 6 & 7; Jt. Ex. 5, pp. 45 & 47).  Dr. 
 
            Chesser determined that claimant sustained a 14 percent 
 
            impairment on January 20, 1992 (Jt. Ex. 2, p. 3).  Dr. 
 
            Whitmore said that the 14 percent impairment rating of Dr. 
 
            Chesser was a fair rating, but he also commented that 4 
 
            percent of it was based on motion which is somewhat of a 
 
            subjective thing (Jt. Ex. 5, p. 41).  None of the other 
 
            physicians in this case, Dr. Ang, Dr. Motto, Dr. Vermeer, 
 
            Dr. Johnson, or the Community Health Care physician's 
 
            assistant, Anderson, were requested to supply a permanent 
 
            impairment rating (Tran. p. 20).
 
            
 
                 Industrial disability is not necessarily greater than 
 
            functional impairment but can be equal to, less than or 
 
            greater than functional impairment.  Lawyer and Higgs, Iowa 
 
            Workers' Compensation, Second Edition, Section 13-5 at page 
 
            131.
 
            
 
                 Wherefore, based upon the industrial disability factors 
 
            of age, education, retraining, ability to perform past 
 
            employments, loss of actual wages, and loss of earning 
 
            capacity, claimant has proved very little industrial 
 
            disability over and above his permanent physical and 
 
            functional impairment ratings.  Diederich v. Tri-City Ry. 
 
            Co., 219 Iowa 587, 258 N.W. 899 (1935); Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  Dr. 
 
            Whitmore, the board certified treating orthopedic surgeon 
 
            with approximately 28 years of experience found no reason 
 
            why claimant should be unable to work, based upon his own 
 
            personal extensive clinical testing as well as the 
 
            subsequent MRI and EMG performed by Dr. Chesser.
 
            
 
                 Therefore, it is determined that claimant has sustained 
 
            a 15 percent industrial disability to the body as a whole 
 
            and is entitled to 75 weeks of permanent partial disability 
 
            benefits.
 
            
 
                                 PENALTY BENEFITS
 
            
 
                 It is determined that defendants are guilty of a delay 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            in the commencement of permanent disability benefits which 
 
            occurred without reasonable or probable cause or excuse and 
 
            that claimant is entitled to an award of 50 weeks of penalty 
 
            benefits at the rate of 50 percent based upon the 10 percent 
 
            impairment rating of Dr. Whitmore dated September 16, 1991 
 
            in the total amount of $2,870.25 (50 % x $114.81 = $57.405 x 
 
            50 = $2,870.25).
 
            
 
                 Defendants admitted in response to the request for 
 
            admissions that the impairment rating given by Dr. Whitmore 
 
            on September 16, 1991 to Riechman was not forwarded to 
 
            claimant or his attorney within 20 days after the receipt of 
 
            the rating.  Rule 343 IAC 4.17.  Defendants further admitted 
 
            in the response to request for admissions that the employer 
 
            and insurance carrier did not serve other correspondence 
 
            between Dr. Whitmore and the employer and insurance carrier 
 
            on claimant in a timely fashion.  Defendants further 
 
            admitted that they had never paid claimant any permanent 
 
            partial disability benefits (Ex. D).
 
            
 
                 Riechman testified that he started to work for the 
 
            insurance carrier in September of 1990 and that he came to 
 
            Iowa in December of 1990.  He stated that he met claimant in 
 
            the course of the investigation of this injury.  The witness 
 
            said that he had only been on the job as a field adjuster 
 
            for about two months at the time of this claim.  
 
            
 
                 Riechman testified that as time went by he found 
 
            inconsistencies about claimant's recovery in the report of 
 
            Arp, the physical therapist, and Dr. Whitmore, the treating 
 
            physician, which he discussed with defendants' counsel.  
 
            Riechman said that it was decided that the claim should be 
 
            contested.  
 
            
 
                 Riechman said that he talked to people about the buffer 
 
            and how it was operated.  He concluded that the injury could 
 
            not have occurred in the manner that claimant stated.  
 
            However, apparently Riechman did not take any statements 
 
            from these people nor did defendants submit any evidence 
 
            into the record at the time of hearing on this point.  
 
            Defendants did not offer any documentary or testimonial 
 
            evidence to support Riechman's conclusion.  As far as this 
 
            case goes it is simply a conclusion without any supporting 
 
            tangible evidence.  
 
            
 
                 Furthermore, before making a decision not to pay 
 
            permanent partial disability benefits an insurance company 
 
            should make an adequate investigation and be prepared to 
 
            support their position with a reasonable investigation which 
 
            was not done in this case.  
 
            
 
                 Furthermore, Riechman's memory and record keeping were 
 
            both faulty.  He could not recall and he could not establish 
 
            whether he forwarded the permanent impairment rating of Dr. 
 
            Whitmore to his own counselor or not.  Defendants' counsel 
 
            made a professional statement that she first learned of the 
 
            permanent impairment rating of Dr. Whitmore at the time of 
 
            his deposition on March 18, 1993, which was almost a year 
 
            and a half after it was made (Tran. pp. 127 & 131).
 
            
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
                 Even after defendants' counsel learned of the 10 
 
            percent impairment rating of Dr. Whitmore on March 18, 1993, 
 
            at the time of his deposition defendants still did not pay 
 
            claimant any permanent disability benefits and did nothing 
 
            to obtain a competing or opposing rating to that of their 
 
            own authorized treating physician, Dr. Whitmore.
 
            
 
                 Riechman further admitted that he never checked out his 
 
            investigative findings about the operation of the buffer, 
 
            (whatever they were) with the doctor in order to get a 
 
            professional medical opinion on the point of causation 
 
            (Tran. pp. 127 & 132).  Riechman further admitted that he 
 
            never obtained the Mercy Hospital emergency record (Tran. p. 
 
            134).  In a response to a request for admissions defendants 
 
            submitted that Riechman wrote to Dr. Riechman for an 
 
            impairment rating on September 10, 1991 (Ex. A, p. 6).  
 
            Defendants further admitted that Dr. Whitmore responded by 
 
            letter dated September 16, 1991 assigning a 10 percent whole 
 
            body impairment based on the fact that claimant had 
 
            sustained a herniated intervertebral disc which was treated 
 
            surgically and from which claimant continued to have some 
 
            residual symptoms (Ex. A, p. 9).
 
            
 
                 Claimant testified that he was never notified by the 
 
            insurance company that Dr. Whitmore had determined he had a 
 
            10 percent impairment rating (Tran. pp. 46 & 47).  Claimant 
 
            and his attorney first learned of the 10 percent permanent 
 
            functional impairment rating at the time of Dr. Whitmore's 
 
            deposition on March 18, 1993, when claimant's counsel 
 
            requested to see Dr. Whitmore's file.  Claimant still had 
 
            not been paid any permanent disability benefits at the time 
 
            of the hearing (Tran. p. 48).  Since defendants were not 
 
            disputing their own doctor's permanent impairment rating 
 
            with any other impairment rating they should have paid it as 
 
            soon as they received it.
 
            
 
                 Irrespective of whether Riechman failed to serve this 
 
            report on his own counsel or opposing counsel through 
 
            ignorance, inexperience, inadvertence or neglect, the fact 
 
            still remains that an injured worker was deprived of his 
 
            rightful entitlement to permanent partial disability 
 
            benefits which should have commenced at the end of healing 
 
            period.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 The inconsistencies which Riechman referred to, that 
 
            were mentioned by Arp and Dr. Whitmore, related to the issue 
 
            of disability and not to whether claimant has sustained an 
 
            injury or not.  There are numerous industrial commissioner 
 
            decisions which hold that defendants are liable for penalty 
 
            benefits when they fail to pay at a bare minimum their own 
 
            authorized treating physician's impairment rating when they 
 
            have no other conflicting medical evidence and furthermore 
 
            were not seeking any.  Dr. Whitmore, their own doctor, said 
 
            the employment caused this injury and that the injury caused 
 
            a 10 percent permanent impairment.
 
            
 
                 Neither Riechman, nor defendants' counsel, or anyone 
 
            else on the behalf of defendants offered any reasonable or 
 
            probable cause or excuse for not paying claimant the 10 
 
            percent impairment rating determined by their own physician 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            and which they were not disputing.  The idea that it would 
 
            be determined that claimant had not sustained a work injury 
 
            was not realistic based on the overwhelming evidence that he 
 
            did.
 
            
 
                 Wherefore, it is determined that defendants delayed and 
 
            failed to commence permanent partial disability benefits to 
 
            claimant at the end of healing period in the amount of 50 
 
            weeks based upon the 10 percent permanent impairment 
 
            determined by Dr. Whitmore on September 16, 1991.  Fifty 
 
            percent of the stipulated rate of $114.81 is a penalty rate 
 
            of $57.405.  This penalty rate times 50 weeks equals 
 
            $2,870.25.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant's credibility on matters concerning his 
 
            military service and other items as well as his credibility 
 
            about the amount of pain he was experiencing after the 
 
            surgery do not negate the fact that the overwhelming 
 
            evidence summarized in the body of the decision establishes 
 
            that claimant did, as a conclusion of law, sustain an injury 
 
            to his lumbar spine on February 5, 1991, which arose out of 
 
            and in the course of employment with employer.  Iowa Code 
 
            section 85.3(1); 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).  
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence, as a conclusion of law, that 
 
            the injury of February 5, 1991 was the cause of permanent 
 
            impairment and permanent physical disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained a 15 percent industrial 
 
            disability to the body as a whole primarily based upon his 
 
            physical and functional impairment as determined by the 
 
            treating physician and claimant's evaluating physician as 
 
            well as other industrial disability factors.  Iowa Code 
 
            section 85.34(2)(u).  Christensen v. Hagen, Inc., vol. I, 
 
            no. 3, State of Iowa Industrial Commissioner Decisions 529 
 
            (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (App. Dec. February 28, 1985).
 
            
 
                 That claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that he is incapable of 
 
            obtaining employment in any well know branch of the labor 
 
            market.  Furthermore, defendants did sustain the burden of 
 
            proof by preponderance of the evidence that claimant is 
 
            employable in the competitive labor market.  Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
            
 
                 That claimant has sustained the burden of proof by 
 
            preponderance of the evidence that defendants delayed the 
 
            commencement of permanent disability benefits without 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            reasonable or probable cause or excuse and that claimant is 
 
            entitled to penalty benefits in the amount of 50 percent of 
 
            the amount of benefits that he should have received 
 
            commencing at the end of healing period.  Iowa Code section 
 
            86.13.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits based upon a 
 
            fifteen percent (15%) industrial disability to the body as a 
 
            whole at the rate of one hundred fourteen and 81/100 dollars 
 
            ($114. 81) per week and in the total amount of eight 
 
            thousand six hundred ten and 75/100 dollars ($8,610.75) 
 
            commencing on August 3, 1991 as stipulated to by the 
 
            parties.
 
            
 
                 That defendants are entitled to a credit against this 
 
            award in the amount of six hundred twenty-eight and 08/100 
 
            dollars ($628.08) as stipulated to by the parties on the 
 
            hearing report. 
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay to claimant penalty benefits in the 
 
            amount of fifty-seven and 405/100 dollars ($57.405) for 50 
 
            weeks in the total amount of two thousand eight hundred 
 
            seventy and 25/100 dollars ($2,870.25) also commencing on 
 
            August 3, 1991.  
 
            
 
                 That interest will be due on penalty benefits beginning 
 
            on the date of this decision.
 
            
 
                 That defendants are charged with the costs of this 
 
            action, including the cost of the attendance of the court 
 
            reporter at hearing and the transcript of hearing, pursuant 
 
            to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 
 
            86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            302 Union Arcade Bldg.
 
            Davenport, IA  52801
 
            
 
            Ms. Candy Pastrnak
 
            Mr. Hector Lareau
 
            Attorneys at Law
 
            1600 Fourth Ave
 
            PO Box 3700
 
            Rock Island, IL  61201
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                  1108.50, 1401, 1402.20, 1402.30,             
 
                                  2206, 
 
                                  1803, 3700, 4000.2, 4100
 
                                  Filed April 25, 1994
 
                                  Walter R. McManus
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLES ANDERSON,   
 
                      
 
                 Claimant, 
 
                 
 
            vs.       
 
                                                   File No. 980696
 
            MIDWEST JANITORIAL SERVICES,  
 
            INC.      
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            THE CINCINNATI INSURANCE 
 
            COMPANY   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1108.50, 1401, 1402.20, 1402.30, 2206
 
            
 
                 It was determined that claimant did sustain an injury 
 
            arising out of and in the course of employment when a floor 
 
            buffer forced him against a counter and aggravated his 
 
            preexisting degenerative disc disease and precipitated a 
 
            lumbar laminectomy at L5, S1.
 
            
 
                 Defendants impeached claimants credibility on a number 
 
            of collateral points, and impugned his motivation to work 
 
            because of his post-surgical unexplained pain behavior.  
 
            Nevertheless, defendants' evidence did not rise to the point 
 
            of discrediting the overwhelming evidence in favor of 
 
            injury.
 
            
 
            1803
 
            
 
                 It was determined that claimant was entitled to little 
 
            more that his permanent impairment ratings of 10 percent and 
 
            14 percent and he was awarded 15 percent industrial 
 
            disability.  Several conflicts of evidence were resolved.  
 
            Claimant's disability contentions were not supported by 
 
            medical evidence.  Defendants' contentions were supported by 
 
            the medical evidence of the treating orthopedic surgeon, who 
 
            was preferred over the one-time evaluator.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            3700
 
                 
 
                 Surveillance evidence rebutted, controverted and 
 
            contradicted claimant's testimony of subjective complaints 
 
            of disability.
 
            
 
            4100
 
            
 
                 It was determined that claimant was not an odd-lot 
 
            employee.
 
            
 
            4000.2
 
            
 
                 Claimant was awarded 50 percent penalty benefits for 50 
 
            weeks.  Defendants' new on-the-job claim representative 
 
            failed to investigate the claim properly.  Defendants had an 
 
            impairment rating of 10 percent from the authorized treating 
 
            physician which they did not serve on claimant, and they did 
 
            not pay even though they had no conflicting rating, and were 
 
            not seeking any.  Defendants' idea that claimant's 
 
            credibility would negate injury was unrealistic.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
ALBERT O. KING,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File Nos. 980837, 1031618
 
PIRELLI-ARMSTRONG TIRE CORP.,                1045148, 1044727
 
                                             1044728, 1044729
 
     Employer, 
 
                                     A R B I T R A T I O N
 
and       
 
                                        D E C I S I O N
 
TRAVELERS INSURANCE     
 
COMPANY,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Albert O. King as the 
 
result of alleged injuries to his feet occurring on October 22, 1991 in 
 
file number 1031618; November 18, 1991 in file number 1044729; July 13, 
 
1992 in file number 1044728; October 23, 1992 in file number 1044727; 
 
and injuries to the upper extremities occurring on December 3, 1990 in 
 
file number 980837.  Claimant also alleged hearing loss occurring on 
 
December 31, 1992 in file number 1045148.  Claimant made a motion to 
 
dismiss the hearing loss claim at the time of hearing.  Claimant's 
 
motion to dismiss is granted in file number 1045148.  
 
 
 
The defendants denied liability for the foot injuries and multiple 
 
issues are presented for determination.  The defendant-employer 
 
admitted liability for the bilateral hand injuries and the issue of 
 
permanent disability is presented along with Second Injury Fund claims.
 
 
 
This case was heard and fully submitted at Des Moines, Iowa on February 
 
13, 1995.  The record in the proceeding consists of joint exhibits A 
 
and B; testimony from Albert O. King and Joyce Kain.   Claimant was 
 
represented by Max Schott, Attorney at Law.  The defendant-employer and 
 
insurance carrier were represented by Terry Monson, Attorney at Law.  
 
The Second Injury Fund of Iowa was represented by Shirley Steffe of the 
 
Attorney General's Office.
 
 
 
                                ISSUES
 
 
 
The issues presented for determination are as follows:
 
 
 
1.  Whether claimant sustained injuries to the feet arising out of and 
 
in the course of employment with the employer on October 22, 1991, 
 
November 18, 1991, July 13, 1992 and October 23, 1992;
 
 
 
2.  Whether the foot injuries are a cause of permanent disability, the 
 
nature and extent thereof; 
 
 
 
3.  Whether the foot injuries are a cause of temporary disability;
 
 
 
4.  The extent of entitlement to permanent disability for the December 
 
3, 1990 hand injuries;
 
 
 
5.  The commencement date for permanent disability benefits;
 

 
 
 
 
 
 
 
 
 
6.  Whether the injury claims of October 22, 1991 and November 18, 1991 
 
are barred pursuant to Iowa Code sections 85.23 and 85.26;
 
 
 
7.  Whether claimant is entitled to Second Injury Fund of Iowa 
 
benefits; and
 
 
 
8.  Whether claimant is permanently and totally disabled under the 
 
odd-lot doctrine.
 
 
 
                       FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and having considered all 
 
of the evidence in the record, the deputy industrial commissioner 
 
finds:
 
 
 
Albert King began work for the employer on March 18, 1959.  Claimant 
 
was a production worker in a tire factory.  Claimant's duties required 
 
extensive repetitive use of the hands and constant standing and 
 
walking.  Claimant on December 3, 1990 sustained bilateral hand 
 
injuries known as carpal tunnel syndrome.  After surgical treatment 
 
claimant was released to return to work June 10, 1991 by the treating 
 
physician, Robert Jones, M.D. (Joint Exhibit A, page 104).  
 
 
 
As a result of the bilateral carpal tunnel syndrome claimant incurred 
 
permanent disability as evidenced by the impairment ratings offered.
 
Dr. Jones opined on December 7, 1992, that claimant sustained 5 percent 
 
impairment of each upper extremity as a result of the work injury (Jt. 
 
Ex. A, p. 108).  
 
 
 
Martin Rosenfeld, D.O., Opined on August 17, 1992, that claimant 
 
sustained 14 percent of the body as a whole as a result of the 
 
bilateral carpal tunnel syndrome (Jt. Ex. A, p. 114).  Dr. Rosenfeld 
 
placed severe work restrictions on claimant due to a lack of strength.  
 
Claimant was to avoid repetitive use of the hands, heavy lifting and 
 
pressure on the surgery scars.  
 
 
 
On September 12, 1994, Keith Riggins, M.D., opined that claimant 
 
sustained 12 percent impairment to the body as a whole as a result of 
 
the bilateral carpal tunnel syndrome.  Dr. Riggins indicated that work 
 
restrictions should be placed on claimant similar to those offered by 
 
Dr. Rosenfeld (Jt. Ex. A, p. 122).
 
 
 
Claimant returned to work for the employer but continued to experience 
 
difficulties with his hands as a result of the repetitive work.  
 
Claimant went off work on or about October 22, 1991 due to problems 
 
with his feet, and continued problems with his hands. 
 
 
 
It is found that claimant's functional disability to the hands is 
 
greater than indicated by the impairment.  The severe work restrictions 
 
and continuing difficulty has with endurance work when involved in 
 
repetitive gripping indicates a functional disability of 25 percent to 
 
each hand.  This converts to 26 percent permanent disability to the 
 
body as a whole using the Fourth Edition of the Guides to the 
 
Evaluation of Permanent Impairment, American Medical Association.  
 
 
 
Claimant sustained a cumulative trauma injury to his feet on October 
 
22, 1991 caused by constant standing and walking at work.  Claimant had 
 
a preexisting congenital deformity of the feet commonly known as flat 
 
feet.  The work performed for the employer severely aggravated that 
 
condition eventually resulting in multiple surgeries and leaving 
 
claimant permanently and totally disabled.  The final exposure to the 
 
cumulative trauma from work occurred on or about October 22, 1991.  On 
 
that date it is found that claimant sustained bilateral simultaneous 
 
injuries to his feet.  
 
 
 
Claimant alleged that a second injury to the right foot occurred on 
 
November 18, 1991.  Claimant had surgery on that date for his right 
 
foot.  However, the last injurious exposure occurred on October 22, 
 
1991.  Therefore, the date of the subsequent surgery cannot be 
 
considered as an injury.  
 
 
 
Claimant alleged that on July 13, 1992 he sustained an injury to the 
 
left foot.  On that date claimant sustained a surgery to the left foot 
 
as a result of the prior cumulative trauma aggravation of a preexisting 
 
condition.  Claimant's last injurious exposure occurred on October 22, 
 
1991.  Therefore, the July 13, 1992 date cannot be considered as a date 
 
of injury.  
 
 
 
Claimant alleged an injury on October 23, 1992 to the right foot.  
 
Claimant had surgery on that particular date caused as a result of the 
 

 
 
 
 
 
 
 
 
 
prior cumulative trauma injury incurred on October 22, 1991.  The last 
 
injurious exposure to the right foot occurred on October 22, 1991.  
 
Therefore, the October 23, 1992 incident cannot be considered an 
 
injury.  
 
 
 
In summary, claimant sustained one injury to the feet occurring on 
 
October 22, 1991, which was a bilateral cumulative trauma aggravation 
 
of a preexisting condition.  The subsequent injury dates of November 
 
18, 1991, July 13, 1992 and October 23, 1992 are encompassed within the 
 
first injury.  Since no further exposure to cumulative trauma work 
 
occurred after October 22, 1991, no further injuries can be found after 
 
that date.
 
 
 
Claimant did not inform the employer of the potential work-related 
 
injury within 90 days of October 22, 1991.  Claimant was on notice 
 
effective August 28, 1991, that work was a possible cause of his 
 
bilateral foot pain (Jt. Ex. A, p. 9).  Claimant asked the treating 
 
doctor for a statement that the bilateral foot condition was 
 
work-related on April 3, 1992 (Jt. Ex. A, p. 22 & 23).  Claimant did 
 
not give the employer notice of a potential claim for the injuries to 
 
the feet within 90 days of April 3, 1992.  Claimant finally gave the 
 
employer notice of the alleged work-related nature concerning the foot 
 
injuries on July 8, 1992 (Jt. Ex. A, p. 152).  
 
 
 
It is found that claimant failed to inform the employer of a potential 
 
workers' compensation claim related to his bilateral foot condition 
 
within 90 days of the date of injury or within 90 days of having 
 
knowledge that there was a potential workers' compensation claim.  
 
With respect to the injury of December 3, 1990, it is found that 
 
claimant reached maximum medical improvement on June 10, 1991, which is 
 
date that he was released to return to work by the treating physician.
 
 
 
             REASONING AND CONCLUSIONS OF LAW
 
 
 
The first issue is whether claimant sustained injuries to the feet 
 
arising out of and in the course of employment on October 23, 1991, 
 
November 18, 1991, July 13, 1992 and October 23, 1992.
 
 
 
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).
 
 
 
When the disability develops gradually over a period of time, the 
 
"cumulative injury rule" applies.  For time limitation purposes, the 
 
compensable injury is held to occur when because of pain or physical 
 
disability, the claimant can no longer work.  McKeever Custom Cabinets 
 
v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
 
 
While a claimant is not entitled to compensation for the results of a 
 
preexisting injury or disease, its mere existence at the time of a 
 
subsequent injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
247 Iowa 900, 76 N.W.2d 756 (1956).  If the claimant had a preexisting 
 
condition or disability that is materially aggravated, accelerated, 
 
worsened or lighted up so that it results in disability, claimant is 
 
entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
112 N.W.2d 299 (1961).
 
 
 
It is held that claimant sustained a bilateral aggravation injury to a 
 
preexisting condition on October 23, 1991 as a result of cumulative 
 
trauma sustained when working for the employer.  It is held that 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
claimant failed to establish cumulative trauma injuries to the feet on 
 
November 18, 1991, July 13, 1992 and October 23, 1992 because the last 
 
injurious exposure was incurred on October 22, 1991. 
 
 
 
The next issue is whether the claim for the injury of October 22, 1991 
 
is barred pursuant to the notice provisions of Iowa Code section 85.23. 
 
 
 
Section 85.23 requires an employee to give notice of the occurrence of 
 
an injury to the employer within 90 days from the date of the 
 
occurrence, unless the employer has actual knowledge of the occurrence 
 
of the injury.
 
 
 
The purpose of the 90-day notice or actual knowledge requirement is to 
 
give the employer an opportunity to timely investigate the facts 
 
surrounding the injury.  The actual knowledge alternative to notice is 
 
met when the employer, as a reasonably conscientious manager, is 
 
alerted to the possibility of a potential compensation claim through 
 
information which makes the employer aware that the injury occurred and 
 
that it may be work related.  Dillinger v. City of Sioux City, 368 
 
N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
(Iowa 1980).  The time period for giving notice does not begin to run 
 
until the claimant as a reasonable person, should recognize the nature, 
 
seriousness and probable compensable character of the injury.  The 
 
reasonableness of claimant's conduct is to be judged in light of 
 
claimant's education and intelligence.  Claimant must know enough about 
 
the condition or incident to realize that it is both serious and work 
 
connected.  Positive medical information is unnecessary if information 
 
from any source gives notice of the condition's probable 
 
compensability.  Robinson, 296 N.W.2d at 812.
 
 
 
Failure to give notice is an affirmative defense which the employer 
 
must prove by a preponderance of the evidence.  DeLong v. Highway 
 
Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
 
 
It is held that claimant failed to give the employer notice within 90 
 
days of the date when claimant discovered that his foot injuries may be 
 
work-related.  Therefore, the claim of October 23, 1991 is barred under 
 
Iowa Code section 85.23.
 
 
 
The next issue concerns the extent of entitlement to permanent 
 
disability for the December 3, 1990 bilateral hand injuries.  
 
Benefits for permanent partial disability of two members caused by a 
 
single accident is a scheduled benefit under section 85.34(2)(s); the 
 
degree of disability must be computed on a functional basis with a 
 
maximum benefit entitlement of 500 weeks.  Simbro v. Delong's 
 
Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
 
 
It is held that claimant sustained bilateral simultaneous injuries and 
 
therefore must be compensated under a 500-week schedule pursuant to 
 
Iowa Code section 85.34(2)(s).  It is further held that claimant 
 
sustained 26 percent permanent functional disability to the body as a 
 
whole as a result of the December 3, 1990 work injuries.  The severe 
 
work restrictions imposed by Dr. Rosenfeld and Dr. Riggins indicate 
 
significant functional disability above that indicated by the 
 
impairment ratings.  
 
 
 
The commencement date is held to be June 10, 1991 as that is the date 
 
claimant was released to return to work for the December 3, 1990 hand 
 
injuries.  The next injury concerns claimant's entitlement to Second 
 
Injury Fund benefits.
 
 
 
Section 85.64 governs Second Injury Fund liability.  Before liability 
 
of the Fund is triggered, three requirements must be met.  First, the 
 
employee must have lost or lost the use of a hand, arm, foot, leg or 
 
eye.  Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable injury.  Third, 
 
permanent disability must exist as to both the initial injury and the 
 
second injury.  
 
 
 
The Second Injury Fund Act exists to encourage the hiring of 
 
handicapped persons by making a current employer responsible only for 
 
the amount of disability related to an injury occurring while that 
 
employer employed the handicapped individual as if the individual had 
 
had no preexisting disability.  See Anderson v. Second Injury Fund, 262 
 
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 

 
 
 
 
 
 
 
 
 
Compensation-Law and Practice, section 17-1.
 
 
 
The Fund is responsible for the industrial disability present after the 
 
second injury that exceeds the disability attributable to the first and 
 
second injuries.  Section 85.64.  Second Injury Fund of Iowa v. Braden, 
 
459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 
 
335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
(Iowa 1970).
 
 
 
Since claimant has failed to establish a compensable second injury, 
 
benefits are denied pursuant to Iowa Code section 85.64.
 
 
 
                            ORDER
 
 
 
IT IS, THEREFORE, ORDERED:
 
 
 
Defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance 
 
Company are to pay claimant one hundred thirty (130) weeks of permanent 
 
partial disability benefits at the rate of three hundred thirty and 
 
57/100 dollars ($330.57) per week commencing June 10, 1991 in file 
 
number 980837.  
 
 
 
It is further ordered that file number 1045148 is dismissed.  
 
 
 
It is further ordered that claimant shall take nothing from file 
 
numbers 1031618, 1044729, 1044728 and 1044727.
 
 
 
It is further ordered that defendants shall receive credit for benefits 
 
previously paid.
 
 
 
It is further ordered that all accrued benefits are to be paid in a 
 
lump sum.
 
 
 
It is further ordered that interest will accrue pursuant to Iowa Code 
 
section 85.30.
 
 
 
It is further ordered that costs of this action are assessed against 
 
defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance 
 
Company pursuant to rule 343 IAC 4.33.
 
 
 
It is further ordered that said defendants file claim activity reports 
 
as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of February, 1995.
 
                              ______________________________
 
                              MARLON D. MORMANN
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Max Schott
 
Attorney at Law
 
6959 University Ave.
 
Des Moines, IA  50311-1540
 
 
 
Mr. Terry L. Monson
 
Attorney at Law
 
100 Court Ave., Ste 600
 
Des Moines, IA  50309
 
 
 
Ms. Shirley A. Steffe
 
Assistant Attorney General
 
Dept. of Justice - Tort Claims
 
Hoover State Office Bldg.
 
Des Moines, IA  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                              5-1808, 5-2800
 
                              Filed February 27, 1995
 
                              Marlon D. Mormann
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
ALBERT O. KING,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File Nos. 980837, 1031618
 
PIRELLI-ARMSTRONG TIRE CORP.,                1045148, 1044727
 
                                             1044728, 1044729
 
     Employer, 
 
                                     A R B I T R A T I O N
 
and       
 
                                       D E C I S I O N
 
TRAVELERS INSURANCE     
 
COMPANY,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1808
 
Claimant was granted 26 percent permanent disability to the body as a 
 
whole as a result of a bilateral simultaneous hand injury known as 
 
carpal tunnel syndrome.  Claimant had severe work restrictions which 
 
indicted a higher permanent functional disability.
 
 
 
5-2800
 
Claimant had also incurred bilateral simultaneous aggravation injuries 
 
to the feet which rendered claimant permanently and totally disabled.  
 
The injuries to the feet were held barred by the notice provisions of 
 
Iowa Code section 85.23.  The claims for injuries to the feet were 
 
dismissed.