BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD MATHIESON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File No. 494274
 
         EBASCO SERVICES,
 
                                                       A P P E A L
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         UNITED STATES FIDELITY
 
         AND GUARANTY 
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a remand decision denying payment of 
 
         medical expenses.  On April 17, 1986 claimant filed a petition 
 
         for judicial review of the industrial commissioner's decision.  
 
         On October 7, 1986 the district court for Woodbury County 
 
         dismissed claimant's petition and remanded the matter to the 
 
         industrial commissioner for further proceedings.  The industrial 
 
         commissioner remanded the case to the hearing deputy.
 
         
 
              The record on appeal consists of the transcript of the 
 
         hearing in this matter; claimant's exhibits 1 through 11; and 
 
         defendants' exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether the deputy erred in not allowing the 
 
              claimant to submit additional evidence to explain the 
 
              "intent of the parties" and the reasons behind the SS 
 
              85.35 settlement with open medical benefits.
 
         
 
              2.  Whether the deputy erred in concluding that 
 
              claimant failed to prove by a preponderance of the 
 
              evidence that there was a causal relationship between 
 
              the medical expenses incurred by him and his 
 
              compensable injury of February 24, 1978.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
         
 
              The remand decision adequately and accurately reflects the 
 
         pertinent evidence and it will not be totally reiterated herein.
 
         
 
              Claimant entered into a compromise settlement agreement 
 
         pursuant to Iowa Code section 85.35 which was approved by this 
 

 
         
 
         
 
         
 
         MATHIESON V. EBASCO SERVICES
 
         Page   2
 
         
 
         agency on April 10, 1981.  The order approving this settlement 
 
         states the disputed issue which was settled:  "THAT there is 
 
         evidence of a bona fide dispute or justiciable controversy 
 
         existing between the parties as to whether all of the claimantOs 
 
         present industrial disability is causally related to the work 
 
         injury of February 24, 1978 and the claimant alleged inability to 
 
         perform gainful employment." (Claimant's Exhibit 1)
 
         
 
              The application for order authorizing a compromise 
 
         settlement states in part:
 
         
 
         
 
                 The claimant and the defendants represent and state 
 
              to the Industrial Commissioner that there is a bona 
 
              fide dispute or justiciable [sic] controversy existing 
 
              as to whether all of the claimant's present industrial 
 
              disability is causally related to the work injury of 
 
              February 24, 1978 and whether there is a causal 
 
              relationship between the work injury of February 24, 
 
              1978 and the claimant's alleged inability to perform 
 
              gainful employment.  In support hereof see the medical 
 
              reports submitted herewith and by this reference made a 
 
              part hereof.
 
         
 
                  The parties agree that the defendants will furnish 
 
              all future reasonable and necessary medical treatment 
 
              under Section 85.27 which treatment must result from 
 
              the compensable injury of February 24, 1978.  The 
 
              parties further agree that such treatment shall be 
 
              performed by or at the direction of a doctor selected 
 
              by the defendants, or in the event of a disagreement, 
 
              by a doctor determined upon application to the Iowa 
 
              Industrial Commissioner.
 
         
 
                 ....
 
         
 
                 It is further agreed that this settlement is subject 
 
              to the approval of the Industrial Commissioner or one 
 
              of his Deputies, and when said settlement is approved, 
 
              it is agreed that the same shall be res judicata to the 
 
              facts herein.
 
         
 
         (Cl. Ex. 2)
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The prior decision regarding additional evidence shall not 
 
         be reversed.
 
         
 
              In the appeal decision filed on March 14, 1986 the 
 
         industrial commissioner discusses the effect of the settlement 
 
         agreement in this case:
 
         
 
                 Defendants would contend the disability resulted 
 
              from matters extraneous to the injury and that a bona 
 
              fide dispute exists that claimant's injury caused his 
 
              total disability.  As evidence they attached two 
 
              medical reports.  The only evidence which could support 
 
              an allegation of a bona fide dispute that there were 
 

 
         
 
         
 
         
 
         MATHIESON V. EBASCO SERVICES
 
         Page   3
 
         
 
              matters extraneous to the injury producing disability 
 
              is the tenuous statement "that there has been some 
 
              significant psychological overlay of symptoms."
 
         
 
                 Evidence that the settlement was intended to be 
 
              nothing more than an agreement for settlement is 
 
              language in the application indicating "claimant shall 
 
              bear the burden of persuading the Industrial 
 
              Commissioner that a full commutation is in the 
 
              claimant's best interests."  A commutation (section 
 
              85.45) is inconsistent with a special case settlement 
 
              (section 85.35).  In a commutation, benefits payable 
 
              are acknowledged as related to the injury and the 
 
              period during which compensation is payable can be 
 
              definitely determined.  In a special case settlement 
 
              any payment made is denied as being related to a 
 
              compensable injury.
 
         
 
                 Although others might have viewed it differently, 
 
              the application for compromise settlement was approved 
 
              on behalf of the agency as showing evidence of a bona 
 
              fide dispute and that approval is not here being 
 
              challenged.
 
         
 
                 What is being asked is the effect of the order 
 
              approving the application.  The deputy ruled quite 
 
              properly that a settlement under section 85.35 is not 
 
              subject to review-reopening.  The statute specifically 
 
              provides that approval shall be binding on the parties 
 
              and a final bar to further rights for workers' 
 
              compensation.  The claimant insists that the matter of 
 
              continuing medical care related to the acknowledged 
 
              injury is reviewable as it was specifically retained.
 
         
 
                 In order for this argument to be consistent with 
 
              section 85.35 the settlement must be viewed as having 
 
              been considering two matters:--(l) a compensable injury 
 
              of February 24, 1978 and (2) a condition unrelated to 
 
              the injury which was causing or contributing to 
 
              claimant's disability.  Under such circumstances the 
 
              first matter would be subject to review-reopening and 
 
              the second matter would not.
 
         
 
                 In this case the question is whether or not the 
 
              medical expenses for which claimant seeks reimbursement 
 
              are related to the acknowledged compensable injury of 
 
              February 24, 1978.  Although it is not clear from the 
 
              special case settlement what medical expenses would be 
 
              considered related to the compensable injury and which 
 
              would not, it would appear the only conditions 
 
              providing evidence of an alleged bona fide dispute are 
 
              the psychological symptoms.  It would appear therefore 
 
              the terms of the settlement included continuing medical 
 
              benefits related to claimant's physical symptoms but 
 
              not his psychological symptoms.  This, however, is to 
 
              be determined in a subsequent hearing.
 
         
 
         (Appeal decision, pages 3-4)
 
         
 
              The deputy on remand found that the medical expenses for 
 

 
         
 
         
 
         
 
         MATHIESON V. EBASCO SERVICES
 
         Page   4
 
         
 
         which claimant seeks payment are not related to the compensable 
 
         injury of February 24, 1978.  The greater weight of evidence 
 
         supports the finding that the expenses for which claimant seeks 
 
         payment are for treatment of claimant's depression resulting from 
 
         his inability to find gainful employment.  The commissioner, in 
 
         the prior appeal decision, opined that the terms of the 
 
         settlement provided for continuing medical benefits for 
 
         claimant's physical symptoms only.  In his remand decision the 
 
         deputy also found that the terms of the settlement agreement 
 
         clearly provided for continuing medical benefits for physical 
 
         symptoms only.
 
         
 
              Contrary to claimant's argument,the undersigned finds that 
 
         the terms of the settlement agreement are unambiguous and require 
 
         no additional evidence for interpretation.  In construction of 
 
         written contracts, the cardinal principle is that the intent of 
 
         the parties must control; and except in cases of ambiguity, this 
 
         is determined by what the contract itself says.  Iowa R.App.P. 
 
         (14)(f)(14); see also Chariton Feed and Grain, Inc. v. Harder, 
 
         369 N.W.2d 777, 785 (Iowa 1985).
 
         
 
              The order approving the settlement and application for order 
 
         approving the settlement state that a bona fide dispute exists as 
 
         to whether claimant's inability to find gainful employment was 
 
         causally related to his injury on February 24, 1978.  Those 
 
         documents also state that defendants will pay for claimant's 
 
         medical expenses related to the compensable injury.  The medical 
 
         reports attached to the application for settlement present no 
 
         dispute as to claimant's physical impairment.
 
         
 
              The findings of fact, conclusions of law, and order of the 
 
         deputy are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On February 24, 1978 claimant suffered an injury arising 
 
         out of and in the course of his employment.
 
         
 
              2.  On or about April 10, 1981 claimant entered into a 
 
         compromise special case settlement which provided, inter alia, 
 
         that there was a bona fide dispute as to whether claimant's 
 
         inability to find gainful employment was causally related to his 
 
         injury.
 
         
 
              3.  The compromise special case settlement entered into by 
 
         claimant provided that defendants would continue to provide 
 
         medical treatment for the compensable injury of February 24, 
 
         1978.
 
         
 
              4.  Subsequent to approval of the compromise special case 
 
         settlement, claimant incurred medical expenses to treat 
 
         depression which was causally related to his inability to find 
 
         gainful employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that there is a causal relationship between the medical 
 
         expenses incurred by him and his compensable injury of February 
 
         24, 1978.
 

 
         
 
         
 
         
 
         MATHIESON V. EBASCO SERVICES
 
         Page   5
 
         
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant shall pay all costs of this action.
 
         
 
              Signed and filed this 28th day of April, 1988.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Philip D. Furlong
 
         Attorney at Law
 
         401 Commerce Building
 
         Sioux City, Iowa 51101
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       2500; 3302; 3700
 
                                                       Filed 4-28-88
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD  MATHIESON,
 
         
 
              Claimant,
 
                                                    File No.  494274
 
         VS.
 
         
 
         EBASCO SERVICES,                              A P P E A L
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY
 
         AND GUARANTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2500
 
         
 
              Claimant's petition for payment of medical expenses was 
 
         denied because he failed to establish a causal relationship 
 
         between the medical expenses and his compensable injury.
 
         
 
         3302
 
         
 
              The medical expenses were found to be for treatment of 
 
         depression which was actually related to his inability to find 
 
         gainful employment.  Claimant had entered into a special case 
 
         settlement which provided that there was a bona fide dispute as 
 
         to whether claimant's inability to find gainful employment was 
 
         causally related to his injury.
 
         
 
         3700
 
         
 
              Claimant was not allowed to introduce additional evidence 
 
         regarding the intent of the parties to the special case 
 
         settlement.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MARK LYNCH,
 
         
 
              Claimant,
 
                                                 File No. 496574
 
         VS.
 
                                                 D E C I S I 0 N
 
         IOWA TURKEY EXPRESS,
 
                                                       0 N
 
              Employer,
 
                                                  M E D I C A L
 
         and
 
                                                  B E N E F I T S
 
         AID INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding for medical benefits and for 
 
         subrogation brought by the claimant, Mark Lynch, against his 
 
         employer, Iowa Turkey Express, and its insurance carrier, Aid 
 
         Insurance Company, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained April 30, 
 
         1978.  This matter was submitted on a stipulated record on April 
 
         28, 1987.  A first report of injury was filed May 18, 1979.
 
         
 
              The record in this matter consists of the stipulation, as 
 
         well as of claimant's exhibits 1 through 14, and defendants' 
 
         exhibits 1 through 9, each as identified on the respective 
 
         exhibit lists submitted.
 
         
 
                                     ISSUES
 
         
 
              The issues to be decided are:
 
         
 
              1)  Whether claimant is entitled to payment of certain 
 
         medical expenses as causally related to the work injury; as 
 
         authorized; as fair and reasonable; and as reasonable and 
 
         necessary medical care; and
 
         
 
              2)  Whether section 85.22 entitles defendants to credit for 
 
         $9,000 claimant received from a third party.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The parties stipulated that if Horst Blumer M.D., John 
 
         Dougherty, M.D., and James Walston, M.D., were called to testify 
 
         on behalf of claimant, those doctors would testify that medical 
 
         services rendered to claimant were reasonable and necessary and 
 
         the charges made for such services were fair and reasonable.  The 
 
         parties stipulated that if Alexander Kleider, M.D., a 
 
         neurosurgeon, and Jim Maroc, M.D., of the Iowa Foundation for 
 
         Medical Care, testified on behalf of employer and insurance 
 

 
         carrier, those physicians would testify that only one 
 
         neurosurgeon was needed to perform the cervical laminectomies and 
 
         fusion performed on or about November 30, 1984 and,that the 
 
         services of Doctors Dougherty and Walston were not necessary.  
 
         Those physicians would further testify that the fair and 
 
         reasonable charge for performance of such surgery, including 
 
         follow-up care is $2,500.  The parties also stipulated that a 
 
         representative of the employer and insurance carrier would 
 
         testify that claimant did not, prior to incurring medical 
 
         benefits in question, request that the employer provide medical 
 
         benefits to the employee and that such medical benefits were not 
 
         authorized by the employer or insurance carrier.
 
         
 
              A newspaper account of the April 30, 1978 injury indicates 
 
         that a car struck the tractor-trailer claimant was driving.  The 
 
         truck subsequently jackknifed and rolled over at least once.  The 
 
         driver of the car, a Fred Spick, was treated at a hospital and 
 
         released.  Claimant was reported as not injured.  On May 23, 
 
         1978, J. A. Walston, M.D., reported claimant's objective findings 
 
         of stiffness and right leg pain and weakness, and diagnosed a 
 
         bruised leg and cervical myositis.  Claimant returned to work on 
 
         May 15, 1978.
 
         
 
              Claimant's answers to the second set of interrogatories 
 
         indicate that claimant has made a claim against Fred Spick for 
 
         damages on account of injuries allegedly sustained in the April 
 
         30, 1978 accident, and that a settlement with a recovery of 
 
         $9,000 was reached.
 
         
 
              A medical report of Horst C. Blume, M.D., of April 16, 1985 
 
         reports that claimant was seen with neck, shoulder, and arm pain 
 
         on October 20, 1984. on referral from John Dougherty, M.D., a 
 
         myelogram of the cervical spine evidenced a ruptured disc at C5-6 
 
         and C6-7 with cervical surgery on November 30, 1984.  An extruded 
 
         ruptured disc at C5-6 on the right as well as a ruptured disc at 
 
         C6-7 bilaterally, particularly on the right, was encountered as 
 
         well as posterior spur formation at the level of C5-6.  The 
 
         ruptured discs were removed, nerve roots decompressed 
 
         bilaterally, and interbodial fusion was carried out at the C5-6 
 
         interspace.  Dr. Blume opined that, within a reasonable medical 
 
         certainty, upon reviewing the history and findings attained, that 
 
         claimant's injury to the cervical spine and the resulting 
 
         abnormalities were directly related to the accident in April 1979 
 
         [sic].
 
         
 
              On October 12, 1984, John J. Dougherty, M.D., reported he 
 
         had examined claimant on October 9, 1984 regarding his neck and 
 
         opined that claimant had a degenerated disc and may very well 
 
         have a cervical disc syndrome.
 
         
 
              On September 24, 1979, Dr. Dougherty reported that lateral 
 
         x-rays of claimant's cervical spine suggested some narrowing at 
 
         C5/6; AP views of the cervical spine apparently demonstrated 
 
         narrowing of Luschka's joints at C5/6.  The doctor then 
 
         recommended traction of ten pounds for fifteen to twenty minutes 
 
         several times a day, and reported that he did not feel a 
 
         myelogram was necessary.  He indicated that while claimant "has a 
 
         little disc space" he did not feel that claimant needed "an 
 
         operation." On July 3, 1979, Dr. Dougherty had diagnosed one of 
 
         claimant's conditions as previous cercival ligamentous and 
 
         muscular sprain, superimposed on what appears to be an early 
 
         degenerated disc at C5-6 and questionable slight increased motion 
 
         at 6/7 with possible discogenic pain.
 
         
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   3
 
         
 
         
 
              On March 6, 1985, James H. Walston, M.D., reported that he 
 
         had examined claimant on September 24, 1984 with pain in the 
 
         chest, shoulder and back.  Claimant was again seen on September 
 
         26, 1984 with much worse pain than previously and with pain 
 
         radiating down the right arm with some numbness and tingling.  
 
         Dr. Walston opined that claimant suffered a disc lesion which was 
 
         probably injured originally in the truck accident from five or 
 
         six years ago and had just become really bad in the last three or 
 
         four months, requiring surgery that was done.
 
         
 
              Medical bills submitted include a bill of Dr. Walston for 
 
         services from September 24, 1984 through December 20, 1984 in the 
 
         amount of $1,380.  The bill includes a hospital care charge of 
 
         $130 and a surgical assistant charge of $1,100, as well as 
 
         charges for six office calls during that period.  Also submitted 
 
         is a Woodbury Anesthesia Group bill for services of November 30, 
 
         1984 of $625.  A bill of Dr. Horst Blume for services from 
 
         October 22, 1984 through February 18, 1985 for  $3,987 includes 
 
         charges for a neurological consultation of October 22, 1984 and 
 
         for an additional history and neurological 
 
         reexamination/reevaluation of November 29, 1984; a $3,000 charge 
 
         for surgery performed November 30, 1984; a $105 charge for three 
 
         hospital visits from December 1, 1984 through December 3, 1984; 
 
         as well as additional charges for office visits during that 
 
         period; and charges for therapy with stereo dynamic 
 
         interferential currents to the cervical spine bilaterally.  Also 
 
         included are bills from Marian Health Center from October 20, 
 
         1984 through October 22, 1984 in the amount of $1,274.50. 
 
         Claimant was admitted to the Marian Health Center for cervical 
 
         myelogram by Dr. Dougherty on October 20, 1984.  A bill of Marian 
 
         Health Center from November 29, 1984 through December 3, 1984 
 
         totals $3,075.  A bill of Dr. Dougherty from October 9, 1984 
 
         through October 22, 1984 totals. $2,240.  A charge on the 
 
         Dougherty bill for November 30, 1984 indicates arthrodesis/disc, 
 
         2 levels $1,500.  Also submitted is a March 14, 1985 bill of 
 
         Marian Health Center indicating OP service for claimant of that 
 
         date with the service charges totaling $34.25.
 
         
 
              A letter from the insurance carrier to claimant's counsel of 
 
         November 20, 1984 states:
 
         
 
              If Mr.  Lynch is having problems related to our injury, 
 
              Dr. John Dougherty was already authorized.  I do not 
 
              want you to get the impression that we are presently 
 
              agreeing that any current examinations or treatment is 
 
              authorized by our office, however, because we certainly 
 
              have no idea what his work or personal history has been 
 
              since 1978.  Of course, the time has long expired on 
 
              any weekly benefits.
 
         
 
              The balance of the evidence was reviewed in the disposition 
 
         of this matter.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              We first address the medical payment question.
 
         
 
              Section 85.27 requires defendants to provide claimant 
 
         reasonable and necessary medical care for all compensable 
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   4
 
         
 
         
 
         injuries.  Hence, to be entitled to costs of his cervical fusion 
 
         claimant must establish that his cervical disc herniations were 
 
         causally related to his original 1978 injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 30, 1978-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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of a physician is a fact issue to be decided by 
 
         the industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Agency may disregard uncontroverted  medical  testimony;  it 
 
         may do so only after stating substantial reasons for not 
 
         deferring to the evidence, however.  Sondag, 220 N.W.2d 903.
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner but must be weighed with 
 
         other facts and circumstances.  Musselman, 261 Iowa 352, 360, 154 
 
         N.W.2d 128, 133.
 
         
 
              Doctors Blume, Dougherty, and Walston all opine that 
 
         claimant's ruptured cervical disc relate back to his original 
 
         April 30, 1978 injury.  Each of these physicians was involved in 
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   5
 
         
 
         
 
         treating claimant for the cervical condition in 1984.  None 
 
         appear to have treated claimant on an ongoing basis from the 1978 
 
         injury.  Dr. Dougherty diagnosed claimant's condition in July 
 
         1979 as a previous cervical ligamentous and muscular impairment, 
 
         superimposed on an apparent early degenerated disc at C5-6 and 
 
         questionable slight increased motion at 6/7 with possible 
 
         discogenic pain.  He did not then feel myeolgraphic studies or 
 
         surgery were necessary.  We have no lay information as to what 
 
         claimant's activities were from 1978 through 1984.  The medical 
 
         records in evidence do not demonstrate that Doctors Blume, 
 
         Dougherty, or Walston questioned claimant as to his activities in 
 
         that period or even considered possible intervening activities in 
 
         opining that claimant's cervical condition in 1984 related back 
 
         to his April 1978 injury.  Without such, we do not accept their 
 
         opinions regarding a causal relationship between the April 1978 
 
         work injury and claimant's 1984 cervical disc herniations.  
 
         Hence, claimant has not carried his burden of showing the 
 
         requisite causal relationship.
 
         
 
              We note, however, that even had claimant proved the 
 
         causation issue, his care after November 20, 1984 was 
 
         nonauthorized as evidenced in the insurer's letter to his counsel 
 
         of that date.  As care rendered was also of a nonemergency 
 
         nature, claimant would not be entitled to payment for such care.
 
         
 
              As regards the section 85.22 issue, section 85.22 through 
 
         subsection (1), Code of Iowa 1977, provides:
 
         
 
              When an employee receives an injury or incurs an 
 
              occupational disease for which compensation is. payable 
 
              under this chapter, chapter 85A, and which injury or 
 
              occupational disease is caused under circumstances 
 
              creating a legal liability against some person, other 
 
              than his employer or any employee of such employer as 
 
              provided in section 85.20 to pay damages, the employee, 
 
              or his dependent, or the trustee of such dependent, may 
 
              take proceedings against his employer for compensation, 
 
              and the employee or, in case of death, his legal 
 
              representative may also maintain an action against such 
 
              third party for damages.  When an injured employee or 
 
              his legal representative brings an action against such 
 
              third party, a copy of the original notice shall be 
 
              served upon the employer by the plaintiff, not less 
 
              than ten days before the trial of the case, but a 
 
              failure to give such notice shall not prejudice the 
 
              rights of the employer, and the following rights and 
 
              duties shall ensue:
 
         
 
                   1.  If compensation is paid the employee or 
 
              dependent or the trustee of such dependent under this 
 
              chapter, the employer by whom the same was paid, or his 
 
              insurer which paid it, shall be indemnified out of the 
 
              recovery of damages to the extent of the payment so 
 
              made, with legal interest, except for such attorney 
 
              fees as may be allowed, by the district court, to the 
 
              injured employee's or his personal representative's 
 
              attorney, and shall have a lien on the claim for such 
 
              recovery and the judgment thereon for the compensation 
 
              for which he is liable.  In order to continue and 
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   6
 
         
 
         
 
              preserve the lien, the employer or insurer shall, 
 
              within thirty days after receiving notice of such suit 
 
              from the employee, file, in the office of the clerk of 
 
              the court where the action is brought, notice of the 
 
              lien.
 
         
 
              Defendants would appear to have a lien against claimant's 
 
         recovery from the third party Spick, provided defendants properly 
 
         perfected their lien as provided in subsection 1 of section 
 
         85.22. No evidence of such perfection through notice to the clerk 
 
         of court was provided.  Hence, claimant's payment of the recovery 
 
         amount cannot be ordered.  If defendants did perfect their lien, 
 
         the parties are encouraged to work together to resolve this 
 
         matter.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on April 30, 1978 when tho 
 
         tractor-trailer he was driving was involved in a motor vehicle 
 
         accident with a car driven by Fred Spick.
 
         
 
              Claimant's injuries in that accident were diagnosed as of 
 
         May 23, 1978 as a bruised leg and cervical myositis.
 
         
 
              As of July 3, 1979, Dr. Dougherty diagnosed claimant as 
 
         having a previous cervical ligamentous and muscle sprain, 
 
         superimposed on an apparent early degenerated disc at C5-6 and 
 
         questionable slight increased motion at 6/8 with possible 
 
         discogenic pain.
 
         
 
              As of September 24, 1979, Dr. Dougherty did not believe 
 
         either myelographic studies or surgery was necessary.
 
         
 
              Claimant apparently did not seek further medical care for 
 
         his cervical condition until Fall 1984.
 
         
 
              Claimant's medical histories do not reveal his work or life 
 
         activities from September 1979 through October 1984.
 
         
 
              Other evidence in the record does not reveal claimant's life 
 
         or work activities from September 1979 through October 1984.
 
         
 
              Life or work activities other than claimant's April 1978 
 
         motor vehicle accident could have produced claimant's herniated 
 
         cervical discs.
 
         
 
              Claimant received a recovery of $9,000 in a third party 
 
         action against Fred Spick.
 
         
 
              Defendants did not demonstrate they perfected their lien 
 
         against that recovery as provided in section 85.22(l).
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   7
 
         
 
         
 
              Claimant is not entitled to payment of medical costs 
 
         incurred on account of treatment of his cervical disc herniations 
 
         diagnosed in October 1984.
 
         
 
              Defendants have not demonstrated entitlement to a lien 
 
         against the proceeds in claimant's third party action against Mr. 
 
         Spick.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant taken nothing further from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 17th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steve Hamilton
 

 
         
 
         
 
         
 
         LYNCH V. IOWA TURKEY EXPRESS
 
         Page   8
 
         
 
         
 
         Attorney at Law
 
         P.O. Box 188
 
         606 Ontario Street
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. E. S. Bikakis
 
         Attorney at Law
 
         340 Insurance Centre
 
         507 7th Street
 
         Sioux City, Iowa 51101
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50; 2500; 3400
 
                                                 Filed 7-17-87
 
                                                 Helen Jean Walleser
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MARK LYNCH,
 
         
 
              Claimant,
 
                                                 File No. 496574
 
         VS.
 
                                                 D E C I S I 0 N
 
         IOWA TURKEY EXPRESS,
 
                                                       0 N
 
              Employer,
 
                                                  M E D I C A L
 
         and
 
                                                 B E N E F I T S
 
         AID INSURANCE COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1108.50; 2500; 3400
 
         
 
              Claimant failed to establish causal connection between April 
 
         30, 1978 work-related auto accident and need for cervical surgery 
 
         in 1984.  Second defendants would have had subrogation rights 
 
         relative to claimant's third party settlement but for the fact 
 
         that defendants had not demonstrated they had perfected their 
 
         lien against the third party recovery as provided in section 
 
         85.22(l).