BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE SLECHTA,
 
                                            File Nos.660956
 
              Claimant,                              746674
 
          
 
          VS.                               R E V I E W -
 
          
 
          IOWA BEEF PROCESSORS, INC.          R E 0 P E.N I N G
 
         
 
              Employer,                        D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in review-reopening brought by 
 
         Lawrence Slechta, claimant, against Iowa Beef Processors, Inc., 
 
         self-insured employer, to recover additional benefits under the 
 
         Iowa Workers' Compensation Act as a result of injuries sustained 
 
         on January 20, 1981 and December 9, 1981.  These matters came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         on September 1, 1988, and the record was considered fully 
 
         submitted at the close of the hearing.  The record in these cases 
 
         consists of the testimony of claimant, his wife, Lorraine, and 
 
         John Kolln; claimant's exhibit's 1 through 3, inclusive; and 
 
         defendant's exhibits A through E, inclusive.
 
         
 
                                      ISSUES
 
         
 
              The industrial commissioner's file in case No.660956 reveals 
 
         a memorandum of agreement was filed on February 23, 1981, showing 
 
         claimant sustained an injury arising out of and in the course of 
 
         his employment on January 20, 1981, that claimant was paid 
 
         healing period benefits for a period of 35 weeks totaling 
 
         $7,813.34 and permanent partial disability benefits totaling 
 
         $5,558.25 for a 10 percent permanent partial disability to the 
 
         left arm.  Claimant now seeks additional permanent partial 
 
         disability benefits as a result of this injury.  The parties have 
 
         stipulated claimant's disability as a result of the injury is 
 
         limited to the left upper extremity..
 
         
 
              The industrial commissioner's file in case No.746674 reveals 
 
         a memorandum of agreement was filed on November 3, 1983, showing 
 
         claimant sustained an injury arising out of and in the course of 
 
         his employment on December 9, 1981, that claimant was paid 
 
         healing period benefits for the period of 16 weeks totaling 
 
         $3,603.20 and permanent partial disability benefits totaling 
 
         $8,445.00 for a 15 percent permanent partial disability to the 
 
         right arm.  Claimant now seeks additional permanent partial 
 
         disability benefits and asserts that his injury extends
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 2
 
         
 
         
 
         into the shoulder and is thus a body as a whole injury entitling 
 
         him to a determination of industrial disability.  Defendant 
 
         asserts claimant failed to provide statutory notice of the 
 
         alleged shoulder injury and that such claim is barred pursuant to 
 
         Iowa Code sections 85.23 and 85.26.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on January 20, 1981 to his left upper 
 
         extremity and, under a memorandum of agreement was paid permanent 
 
         partial disability benefits for 25 weeks for a 10 percent 
 
         permanent partial impairment to the left arm.  Claimant underwent 
 
         a carpal tunnel release on February 27, 1981 and was off work for 
 
         approximately three months.  Claimant sustained an injury arising 
 
         out of and in the course of his employment on December 9, 1981, 
 
         and under a memorandum of agreement was paid permanent partial 
 
         disability benefits for 37.5 weeks for a 15 percent permanent 
 
         partial impairment to the right arm.  In December 1981, claimant 
 
         underwent a re-release of the left carpal tunnel, a release of 
 
         the right carpal tunnel and an injection of cortisone in the left 
 
         cubital tunnel.  Claimant testified that after this procedure in 
 
         December 1981, he never got any better and that when he returned 
 
         to work in the air-knife room he was still hurting.  Claimant 
 
         stated that in 1983, he "could not hardly hold on to the 
 
         air-knife" and that it was at this time claimant went to the 
 
         doctor and never returned to work for defendant employer, 
 
         asserting that when he advised the company he could not do the 
 
         knife job anymore the personnel manager told him it "looks like 
 
         you're done." Claimant stated that he could not feel his hands 
 
         when he was working and that the pain on the right side extended 
 
         into his shoulder.  Claimant testified he "did not do anything" 
 
         for eighteen months, then secured employment at Wendt Trucking as 
 
         a mechanic and part-time gravel truck driver and then secured his 
 
         current employment at John Magnum Truck Service where he is a 
 
         mechanic.  Claimant explained that "a lot of the time" he cannot 
 
         loosen bolts, cannot torque bolts, and that he has no strength in 
 
         his arms.
 
         
 
              Claimant explained he believes he is getting worse, that on 
 
         the left he experiences pain from the wrist to the elbow, that on 
 
         the right his shoulder hurts from sitting, and that his fingers 
 
         on both hands "tingle." Claimant stated he experiences problems 
 
         every day with his arms, that he has constant pain throughout the 
 
         day, and that he has a difficult time sleeping.  Claimant denied 
 
         sustaining any injuries since his employment with defendant and 
 
         maintained that he continues to use wrist splints.
 
         
 
              On cross-examination, claimant denied ever telling anyone he 
 
         was leaving his employment with defendant employer because he 
 
         wanted to collect his "long-term profit sharing."  Claimant 
 
         acknowledged his employment at Wendt and later at Magnum made
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 3
 
         
 
         
 
         his problems worse and that since he has worked at Magnum there 
 
         has been a loss of strength in his arms.  Claimant stated he 
 
         lives on a farm with horses and that he raises dogs 
 
         professionally, and revealed that he engaged in cattle roping in 
 
         the rodeo from 1983 through 1987.  Claimant revealed he did this 
 
         primarily with his right hand, that the cattle weighed between 
 
         300 and 400 pounds, and that in the last year his condition 
 
         deteriorated so much that he could not rope anymore.  Claimant 
 
         testified he operates a manual transmission tractor and that he 
 
         uses a chain saw to cut wood to burn for heat (although he at 
 
         times must rest while doing this work).  Claimant could not state 
 
         with any certainty specifically when the problems with his right 
 
         shoulder began.
 
         
 
              Lorraine Slechta, who identified herself as claimant's wife, 
 
         testified that she first observed claimant had problems with his 
 
         arms and wrists in 1980 or 1981, that claimant's condition has 
 
         gotten worse since that time, and that he complains of pain every 
 
         day and sleeps with his arms over the bed.  Mrs. Slechta stated 
 
         that claimant cannot run a weed eater, mows only for a little 
 
         while, and may run a chain saw for a short time although she was 
 
         unable to recall when claimant last was able to run it all the 
 
         time.
 
         
 
              John Kolln, who identified himself as engaging in 
 
         self-employment at Magnum Trucking, testified he was aware of 
 
         claimant's physical condition with regard to his arms, wrists and 
 
         hands at the time he first employed claimant and that he agreed 
 
         claimant could work as he was able.  Mr. Kolln described claimant 
 
         as conscientious and honest and performs his work "good" although 
 
         at times claimant is "short with things." Mr. Kolln stated he has 
 
         at times observed claimant's discomfort "maybe every couple of 
 
         days" and that claimant "quite often" wears wrist splints.  Mr. 
 
         Kolin opined that claimant "catches on fairly quickly" and could 
 
         probably overhaul a diesel engine by himself.
 
         
 
              Medical records reveal claimant was examined on September 2, 
 
         1983 by John J. Dougherty, M.D., with claimant complaining of 
 
         pain in both arms.  Dr. Dougherty reported:
 
         
 
              The patient had his first carpal tunnel release by Doctor 
 
              Fitzgibbon in Omaha, Nebraska, this was prior to the first 
 
              time I saw him which was 7-21-81.  Since then apparently he 
 
              has had surgery on both carpal tunnels.  His most recent 
 
              operation was on the left by Doctor Crabb in Denison, Iowa, 
 
              in January of '83.
 
         
 
                    ....
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   He last worked two and a half weeks in August in the 
 
              knife room but he could not take it.  His arms hurt, he says 
 
              he cannot mow the yard without his arms feeling like they 
 
              are going to fall off.
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 4
 
         
 
         
 
              His left little finger aches all the time and he says this 
 
              also bothers him around the elbow.  His right arm aches 
 
              constantly.  He said he tried carrying three cantaloups the 
 
              other day and his arm ached constantly.  His right shoulder 
 
              bothers him some and he describes this as in the medial 
 
              aspect of the right scapula.  While riding up here his neck 
 
              got tired and he ached all over and the longer he sits the 
 
              worse it gets.
 
              
 
         (Employer's Exhibit A, Pages 1-2)
 
         
 
              Dr. Dougherty concluded:
 
              
 
              This patient certainly appears to have a lot of complaints 
 
              and certainly are not well founded.  He certainly has been 
 
              seen by enough doctors and has had a myelogram.  He has had 
 
              several EMG'S.  I do not know the result of the apparent 
 
              most recent EMG's taken about one month ago.  We did have 
 
              Doctor Nitz do an EMG when I first saw him and it was 
 
              compatible with bilateral carpal tunnel syndromes.  It does 
 
              appear that he has atrophy of both thenar muculatures, the 
 
              right is more than that of the left.  The question has been 
 
              raised whether he might have a Raynaud's phenomenon or not.  
 
              He certainly has a negative Allen sign at this time.
 
              
 
              It is interesting he is complaining now of his right 
 
              shoulder more and before it was his left shoulder, when I 
 
              saw him with questionable mild adhesive capsulitis. He had 
 
              no definite trigger points that could be injected according 
 
              to Doctor Palmer.  He does not seem to demonstrate any 
 
              atrophy or fasciculations in his upper extremities and his 
 
              two arms are the same size.  He does present somewhat of a 
 
              peculiar facies and I am not sure exactly what this means.  
 
              He does have an increased kyphosis in his back and a little 
 
              "S" shaped scoliosis which I think could conceivably 
 
              contribute to some of the periscapular problems he is 
 
              complaining of.
 
              
 
              Overall in attempting to assess-the disability on this 
 
              patient, it is hard to conceive that he is having all the 
 
              problems he has unless he has some underlying systemic 
 
              problems that it certainly does not seem to have presented 
 
              itself and no one has made any such diagnosis.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              It would be my opinion without knowing the results of the 
 
              last EMG'S, that apparently I would think he would be 
 
              entitled to about 15 percent permanent partial disability of 
 
              his right upper extremity and
 
              
 
              
 
              
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 5
 
         
 
              about 10 percent of his left upper extremity.
 
         
 
                 He was hard to evaluate and I think so much of the 
 
              problem is subjective complaints, that it is hard to 
 
              actually put a definite figure on this.
 
              
 
         (Emp. Ex. A, p. 2)
 
         
 
              On December 30, 1987, some four years later, Dr. Dougherty 
 
         concluded:
 
         
 
              [I]n reviewing my records on this patient, it appears that 
 
              the findings and complaints are just about the same as they 
 
              were in 1983.  He presented today with markedly callused 
 
              hands, doesn't seem to have any atrophy and he appears to be 
 
              a muscular individual.  I'm not sure he is having all that 
 
              much difficulty.
 
              
 
                 I wouldn't have anything else to suggest as far as 
 
              further treatment at this point in time, short of repeating 
 
              an EMG of both upper extremities.  Patient interestingly 
 
              enough, apparently only has an eighth grade education.  I 
 
              would be interested in knowing what the University of Iowa's 
 
              thoughts were.  I would also like to know what the EMG 
 
              showed.  Certainly doesn't appear to me that this patient is 
 
              having enough trouble to warrant any further surgery.  It 
 
              appears to me his complaints are just about the same as they 
 
              were before.  As I mentioned, it would be interesting to 
 
              know what, if any, reports you might have gotton [sic] from 
 
              the University of Iowa and what the tests they did run 
 
              showed.
 
              
 
                 As far as any permanent disability, I think he still 
 
              demonstrates the atrophy bilaterally of the thumb and the 
 
              thenar muscles.  I would feel his disability is 'just about 
 
              what I have him before; namely 10% left upper extremity, 15 
 
              of the right.
 
              
 
         (Emp. Ex. B (pp. 1-2)
 
         
 
              In late 1982, claimant was referred to Dwight W. Burney, 
 
         Jr., M.D., when claimant complained that:
 
         
 
              [A]fter he works about 2 hours, he begins to get soreness in 
 
              the upper back, just below the neck and this wail gradually 
 
              extend to the right shoulder blade, right arm and forearm.  
 
              He has also had some aching in the right middle finger at 
 
              times.  Also, he has had tingling of the left hand which 
 
              persists
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 6
 
         
 
         
 
              and occasionally will awaken at night with pain in the left 
 
              elbow.
 
         
 
         (Claimant's Exhibit 2)
 
         
 
              Dr. Burney noted that outpatient physical therapy did not 
 
         seem to be helpful to claimant and therefore recommended: "I 
 
         think we should continue to try to get relief of the symptoms by 
 
         cervical traction and we have advised that he have a cervical 
 
         halter and have recumbent cervical traction at home with 7-8# 
 
         weight, using it for 30 minutes at a time, as often as feasible." 
 
         (Cl. Ex. 2)
 
         
 
              Claimant was admitted to Bishop Clarkson Memorial Hospital 
 
         in December 1982 for "management of back pain in the posterior 
 
         cervical and upper thoracic regions" and seen by Michael 
 
         Boharski, M.D., and William R. Palmer, M.D., in consultation.  
 
         Drs. Boharski and Palmer recorded their impressions as:
 
         
 
              1.  History of bilateral carpal tunnel status post release 
 
              with left thenar eminence atrophy.
 
              
 
              2.  Left medial epicondylitis.
 
              
 
              3.  Neck discomfort of unclear etiology.  X-rays and 
 
              myelogram appear to rule out any significant cord or spinal 
 
              abnormality.  The pain is not consistently reproduceable 
 
              (sic] which would indicate specific structural or mechanical 
 
              lesion, for instance in a ligament or an infraspinatus 
 
              bursitis.  I suspect this is musculoskeletal in nature but 
 
              again, no clear etiology.
 
         
 
         (Cl. Ex. 1)
 
         
 
              Claimant did not return for any follow-up care with either 
 
         physician.
 
         
 
              Claimant was evaluated in June 1983 by Harold A. Ladwig, 
 
         M.D., of Omaha Neurological Clinic.  At that time, Dr. Ladwig 
 
         recorded his impressions as:
 
         
 
              The patient's history has been that of carpal-tunnel 
 
              involvement of both upper extremities.  Currently he is 
 
              continuing to have symptoms referrable [sic] to both upper 
 
              extremities in the region of his hands and in the region of 
 
              his right shoulder area.  It is conceivable that he may have 
 
              some residual involvement of the median nerve at the wrist.  
 
              One should also rule out any cervical radiculopathy.  He has 
 
              been shown to have some pathology of the left ulnar nerve at 
 
              the elbow.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 7
 
         
 
         
 
              EMG studies have been requested in order to evaluate his 
 
              current symptomatology.  His EMG was interpreted as follows: 
 
              There is evidence of continued delay in the distal latency 
 
              of the right median nerve indicative of pathology at the 
 
              carpal-tunnel.
 
              
 
         (Cl. Ex. 2, Item 12)
 
         
 
              The record does not show claimant saw Dr. Ladwig after June 
 
         23, 1983.
 
         
 
              Claimant was seen in the neurology outpatient clinic on 
 
         September 4, 1985 by Neill Graff-Radford, M.D. Dr. Graff-Radford 
 
         reported: "l) Bilateral carpal tunnel syndrome right greater than 
 
         left. 2) Compression of the left ulnar nerve at the elbow. 3) 
 
         Myofacial (sic] pain syndrome involving the neck and right 
 
         shoulder. (Cl. Ex. 1, item 3) The diagnosis rendered was:
 
         
 
              As you know, Mr.Slechta is a 45 year old man from Denison, 
 
              Iowa.  He presented at the Neurology Clinic with pain in his 
 
              neck which radiated into the right shoulder as well as pain 
 
              in both hands.  Mr. Slechta previously worked at Iowa Beef 
 
              Packers and used his hands extensively.  He had EMG's 
 
              consistent with left median nerve compression of carpal 
 
              tunnel in 1981.  He had left carpal tunnel surgery in 
 
              February of 1981 with no relief of his symptoms.  In 
 
              December of that year he had EMG's done which were again 
 
              consistent with entrapment at the left wrist and also on the 
 
              right.  He also had significant slowing of the ulnar nerve 
 
              across the cubital tunnel.  He underwent carpal tunnel 
 
              surgery on the right and additional surgery on the left.  He 
 
              has continued to have problems with swelling in his hands.  
 
              He also complains of numbness in the right and left ring 
 
              fingers as well as long fingers.  He also complains of 
 
              numbness in the 5th digit of the left hand at night.
 
              
 
              Since 1983 he has had problems with posterior neck pain at 
 
              approximately the C7 level which radiates into the right 
 
              shoulder.  This is brought on by any activity especially 
 
              using his hands and sitting for prolonged periods.  He had 
 
              C-spine x-ray films in 1981 and 1984 which were normal.  He 
 
              also had a myelogram in December of 1983 which was also 
 
              normal.  He has tried physical therapy and has been to a 
 
              chiropractor without relief.  He is currently taking 
 
              Clineril and has tried various nonsteroidal 
 
              anti-inflammatories without relief.  The only treatment 
 
              which he has benefited from was a steroid injection which 
 
              provided relief from pain for six weeks.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 8
 
         
 
         
 
              On physical exam he had slight decrease in lateral flexion 
 
              bilaterally in the neck, otherwise he had good range of 
 
              motion in the neck.  He had a tender trigger point just 
 
              lateral to the C7 vertebrae in the trapezius muscle.  There 
 
              was no pain to percussion over the cervical spine.  He had 
 
              thenar wasting bilaterally which was greater on the right 
 
              than on the left.  He had decreased adduction in opposition 
 
              strength in both thumbs.  There was no interosseous wasting.  
 
              He had a positive Tinel's sign at the median nerve and both 
 
              wrists and also the left ulnar nerve at the elbow.
 
              
 
              EMG's were done which confirmed symptoms of bilateral carpal 
 
              tunnel syndrome right greater than left and left ulnar nerve 
 
              entrapment at the elbow.  Other laboratory studies included 
 
              a normal CBC, sedimentation rate, 2 hour postprandial 
 
              glucose, T4, TSH and ANA.  Cervical spine films were also 
 
              obtained and these were normal.
 
              
 
         (Cl. Ex. 1, Item 3)
 
         
 
              When claimant was seen again at the neurology outpatient 
 
         clinic on February 24, 1986, Q. S. Dickens, M.D., found:
 
         
 
              Physical examination was generally unremarkable except for a 
 
              scar on both hands from previous carpal tunnel release 
 
              surgery.  Neurologic exam revealed intact cranial nerves.  
 
              There is wasting of the right thenar eminence.  Sensory 
 
              testing revealed decreased pinprick on the ulnar 
 
              distribution of the right hand.  Reflexes were 2+ and 
 
              symmetric.  Toes were downgoing.  Coordination and gait were 
 
              normal.
 
         
 
         (Cl. Ex. 1, Item 2)
 
         
 
         and recommended claimant use wrist splints, a TENS unit and the 
 
         use of an anti-inflammatory agent.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              In Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 
 
         (Iowa 1987), the supreme court held that an unsigned memorandum 
 
         of agreement filed by the employer with the industrial 
 
         commissioner was not the equivalent of a formal settlement 
 
         agreement or award of compensation following an evidentiary 
 
         hearing and therefore, it did not have the binding effect of a 
 
         formal settlement
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 9
 
         
 
         
 
         agreement or an award of compensation precluding additional 
 
         compensation.  The court held that the memorandum of agreement 
 
         settled only the employer-employee employment relationship and 
 
         the fact that the employee's injury arose out of and in the 
 
         course of his employment.  The memorandum of agreement left open 
 
         for a review-reopening proceeding the extent of an employee's 
 
         disability.  The court went on to hold that an employee seeking 
 
         additional benefits in a review-reopening proceeding was not 
 
         required to prove a change of condition since the filing of the 
 
         memorandum of agreement with the industrial commissioner but only 
 
         that the increased disability for which no compensation had been 
 
         paid was proximately caused by the work-related injury.
 
         
 
         I.  File No. 660956
 
         
 
              Claimant seeks additional compensation over and  above the 
 
         35 weeks of healing period and 10 percent permanent partial 
 
         disability benefits paid pursuant to the memorandum of agreement.  
 
         As cited above in Mejorado, claimant need not establish a change 
 
         of condition since the filing of the memorandum of agreement but 
 
         must submit proof of disability for which no compensation was 
 
         paid that is proximately caused by the work injury.
 
         
 
              The parties have agreed that this injury is limited to 
 
         claimant's upper left extremity and that the only issue for 
 
         determination is whether claimant has shown an entitlement to 
 
         additional permanent partial disability benefits.  A thorough 
 
         examination of all of the evidence presented reveals that there 
 
         are only two impairment ratings presented relative to the upper 
 
         left extremity, both of which were provided by Dr. Dougherty.  In 
 
         September 1983, Dr. Dougherty opined that claimant had a 10 
 
         percent "permanent partial disability" of the upper left 
 
         extremity.  This opinion did not change when Dr. Dougherty 
 
         rendered a subsequent opinion in January of 1987.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil 
 
         Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's scheduled disability is thus evaluated by the 
 
         functional method.  Claimant has failed to show he has any
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 10
 
         
 
         
 
         increased functional disability proximately caused by the injury 
 
         of January 20, 1981, and therefore shall take nothing further as 
 
         a result of these proceedings.
 
         
 
         II.  File No. 746674
 
         
 
              With regard to this injury, defendant argues that since 
 
         claimant made no allegation in his petition that the injury to 
 
         the right upper extremity extended into the shoulder and into the 
 
         body as a whole claimant cannot now assert such an allegation 
 
         and, further, that claimant's claim for benefits stemming ' from 
 
         a right shoulder injury is barred under Iowa Code sections 85.23 
 
         and 85.26.
 
         
 
              It is clear claimant sustained an injury arising out of and 
 
         in the course of his employment on December 9, 1981, and gave the 
 
         employer notice of that injury.  Statutory requirements dictate 
 
         claimant must give notice of "an" injury.  Claimant clearly has 
 
         met this requirement.  See also Yeager v. Firestone Tire & Rubber 
 
         Company, 253 Iowa 369, 112 N.W.2d 299 (1961); Robinson v. 
 
         Department of Transp  ., 296 N.W.2d 809 (Iowa 1980); Knipe v. 
 
         Skelgas Co., 229 Iowa 740, 294 N.W. 880 (1941).  Defendant's 
 
         argument must fail.
 
         
 
              The primary issue for resolution in this matter is whether 
 
         claimant's disability extends into the body as a whole or is 
 
         limited to the upper extremity.  If a claimant contends he has 
 
         industrial disability he has the burden of proving his injury 
 
         results in an ailment extending beyond the scheduled loss.  
 
         Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, (1964).
 
         
 
              As in the case before, claimant need not establish a change 
 
         of condition since the filing of the memo but only that he 
 
         suffers from disability proximately caused by the injury for 
 
         which no compensation was paid.    Mejorado., 410 N.W.2d 675.
 
         
 
              In 1987, Dr. Dougherty reported that claimant was in 
 
         essentially the same condition he was in in 1983 and reiterated 
 
         his opinion that claimant has a permanent partial disability of 
 
         15 percent of the upper right extremity.  When claimant was seen 
 
         at Bishop Clarkson Memorial Hospital in December 1982, claimant's 
 
         neck discomfort was found to be of unclear etiology.  Dr. Flood 
 
         in December of 1983, although mentioning claimant's shoulder, 
 
         refers directly to the upper extremity.  Cervical spine films 
 
         obtained in October 1985 by Dr. Graff-Radford were normal and no 
 
         causal connection between claimant's pain syndrome involving the 
 
         neck and right shoulder and his injury of December 9, 1981 was 
 
         made.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In short, the undersigned must conclude that the greater 
 
         weight of medical evidence fails to support claimant's contention 
 
         that his injury extends from the scheduled member into the
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 11
 
         
 
         
 
         body as a whole.  Claimant has failed to establish the requisite 
 
         causal connection.  Therefore, pursuant to Simbro, 332 N.W.2d 
 
         886, 887, claimant's disability is evaluated by the functional 
 
         method.  See also Martin, 252 Iowa 128, 133, 106 N.W.2d 95, 98, 
 
         and Graves, 331 N.W.2d 116.
 
         
 
              The record shows claimant has received compensation benefits 
 
         on the basis of 15 percent of the upper right extremity.  The 
 
         greater weight of medical evidence fails to show claimant has any 
 
         further functional impairment and therefore claimant shall take 
 
         nothing further as a result of these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury on January 20, 1981 which 
 
         arose out of and in the course of his employment and which 
 
         affected his left upper extremity.
 
         
 
              2.  Pursuant to a memorandum of agreement, claimant was paid 
 
         permanent partial disability benefits based on a 10 percent 
 
         permanent partial disability to the left arm as a result of the 
 
         injury of January 20, 1981.
 
         
 
              3.  In September of 1983, John J. Dougherty, M.D., opined 
 
         that claimant had a 10 percent permanent partial disability of 
 
         the upper left extremity and this opinion did not change when Dr. 
 
         Dougherty rendered a subsequent opinion in January of 1987.
 
         
 
              4.  Claimant has no further functional disability which has 
 
         been shown to be causally connected to the injury of January 20, 
 
         1981.
 
         
 
              5.  Claimant sustained an injury on December 9, 1981 which 
 
         arose out of and in the course of his employment.
 
         
 
              6.  Pursuant to a memorandum of agreement, claimant was paid 
 
         permanent partial disability benefits on the basis of sustaining 
 
         a 15 percent permanent partial disability to the right upper 
 
         extremity as a result of the injury of December 9, 1981.
 
         
 
              7.  Claimant's injury of December 9, 1981 is a scheduled 
 
         injury and does not extend into the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         .    8.  Claimant has no further functional disability which is 
 
         causally connected to the injury of December 9, 1981.
 
         
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 12
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore,.based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to show an entitlement to any additional 
 
         permanent partial disability benefits with regard to the work 
 
         injuries of January 20, 1981 and December 9, 1981, as claimant 
 
         has failed to show he sustained any further functional disability 
 
         causally connected to either injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing further as a result of these 
 
         proceedings.
 
         
 
              Paragraph 9 of the hearing assignment order filed in this 
 
         matter on March 24, 1988 provides:
 
         
 
              Requirements for Hearing Exhibits.  All depositions, 
 
              discovery materials and medical records or reports which are 
 
              to be considered by the hearing deputy shall be marked 
 
              before the hearing and offered as an exhibit at the hearing.  
 
              No highlighting or underlining of written material shall be 
 
              permitted.  All exhibits, especially medical records and 
 
              reports, shall be organized by author in chronological form 
 
              or in such other rational manner.  Each page of an exhibit 
 
              shall be consecutively numbered.  Medical and non-medical 
 
              materials shall not be included in the same exhibit. 
 
              (Emphasis added.)
 
         
 
              Pursuant to Division of Industrial Services Rule 343-4.36, 
 
         costs are assessed against claimant for failure to comply with 
 
         that provision of the hearing assignment order.
 
         
 
              Signed and filed this 26th day of September, 1989.
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SLECHTA V. IOWA BEEF PROCESSORS, INC.
 
         Page 13
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Gregory J.-Siemann
 
         Attorney at Law 
 
         801 North Adams
 
         Carroll, IA 51401
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P.O. Box 515
 
         Mail #41
 
         Dakota City, NE 68731
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                                5-2403
 
                                         Filed September 26, 1989
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE SLECHTA,
 
                                                      File  Nos. 660956
 
              Claimant,                                          746674
 
          
 
          VS.                                         R E V I E W -
 
          
 
          IOWA                           BEEF PROCESSORS, INC.,                   
 
         R E 0 P E N I N G
 
          
 
              Employer,                                D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
          
 
          
 
          5-2403
 
         
 
              Claimant was paid benefits for injuries under a memorandum 
 
         of agreement.  Claimant failed to show any further disability 
 
         causally connected to the injury and therefore took nothing from 
 
         the proceeding.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROY CHAMBERLIN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 661698
 
         
 
         RALSTON PURINA,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent total disability benefits for the period of his 
 
         disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 20.  A 
 
         ruling by the industrial commissioner filed April 30, 1986 orders 
 
         that appellant's untimely brief will not receive consideration.
 
         
 
                                      ISSUE
 
         
 
              In accordance with the industrial commissioner's ruling, 
 
         this appeal will be considered generally without any specified 
 
         errors to determine its compliance with the law.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated, claimant injured his left shoulder on 
 
         November 7, 1979 when he slipped and fell while attempting to 
 
         empty a trash buggy.  Claimant's primary treating physician for 
 
         this injury has been Dennis L. Miller, M.D.  Dr. Miller 
 
         summarizes his course of treatment in a January 1982 letter:
 
         
 
                 I first saw Mr. Chamberlin in March of 1980 at which time 
 
              he had very limited motion of his shoulder and had 
 
              considerable discomfort with generalized tenderness.  I felt 
 
              that he had done damage to his rotator cuff and had chronic 
 
              scarring and inflammation.
 
         
 
            After a wide variety of conservative care without 
 

 
         
 
         
 
         
 
         CHAMBERLIN V. RALSTON PURINA
 
         Page   2
 
         
 
         
 
         significant improvement, on February 12, 1981, a partial 
 
         acromionectomy and advancement and repair of the rotator cuff 
 
         of the left shoulder was performed.  He had considerable 
 
         degeneration and tearing of the cuff.  He made a satisfactory 
 
         post op recovery without complication but has persisted in 
 
         having pain in his shoulder with considerable limitation of 
 
         motion.  As you know he returned to work on July 28, 1981 on a 
 
         light duty job and has continued on that.
 
         
 
         (Joint Exhibit 6)
 
         
 
              With respect to permanent impairment Dr. Miller opines: "Mr.  
 
         Chamberlin has 33% impairment of his left upper extremity as 
 
         indicated in my letter of November 9, 1982.  This is equivalent 
 
         to 20% impairment of the body as a whole." (Joint Ex. 10)
 
         
 
              Dr. Miller restricts claimant to light duty work with no 
 
         lifting over 25 pounds.  Dr. Miller notes that O[i]n addition to 
 
         the left shoulder, [claimant] has a problem with his right hand 
 
         with old amputations of all of the digits except his thumb."  
 
         See Joint exhibit 18.  Dr. Miller opines:
 
         
 
                 Because of the combination of the extremely limited 
 
              function of his right hand due to previous amputations and 
 
              both pain and severe limitation of range of motion of the 
 
              left shoulder, I think it is true that this man is 
 
              permanently disabled from doing gainful employment.  I think 
 
              the condition of the left shoulder is permanent and do not 
 
              think there is any significant treatment for it.  I think he 
 
              did sustain a repeat tear of his rotator cuff some 4 months 
 
              after the initial repair.  Mr. Chamberlin does take oral 
 
              anti-inflammatory agents and oral analgesic agents in an 
 
              effort to reduce his discomfort and pain.
 
         
 
         Joint Ex. 18)
 
         
 
              Dr. Miller referred claimant to the orthopaedic department 
 
         at the University of Iowa Hospitals for a second opinion.  Dr. 
 
         Miller reports that they offered arthroscopic examination of the 
 
         shoulder to break up adhesions.  However, Dr. Miller states that
 
         
 
         
 
         he,is pessimistic about the success of that procedure.
 
         
 
              Claimant was examined by C. L. Peterson, D.O., on March 13, 
 
         1984.  Dr. Peterson states his diagnosis as: 1) Degenerative 
 
         rotator cuff muscles left shoulder; 2) Adhesive capsulitis left 
 
         shoulder.  See Joint exhibit 20.  He opines that claimant is 
 
         totally disabled for any work and does not recommend vocational 
 
         counseling.  He does not expect claimant's condition to change.  
 
         See Joint exhibit 20.
 
         
 
              Claimant testified that he is 52 years old with a tenth 
 
         grade education.  Claimant states that he has worked for 
 

 
         
 
         
 
         
 
         CHAMBERLIN V. RALSTON PURINA
 
         Page   3
 
         
 
         
 
         defendant Ralston since 1956.  Claimant discloses he has not 
 
         looked for work since he left Ralston.  He states that with his 
 
         pain and limited mobility he does not feel he could handle a 
 
         job.
 
         
 
              Claimant testified that he was terminated by Ralston in 
 
         October 1983 and that the personnel manager told him to apply for 
 
         total disability.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The supreme court in Caterpillar Tractor Company v. 
 
         Mejorado, 410 N.W.2d 675 (Iowa 1987) upheld the commissioner's 
 
         interpretation of Iowa Code sections 86.13 and 86.14(2) stating:
 
         
 
                 In summary, the memorandum of agreement settled only (1) 
 
              the Caterpillar-Mejorado employment relationship and (2) the 
 
              fact that Mejorado's injury arose out of and in the course 
 
              of his employment.  Teel v. McCord, 394 N.W.2d 405, 406 n. 1 
 
              (Iowa 1986); Beier Glass Co. v. Brundige, 329 N.W.2d 280, 
 
              286 (Iowa 1983).  Mejorado was not required to prove a 
 
              change in his condition after filing of the memorandum of 
 
              agreement, but he was required to prove that increased 
 
              disability for which no compensation had been paid was 
 
              proximately caused by the injury.  Blacksmith v. 
 
              All-American, Inc., 290 N.W.2d 348, 352 (Iowa 1980); 
 
              Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d 
 
              667, 670 (Iowa 1971).
 
         
 
         Id. at 679.
 
         
 
                                     ANALYSIS
 
         
 
              Contrary to defendants' argument at the hearing, claimant's 
 
         burden is to establish increased disability proximately caused by 
 
         his injury for which no compensation has been paid.  See 
 
         Mejorado.  The evidence presented by claimant concerning the 
 
         extent of his disability is undisputed.  Claimant is 52 years old 
 
         with limited education, no special training and work experience 
 
         involving only
 
         
 
         
 
         manual labor.  Claimant's treating physician opines that claimant 
 
         has 20 percent permanent partial impairment to the body as a 
 
         whole.  Dr. Peterson opines that claimant is totally disabled.  
 
         Both Drs. Miller and Peterson testified as to claimant's 
 
         industrial disability.  In that regard their testimony is 
 
         rejected.  Only their testimony regarding impairment is 
 
         considered in this opinion.  Ralston has not offered claimant any 
 
         light duty work and according to claimant has suggested that he 
 
         apply for total disability.  Claimant admits he may be able to 
 
         perform some light duty work.  This does not preclude a finding 
 
         that he is permanently totally disabled.  See Eastman v. Westway 
 
         Trading Corporation, I Iowa Industrial Commissioner Report 134 
 
         (Appeal Decision 1982).  Claimant does not need to prove that his 
 
         physical impairment is 100 percent to prove he is permanently 
 
         totally disabled.  See Diederich v. Tri-City R. Co., 219 Iowa 
 
         587, 258 N.W. 899 (1935).  The uncontroverted evidence presented 
 
         establishes that claimant is permanently totally disabled.
 

 
         
 
         
 
         
 
         CHAMBERLIN V. RALSTON PURINA
 
         Page   4
 
         
 
         
 
         
 
              The holding in Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
         (Iowa 1985) is not applicable.  The supreme court in Klein v. 
 
         Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986) stated:
 
         
 
              The "odd-lot doctrine," which we approved in Guyton v. 
 
              Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985), is a 
 
              procedural device designed to shift the burden of proof with 
 
              respect to employability to the employer in certain factual 
 
              situations.  We need not determine on the present record 
 
              whether petitioner's situation fits within the odd-lot 
 
              doctrine.  As we indicated in Armstrong, 382 N.W.2d at 167, 
 
              claims concerning the applicability of this doctrine must be 
 
              raised before the industrial commissioner or they will not 
 
              be considered on judicial review.
 
         
 
         Id. at 375.
 
         
 
              At no time throughout this proceeding has claimant raised 
 
         the issue of applicability of the odd-lot doctrine.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was in the employ of Ralston for over 29 1/2 
 
         years.
 
         
 
              2.  Claimant's work history almost entirely consists of 
 
         employment with Ralston in jobs requiring heavy manual labor with 
 
         heavy lifting and pushing but not the intricate use of his 
 
         fingers.
 
         
 
              3.  In 1966, claimant lost the fingers on his right hand
 
         
 
         
 
         
 
         
 
         which results in significant physical impairment in the use of 
 
         his right hand.
 
         
 
              4.  On November 7, 1979, while performing his work for 
 
         Ralston, claimant dislocated his left shoulder which eventually 
 
         resulted in deterioration and tearing off of the rotator cuff and 
 
         adhesive capsulitis (frozen shoulder).
 
         
 
              5.  As a result of the work injury of November 1979, 
 
         claimant underwent a surgical operation termed an acrominonectomy 
 
         including advancement and repair of the rotator cuff which was 
 
         not successful in improving claimant's left shoulder condition.
 
         
 
              6.  The work injury of November 1979 was a cause of 20 
 
         percent permanent impairment to claimant's body as a whole.
 
         
 
              7.  In September 1982, claimant reinjured his left shoulder 
 
         while at work but the permanent condition of his shoulder was not 
 
         altered by this incident.
 
         
 
              8.  As a result of the work injury in November 1979, 
 
         claimant is now permanently restricted from work involving heavy 
 
         lifting and pushing or any other work which requires reaching 
 

 
         
 
         
 
         
 
         CHAMBERLIN V. RALSTON PURINA
 
         Page   5
 
         
 
         
 
         with his left arm above his shoulder or away from his body or 
 
         requires twisting movements of the left shoulder or the left side 
 
         of his torso.
 
         
 
              9.  Prior to the work injury of November 1979, claimant was 
 
         able to lift and push heavy objects and he had full use of his 
 
         left shoulder and arm.
 
         
 
             10.  After the work injury of November 1979, claimant had 
 
         difficulty in performing many light duty jobs at Ralston, 
 
         including sweeping, driving, and dropping coupons but these 
 
         difficulties stemmed from his shoulder condition, not his right 
 
         hand impairment.
 
         
 
             11.  In 1983 Ralston discharged claimant due to the 
 
         disability caused by the left shoulder condition and recommended 
 
         that he seek permanent disability benefits as a result of his 
 
         physical condition.
 
         
 
             12.  Claimant has suffered a significant loss in actual 
 
         earnings from the loss of his job at Ralston in 1983.
 
         
 
             13.  Claimant is 52 years of age, has a tenth grade 
 
         education, and exhibited below average intelligence at the 
 
         hearing.
 
         
 
             14.  Claimant has little potential for successful vocational 
 
         rehabilitation.
 
              15.  Claimant made numerous unsuccessful attempts to return 
 
         to work at Ralston in light duty jobs but continued to experience 
 
         shoulder difficulties.
 
         
 
              16.  Claimant has not sought alternative employment since 
 
         his termination from Ralston as a result of his reasonable belief 
 
         that employment is not available to him due to his lack of 
 
         training and experience in sedentary work and his physical 
 
         condition.
 
         
 
              17.  Claimant is permanently totally disabled.
 
         
 
              18.  Pursuant to the parties' stipulation, claimant's rate 
 
         of
 
         compensation is $208.91 per week.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the work injury of November 7, 1979 is a cause of permanent 
 
         disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent total disability benefits during the 
 
         period of his total disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         
 
         
 
         CHAMBERLIN V. RALSTON PURINA
 
         Page   6
 
         
 
         
 
         
 
              That defendants shall pay to claimant permanent total 
 
         disability benefits during the period of his disability at the 
 
         rate of two hundred eight and 91/100 dollars ($208.91) per week 
 
         from November 18, 1982.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall receive credit for previous payments 
 
         of benefits under a nonoccupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              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 Division of Industrial Services Rule 343-4.33 including the 
 
         transcription of the hearing proceedings.
 
         
 
         
 
         
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Building
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1302.1-1303-1402.40
 
                                                   1804-4100
 
                                                   Filed October 29, 1987
 
                                                   DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROY CHAMBERLIN
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        File No. 661698
 
         RALSTON PURINA,
 
                                                          A P P E A L
 
              Employer,
 
                                                        D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1302.1 - 1303 - 1402.40 - 1804-4100
 
         
 
              The uncontroverted evidence presented established that 
 
         claimant was permanently totally disabled.  As only a memo of 
 
         agreement was filed previously, claimant did not need to show a 
 
         change of condition.  See Caterpillar Tractor Company v. 
 
         Mejorado, 410 N.W.2d 675 (Iowa 1987).  The holding in Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) was not applicable.  
 
         At no time did claimant raise an issue of the applicability of 
 
         the odd-lot doctrine.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MALCOLM A. TAYLOR,
 
         
 
              Claimant,
 
                                           File Nos. 661860  & 758417
 
         
 
         vs                                  A R B I T R A T I O N
 
         
 
         CATERPILLAR TRACTOR CO.,              D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Malcolm A. 
 
         Taylor, claimant, against Caterpillar Tractor Company, employer 
 
         (hereinafter referred to as CAT), self-insured, defendant, for 
 
         workers' compensation benefits as a result of alleged injuries on 
 
         February 10, 1981 and March 29, 1982.  On May 4, 1988 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 prehearing 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.  Oral testimony was 
 
         received during the hearing from claimant and his wife Bernice.  The 
 
         exhibits received into the evidence at the hearing are listed in the 
 
         prehearing report.  According to the prehearing report the parties 
 
         have stipulated to the following matters:
 
         
 
              1.  On February 10, 1981 claimant received an injury which 
 
         arose out of and in the course of his employment with CAT;
 
         
 
              2.  Claimant is entitled to either temporary total disability 
 
         or healing period benefits from February 10, 1981 through December 
 
         30, 1981 as a result of the February 10, 1981 injury.  Claimant is 
 
         claiming temporary total disability and healing period benefits for 
 
         the period of time extending from March 29, 1982 through April 10, 
 
         1982 as a result of an alleged injury on March 29, 1982 and 
 
         defendant agrees that claimant was off work during this period of 
 
         time;
 
         
 
              3.  Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $251.18 for 
 
         the February 10, 1981 injury and $268.72 for the alleged injury on 
 
         March 29, 1982; and,
 
         
 
              4.  With reference to the medical expenses claimant is seeking 
 
         in this proceeding, the providers of those services would testify as 
 
         to the reasonableness of their charges and defendant is not offering 
 
         contrary evidence.
 
         
 
                                       
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   2
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination in 
 
         this proceeding:
 
         
 
              I.  Whether claimant received an injury on March 29, 1982 
 
         arising out of and in the course of his employment;
 
         
 
             II.  Whether there is a causal relationship between a work 
 
         injury and the claimed disability;
 
         
 
            III.  The extent of weekly disability benefits to which claimant 
 
         is entitled; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
                               SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this case.  
 
         For the sake of brevity, only the evidence most pertinent to this 
 
         decision is discussed.  Whether or not specifically referred to in 
 
         this summary, all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  As will be the case in any 
 
         attempted summarization, conclusions about what the evidence offered 
 
         may show are inevitable.  Such conclusions, if any, in the following 
 
         summary should be considered as preliminary findings of fact.
 
         
 
              Claimant testified that he worked for CAT, from September, 1977 
 
         until a general plant wide layoff in June, 1982.  He stated that he 
 
         had first worked on the paint line hanging parts which required 
 
         repetitive lifting and bending.  For approximately one year he 
 
         worked as a shipping clerk and at the time of the 1981 injury he was 
 
         a forklift truck operator.
 
         
 
              The facts surrounding the work injury on February 10, 1981 are 
 
         not in dispute.  Claimant testified that on the date of injury he 
 
         was ordered by his foreman to assist in removing a canvass covering 
 
         over a semi truck trailer and in the process was struck in the head 
 
         by a metal support.  Claimant lost consciousness for a period of 20 
 
         to 30 minutes and was transported to the plant infirmary under the 
 
         care of the plant doctor, James Donohue, M.D.  Claimant regained 
 
         consciousness in the infirmary and did not return to work that day.  
 
         The next day he reported for work but after experiencing dizziness 
 
         and neck pain he spent most of the day in the infirmary.  Five says 
 
         after the incident he experienced additional dizziness and pain and 
 
         he reported to the emergency room in a local hospital with 
 
         additional complaints of nausea and chills.  Claimant was diagnosed 
 
         at that time by his personal physician, V. Warnen Swayze, M.D., as 
 
         having post-concussion syndrome.  X-rays at the time indicated a 
 
         mild disc narrowing at the C5-6 level of the cervical spine.  Dr. 
 
         Swayze made no specific diagnosis with reference to the back.
 
         
 
              Claimant was then taken off work by physicians and treated 
 
         conservatively by Dr. Swayze until March, 1981 for lingering 
 
         complaints of headache, vertigo and numbness on the left side of the 
 
         face.  Claimant possibly had backaches during this time but Dr. 
 
         Swayze's office notes were in long hand and the copy submitted by 
 
         the parties into the evidence was for the most part not legible.  On 
 
         March 27, 1981 claimant was referred by Dr. Swayze to a 
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   3
 
         
 
         
 
         neurosurgeon, Byron Rovine, M.D.  Initially, Dr. Rovine stated that 
 
         claimant's symptoms appear to be the most severe case of 
 
         post-concussion syndrome that the doctor had ever seen.  Claimant 
 
         was then treated conservatively for the next two months for vague 
 
         neck pain, light headedness, irritability and visual disturbances.    
 
         A CT scan of the brain was normal.  In May, 1981 the doctor received 
 
         additional complaints from claimant consisting of hot flashes and 
 
         nervousness along with increased heart rate.  At that time, the 
 
         doctor began to question the relation of claimant's symptoms to the 
 
         injury and recommended that Dr. Swayze refer claimant to an 
 
         internist for future evaluation as to other possible causes of the 
 
         symptoms.
 
         
 
              In June, 1981 claimant was evaluated by Edwin Motto, an 
 
         internist.  Dr. Motto concluded after his examination and review of 
 
         the history that claimant sustained a concussion and a cervical 
 
         strain from the incident and recommended treatment for the cervical 
 
         strain and psychometric testing.
 
         
 
              In August, 1981 claimant was examined by Steven Jarrett, M.D., 
 
         from the Franciscan Hospital Rehabilitation Center upon complaints 
 
         of neck and low back pain, dizziness and nausea upon bending and 
 
         intermittent numbness of all extremities.  Dr. Jarrett found that it 
 
         was difficult to sort out what was going on with claimant and 
 
         recommended admission for evaluation.  Claimant was then admitted 
 
         for orthopedic and psychological testing to the hospital from 
 
         September 22, 1981 through October 28, 1981.  An orthopedic surgeon, 
 
         John Sinning, M.D., evaluated claimant on September 29, 1981.  Dr. 
 
         Sinning recommended a physical therapy program to get away from use 
 
         of the cervical collar."  No definite diagnosis was made by Dr. 
 
         Sinning.  Claimant then began a physical therapy program but was 
 
         considered by the therapist as not cooperative by refusing to 
 
         perform some of the exercises due to pain complaints and failure to 
 
         attend sessions.  A psychiatrist, P. Campbell, M.D., also evaluated 
 
         claimant upon a history of inconsistent and contradictory findings 
 
         and complaints of pain in his head, face, teeth, ears, neck and back 
 
         and all our extremities along with dizziness and nausea.  These 
 
         symptoms according to claimant became worse with activity and there 
 
         has been no improvement over the last few months.  After examination 
 
         and psychological testing, Dr. Campbell concluded that claimant had 
 
         mild psychogenic pain disorder and probably was malingering.
 
         
 
              Despite the views of Dr. Campbell, the defendant agreed upon 
 
         claimant's demand that he receive chiropractic adjustments for a 
 
         period of six weeks.  Dr. Sinning had reported that claimant had 
 
         told him that the chiropractor said that he could cure claimant's 
 
         back difficulties in six weeks.  Claimant then underwent adjustments 
 
         for cervical, dorsal, lumbar and pelvic "subluxations" from Robert 
 
         Cunningham, D.C., in the fall and winter of 1981 for the following 
 
         symptoms:
 
         
 
              Pins & needles in arms, pins & needles in legs, numbness 
 
              in fingers, numbness in toes, shortness of breath, 
 
              fatigue, depression, lights bother eyes, loss of memory, 
 
              ears ring, buzzing in ears, loss of balance, fainting, 
 
              diarrhea, feet cold, hands cold, stomach upset, 
 
              constipation, cold sweats, fever, teeth ache, ears, eyes.
 
         
 
              After treatment, Dr. Cunningham reported the following as a 
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   4
 
         
 
         
 
         result of his treatment:
 
         
 
              Remains the same:  Headache, neck pain, neck stiff, 
 
              nervousness, tension, head seems too heavy, pins & needles 
 
              in legs, feet cold.
 
         
 
              Improved:  Sleeping problems, back pain, irritability, 
 
              dizziness, pins & needles in arms, numbness in fingers, 
 
              lights bother eyes, loss of memory, ears ring, stomach 
 
              upset, constipation, teeth ache, ears, & eyes hurt.
 
         
 
              Markedly improved or no longer a symptom:  Chest pain, 
 
              numbness in toes, shortness of breath, fatigue, 
 
              depression, buzzing in ears, loss of balance, fainting, 
 
              diarrhea, hands cold, cold sweats, fever.
 
         
 
              Dr. Cunningham in December, 1981 indicated that he needed more 
 
         time to resolve claimant's complaints.  Claimant's benefits and 
 
         treatment were then ended by defendant based upon the report of Dr. 
 
         Campbell.
 
         
 
              Claimant testified that he returned to work on February 7, 1982 
 
         upon the release of Dr. Swayze and was placed in a light duty, 
 
         sedentary job which involved watching a computer screen to 'hook up 
 
         parts."  However, on March 29, 1982, claimant stated that his 
 
         foreman reassigned him to hang parts on the paint line despite a 
 
         protest from claimant that he could not physically perform such 
 
         work.  After 20 minutes claimant said that he experienced a 
 
         recurrence of back pain and temporarily lost consciousness after 
 
         picking up 50 pounds of parts in each hand.  He said that the 
 
         "lights went.out" and he next then recalls someone talking to him.  
 
         Again, claimant was taken to the infirmary and received ice packs on 
 
         his back.  Dr. Swayze referred claimant at that time neurologist, 
 
         Lynn Kramer, M.D.  Dr. Kramer found that claimant had no gross 
 
         neurological deficits but indicated that sometimes post-concussion 
 
         syndrome does persist but is mostly depression.  Dr. Kramer 
 
         prescribed antidepressant medication called Elavil.  X-rays at the 
 
         time indicated a narrowing of the intervertebral interspace at L4-5 
 
         in claimant's low back probably due to degeneration.  Neither Dr. 
 
         Kramer nor Dr. Swayze made any specific diagnoses with relation to 
 
         this x-ray report.  Dr. Kramer recommended that claimant remain off 
 
         for two weeks following this episode.  Claimant was off work then 
 
         from March 29, 1982 through April 10, 1982.  Subsequently, claimant 
 
         worked for CAT until his layoff in June, 1982.  Claimant said that 
 
         he received, on a daily basis, ice packs and pills from the plant 
 
         nurse between April and June, 1982.  After leaving CAT, claimant 
 
         worked as a boiler tender and assistant to a millwright for a period 
 
         of time.  He explained that he had to lift pipes in this work and 
 
         such activity resulted in recurrence of back pain for which he 
 
         received treatment from the Veterans Administrative Hospital in 
 
         July, 1983.  Claimant then worked as a shipping clerk for a few 
 
         months and also for a company called Litco installing insulation and 
 
         performing some touch-up painting and sweeping duties.  In May, 1985 
 
         claimant relocated to the State of Michigan and now works as a 
 
         foreman at a wage of $9.00 per hour.  Claimant said that this job is 
 
         sedentary and does not actually involve heavy physical work.
 
         
 
              At hearing claimant stated that he continues to have dizzy 
 
         spells, muscle spasms in the back, lower back pain, a lot of neck 
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   5
 
         
 
         
 
         pain, tiredness, inability to lift over 5 pounds and trouble with 
 
         prolonged sitting and standing.  Claimant last received medical 
 
         treatment in May of 1985 and stated that he is not currently taking 
 
         any medication.  He also has complaints of memory and hearing loss.  
 
         He further states that he has vision problems with his left eye but 
 
         admits that the problem is insignificant because he lost most of the 
 
         sight in his left eye from a BB gun accident when he was 11 years 
 
         old.  Claimant's wife testified that none of these complaints 
 
         predated the February, 1981 injury.  A "disability certificate" 
 
         dated February 24, 1982 from Dr. Swayze states that claimant was 
 
         incapacitated under the doctor's care from February 10, 1981 through 
 
         March 24, 1982 and "partial disability" from March 25, 1982 through 
 
         June 24, 1982.  At the bottom of this certificate Dr. Swayze added 
 
         the words "NO LIFTING."  There is no further explanation of this 
 
         disability certificate in the record.
 
         
 
              Claimant's testimony during the hearing was inconsistent and 
 
         his demeanor failed to give an impression that he was candid and 
 
         truthful.  Claimant stated at hearing that his confused state of 
 
         mind and loss of memory is the result of the work injury in this 
 
         case.
 
         
 
                             APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose 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 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 of dormant health 
 
         impairments, and a work connected injury which more than slightly 
 
         aggravates the condition is considered to be a personal injury.  
 
         Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 
 
         591 (1960) and cases cited herein.
 
         
 
              In the case sub judice, claimant asserts that he received a 
 
         second aggravation injury on March 29, 1982.  Despite his lack of 
 
         credibility, the fact that he was lifting in excess of the 
 
         restrictions imposed by Dr. Swayze appears to be uncontroverted in 
 
         the record.  Dr. Kramer's views support claimant's contention that 
 
         it was work related as a lingering post-concussion syndrome.  
 
         Consequently, a work injury in the form of an aggravation of the 
 
         prior injury will be found.
 
         
 
              II.  The claimant has the burden of proving by a preponderance 
 
         of the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  In 
 
         the case of a claim for temporary disability, the claimant must 
 
         establish that the work injury was a cause of absence from work and 
 
         lost earnings during a period of recovery from the injury.  
 
         Generally, a claim of permanent disability invokes an initial 
 
         determination of whether the work injury was a cause of permanent 
 
         physical impairment or permanent limitation in work activity.  
 
         However, in some instances, such as a job transfer caused by a work 
 
         injury, permanent disability benefits can be awarded without a 
 
         showing of a causal connection to a physical change of condition.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1960); 
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   6
 
         
 
         
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
         
 
              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, and that may be affected by the 
 
         completeness of the premise given the expert and 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 nonexpert testimony to snow causation and be 
 
         sufficient to sustain an award.  Giere v. Aase Haugen Homes, Inc., 
 
         259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  Such evidence does not, 
 
         however, compel an award as a matter of law.  Anderson v. Oscar 
 
         Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
         compensability, the injury need only be a significant factor, not be 
 
         the only factor causing the claimed disability.  Blacksmith, 290 
 
         N.W.2d 348, 354.  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).
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   7
 
         
 
         
 
         
 
              In the case at bar, the preponderance of the evidence 
 
         demonstrates that claimant has some sort of continuing problems with 
 
         his head, neck and back but there is little support in the record 
 
         for claimant's contentions that these conditions are worked related.  
 
         Claimant simply has no physician that backs up his claims.  
 
         Defendant relies on the views of Dr. Campbell and later Dr. Rovine 
 
         that claimant has no organic problems stemming from the 1981 injury.  
 
         Dr. Campbell finds that claimant is actually malingering.  Claimant 
 
         appears to rely on the views of Dr. Swayze but Dr. Swayze's views 
 
         are unclear.  Dr. Swayze's disability certificate ends partial 
 
         disability in June of 1982 and imposes no further restrictions.  
 
         Admittedly, he has the words "no lifting" on the certificate but 
 
         there is no explanation as to whether this was a temporary or 
 
         permanent restriction.  Dr. Kramer only prescribes anti-depressant 
 
         medication.  The VA Hospital notes indicate only a degenerative disc 
 
         problem and fails to identity any cause for this problem.  No 
 
         physician has rated claimant's permanent impairment or opined that 
 
         any impairment was due to the 1981 or 1982 injuries.  Claimant's 
 
         chiropractor refused to give claimant a rating because he disagreed 
 
         with Dr. Swayze' views that claimant should return to work.  We are 
 
         essentially left with only claimant's views that all of the many and 
 
         varied problems that he experiences are due to his work at CAT.  As 
 
         indicated previously, claimant's testimony was highly conflicting 
 
         and confusing and for that reason could not be given much weight.
 
         
 
              However, claimant is entitled to temporary total disability 
 
         benefits for the injury of May 29, 1982 given the views of Dr. 
 
         Kramer that he should be off for two weeks.  The parties stipulated 
 
         that claimant was off work for this period of time and temporary 
 
         total disability benefits will be awarded accordingly.
 
         
 
              II.  Pursuant to Iowa Code section 85.27 claimant is entitled 
 
         to the expenses for reasonable medical treatment of a work injury.   
 
         However, claimant is entitled to an order of reimbursement only for 
 
         those expenses which he has actually previously paid.  Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              The record shows that defendant authorized six weeks of 
 
         chiropractic treatment which would have ended on Saturday, December 
 
         5, 1981.  Charges for treatment up to that point in time was $420 
 
         and given the parties' stipulation, this amount is found to be 
 
         reasonable.  Charges by the chiropractor after that time including 
 
         medical mileage expenses to that treatment were not authorized and 
 
         cannot be awarded.  Defendant has admitted to liability for the 
 
         February, 1981 work injury and had the right to choose the care 
 
         under Iowa Code section 85.27.
 
         
 
              Due to the findings of a work injury on March 29, 1982, 
 
         claimant is entitled to treatment for this injury from Dr. Swayze 
 
         and Dr. Kramer.  These expenses shall be ordered paid as set forth 
 
         below.
 
         
 
                                   FINDINGS OF FACT
 
         
 
              1.  On March 29, 1982 claimant suffered an injury in the form 
 
         of an aggravation of a post-concussion syndrome which arose out of 
 
         and in the course of employment with CAT.
 
         
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   8
 
         
 
         
 
              2.  As stipulated, claimant received a work injury on February 
 
         10, 1981 consisting of a brain concussion with post-concussion 
 
         syndrome resulting in dizziness, headache, nausea and upper and 
 
         lower back strain.
 
         
 
              3.  As stipulated, as a result of the February 10, 1981 injury, 
 
         claimant was off work for treatment of this work injury until 
 
         December 30, 1981 at which time he reached maximum healing.
 
         
 
              4.  The work injury of March 29, 1982 was a cause of a period 
 
         of disability from work beginning on March 29, 1982 through April 
 
         10, 1982 at which time claimant returned to work.
 
         
 
              5.  The medical expenses listed below in paragraph two of the 
 
         order section of this decision, which were a portion of the 
 
         requested expenses in the prehearing report, are fair and reasonable 
 
         and were incurred for claimant's reasonable and necessary treatment 
 
         of his work injuries herein.
 
         
 
              Claimant failed to show that the injuries of February 10, 1981 
 
         and/or March 29, 1982 were a cause of permanent impairment or 
 
         disability.  Although claimant has lingering problems, insufficient 
 
         evidence exists to support the claim that these symptoms are related 
 
         to either work injury in this case.  Claimant was not found to be 
 
         credible due to confusing and conflicting testimony and his demeanor 
 
         at hearing.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the temporary total disability and medical benefits 
 
         as awarded below.
 
         
 
                                        ORDER
 
         
 
              1.  Defendant shall pay to claimant temporary total disability 
 
         benefits from March 29, 1982 through April 10, 1982 at the rate of 
 
         two hundred sixty-eight and 72/100 dollars ($268.72) per week.
 
         
 
              2.  Defendant shall pay to claimant the following medical 
 
         expenses:
 
         
 
              Muscatine General Hospital         $111.00
 
              Lynn Krame, M.D.                    110.00
 
              V. Warnen Swayze, M.D.               17.00
 
         
 
         These payments shall be made directly to the medical provider unless 
 
         they have been previously paid by claimant in which case the payment 
 
         shall be made directly to the claimant.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump sum 
 
         and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 

 
         
 
         
 
         
 
         TAYLOR V. CATERPILLAR TRACTOR CO.
 
         PAGE   9
 
         
 
         
 
         
 
              6.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 31st day of August, 1988.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Robert H. DeKock
 
         Attorney at Law
 
         Suite 103, Hotel Muscatine
 
         101 W. Mississippi Dr.
 
         Muscatine, Iowa 52761
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, STE 102
 
         400 Main St.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         GREGG A. TALLMAN,
 
         
 
            Claimant,
 
         
 
         VS.
 
                                                 File No. 662627
 
         AMERICAN CAN COMPANY,
 
                                                  A P P E A L
 
            Employer,
 
                                                  R U L I N G
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
            Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              Claimant appeals from a ruling which sustained defendants' 
 
         motion for summary judgment.  Both sides have filed briefs.
 
         
 
              On February 17, 1981 claimant received an injury arising out 
 
         of and in the course of his employment with defendant employer.  
 
         On August 5, 1986 a commutation of all further benefits was filed 
 
         and approved by this agency.
 
         
 
              Section 85.47, Code of Iowa states:
 
         
 
                   When the commutation is ordered, the industrial 
 
              commissioner shall fix the lump sum to be paid at an 
 
              amount which will equal the total sum of the probable 
 
              future payments capitalized at their present value and 
 
              upon the basis of interest at the rate provided in 
 
              section 535.3 for court judgments and decrees.  Upon 
 
              the payment of such amount the employer shall be 
 
              discharged from all further liability on account of the 
 
              injury or death, and be entitled to a duly executed 
 
              release, upon filing which the liability of the 
 
              employer under any agreement, award, finding, or 
 
              judgment shall be discharged of record.
 
         
 
              The claimant is no longer entitled to benefits under the 
 
         Act.  The ruling of the deputy sustaining defendants' motion for 
 
         summary judgment is correct.
 
         
 
              WHEREFORE, the ruling of the deputy is affirmed.
 
         
 
         
 
         
 
         TALLMAN V. AMERICAN CAN COMPANY
 
                                                      
 
                                                               
 
         Page 2
 
         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants' motion for summary judgment is sustained 
 
         with the result that this contested case proceeding is 
 
         terminated.
 
         
 
              That all costs are taxed to claimant.
 
         
 
         
 
              Signed and filed this 29th day of October, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Gregg A. Tallman
 
         1436 22nd Street
 
         Des Moines, Iowa 50311
 
         CERTIFIED MAIL
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT E. COOPER,
 
        
 
            Claimant,                            File No. 662918
 
        
 
        vs.                                     A R B I T R A T I O N
 
        
 
        GORE CREEK DISTRIBUTING COMPANY,          D E C I S I O N
 
        
 
            Employer,
 
        
 
        and                                         F I L E D
 
        
 
        ST. PAUL INSURANCE,                        JAN 11 1989
 
        
 
            Insurance Carrier,           IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Robert E. 
 
             Cooper, claimant, against Gore Creek Distributing Company, 
 
             employer, and St. Paul Insurance, insurance carrier, to recover 
 
             benefits for an alleged injury occurring on or about May 4, 1981. 
 
             This matter was to come on for hearing January 9, 1989 in Des 
 
             Moines, Iowa, at 8:30 a.m.
 
        
 
            The undersigned was present. Neither claimant nor 
 
        defendants appeared.
 
        
 
            Claimant failed to present any evidence in support of the 
 
        allegations found in his original notice and petition. Neither 
 
        an agreement for settlement nor a request for continuance are on 
 
        file with the industrial commissioner.
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that he received an injury which arose out of and in the 
 
        course of his employment. McDowell v. Town of Clarksville, 241 
 
        N.W.2d 904 (Iowa 1976).
 
        
 
            WHEREFORE, lt is found
 
        
 
            l. Neither claimant nor defendants appeared at the 
 
        scheduled time and place of hearing.
 
        
 
            2. The undersigned deputy industrial commissioner was 
 
        present and prepared to proceed to hearing.
 
        
 
            3. Neither an agreement for settlement nor a request for 
 
        continuance are on file with the industrial commissioner.
 
        
 
            4. Claimant failed to present any evidence to support 
 
        allegations of a compensable work injury.
 
        
 
           THEREFORE, it is concluded:
 
        
 
             Claimant has failed to meet his burden of proof that he 
 
             sustained an injury which arose out of and in the course of his 
 
             employment.
 

 
        
 
 
 
 
 
        
 
             THEREFORE, it is ordered:
 
        
 
            Claimant take nothing from this proceeding.
 
        
 
            Costs are taxed to the claimant. Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
           Signed and filed this 11th day of January, 1989.
 
        
 
        
 
        
 
        
 
                                        BERNARD J. O'MALLEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Paul C. Thune
 
        Attorney at Law
 
        218 6th Ave Ste 300
 
        P.O. Box 9130
 
        Des Moines, IA 50306
 
        
 
                            
 
                            
 
        Mr. William D. Scherle
 
        Attorney at Law
 
        803 Fleming Bldg
 
        Des Moines, IA 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                       1400; 1402
 
                                       Filed January 11, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT E. COOPER,
 
        
 
        Claimant,                                      File No. 662918
 
        
 
        vs.                                    A R B I T R A T I O N
 
        
 
        GORE CREEK DISTRIBUTING COMPANY,          D E C I S I O N
 
        
 
             Employer,
 
             
 
        and
 
        
 
        ST. PAUL INSURANCE,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1400; 1402
 
        
 
             Neither claimant nor counsel appeared at the hearing. No 
 
             evidence in support of allegations of a compensable work injury 
 
             was presented and claimant therefore failed to meet his burden of 
 
             proof.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CARL W. CLIFTON,
 
         
 
              Claimant,
 
                                                        FILE NO. 663073
 
         VS.
 
                                                          R E V I E W -
 
         PROCESS PIPING COMPANY,
 
                                                        R E 0 P E N I N G
 
              Employer,
 
                                                         D E C I S I O N
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a review-reopening proceeding from a memorandum of 
 
         agreement filed March 13, 1981 dealing with an injury of February 
 
         18, 1981.  Claimant, Carl W. Clifton, seeks further benefits in 
 
         the nature of payment of disputed medical expenses; additional 
 
         compensation for temporary total disability or healing period; 
 
         and compensation for permanent disability.  The case was heard at 
 
         Burlington, Iowa on November 4, 1986 and was fully submitted upon 
 
         conclusion of the hearing.  The record in the proceeding consists 
 
         of testimony from Carl W. Clifton (claimant) and Pauline Clifton 
 
         (claimant's wife).  The record also contains claimant's exhibits 
 
         1 through 8 and 12 through 22.  Defendants' exhibits A and B were 
 
         received into evidence.  Claimant's exhibits 9, 10 and 11 and 
 
         defendants' exhibit C were offered but were not received into 
 
         evidence and remain with the file as an offer of proof only.
 
         
 
              Consistent with the memorandum of agreement having been 
 
         filed, the parties stipulated in the prehearing report that an 
 
         employer/employee relationship existed between claimant and 
 
         Process Piping Company on February 18, 1981 and that Clifton 
 
         sustained an injury on that date which arose out of and in the 
 
         course of his employment.  The parties stipulated that in the 
 
         event of an award claimant's weekly rate of compensation is 
 
         $318.09. It was further stipulated that with regard to the 
 
         medical expenses for which claimant seeks payment, the fees 
 
         charged for the services that were rendered were reasonable and 
 
         that the providers of the services would testify that the 
 
         services were reasonable and necessary treatment for the alleged 
 
         work injury.  The parties stipulated that two weeks of weekly 
 
         compensation has been paid.
 
              
 
              The issues to be determined are claimant's entitlement to 
 
         compensation for temporary total disability or healing period; 
 
         claimant's entitlement to compensation for permanent partial 
 
         disability; and claimant's entitlement to recover costs of 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   2
 
         
 
         
 
         medical treatment under section 85.27 of the Code.  Defendants 
 
         urged that the expenses incurred by claimant were unauthorized.  
 
         A primary issue in the case is whether or not the problems for 
 
         which claimant seeks compensation have a causal connection with 
 
         the injury that occurred on February 18, 1981.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a brief summary of pertinent evidence.  All 
 
         evidence received at the hearing was considered when deciding the 
 
         case.
 
         
 
              Carl W. Clifton is a 64 year old married man who commenced 
 
         his apprenticeship as a pipe fitter and plumber in 1950 and  in 
 
         became a journeyman in 1955.  He testified that he has worked the 
 
         trade continually since that time.  Prior to the time he entered 
 
         his trade he had served 10 years in the army where he attained 
 
         the rank of staff sergeant and worked primarily in the field of 
 
         telephone and telegraph communications and cable splicing.  His 
 
         education is limited to the sixth grade.
 
         
 
              Claimant characterized the term "plumbing" as dealing with 
 
         residential work involving light pipes and fittings.  He 
 
         characterized "pipe fitting" as industrial work involving heavy 
 
         pipe that carries steam, hydraulics or other fluids.  Clifton 
 
         stated that the work varies between light and heavy depending 
 
         upon the weight of the pipe that is involved and the amount of 
 
         pulling, straining and crawling about that is required on the 
 
         particular job.  He feels that a considerable amount of use of 
 
         his back and physical strength is part of his trade.  Clifton 
 
         testified that due to the pain he presently experiences in his 
 
         back he is unable to pull, lift, strain, use wrenches, work with 
 
         his hands over his head, crawl on floors, climb stairs or 
 
         ladders, walk on inclines or even place himself into position to 
 
         work under a typical residential kitchen sink.  He feels that he 
 
         is completely unable to work in his trade.
 
         
 
              Clifton testified that on February 18, 1981, he was working 
 
         as a pipe fitter at the Arco Chemical Plant in Fort Madison, Iowa 
 
         running two-inch diameter threaded galvanized pipe: At one point 
 
         in the day claimant was standing on a sawhorse using two wrenches 
 
         to turn an elbow to the appropriate angle where it would align 
 
         with the next piece of pipe to be installed.  Clifton testified 
 
         that the elbow had already been tightened in a pipe vise and was 
 
         quite tight.  He testified that he was in a position where he was 
 
         reaching out and pulling on both wrenches at the same time.  He
 
         
 
         
 
         stated that he pulled as hard as he could, felt pain in his right 
 
         side and groin and fell to the floor.  Claimant testified that 
 
         the pain subsided somewhat after he had rested for 10 or 15 
 
         minutes.  He stated that the incident occurred near the end of 
 
         the day and was not reported immediately.  He stated that while 
 
         riding home after work his back was sore.
 
         
 
              While eating supper that evening claimant found himself 
 
         unable to swallow and felt a sensation that he described as like 
 
         a knot in his esophagus.  He stated that the sensation went away 
 
         but that when he tried to eat again it recurred.  Clifton 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   3
 
         
 
         
 
         testified that he walked into his front room and fell to his 
 
         knees.  He feared that he was having a heart attack.  He was 
 
         taken to the St. Mary Hospital Emergency Room in Quincy, 
 
         Illinois.  The emergency room records show that claimant 
 
         complained of the onset of pain in his right lower quadrant 
 
         during the afternoon which had let up by suppertime when he 
 
         experienced pain in the epigastric area.  He related a history of 
 
         a hiatal hernia.  He voiced no complaints regarding his back and 
 
         the notes of the physical examination report no tenderness of the 
 
         spine was observed (Claimant's Exhibit 21).
 
         
 
              Claimant testified that on the following day he sought care 
 
         from Frank T. Brenner, M.D., and was treated with Tylenol 3 and 
 
         advised to rest in bed for two weeks.  Claimant stated that his 
 
         back and right hip were bothering him.  He stated that Dr. 
 
         Brenner recommended an additional two weeks when the condition 
 
         did not improve.  Exhibit 21, a report from Dr. Brenner dated 
 
         February 24, 1981, indicates that claimant complained of pain in 
 
         the right side and that the doctor diagnosed the condition as a 
 
         muscle stain of the right low quadrant.  The report is dated 
 
         February 24, 1981 and indicates that the date of first treatment 
 
         was February 23, 1981 (Cl. Ex. 20 & 21).
 
         
 
              Dr. Brenner retired and claimant was referred to Bruce W. 
 
         Johnson, M.D. Dr. Johnson saw claimant on June 16, 1981 were 
 
         claimant voiced complaints of pulled muscles in his abdomen . and 
 
         back.  Dr. Johnson interpreted an x-ray report taken at that time 
 
         as showing arthritis and spondylosis.  Dr. Johnson explained to 
 
         claimant that spondylosis is often a congenital condition which 
 
         the doctor felt was probably aggravated by claimant's work.  The 
 
         doctor recommended physical therapy (Cl. Ex. 17 & 19).  Claimant 
 
         testified that he chose to go to an osteopathic physician, 
 
         Charles M. Eaton, D.O., upon the recommendation of his son rather 
 
         than to enter into the physical therapy recommended by Dr. 
 
         Johnson.  He testified that he was having continual pain in his 
 
         lower back and right side which he described as a burning 
 
         sensation in the lower groin.  He stated that he was unable to 
 
         work at that time and had not been released to return to work by 
 
         any physician.
 
         
 
              In a report dated June 30, 1981, Dr. Eaton indicated that 
 
         claimant exhibited severe muscle spasm in his entire right side 
 
         and that his right sacroiliac had slipped forward.  He felt there 
 
         was a definite connection between the injury of February 18, 1981 
 
         and his findings.  Dr. Eaton stated that he had been treating 
 
         claimant with osteopathic manipulation and had observed some 
 
         improvement (Cl. Ex. 18).  In a report dated April 27, 1982, Dr. 
 
         Eaton diagnosed claimant's condition as torn ligaments and 
 
         muscles.  He stated that when he first treated claimant the 
 
         symptoms included sciatic neuritis as well as muscle spasm and 
 
         low back pain.  The report indicates that claimant returned to 
 
         light work on July 27, 1981 and had been able to perform light 
 
         work but that any heavy work precipitated immediate pain and 
 
         muscle spasm in the right low back area.  Dr. Eaton indicated 
 
         that the prognosis for a return to normal work could not be 
 
         determined at that time (Cl. Ex. 16).
 
         
 
              Claimant testified that the treatment he received from Dr. 
 
         Eaton gave him some relief but that the pain in his back 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   4
 
         
 
         
 
         returned.  He stated that Dr. Eaton released him to return to 
 
         light duty work on July 3, 1981.  Claimant testified that he had 
 
         been paid only two weeks of workers' compensation and that it 
 
         then stopped.
 
         
 
              Claimant stated that he had no direct contact with Aetna 
 
         Insurance Company as he had an attorney in June, 1981.  Claimant 
 
         testified that the insurance carrier had not directed him to 
 
         obtain his treatment from any particular doctor and that he had 
 
         not requested that the insurance carrier send him to a physician 
 
         for any of his complaints.
 
         
 
              Claimant did return to work with William Gould, a Quincy, 
 
         Illinois plumbing contractor.  He obtained the job through the 
 
         union hall.  Claimant stated that it was a small job and that he 
 
         was assigned to help weld pipe and install air lines.  He 
 
         testified that he was unable to perform full duty but that the 
 
         other workers knew of his condition and helped him.  When the job 
 
         ended claimant was laid off and then obtained another job through 
 
         the union hall.  He described it as one which involved working 
 
         with copper and plastic but that he was again unable to do a full 
 
         load of work and that the other workers made accommodations for 
 
         him.  He obtained a third job with State Mechanical Contractors 
 
         and then resumed work for Gould where he remained employed 
 
         through the end of 1981.  Claimant testified that in all of these 
 
         jobs he was unable to carry a full load of the work and was never 
 
         able to resume the type of work he had performed prior to 
 
         February 18, 1981.
 
         
 
              Claimant stated that on December 29, 1981 he hurt himself 
 
         while working at Gould.  He described the injury as one which 
 
         injured his shoulder but did not involve his back.  He stated 
 
         that he received at least three weeks of workers' compensation 
 
         checks and a disability settlement in the amount of  $6,682.37 
 
         from Gould's insurance carrier.  He stated that he received 
 
         treatment for that injury from Kent W. Barber, M.D.  Claimant 
 
         testified that he has not worked since the day of that injury, 
 
         namely December 29, 1981.  He stated that he has also not looked 
 
         for work since December 29, 1981.  Claimant felt that he had 
 
         recovered completely from the shoulder injury.
 
         
 
              Claimant was referred to Jerry L. Jochims, M.D., for an 
 
         examination.  Claimant stated that Dr. Jochims took no x-rays but 
 
         discovered a hernia and recommended surgery.  Claimant denied 
 
         that anything had happened after February 18, 1981 to cause the 
 
         hernia or to injure his back.  Dr. Jochims felt that claimant's 
 
         symptoms were related to the right inguinal hernia which he found 
 
         and recommended surgical treatment (Defendants' Ex. A).  Dr. 
 
         Jochims was also of the opinion that the hernia was directly 
 
         related to the incident of February 18, 1981 (Def. Ex. A, Cl.Ex. 
 
         15).  Dr. Jochims concluded that there was nothing wrong with 
 
         claimant's back although he was aware that x-rays previously 
 
         taken had showed spondylosis.  Dr. Jochims offered to arrange 
 
         surgical care for the hernia (Def. Ex. A).  The date of the 
 
         examination was September 7, 1982.
 
         
 
              Claimant testified that he had no insurance and waited until 
 
         October, 1983 to have the hernia repaired when the Illinois 
 
         Public Aid Department agreed to fund it.  The surgery was 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   5
 
         
 
         
 
         performed by David B. Drennan, M.D. Claimant testified that the 
 
         surgery cleared up the pain he had experienced in his groin and 
 
         that he recuperated for two weeks after the surgery and was then 
 
         released.  In claimant's exhibit 14, Dr. Drennan indicated that 
 
         claimant underwent hernia repair surgery on October 28, 1983, 
 
         that he should avoid lifting for eight weeks following the 
 
         surgery, and that.there should be no permanent disability.
 
         
 
              Claimant related that he received some care from James A. 
 
         Shaw, D.C., Quincy, Illinois, for which he incurred expenses in 
 
         the amount of $1,202.00 for which he has not been repaid.  He 
 
         stated that the adjustments helped at the time but that the pain 
 
         came back and that at times the treatments seemed to make his 
 
         pain worse.
 
         
 
              Claimant testified that he is unable to do activities around 
 
         their home or generally engage in activities that he performed 
 
         prior to February 18, 1981.  He related that in early May of 
 
         1986, he attempted to assist in using a sledge hammer to break 
 
         concrete in his yard and experienced a severe exacerbation of his 
 
         back pain.  He described the pain as similar to what he felt on 
 
         February 18, 1981.  Claimant stated that he sought medical care 
 
         under the direction of Robert J. Tiffin, M.D., and was treated 
 
         with medication but did not improve.  He stated that he was 
 
         eventually hospitalized.  Claimant related that his condition had 
 
         been fairly stable and that when he went to the emergency room 
 
         he
 
         
 
         
 
         told the attending physician that he had been doing reasonably 
 
         well up to that time.
 
         
 
              Claimant testified that in 1978 he received workers' 
 
         compensation for an incident where he stepped off a truck and 
 
         injured his leg and ankle.  He stated that the incident had not 
 
         injured his back or groin and that when he recovered he was able 
 
         to work in his trade.  Claimant recalled an incident in 1971 or 
 
         1972 when he experienced back pain after moving bathtubs and 
 
         sought medical treatment.  He stated that the condition cleared 
 
         up in a few days.  Claimant testified that he had never 
 
         experienced pain or discomfort of the degree that he experienced 
 
         on February 18, 1981 and that all of his prior injuries had been 
 
         relatively minor and had not kept him off work for more than 
 
         three or four days.  Claimant testified that he still has pain in 
 
         his back that extends below the beltline and down his right leg.  
 
         He stated that it has not changed a bit since 1981.  Claimant 
 
         related that he took early social security retirement at age 62.  
 
         He stated that he had given up trying to work in 1982.
 
         
 
              Claimant disagreed with exhibit 21 where it indicated that 
 
         he was first seen on February 23 and returned to work on March 2, 
 
         1981.  He felt that Dr. Brenner's own illness, retirement and 
 
         death had caused confusion to appear in the records.
 
         
 
              Pauline Clifton, claimant's spouse, was present in the 
 
         hearing room while claimant testified and generally she agreed 
 
         with his testimony.  She testified that prior to February 18, 
 
         1981, claimant had been in good health, expressed no complaints 
 
         of back or groin problems and worked whenever work within his 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   6
 
         
 
         
 
         trade was available.
 
         
 
              Mrs. Clifton testified that claimant is no longer able to 
 
         dance, bowl, perform repair work around their home, drive for 
 
         more than approximately 30 minutes, or sit for extended periods 
 
         of time.  She stated that during a normal day he spends a great 
 
         deal of time laying down.
 
         
 
              Mrs. Clifton stated that when claimant worked during late 
 
         1981, he was very tired in the evenings and often would go 
 
         directly to bed without eating.
 
         
 
              Mrs. Clifton stated that claimant had recovered fully from 
 
         the December, 1981 shoulder injury at some point in time in early 
 
         1982, approximately two or three months after the injury 
 
         occurred.
 
         
 
              Defendants' exhibit B is a collection of records and reports 
 
         dealing with the back problems claimant encountered in early 
 
         1986.
 
         
 
         
 
         
 
              When Dr. Tiffin first began his involvement with claimant he 
 
         felt that x-rays taken on May 16, 1986, were interpreted as 
 
         showing an old compression deformity of the third lumbar vertebra 
 
         with a five millimeter osteophyte that was encroaching on the 
 
         spinal canal.  A CT scan confirmed the existence of the 
 
         osteophyte but found no disc herniation (Ex. B, page 7).  In 
 
         exhibit B at page 2, Dr. Tiffin discusses claimant's problem.  He 
 
         suggests that either the osteophyte was not present on February 
 
         18, 1981, and that it is the result of a reactive arthritis type 
 
         of process resulting from that injury or, the other possibility 
 
         is that the osteophyte was already present in 1981 as a result of 
 
         prior arthritic changes and that the injury that occurred was 
 
         similar to the one that occurred in May, 1986.  He was unable to 
 
         state which scenario was the more likely.  None of he other 
 
         x-rays referred to in the record note a compression fracture or 
 
         an osteophyte.
 
         
 
              Claimant seeks payment of the following medical expenses:
 
         
 
         Department of Public Aid, State of Illinois          $1,671.35
 
         James A. Shaw, D.C.                                   1,202.00
 
         The Brown Drug Company                                   53.70
 
         Earel & Buss Drugs                                       17.74
 
         Riley's Drug Store                                       10.85
 
         Charles M. Eaton, D.O.                                  390.00
 
         Bruce W. Johnson, M.D.                                   14.00
 
         St. Mary Hospital                                       138.60
 
                                       TOTAL                  $3,498.24
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The memorandum of agreement filed in this case conclusively 
 
         establishes that an employer/employee relationship existed and 
 
         that the claimant did sustain an injury which arose out of and in 
 
         the course of his employment   Trenhaile v. Quaker Oats Co., 228 
 
         Iowa 711, 292 N.W. 799 (1940).  It does not, however, establish 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   7
 
         
 
         
 
         the nature or extent of disability.  Freeman v. Luppes Transport 
 
         Company, Inc., 227 N.W.2d 143 (Iowa 1975).  It is not necessary 
 
         to show a change of condition in order to review the adequacy of 
 
         the payments made under the memorandum of agreement.  Majorado v. 
 
         Caterpillar Tractor Co., 1-1 State of Iowa-Industrial 
 
         Commissioner Decision 168 (1984).  The only occurrence of injury 
 
         asserted by claimant is the injury he sustained while attempting 
 
         to align pipe.  There is no evidence in the record of claimant 
 
         sustaining any other injury on February 18, 1981.  When claimant 
 
         was seen at the emergency room on February 18, 1981, the history 
 
         includes report of pain in the right lower quadrant and the 
 
         physical examination indicates what is reported as slight 
 
         epigastric tenderness in the abdomen.  Dr. Brenner diagnosed 
 
         claimant's condition as a muscle strain in the right low 
 
         quadrant.  The
 
         
 
         report indicated that when it was made, February 24, 1981, the 
 
         doctor expected that claimant would be able to resume work on 
 
         March 2, 1981.  Claimant did not return to work.  Exhibit 20, 
 
         which bears the date of March 2, 1981, leaves blank the space 
 
         following questions 7, 8, 9 and 10 which deal with the time when 
 
         the claimant would be able to return to work.  At question 13 the 
 
         form indicates that claimant was improving slowly.  The form 
 
         shows that claimant had an office visit on March 3, 1981. It is 
 
         therefore clear that Dr. BrennerOs initial expectation of a 
 
         return to work on March 2, 1981 was incorrect and had been 
 
         changed.  Weekly compensation therefore extends beyond March 2, 
 
         1981.  The next evidence in the record from a medical 
 
         practitioner comes from Bruce W. Johnson, M.D., in his report of 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   8
 
         
 
         
 
         June 19, 1981 (Ex. 19).  Claimant indicated that he had been 
 
         under conservative treatment following the time when Dr. Brenner 
 
         to him off work.  Dr. Brenner's records that are in evidence give 
 
         no indication of what type of treatment was utilized during the 
 
         three months following March 2, 1981.  There is likewise no 
 
         concrete medical evidence which conflicts with claimant's 
 
         description of his treatment.  Dr. Johnson found claimant to 
 
         exhibit tenderness in the right lower quadrant that extended into 
 
         his lower back.  He felt that claimant had arthritis and 
 
         spondylosis which had been aggravated by claimant's work and were 
 
         responsible for claimant's pain.  Dr. Eaton examined claimant in 
 
         June, 1981, and observed muscle spasm.  He felt that there was a 
 
         definite connection between the injury of February 18, 1981 and 
 
         the condition for which he treated claimant (Ex. 18).  Although 
 
         there appear to be no records in evidence which show the precise 
 
         date that any physician released claimant to return to work, he 
 
         did make an actual return to work on July 27, 1981.  Accordingly, 
 
         claimant's first healing period ended on July 26, 1981.
 
         
 
              Claimant worked until the last part of December, 1981, when 
 
         he injured his shoulder.  Claimant apparently did little in the 
 
         way of seeking medical care until he was examined by Jerry L. 
 
         Jochims, M.D., on September 7, 1982.  Dr. Jochims, an orthopedic 
 
         surgeon, felt that claimant's symptoms were related to a hernia 
 
         and not to anything that was wrong in claimant's back.  Dr. 
 
         Jochims felt that the hernia was causally related to the accident 
 
         of February 18, 1981.  He suggested that claimant seek surgical 
 
         treatment and if there was any problem in obtaining treatment, 
 
         that claimant seek assistance from him.  Claimant went 
 
         approximately a year thereafter before he arranged treatment for 
 
         the hernia through the Illinois Department of Public Aid and 
 
         David B. Drennan, M.D.  Claimant never requested assistance from 
 
         Dr. Jochims.  The surgery was performed October 28, 1983 and, 
 
         according to claimant's testimony and indications from Dr. 
 
         Drennan (Ex. 14), there is little, if any, permanent disability 
 
         resulting from the hernia.  The report indicates that claimant 
 
         was restricted from lifting for eight weeks following the surgery 
 
         which was performed on October 28, 1983.  Additional healing 
 
         period which runs from October 28, 1983 through December 22, 1983 
 
         is allowed.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 18, 1981 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).
 
         
 
              Claimant's description of his injury involved a complaint of 
 
         pain in the right lower quadrant of his body.  Dr. Brenner 
 
         diagnosed an injury of the right lower quadrant.  Dr. Johnson 
 
         observed tenderness in the right lower quadrant.  Dr., Jochims 
 
         diagnosed the hernia and felt that it was related to the accident 
 
         that claimant had described (Ex. 15).  An activity of the type 
 
         which claimant described as producing the injury is certainly the 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page   9
 
         
 
         
 
         type of straining which could be expected to produce a hernia.  
 
         In view of the prompt, continuing complaints, early medical 
 
         diagnoses (albeit incorrect), the diagnosis and opinion regarding 
 
         proximate cause from Dr. Jochims, the surgical treatment which 
 
         apparently confirmed the hernia diagnosis and repaired the 
 
         defect, and claimant's testimony that the surgery resolved that 
 
         portion of his complaints all fit together to establish that 
 
         claimant did suffer the hernia on February 18, 1981 in the 
 
         accident which he described.
 
         
 
              After the hernia was repaired, claimant was seen on one 
 
         occasion by Kent W. Barber, M.D.  Dr. Barber interpreted x-rays 
 
         taken November 7, 1983, as showing borderline narrowing of the 
 
         L-4 interspace with minimal chronic degenerative arthrosis and 
 
         equivocal narrowing of the L4, L5 interspace (Ex. 13).  Dr. 
 
         Barber stated that claimant obviously did have some sensory loss 
 
         of his right sciatic nerve which presumable followed either the 
 
         back injury in 1972 or the one which had occurred two years 
 
         earlier (Ex. 12).  There is nothing in the record to indicate 
 
         that claimant had sought any medical care after he saw Dr. Barber 
 
         until early 1986 when he suffered an excerbation while attempting 
 
         to break concrete with a sledge hammer.  He apparently had been 
 
         getting along reasonably well up until that incident (Ex. B).  
 
         Radiographic studies have shown the existence of an old 
 
         compression deformity in the third lumbar vertebra with an 
 
         osteophyte that encroaches on the spinal canal but they do not 
 
         show any disc herniation.  Dr. Tiffin was unable to state whether 
 
         the osteophyte, which appears to be the source of claimant's 
 
         sciatic nerve problem, was in existence on February 18, 1981.  He 
 
         apparently feels that the osteophyte was either a reactive 
 
         arthritis type of process that resulted from the 1981 injury or, 
 
         on the other hand, the osteophyte was possibly in existence 
 
         previously and that the injury of February 18, 1981 produced 
 
         nerve impingement and pain with loss of function.  He suggests 
 
         that radiologic exams be reviewed in order to determine the 
 
         previous presence or absence of the osteophyte (Ex. B, p. 2).  No 
 
         such comparison or review appears to have been accomplished.  
 
         Nothing in the record refers to a compression fracture or 
 
         osteophyte prior to the 1986 radiographic studies.
 
         
 
              The injury producing activity which claimant described 
 
         consisted primarily of pulling with one arm while pushing with 
 
         the other.  That type of activity would not normally be expected 
 
         to produce a disc injury in the lower back and the diagnostic 
 
         studies which have been performed indicate that there is no disc 
 
         injury in claimant's lower spine.  The nerve root impingement in 
 
         this case appears to result from an osteophyte.  In June, 1981, 
 
         Dr. Johnson found claimant to be affected by arthritis and 
 
         spondylosis.  Stedman's Medical Dictionary, 24th Edition, defines 
 
         spondylosis as vertebral ankylosis.  It also states that the term 
 
         is often applied nonspecifically to any lesion of the spine of a 
 
         degenerative nature.  The same reference defines ankylosis as 
 
         stiffening or fixation of a joint as a result of a disease 
 
         process, with fibrous or bony union across the joint.  Dr. 
 
         Johnson characterized spondylosis as a congenital condition which 
 
         means that it preexisted February 18, 1981.  Radiographic studies 
 
         were conducted under the direction of Dr. Barber in 1983.  Up to 
 
         this point in time there was no reference to the existence of an 
 
         osteophyte although degeneration in claimant's lower lumbar spine 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page  10
 
         
 
         
 
         was noted.  The conditions noted by Dr. Barber and Dr. Johnson 
 
         are not dissimilar even though the descriptive words employed by 
 
         each of them are not identical.  It was not until the 1986 
 
         incident that the osteophyte and compression fracture were 
 
         identified.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (
 
         
 
              It is found that claimant had an ongoing degenerative 
 
         process in his spine that was aggravated in the injury that 
 
         occurred on February 18, 1981.  Claimant did, however, return to 
 
         work, albeit with complaints of discomfort, and he continued to 
 
         work until a subsequent injury struck him.  Claimant has failed 
 
         to prove that the injury of February 18, 1981 produced any 
 
         permanent disability or any permanent change in the course of the 
 
         preexisting degenerative condition in his spine.
 
         
 
         
 
              It is therefore found and concluded that the injury claimant 
 
         sustained on February 18, 1981 was a hernia and a temporary 
 
         aggravation of a preexisting degenerative condition in his spine.  
 
         The combination of those two conditions resulting from the injury 
 
         entitles claimant to temporary total disability compensation from 
 
         February 19, 1981 through July 26, 1981, a span of 22 4/7 is 
 
         found that claimant made no further significant weeks.  It 
 
         improvement, and that none was medically indicated, subsequent to 
 
         July 26, 1981, until he entered the hospital for surgery on 
 
         October 28, 1983.  Claimant is entitled to additional temporary 
 
         total disability running from October 28, 1983 through December 
 
         22, 1983 due to the correction of the hernia, a span of eight 
 
         weeks.
 
         
 
              Claimant is entitled to recover the expenses of care for 
 
         both conditions up to July 26, 1981 and for the hernia subsequent 
 
         thereto.  He is not entitled to recover expenses of care for his 
 
         back condition that were incurred subsequent to 1981., The 
 
         employer is responsible for payment of claimant's expenses at St. 
 
         Mary Hospital incurred on February 18, 1981 and June 16, 1981.  
 
         Conducting reasonable diagnostic tests is part of providing 
 
         reasonable medical care, even though the tests may ultimately 
 
         show the complaints to not be related to the work injury.  Pote 
 
         v. Mickow Corp., 694639 (Review-Reopening Decn. June 17, 1986).  
 
         The same reasoning makes the employer responsible for claimant's 
 
         expenses with Bruce W. Johnson, M.D. and Charles M. Eaton, D.O. 
 
         Dr. Eaton's charges continue on through December 18, 1981.  It 
 
         was not unreasonable for claimant to continue seeing Dr. Eaton 
 
         following his return to work since he was still having 
 
         complaints.  Claimant is not responsible for the medical 
 
         practitioners' failure to promptly diagnose the hernia condition.  
 
         Exhibit 5 is for a prescription for an expectorant for a cough.  
 
         Such is not shown to have any bearing to claimant's industrial 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page  11
 
         
 
         
 
         injury.  The bills from The Brown Drug Company, Earel & Buss 
 
         Drugs and the other charge from Riley's are unable to be 
 
         connected to the industrial injury.      Of the charges shown on 
 
         exhibit 1, the charges to Blessing Hospital for October 27 and 
 
         31, 1983 are found to be related to the hernia and are therefore 
 
         the responsibility of the defendants.  The charges from Dr. 
 
         Drennan are likewise found to be related to the hernia and the 
 
         responsibility of the defendants.  The payments made to Dr. 
 
         Barber have not been shown to be related to the industrial injury 
 
         and are therefore not the responsibility of the employer.
 
         
 
              In summary, defendants are responsible for payment of the 
 
         following expenses:
 
         
 
              Blessing Hospital                   $1,346.35
 
              David B. Drennan, M.D.                 258.00
 
              Charles M. Eaton, D.O.                 390.00
 
              Bruce W. Johnson, M.D.                  14.00
 
              St. Mary Hospital                      138.60
 
                                      Total       $2,146.95
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Carl W. Clifton sustained a hernia on February 18, 1981 
 
         when he strained while attempting to align pipe.  The hernia 
 
         condition was not promptly diagnosed.  In that same incident he 
 
         also aggravated a preexisting degenerative condition in his 
 
         spine.
 
         
 
              2.  Following the injury claimant was unable to engage in 
 
         employment substantially similar to that he had engaged in at the 
 
         time of injury from February 19, 1981 until July 27, 1981 when he 
 
         returned to work.
 
         
 
              3.  Claimant suffered another injury with a different 
 
         employer in late December, 1981, and has not thereafter returned 
 
         to gainful employment.
 
         
 
              4.  The surgical treatment of the hernia left no permanent 
 
         physical impairment or permanent disability.
 
         
 
              5.  The aggravation of claimant's preexisting degenerative 
 
         spinal condition, that occurred on February 18, 1981, had no 
 
         further effect upon claimant following the end of December, 1981. 
 
          The problems which claimant continues to have with his spine 
 
         have not been shown to be related to the February 18, 1981 
 
         injury.  To the contrary, it appears most likely that they are a 
 
         part of the ongoing degenerative process which preexisted 
 
         February 18, 1981.
 
         
 
              6.  The medical expenses claimant incurred at Blessing 
 
         Hospital, with Dr. Drennan, Dr. Eaton, Dr. Johnson and St. Mary 
 
         Hospital were all fair and reasonable charges rendered for 
 
         services that were provided to claimant as reasonable and 
 
         necessary treatment for the injuries he sustained on February 18, 
 
         1981.
 
         
 
              7.  The employer did not designate a treating physician.
 
         
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page  12
 
         
 
         
 
              8.  The assessment made by Dr. Jochims, an orthopedic 
 
         surgeon, is adopted over conflicting opinions regarding 
 
         claimant's back.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled to receive compensation for temporary 
 
         total disability commencing February 19, 1981 and running through 
 
         July 26, 1981 and also commencing October 28, 1983 and running 
 
         through December 22, 1983.
 
         
 
         
 
              Claimant failed to show that he suffered any permanent 
 
         physical impairment or permanent impairment of his earning 
 
         capacity as a result of the injuries sustained on February 18, 
 
         1981.
 
         
 
              The injury of February 18, 1981 was a proximate cause of a 
 
         hernia and a temporary aggravation of a preexisting degenerative 
 
         condition in claimant's spine.
 
         
 
              Claimant is not entitled to receive any compensation for 
 
         permanent disability based upon the injury sustained on February 
 
         18, 1981.
 
         
 
              Where the employer fails to designate or select an 
 
         authorized physician, it cannot later complain that the care 
 
         selected by the employee was unauthorized.  Claimant is entitled 
 

 
         
 
         
 
         
 
         CLIFTON V. PROCESS PIPING COMPANY
 
         Page  13
 
         
 
         
 
         to recover $2,146.95 in section 85.27 benefits.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant thirty 
 
         and four-sevenths (30 4/7) weeks of compensation for temporary 
 
         total disability at the rate of three hundred eighteen and 09/100 
 
         dollars ($318.09) per week with twenty-two and four-sevenths (22 
 
         4/7) weeks thereof payable commencing February 19, 1981 and with 
 
         eight (8) weeks thereof payable commencing October 28, 1983.
 
         
 
              IT IS FURTHER ORDERED that defendants shall receive credit 
 
         for the two (2) weeks previously paid.  All past due amounts are 
 
         to be paid to claimant in a lump sum together with interest 
 
         pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         thousand one hundred forty-six and 95/100 dollars ($2,146.95) 
 
         under section 85.27 of the Code.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants.
 
         
 
              IT IS FURTHER ORDERED that defendants shall file claim 
 
         activity reports as requested by this agency.
 
         
 
         
 
              Signed and filed this 10th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         Sixth Floor, Burlington Bldg.
 
         P. 0. Box 517
 
         Burlington, Iowa 52601
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.10; 1402.30; 1801
 
                                                  1803; 2206; 2501; 2503
 
                                                  Filed February 10, 1987
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CARL W. CLIFTON,
 
         
 
              Claimant,
 
         
 
                                                      FILE NO. 663073
 
         VS.
 
                                                        R E V I E W -
 
         PROCESS PIPING COMPANY,
 
         
 
                                                     R E 0 P E N I N G
 
              Employer,
 
         
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.10; 1402.30; 1801; 1803; 2206; 2501; 2503
 
         
 
              Sixty-four year old claimant was found to have suffered a 
 
         hernia and to have aggravated a preexisting degenerative 
 
         condition in his spine.  The aggravation of his back was found to 
 
         be temporary because there was no medical evidence that clearly 
 
         showed a causal relationship.  The employer was not held 
 
         responsible for paying TTD between periods of active treatment.  
 
         Claimant failed to prove that continuing back problems were 
 
         related to the work injury.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ALLEN DOUGLAS HELMERS,
 
         
 
              Claimant,
 
         
 
         VS.                                            File No. 664580
 
         
 
         ALTRUCK FREIGHT SYSTEMS a/k/a
 
         PACIFIC CARRIERS,                                 A P P E A L
 
         
 
              Employer,                                  D E C I S I O N
 
         
 
         and
 
         
 
         TRANSPORT INDEMNITY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              Pursuant to an order entered May 20, 1987, the undersigned 
 
         was appointed to enter a final agency decision in this matter.  
 
         Defendants appeal from a proposed agency order of October 27, 
 
         1986 denying their application to set aside a final agency 
 
         decision filed August 21, 1986.
 
         
 
              The record consists of the appendix and briefs of the 
 
         parties.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether the defendants are entitled 
 
         to a hearing on the merits as regards their motion to set aside 
 
         their default.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's ruling correctly points out that this agency 
 
         has no contested case before it and the inapplicability of R.C.P 
 
         236 following a final agency decision.
 
         
 
              A review of the briefs further supports the deputy's order.
 
         
 
              WHEREFORE the proposed order is adopted as the final agency 
 
         order.
 
         
 
              Costs are taxed to the defendants.
 
         
 
              Signed and filed this 29th day of June, 1987.
 
         
 
         HELMERS V. ALTRUCK FREIGHT SYSTEMS
 
         Page 2
 
         
 
                                                
 
                                                         
 
         
 
                                          STEVEN E. ORT
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W.H. Gilliam
 
         Attorney at Law
 
         1600 West Fourth Street
 
         Waterloo, Iowa 50701
 
         
 
         Mr. Thomas C. Farr
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     2906
 
                                                     Filed June 29, 1987 
 
                                                     Appeal Decision 
 
                                                     STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN DOUGLAS HELMERS,
 
         
 
              Claimant,
 
         
 
         VS.                                           File No. 664580
 
         
 
         ALTRUCK FREIGHT SYSTEMS a/k/a
 
         PACIFIC CARRIERS,                              A P P E A L
 
         
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         TRANSPORT INDEMNITY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2906
 
         
 
              Defendants appealed an order denying a motion to set aside a 
 
         default more than 20 days after deputy's hearing decision.  
 
         Deputy's decision affirmed.