BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CHARLES E. MC BIRNIE,
 
        
 
            Claimant,                   File Nos. 692457, 700671
 
                                                   756245, 756247
 
        
 
        vs.                                   A P P E A L
 
        
 
        OSCAR MAYER & COMPANY,              D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a review-reopening decision awarding him 25 
 
        weeks of permanent partial disability benefits for his right arm 
 
        and 25 weeks of permanent partial disability for his left arm but 
 
        denying benefits for a back condition either from a specific 
 
        injury of March 1983 or from a cumulative injury during August - 
 
        September 1983. The record on appeal consists of the transcript 
 
        of the review-reopening hearing and joint exhibits 1 through 26. 
 
        Neither party filed a brief on appeal.
 
        
 
                                      ISSUES
 
        
 
        This appeal will be considered generally without specified 
 
        errors.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the review-reopening decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the deputy in conjunction with the issues and 
 
        evidence presented is adopted.
 
        
 
        The findings of fact, conclusions of law and order of the deputy 
 
        in the review-reopening decision dated March 31, 1988 are adopted 
 
        herein.
 
        
 
        MC BIRNIE V. OSCAR MAYER & COMPANY
 
        Page 2
 
        
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant's conditions in his upper extremities are the result 
 
        of cumulative traumatic injury and are not disease processes.
 
        
 
        2. Claimant had a decompression of the right carpal and ulnar 
 
        tunnels and of the ulnar nerve at the right elbow on January 18, 
 
        1982. Claimant had decompression of the median and ulnar nerves 
 

 
        
 
 
 
 
 
        of the left wrist and of the ulnar nerve at the left elbow on 
 
        March 10, 1982. Claimant had a lateral epicondylitis surgery on 
 
        April 25, 1983.
 
        
 
        3. Claimant performed repetitive movement of his upper 
 
        extremities on his job; such repetitive movement culminated in 
 
        his carpal, cubital and ulnar conditions.
 
        
 
        4. Claimant's conditions in his upper extremities are evaluated 
 
        under the schedule and not industrially.
 
        
 
        5. Drs. Wirtz, Walker and Grundberg are all respected, 
 
        board-certified orthopaedic surgeons.
 
        
 
        6. Dr. Grundberg is a member of the American Society for Surgery 
 
        of the Hand.
 
        
 
        7. Dr. Grundberg was claimant's treating physician for claimant's 
 
        extremity problems and performed claimant's right and left 
 
        surgical releases and his epicondylitis surgery.
 
        
 
        8. Drs. Wirtz and Walker examined claimant only and lack 
 
        additional expertise in hand conditions.
 
        
 
        9. Claimant is moderately restricted as to reaching out with one 
 
        or both arms and as to grasping, holding, turning or handling an 
 
        object with the fingers.
 
        
 
        10. Claimant sought treatment for back spasm on various occasions 
 
        from 1968 onward.
 
        
 
        11. Claimant began work at Oscar Mayer in 1969.
 
        
 
        12. It is unclear whether claimant had a specific work incident 
 
        on March 2, 1983 or experienced pain while performing his regular 
 
        work duties.
 
        
 
        13. Claimant had physical therapy at Dallas County Hospital for a 
 
        period beginning March 14, 1983 to relieve his back condition.
 
        
 
        14. Claimant was off work from April 25, 1983 to August 1, 1983 
 
        following his epicondylitis surgery.
 
        
 
        15. Claimant's back continued to ache while he was off
 
        
 
        MC BIRNIE V. OSCAR MAYER & COMPANY
 
        Page 3
 
        
 
        
 
        work.
 
        
 
        16. Claimant did exercises and used hot soaks to relieve his 
 
        condition while he was off work.
 
        
 
        17. Claimant returned to work on August 1, 1983.
 
        
 
        18. Claimant worked on the Boston butt boning line.
 
        
 
        19. Claimant boned butts with weights of from 7 3/4 pounds to 15 
 
        pounds.
 
        
 
        20. Workers were expected to bone 42 butts per hour.
 
        
 
        21. Coworkers assisted claimant in making his production quotas 
 
        following his extremity surgeries. Claimant was boning 
 
        approximately 30 percent of quota after claimant's August 1, 1983 
 

 
        
 
 
 
 
 
        work return.
 
        
 
        22. The boning area floor has a one-fourth inch per foot slope to 
 
        the drain.
 
        
 
        23. Federal regulations require a one-eighth inch to one-fourth 
 
        inch slope in meat packing facilities.
 
        
 
        24. With proper back use, a one-fourth inch floor slope should 
 
        not produce back problems.
 
        
 
        25. Claimant last worked for Oscar Mayer on Friday, September 9, 
 
        1983.
 
        
 
        26. Claimant was off work Monday and Tuesday, September 12 and 
 
        13, 1983 on account of a sore throat.
 
        
 
        27. On Monday, September 12, 1983, claimant was ready to return 
 
        to work as regards his back.
 
        
 
        28. On Tuesday, September 13, 1983, in the afternoon while 
 
        sitting on his sofa at home, claimant experienced severe back 
 
        spasm for which he was subsequently hospitalized.
 
        
 
        29. Claimant's back spasm at home on September 13, 1983 was 
 
        remote in time from his work at Oscar Mayer.
 
        
 
        30. Dr. Rouse was unfamiliar with claimant's work conditions as 
 
        claimant described those conditions.
 
        
 
        31. At hearing, claimant appeared to exaggerate the difficulties 
 
        in his work conditions.
 
        
 
        32. The hypothetical question placed to Dr. Boulden was 
 
        inconsistent with claimant's actual job duties and claimant's 
 
        actual job performance.
 
        
 
        MC BIRNIE V. OSCAR MAYER & COMPANY
 
        Page 4
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant is entitled to permanent partial disability resulting 
 
        from his upper extremities conditions of ten percent of the right 
 
        arm and ten percent of the left arm.
 
        
 
        Claimant has not established a back condition which arose out of 
 
        and in the course of his employment, either by way of a specific 
 
        work injury of March 1983 or by way of a cumulative injury during 
 
        August - September, 1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay claimant permanent partial disability benefits 
 
        for twenty-five (25) weeks on account of his right arm and for 
 
        twenty-five (25) weeks on account of his left arm at the rate of 
 
        two hundred fifty-six and 58/100 dollars ($256.58) per week with 
 
        those benefits to commence August 1, 1983.
 
        
 
        That defendant pay accrued amounts in a lump sum.
 
        
 

 
        
 
 
 
 
 
        That defendant pay interest pursuant to Iowa Code section 85.30.
 
        
 
        That defendant pay the costs for the review-reopening proceedings 
 
        in file numbers 692457 and 700671 pursuant to Division of 
 
        Industrial Services Rule 343-4.33.
 
        
 
        That claimant take nothing from proceedings in file numbers 
 
        756245 and 756247.
 
        
 
        That claimant pay the costs for the review-reopening proceedings 
 
        in file numbers 756245 and 756247 pursuant to Division of 
 
        Industrial Services Rule 343-4.33.
 
        
 
        That claimant pay the costs of the appeal including costs of 
 
        transcription of the review-reopening proceedings.
 
        
 
        That defendant file claim activity reports as requested by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 26th day of October, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES E. MCBIRNIE,
 
                                           File Nos.  692457, 700671
 
              Claimant,                               756245, 756247
 
         
 
         vs.                                            R E V I E W  
 
         
 
         OSCAR MAYER & COMPANY,                      R E 0 P E N I N G
 
         
 
              Employer,                               D E C I S I 0 N
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in review-reopening brought by the 
 
         claimant, Charles E. McBirnie, against his self-insured employer, 
 
         Oscar Mayer & Company, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of injuries sustained or 
 
         allegedly sustained on July 1, 1979, March 15, 1981, March, 1983, 
 
         and August 1, 1983 through September 12, 1983, respectively.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner at Des Moines, Iowa on June 11, 1987.  A 
 
         first report of injury was filed on January 25, 1982 regarding 
 
         the July 1, 1979 injury; on April 23, 1982 regarding the March 
 
         15, 1981 injury; on April 25, 1985 regarding the March, 1983 
 
         alleged injury; and, on April 25, 1985 regarding the 
 
         August-September, 1983 alleged injury, respectively.  The parties 
 
         stipulated that claimant has been paid 16.25 weeks of benefits as 
 
         regards the July 1, 1979 injury and 12.5 weeks of benefits as 
 
         regards the March 15, 1981 injury.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of Julie Ann McBirnie, of Dan Severns, of Brenda 
 
         Goeden, of Cecilia O'Brien and of Phil Schumacher as well as of 
 
         exhibits 1 through 26, all offered jointly.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rates of weekly compensation are:  $256.58 as 
 
         regards the July 1, 1979 and the March 15, 1981 injuries; $278.09 
 
         as regards the March, 1983 injury; and, $260.19 as regards the 
 
         August-September, 1983 injury.  The parties further stipulated 
 
         that medical costs were fair and reasonable and that claimant did 
 
         receive injuries which arose out of and in the course of his 
 
         employment on July 1, 1979 and March 15, 1981.  The parties 
 
         further stipulated that a causal relationship exists between
 
         those injuries and temporary total disability or healing period 
 
         previously paid as outlined above.  The parties stipulated that 
 
         claimant was entitled to five weeks of temporary total or healing 
 
         period as regards the July 1, 1979 injury and 20 weeks of 
 
         temporary total or healing period disability benefits as regards 
 
         the March 15, 1981 injury.  They further stipulated that 
 
         defendant is to receive credit for benefits previously paid as 
 
         set forth above.  The parties stipulated that the commencement 
 
         date for additional benefits, if any are due for permanent 
 

 
         partial disability as regards the July 1, 1979 and March 15, 1981 
 
         injuries, is August 1, 1983.  As regards the July 1, 1979 and 
 
         March 15, 1981 injuries, the issue remaining to be decided is the 
 
         nature and extent of benefit entitlement as to permanent partial 
 
         disability with the dispute being as to whether claimant is 
 
         entitled to scheduled member benefits under Chapter 85 or 
 
         occupational disease benefits to be evaluated industrially under 
 
         Chapter 85A.
 
         
 
              As regards the March, 1983 and August-September, 1983 
 
         alleged injuries, the issues remaining to be decided are:
 
         
 
              Whether the injuries arose out of and in the course of 
 
         claimant's employment;
 
         
 
              Whether a causal relationship exists between the alleged 
 
         injuries and claim disability;
 
         
 
              Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement; and,
 
         
 
              Whether claimant is entitled to payment of medical costs.
 
         
 
              Apparently, a Chapter 85B issue remains to be decided in a 
 
         bifurcated hearing.
 
         
 
              As regards the July 1, 1979 and March 15, 1981 injuries, 
 
         claimant contends that the injuries are occupational diseases 
 
         and that claimant should be compensated for loss of earning 
 
         capacity as a result of the injuries or, alternately, that 
 
         claimant is entitled to additional permanent partial disability 
 
         to scheduled members as a result of the injuries.  Defendant 
 
         asserts that the injuries are to a scheduled member only.
 
         
 
              As regards the alleged injuries of March, 1983 and 
 
         August-September, 1983, claimant contends either a specific 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   3
 
         
 
         
 
         injury on approximately March 2, 1983 to claimant's back which 
 
         arose out of and in the course of claimant's employment or 
 
         cumulative injuries to claimant's back which have caused 
 
         claimant to be disabled since approximately September 12, 1983.  
 
         Defendant denies that claimant has injuries or disability to 
 
         his back and indicates that claimant's low back condition 
 
         results from a cause or causes totally unconnected to work.  
 
         Claimant contends and defendant denies that the odd-lot 
 
         doctrine applies to claimant in this case.  The pre-hearing 
 
         assignment order does not designate the issue of whether 
 
         claimant is an odd-lot employee under the Guyton doctrine as an 
 
         issue that was to be tried in this case.  Likewise, the 
 
         pre-hearing conference notes do not designate the odd-lot 
 
         doctrine as having been discussed at pre-hearing conference.
 
         
 
         REVIEW OF THE EVIDENCE
 
         
 
              Claimant was born in March, 1946.  He left high school 
 
         without graduating and obtained a GED in 1985.  He has had some 
 
         prior work experience driving a semi-truck after completing a 
 
         truck driver training school as well as experience as a welder, 
 
         greenhouse worker and factory laborer before beginning work at 
 
         Oscar Mayer in July, 1969.  Claimant initially worked at various 
 
         Oscar Mayer jobs on the kill floor including bagging meat, as 
 
         well as working at the viscera table, the shaving line and the 
 
         bung room before beginning work in the boning department in 
 
         approximately 1972.  Claimant has been in the boning department 
 
         since that time.
 
         
 
              Claimant testified that he first developed problems with his 
 
         right hand in approximately 1980 or 1981 for which he saw Robert 
 
         F. Deranleau, M.D., the company doctor.  He reported that Dr. 
 
         Deranleau referred him to Arnis Grundberg, M.D., who subsequently 
 
         performed right hand and elbow surgery in early 1982.  Dr. 
 
         Grundberg performed left arm surgery approximately six weeks 
 
         later.  Claimant reported that he was released for light-duty 
 
         work with a subsequent full-duty work return.  Claimant testified 
 
         that co-workers had to help him meet his production quotas once 
 
         he was released to full duty and that he subsequently had 
 
         problems with numbness, tingling and aching of his palms and 
 
         elbows on the right.  He reported similar, but not as severe, 
 
         left arm complaints.  Claimant reported that, on April 25, 1983, 
 
         an epicondylitis surgery was performed on the right and that he 
 
         was off work until August, 1983.  Claimant testified that he was 
 
         running approximately "30 percent" on his work return, but that 
 
         he has not worked at Oscar Mayer since September, 1983.  Claimant 
 
         indicated that he currently has problems with numbness and 
 
         weakness in his hands as well as elbow aching.  He indicated he 
 
         cannot grasp pencils, door knobs, styrofoam cups or drinking 
 
         glasses.  He reported that he has difficulty picking up coins, 
 
         sorting dollar bills and turning newspaper and magazine pages.
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   4
 
         
 
         
 
         
 
              Claimant asserted that he had had upper back problems prior 
 
         to March, 1983 consisting of pleurisy and muscle spasm between 
 
         the shoulder blades.  He attributed those problems to blading in 
 
         front of a blower and to reaching across the boning table to grab 
 
         meat.  Claimant did not recall having had muscle spasm in his 
 
         shoulder in June, 1980.  He denied that a hospitalization in 
 
         August, 1980 was related to low back muscle spasm.  Claimant 
 
         testified that he had slipped on fat in the locker room on 
 
         approximately July 5, 1979 and had slipped on steps on his way to 
 
         the Oscar Mayer lunch room in July, 1982, but could not recall 
 
         having seen Wayne E. Rouse, M.D., for acute low back problems in 
 
         1968.
 
         
 
              In March, 1983, claimant was boning Boston butts.  The 
 
         unprocessed product comes to the worker on a conveyor belt.  
 
         Claimant variously described the procedure for acquiring product 
 
         from the belt as involving turning and ducking under an upper 
 
         level conveyor, reaching and grasping the meat and,then pulling 
 
         the meat onto the [boning] table.  He described the maneuver of 
 
         turning variously as involving a "twist at the waist" or turning 
 
         the hips at an angle sideways in order to reach the meat.  The 
 
         product is boned and processed and commercial parts are placed in 
 
         a plastic, dishpan-like tote which is pushed onto the conveyor.  
 
         Bones and other debris are placed in a bucket.  Claimant reported 
 
         that more twisting and reaching was required at his work station 
 
         than would have been required of a worker on the opposite side of 
 
         the table.  Claimant stated that the video of the picnic boning 
 
         line in evidence shows the opposite side of the line where 
 
         workers face the meat and, hence, was different from his own work 
 
         situation.  Claimant reported that he was generally third, fourth 
 
         or fifth in line and that persons nearer to the top of the line, 
 
         such as he, would generally have a greater quantity of product as 
 
         well as a better quality of product to debone.
 
         
 
              Claimant described the average weight of a butt as from 7-15 
 
         pounds, stating that seven was probably too low.  He reported 
 
         that sometimes the weights were greater than 20 pounds.  Claimant 
 
         indicated that, on Mondays, butts were stiffer, colder and drier 
 
         as they had been in the cooler all weekend.  Claimant testified 
 
         that the boning department temperature was from "real cold" to 
 
         approximately 50 degrees and that he was required to work on a 
 
         brick floor which was wet and sloped towards the drains.
 
         
 
              Claimant reported back ache and spasm on March 2, 1983.  He 
 
         reported to first aid and was given muscle relaxants.  He 
 
         subsequently saw Dr. Deranleau on March 7, 1983.  The doctor 
 
         apparently prescribed hot soaks, exercise and, as of March 14, 
 
         1983, physical therapy at the Dallas County Hospital.  Claimant 
 
         was taking muscle relaxers for his hands and arms at that time.  
 
         He testified he really was not worried about his back as he was 
 
         "scared" about his hands.  Claimant was off work from his 
 
         epicondylital surgery on April 25, 1983 until on August 1, 1983; 
 
         he reported his back continued to ache during that period, but he 
 
         did exercises and soaked in a tub for the back ache.  Claimant 
 
         said that, following his work return in August, 1983, his  back 
 
         would bother him by the end of the week.  He reported that he was 
 
         off following the weekend on Monday and Tuesday, September [12 
 
         and 13], 1983 as he had a sore throat, although, as far as his 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   5
 
         
 
         
 
         back was concerned, he could have returned to work on Monday.  
 
         Claimant testified that, on Tuesday, while sitting on his couch 
 
         at home, he developed severe back pain.  He was subsequently 
 
         hospitalized for 18 days with treatment by Dr. Rouse, his family 
 
         physician for the past 23 years.  Claimant reported that Dr. 
 
         Rouse subsequently referred him to Dr. Grundberg and Robert 
 
         Gitchell, M.D., as well as Stuart Winston, M.D.  Claimant has 
 
         also seen Peter Wirtz, M.D., and William R. Boulden, M.D., on 
 
         account of his back.  Claimant testified that he told "Kay" that 
 
         he wanted to see Dr. Grundberg for his back.
 
         
 
              Claimant testified that his back currently aches continually 
 
         and that he has worsening muscle spasm.  He testified that he was 
 
         hospitalized for muscle spasm in December, 1986.  Claimant 
 
         reported a "constant weird feeling" in his right leg with 
 
         complete numbness to the knee at times.  Claimant testified that 
 
         his spasm may become so severe that, if he does not deal with it 
 
         immediately, he will be in bed for three of four days.  Claimant 
 
         reported he takes Motrin, Tylenol with codeine, an analgesic and 
 
         two aspirins a day as well as Advil for his back pain.  Claimant 
 
         indicated that his back pain is now worse than it was when he was 
 
         at the vocational rehabilitation center in Des Moines.  Claimant 
 
         reported that, at hearing, his weight was approximately 200 
 
         pounds and that he had weighed around 218 pounds in September, 
 
         1983.
 
         
 
              Claimant reported a conversation with Phil Schumacher, 
 
         personnel director for Oscar Mayer at Perry, following Dr. 
 
         Wirtz's deposition of June, 1985.  Claimant indicated that he 
 
         subsequently contacted state vocational rehabilitation.  He 
 
         testified that they sent him home as "they couldn't do anything 
 
         for me."  Claimant agreed that they had suggested pain center 
 
         treatment; claimant then reported that the vocational 
 
         rehabilitation personnel told claimant he would not be accepted 
 
         for pain center treatment after he had dealt with the pain on his 
 
         own for six months as it was then "too hard to break existing 
 
         patterns.O  Claimant agreed that vocational rehabilitation 
 
         personnel had told him he may have been depressed.  Claimant 
 
         asserted that he had had a pretty mild depression and was "mad" 
 
         and "real disappointed."  Claimant testified that he is currently 
 
         receiving Social Security disability benefits and that, at time 
 
         of hearing, had recently been recertified as eligible.  Claimant 
 
         reported that Dr. Walker's examination had lasted approximately 
 
         5.5 hours and had included both the taking of measurements and 
 
         grip and strength testing.
 
         
 
              Julie Ann McBirnie, claimant's wife of 23 years, 
 
         substantiated claimant's testimony as regards his life activity 
 
         restrictions and continuing problems with muscle spasm.
 
         
 
              Phil Schumacher testified that claimant was terminated at 
 
         Oscar Mayer under a clause in the union contract stating that any 
 
         absence in excess of 18 months would result in termination of 
 
         employment.  Schumacher testified that Oscar Mayer has a policy 
 
         against rehiring previous employees.  He reported that, for that 
 
         reason, claimant would not be rehired at Oscar Mayer if he did 
 
         apply for work, although the plant has hired persons with 
 
         claimant's kinds of conditions.  He indicated there are pork 
 
         plants other than Oscar Mayer in Iowa.
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   6
 
         
 
         
 
         
 
              Mr. Schumacher reported that exhibit 2 is a video tape of a 
 
         long shot of the picnic boning conveyor line.  He reported that, 
 
         in the current operation, Boston butts are not asided into totes 
 
         and therefore a video of the picnic line was made as it was 
 
         identical to the layout of the butt line and was very similar to 
 
         the 1983 butt boning procedure.  Mr. Schumacher testified that 
 
         picnic boning pieces are somewhat heavier than butt boning 
 
         pieces.  The video was viewed by the undersigned.
 
         
 
              Schumacher indicated that the plant floor drops one-fourth 
 
         inch in elevation per foot towards the drains as required by 
 
         federal regulation.
 
         
 
              Schumacher indicated that, on February 7, 1983, a notice of 
 
         the Perry Oscar Mayer plant closing was posted.  The plant has 
 
         been able to stay open on two different occasions subsequent to 
 
         that posting.  Schumacher indicated that OSHA has not issued a 
 
         citation relative to claimant's complaint regarding the plant's 
 
         boning operation.
 
         
 
              Mr. Schumacher assumed that Dr. DeranleauOs services in 
 
         March, 1983, as well as the services for physical therapy at 
 
         Dallas County Hospital were paid as a workers, compensation 
 
         claim.
 
         
 
              Mr. Schumacher reported that the company doctor would make 
 
         the determination as to whether prescription drugs should be 
 
         given an employee; the employee would decide whether they needed 
 
         their hands wrapped.  Mr. Schumacher reported that there are 
 
         currently a total of 10 inside-out ham boners at the Oscar Mayer 
 
         plant.  He indicated the job description provided defense counsel 
 
         and Dr. Bolden accurately described their present duties and 
 
         that, in addition, they would train individuals on new methods of 
 
         boning, apparently piece boning, with less than 50% of their time 
 
         spent on actual inside-outside ham boning.  Schumacher reported 
 
         that the patch skin and bone picnics job is still available at 
 
         Oscar Mayer, but reported that the job does not exist as 
 
         described in the April 18, 1972 job description in that the 
 
         duties of taking off the patch skin and blood clots, bruises and 
 
         hair roots is now performed by individuals other than the picnic 
 
         boners.  He reported that the service boning conveyors, or 
 
         electric truck job, is not available as described in that, while 
 
         the physical demands remain the same, a common service pool of 
 
         workers for both picnics and hams is no longer used as the two 
 
         operations are now performed on different floors.  He reported 
 
         that the job of service line boning no longer exists.
 
         Schumacher reported that piece ham boning has been performed at 
 
         Oscar Mayer from approximately May or June, 1983.
 
         
 
              Schumacher recalled a conversation with claimant of June, 
 
         1985 in which claimant told Schumacher claimant was going to come 
 
         back to work as Dr. Wirtz had indicated in a deposition that 
 
         claimant was capable of returning to work with no restrictions.  
 
         Schumacher reported that he advised claimant that claimant was 
 
         off work under the care of Dr. Rouse and that claimant could not 
 
         return to work until he had a written release from Dr. Rouse.
 
         
 
              Schumacher testified that temperatures in the area where 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   7
 
         
 
         
 
         hams are boned would be under 50 degrees, but would "bump up 
 
         pretty close to that.O  He indicated that the floor in the area 
 
         is wet from time to time throughout the day and that there are 
 
         cooling units on the sides of the floor which can create drafts, 
 
         although he was uncertain that there would be drafts in 
 
         individual work stations.  Schumacher opined that, of 
 
         approximately 150 boners in the plant, approximately 20 have in 
 
         excess of 15 years seniority.
 
         
 
              Dan Severns is a supervisor in industrial engineering at the 
 
         Oscar Mayer plant in Perry.  He has had prior work experience as 
 
         an industrial engineer and has attended ergonomics and other 
 
         related seminars.  Mr. Severns indicated he was familiar with the 
 
         butt boning operation in 1983.  Severns reported that 85% of 
 
         rough butts were from light hogs weighing approximately 7 3/4 
 
         pounds and 15% were from heavy hogs weighing approximately 11 1/2 
 
         to 12 pounds with the heaviest weights being approximately 16 
 
         pounds.  Severns reported that, in the boning operation, the 
 
         bone, gristle and skin are discarded and the boneless butt, the 
 
         blade meat and the plate fat are reserved in the tote.  He 
 
         indicated that the net weight in a tote would be approximately 
 
         85% of the total weight from the table.  The tote standard is 
 
         boneless meat from seven butts or approximately 40 pounds.  Once 
 
         the tote is filled, the worker turns slightly to the left and 
 
         pushes the tote up a 22 degree incline onto another conveyor.  
 
         The work standard for light butts would be 42 units per hour with 
 
         seven butts in a tote.  Therefore, Severns testified that a 
 
         worker would deal with slightly over six totes per hour with hie 
 
         totes per day totalling 6 plus multiplied by 7.67 hours.  Severns 
 
         reported that, when claimant was boning, the operation was a 
 
         rough butt boning operation, whereas now the operation is a 
 
         Boston butt boning operation.  He explained that Boston butts are 
 
         now not placed in the tote, but remain on the conveyor.  Severns 
 
         was unaware of the number of knife cuts required, but indicated 
 
         it was possibly as high as 50, although he was uncertain as to 
 
         whether it would have been between 50 and 75.  Severns agreed 
 
         that the greatest number of cuts would be required for the 
 
         leanest of the three grades of butts boned.  Severns reported 
 
         that occasionally a worker would need to reach across the four 
 
         foot wide conveyor to get a product as the product would be 
 
         beyond the conveyor's center, even though the attempt was to have 
 
         the product at the center.  Severns indicated he was confused as 
 
         to claimant's statement that turning [fully] in the work station 
 
         was not possible.  An 18-inch space exists between the cut board 
 
         and the back of the next work station.  He indicated a worker 
 
         should be able to turn within that space and [time] should have 
 
         been allowed for turning when boning job standards were 
 
         established.
 
         
 
              Severns reported that the jobs of boning hams inside out, of 
 
         patch skin boning, of service boning conveyor and of operating 
 
         electric truck now exist at Oscar Mayer although minor method 
 
         changes have taken place since 1983.  He reported that the 
 
         physical demands from such jobs remain basically the same as in 
 
         1983, however.  Severns reported that service loin boning is one 
 
         of the more physical jobs in the plant and reported that there is 
 
         no longer a loin boning operation at Oscar Mayer.  Severns 
 
         indicated that jobs at Oscar Mayer are coded by points to 
 
         indicate the pay scale for such jobs with a lower point total 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   8
 
         
 
         
 
         indicating the job requires less force or physical demand.  
 
         Ranges are from A for the lightest jobs to D for the heaviest 
 
         jobs.  Boning Boston butts is a code A job.  Boning hams inside 
 
         out is a code B job.
 
         
 
              Brenda Goeden testified that she is a vocational 
 
         rehabilitation specialist with a masters degree in personnel and 
 
         counseling with an emphasis on job development and placement.  
 
         She identified exhibit 22 as a VOCOMP output analysis.  She 
 
         described VOCOMP as a tool used to produce a listing of various 
 
         jobs a worker can physically perform.  The jobs supplied from 
 
         VOCOMP are based upon the profile supplied, including the 
 
         individual's work history, interests, aptitude, behavioral 
 
         patterns from his work history, vocational training, education 
 
         and physical capacities or restrictions.  Ms. Goeden reported 
 
         that a labor market survey would be done if a worker expressed an 
 
         interest in a job title supplied through the VOCOMP analysis 
 
         system.  Ms. Goeden reported that the data supplied the VOCOMP 
 
         computer for claimant included Dr. Grundberg's restrictions.  She 
 
         reported that average GATB scores were supplied the computer and 
 
         that vocational training and education was limited to 12 months.  
 
         Ms. Goeden reported that a total of 68 jobs were supplied through 
 
         the VOCOMP analysis.  It was not determined whether those jobs 
 
         were available in the locale.  Not all jobs required training 
 
         that could be completed within 12 months.  Ms. Goeden agreed that 
 
         all jobs might include some reaching, handling, fingering or 
 
         feeling.  Ms. Goeden reported that was not considered significant 
 
         as Dr. Grundberg had only moderately restricted claimant as 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page   9
 
         
 
         
 
         regards those activities.  She agreed that a labor market survey 
 
         would be required to determine the feasibility of any given job 
 
         for claimant.
 
         
 
              Cecilia O'Brien, R.N., testified that she is a vocational 
 
         rehabilitation specialist with Intracorp and has been such since 
 
         July, 1986.  Her prior work experience includes five and one-half 
 
         years as a Swift Independent Packing Company plant nurse.  Ms. 
 
         O'Brien testified that in that job she had worked with meat 
 
         packing workers as regards job modification and employee 
 
         restrictions or job transfers on account of employee 
 
         restrictions.  Ms. O'Brien reported she had contacted Oscar Mayer 
 
         and had visited the plant as well as having visited with Drs. 
 
         Grundberg and Boulden.  She reported she was aware of Dr. 
 
         Grundberg's restrictions on claimant and reported that Dr. 
 
         Boulden had placed no back or hand restrictions on claimant.  Ms. 
 
         O'Brien opined that claimant should not do a knife job given the 
 
         symptoms that he has and his problems with dexterity, feeling and 
 
         grasping.  She reported that Dr. Grundberg's weight limit should 
 
         also be considered and that claimant should work in a warm as 
 
         opposed to a cold environment.  Ms. O'Brien reported that packing 
 
         plant jobs she might consider for claimant included stun and 
 
         shackle hogs as that involved grasping large objects and not fine 
 
         motor skills, driving hogs, cutting the feet off hogs and yard 
 
         worker.  She reported that he could possibly work as a day 
 
         janitor or work pushing hogs into a cooler, although she would 
 
         have to check with Dr. Grundberg to see whether any weight limits 
 
         apply to pushing or pulling.  She reported that, in driving hogs, 
 
         some individuals use slappers, some use electric prods and others 
 
         simply "holler" at the hog.  She was unaware of whether Oscar 
 
         Mayer allowed workers latitude as to the method in which the 
 
         workers performed the job or whether they required the use of a 
 
         particular tool.  Ms. O'Brien agreed she had not viewed any of 
 
         the jobs described as performed at Oscar Mayer or reviewed the 
 
         Oscar Mayer job descriptions regarding any of the jobs.  Ms. 
 
         O'Brien testified that, while working at Swift, she had been 
 
         aware of workers with both carpal tunnel and ulnar tunnel who had 
 
         been hired by Swift.  She reported that bilateral carpal, cubital 
 
         and ulnar surgeries and epicondylitis surgery would not necessary 
 
         preclude employment although, as plant nurse, she would have 
 
         advised that the person would have trouble if placed in a knife 
 
         job.  Ms. O'Brien reported that, as plant nurse, if a job 
 
         applicant had had back spasm or other indication of back 
 
         problems, she would have sent them to the company doctor for 
 
         x-rays.  Ms. O'Brien opined that the ability to spell is not 
 
         indicative of intelligence.
 
         
 
              Kay Stokely, who has a Bachelor of Science degree in nursing 
 
         from the University of Iowa, testified she has been employed by 
 
         Oscar Mayer since 1969.  Nursing notes relative to claimant were 
 
         discussed.  An entry for June 2, 1980 reflects that claimant 
 
         called stating he would be under a doctor's care for one or two 
 
         weeks on account of massive muscle spasms in the neck, arms, 
 
         chest and back.  The note states "not work connected."  A note of 
 
         October 28, 1981 reflects that claimant came to the first aid 
 
         station on that date reporting a sore left arm and that an ACE 
 
         bandage was applied to the arm.  A note of March 4, 1983 reports 
 
         that "lower back better, both shoulders sore. ... Analgesic was 
 
         administered.O  An entry of March 28, 1983 indicates "right 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  10
 
         
 
         
 
         elbow, cannot fully extend.  Will see Dr. Grundberg April 5 at 
 
         3:00.  Back okay."  After claimant's work return of August 1, 
 
         1983, the balance of the entries do not report back pain.  She 
 
         reported that entries of August 2, 1983, August 3, 1983, August 
 
         4, 1983, August 9, 1983, August 18, 1983, August 19, 1983, August 
 
         23, 1983 and September 9, 1983 related to claimant's arm which 
 
         she characterized as including the wrist.  Ms. Stokely indicated 
 
         that her entry on claimant's employee attendance card for 
 
         September 12, 1983 indicated that claimant had called and 
 
         reported he would be under a doctor's care all week for sore 
 
         throat and back.  An entry of September 15, 1983 indicates that 
 
         claimant had called and stated he would be in the hospital the 
 
         rest of the week for back muscle spasm.  Ms. Stokely indicated 
 
         that in August, 1983, claimant was administered analgesic twice 
 
         and Darvon once.  She reported that she supposed that medication 
 
         taken for arm or wrist pain would also affect back pain for a few 
 
         hours.  Ms. Stokely stated that no physician had advised her that 
 
         claimant was off work for a work-related injury in September, 
 
         1983.
 
         
 
              Patricia Massengill had had 20 years of experience working 
 
         in the Dallas County Hospital and has worked at Oscar Mayer for 
 
         21 years.  She apparently is not a licensed practical nurse, but 
 
         has gained experience primarily from on-the-job training rather 
 
         than from formal education.  Ms. Massengill examined the first 
 
         aid station nurse's notes for her entries relative to claimant.  
 
         On September 28, 1981, claimant wanted his wrist wrapped.  On 
 
         March 2, 1983, claimant had a sore lower back with "twisting in 
 
         the middle of the back" for which he was given analgesic.  On 
 
         March 14, 1983 claimant's back was no better; claimant saw Robert 
 
         Deranleau, M.D., the company doctor.  Ms. Massengill had not seen 
 
         claimant after March 14, 1983.  Upon examining a "white card", 
 
         she reported that she had made a notation on August 15, 1983 of 
 
         "Pulled muscles in back", however.  She reported a similar 
 
         notation for August 16, 1983.  Neither notation referenced a work 
 
         injury. on September 12, 1983, and September 13, 1983, claimant 
 
         phoned and reported a sore throat.
 
         
 
              Thomas W. Bower is a physical therapist.  Bower reported 
 
         claimant had full range of motion of the hands and wrists and 
 
         that, under AMA guides, he would have no range of motion 
 
         impairment.  He reported that he understood two previous EMG's 
 
         done postsurgically were normal and that, on that basis, he would 
 
         assume the nerves were functioning normally and not contributing 
 
         to any further impairment.  Claimant's grip strength was recorded 
 
         through use of a dynamometer which measures force or torque 
 
         registered at five different positions.  Generally, minimal grip 
 
         strength is generated at the first and fifth positions with 
 
         maximum torque generated at the mid position or the third 
 
         position of the dynamometer.  Such should produce a bell-shaped 
 
         curve.  Bower reported that claimant's dynamometer test was 
 
         inconsistent in that it did not truly show a bell-shaped curve 
 
         once grip strength values were plotted.  Bower reported that 
 
         claimant's pinch grasp test also yielded questionable values in 
 
         that a wide variance of values existed.  He reported that, in 
 
         that test, the individual is asked to pinch another dynamometer 
 
         between the index finger and thumb over three successive trials.  
 
         Usually, there is a 5-10% difference between each successive 
 
         trial.  In claimant's case, there was a 40% variability on one 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  11
 
         
 
         
 
         side and a 30% variability on the other side.  Bower testified 
 
         that the dynamometer should give a valid result regardless of 
 
         whether the individual had a strong grip or a weak grip.  On 
 
         cross-examination, Mr. Bower indicated he was unaware that 
 
         claimant had cubital ulnar surgeries on both hands or that 
 
         claimant had had epicondylitis surgery.  Bower indicated he does 
 
         perform physical impairment ratings of backs and that, if 
 
         claimant had flexion of 30 degrees of the lumbar spine, that 
 
         would represent a 6% (impairment) and extension of 15 degrees 
 
         would represent a 1-2% (impairment).  He reported that there was 
 
         no impairment for lateral flexion right and left of 30 degrees.  
 
         Mr. Bower related that Dr. Grundberg had performed claimant's 
 
         left carpal, ulnar and cubital surgeries after an EMG of 1981 was 
 
         interpreted as normal.  He further agreed that, in evaluating 
 
         disability from the nerves, sensory deficit, pain, discomfort and 
 
         loss of strength are all taken into account even though several 
 
         of those are not measurable objectively.
 
         
 
              William R. Boulden, M.D., is a diplomat of the American 
 
         Board of Orthopaedic Surgery and a fellow of the American Academy 
 
         of Orthopaedic Surgeons.  Dr. Boulden stated that, after 
 
         examining claimant initially on September 15, 1986, he believed 
 
         claimant had myofascial pain that his work may or may not have 
 
         produced.  The working diagnosis was of degenerative changes of 
 
         the lumbar spine present since at least 1983.  The doctor opined 
 
         that most of [the changes] were soft tissue irritation with maybe 
 
         some irritation of the degenerative changes in claimant's back.  
 
         He reported that these should have been a temporary situation if 
 
         properly treated and (if claimant were) properly advised and 
 
         counseled in the proper use of his back in the future.  Dr. 
 
         Boulden indicated that claimant should be instructed on proper 
 
         biomechanical use of his spine; instructed on proper low back 
 
         exercise to keep his back more supple, lose and not prone to 
 
         aggravation; and "making sure that his work site did not have 
 
         jobs that were detrimental to performing proper biomechanical use 
 
         of the spine."  Dr. Boulden reported that he had reviewed a video 
 
         tape of the deboning process at Oscar Mayer and had not seen 
 
         anything that was physically demanding concerning the back other 
 
         than that he would recommended claimant have a five-gallon bucket 
 
         or plastic milk carton underneath his table in order that he 
 
         could alternate from standing on both feet at once as to not 
 
         aggravate his back.  The doctor opined that if the floor had a 
 
         quarter-inch drop per foot, that should not present a problem for 
 
         claimant's back if he learns how to use his back properly through 
 
         proper education.  The doctor reviewed the job descriptions and 
 
         physical demands of the jobs of bone hams inside-out, patch skin 
 
         and bone picnics, service boning conveyors and electric truck and 
 
         reported that there were no physical demands which claimant's 
 
         back could not tolerate or working conditions which his back 
 
         could not tolerate under those particular jobs.  The doctor 
 
         apparently had some reservation about the job of service loin 
 
         boning as it involves very large weights (apparently lifting 
 
         approximately 100 pounds).  The doctor opined that claimant's 
 
         back could tolerate both the physical demands and working 
 
         conditions for the descriptions on exhibits 9 and 10, both 
 
         designated bone loins.
 
         
 
              Dr. Boulden opined that, per evaluation of Mr. Bower, 
 
         claimant's grip strength tests varied too greatly from the 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  12
 
         
 
         
 
         standard deviation to show whether claimant had any objective 
 
         grip strength weakness.  The doctor reported that he and Mr. 
 
         Bower were unable to make a permanent partial impairment rating 
 
         on claimant based on his normal motion, normal EMG'S, and 
 
         inconsistent grip strength tests as according to AMA guidelines 
 
         claimant did not qualify (for permanent impairment).  Dr. Boulden 
 
         reported that he would prophylactically restrict anyone who had 
 
         had carpal tunnel surgery from repetitive bending of the wrists 
 
         and from use of vibratory power equipment.  Dr. Boulden opined 
 
         that claimant should probably be able to cut meat using a 
 
         non-vibratory electric wizard knife that is not as physically 
 
         demanding on the wrist or hand.  He reported that a job 
 
         consisting of sorting different boxes and dumping them into 
 
         larger tubs or containers did not require repetitive physical 
 
         bending of the wrists.  The doctor recommended the use of a 
 
         soft-handled knife in order not to irritate any fibrous tissue 
 
         about the scar area.  The doctor opined that claimant would have 
 
         no problem with his hands in doing any of the jobs outlined above 
 
         other than, as regards boning hams inside-out, claimant's knife 
 
         should have at least a cushion grip handle and that, if possible, 
 
         claimant should use a wizard rather than a deboner knife.  
 
         Claimant should wear a wrist splint for all jobs.
 
         
 
              Dr. Boulden indicated that claimant did not relate he had 
 
         sustained a back injury at work on March 2, 1983 for which the 
 
         company physician had treated him.  Dr. Boulden opined that 
 
         something may have occurred around March 2, 1983 to claimantOs 
 
         back, but he stated that findings on physical examination 
 
         referencing to pain in the lower back since March 2 were not out 
 
         of the ordinary.  The doctor opined that claimant's history of 
 
         returning to work until approximately mid-April, 1983 and then 
 
         being off for approximately 14 weeks on account of his arm 
 
         surgery and then returning to work in August, 1983 with 
 
         additional back problems after his return to work and eventual 
 
         hospitalization did not necessarily indicate that something was 
 
         occurring in his back that was more than a muscle strain in that, 
 
         had claimant not had full rehabilitation prior to being off work 
 
         for 14 weeks and if he did nothing during that period for 
 
         rehabilitation of his back, then "[w]ith the underlying 
 
         degenerative changes, that would fit along with what you 
 
         described in his symptomatology." (Deposition page 26, lines 
 
         7-9).  The doctor reported that he did not know what type of work 
 
         claimant was performing in March, 1983.   The following 
 
         discussion then took place:
 
         
 
                 Q.  If he was boning butts, which he estimated 
 
              weighed 10 to 25 pounds, and if the speed of the chain 
 
              was approximately 50 per hour, and he would bone 
 
              perhaps 430 to 450 during an eight-hour day, and if you 
 
              would consider that the weight that he would be 
 
              handling would be approximately three ton during that 
 
              period of time, and he was standing on an uneven brick 
 
              floor with a slope, and you have a temperature between 
 
              40 and 50 degrees, and the job required twisting for 
 
              each bone, each butt that he boned, would that be the 
 
              type of job that would aggravate this underlying 
 
              degenerative condition?
 
         
 
                 A.  It's possible.  First of all, I don't understand 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  13
 
         
 
         
 
              the job at all.  It would be hard for me to conceive 
 
              that he bones out 50 butts an hour.  That would be 
 
              almost a butt a minute.  Maybe he is good, but that's 
 
              almost impossible if we are talking about boning out a 
 
              butt, we are talking about the large shank or ham side 
 
              of the butt.
 
         
 
                 Number two, requires him to twist, I'm not aware 
 
              that there was any job there that was twisting.  
 
              Obviously if he twisted without moving his feet, he 
 
              could be taught properly how to move his legs and his 
 
              back.  I am saying if what you have told me is 
 
              absolutely true, then, yes it could.
 
         
 
              Dr. Boulden later opined that it is possible for 
 
         degenerative disc disease to be accelerated with improper back 
 
         usage.
 
         
 
              Dr. Boulden reported that he did not really know what Dr. 
 
         Winston was referring to when he indicated upon examining 
 
         claimant in 1984 that claimant suffered a chronic, recurrent 
 
         lumbosacral strain, obesity and chronic pain syndrome.  Dr. 
 
         Boulden reported that Dr. Gitchell's impression that claimant had 
 
         degenerative disc disease with minimal nerve root irritation and 
 
         weak abdominals as far as supporting his back was more consistent 
 
         with what he found regarding claimant.  Dr. Boulden did not 
 
         recommend pain center treatment for claimant as claimant's pain 
 
         source has not been identified yet and "[I]f it is something that 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  14
 
         
 
         
 
         is treatable, obviously the pain center has no benefit at all.O  
 
         Dr. Boulden also reported that claimant upon questioning did not 
 
         seem to be that incapacitated with his pain.  The doctor agreed 
 
         that, with respect to the carpal tunnel, cubital tunnel and ulnar 
 
         nerve problems for which claimant was treated, that without 
 
         protection there was a higher instance of reoccurrence where an 
 
         individual has previously had surgery and then returns to the 
 
         same type of work.  Dr. Boulden indicated that bilateral 
 
         (positive) Tinel's and positive Phalen's would not indicate 
 
         clinical findings of carpal tunnel because they are subjective 
 
         tests.  He reported that he would not operate unless EMG changes 
 
         (consistent with) carpal tunnel syndrome were found.  Dr. Boulden 
 
         opined that grip strength would be important.
 
         
 
              John R. Walker, M.D., is a board-certified orthopaedic 
 
         surgeon who has practiced in the Waterloo area for over 37 years.  
 
         Dr. Walker opined that claimant's permanent impairment combined 
 
         of the lumbosacral and sacroiliac would equal 18% if he could 
 
         Oproperly get at least the sacroiliac in some kind of shape with 
 
         treatment.O  Dr. Walker had rated the right arm at 32% of the arm 
 
         and the left arm at 24% of the arm.  The doctor felt that 
 
         claimant had very little loss of abduction or adduction, but had 
 
         no measurement in degrees as to those left wrist motions.  
 
         Claimant had lost the last ten degrees of full extension of the 
 
         right elbow.  Pronation and supination of the right elbow were 
 
         normal.  Claimant had no shoulder problems.  Claimant's abduction 
 
         and adduction of the wrist joint on the right were normal 
 
         throughout.  Flexion and extension of the left elbow joint were 
 
         normal.  Rotation of the left elbow joint was normal and 
 
         claimant's shoulders on both the right and the left were normal.  
 
         Dr. Walker reported that claimant had about 60 degrees of forward 
 
         flexion of the thoracolumbar spine.  He reported that claimant 
 
         did not have any loss of extension and felt that claimant could 
 
         have forced himself to a fairly good range of motion.  The doctor 
 
         stated that he remembered, but had not recorded, that claimant 
 
         had pain or a positive straight leg raising test at 30 degrees.  
 
         Dr. Walker opined that claimant does not have a disc problem, but 
 
         had chronic, painful sacroiliac sprain giving telalgic radiation 
 
         into the thigh and groin on the right side.  Dr. Walker opined 
 
         that he had assigned claimant 32% (permanent partial impairment) 
 
         of the right arm which, under the AMA guides, he translated into 
 
         19% of the body as a whole; had assigned claimant 24% [permanent 
 
         impairment] of the left arm and translated that to 14% of the 
 
         body as a whole; and had assigned claimant 18% of the body as a 
 
         whole for the back.  He reported that he then added the whole 
 
         body percentages (of impairment) to achieve the figure 51% whole 
 
         (person impairment).  Dr. Walker agreed that, under the AMA 
 
         guides, the figures would have been combined rather than added.  
 
         He also agreed that the combination of impairment could very well 
 
         be 42% (permanent partial impairment of the body as a whole).
 
         
 
              Dr. Walker opined that an incident on March 2, 1983 when 
 
         claimant was pulling meat off the line and twisted his back and 
 
         felt immediate low back pain caused the pain he described as 
 
         occurring in the sacroiliac joint.  Dr. Walker recommended that 
 
         he treat claimant to try to make claimant feel better, but stated 
 
         that, when he had last seen claimant in March, 1986, claimant had 
 
         reached maximum medical recuperation.  The doctor opined that, 
 
         without further treatment, he would not release claimant to 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  15
 
         
 
         
 
         return to gainful employment.  Dr. Walker opined that further 
 
         treatment for claimant's "upper extremity" would fail and that 
 
         claimant could not return to his previous work he did before, 
 
         given his present impairments of his arms.  The doctor opined 
 
         that repetitive use of the wrists and elbows had produced 
 
         claimant's upper extremity conditions.  He opined that the 
 
         condition should be considered an injury rather than a disease.
 
         
 
              A. B. Grundberg, M.D., is a member of the American Society 
 
         for Surgery of the Hand and of the Academy of Orthopaedic 
 
         Surgeons.  The doctor first saw claimant on July 10, 1981 with 
 
         complaints of pain in the right upper extremities and numbness 
 
         and tingling.  His final diagnosis regarding claimant was a 
 
         compression of the median nerve at the wrist and compression of 
 
         the ulnar nerve at the right elbow as well as probable thoracic 
 
         outlet syndrome.  On January 18, 1982, Dr. Grundberg did a 
 
         decompression of the right carpal and ulnar tunnels and the ulnar 
 
         nerve at the right elbow.  He reported that claimant received 
 
         only partial relief from that surgery and continued to have 
 
         trouble until he had last seen claimant on January 28, 1986.  On 
 
         April 25, 1983, Dr. Grundberg performed a lateral epicondylitis 
 
         of the right elbow as claimant was having discomfort in that 
 
         area.  The doctor determined that claimant had a compression of 
 
         the median and ulnar nerves of the left wrist and the ulnar nerve 
 
         at the left elbow and decompressed those on March 10, 1982.  He 
 
         reported that claimant was improved following that surgery, but 
 
         did not recover altogether and was still having trouble when last 
 
         seen on January 28, 1986.  Dr. Grundberg opined that, under the 
 
         Manual for Orthopedic Surgeons in Evaluating Permanent Physical 
 
         Impairment, claimant had a 10% impairment of his right upper 
 
         extremity and a 10% impairment of his left upper extremity.  Dr. 
 
         Grundberg opined that claimant's complaints about loss of 
 
         strength in his hands would be consistent with the diagnosis he 
 
         had made and with the surgery performed.  The doctor indicated he 
 
         would expect a person that does physical labor to have a normal 
 
         grip strength of about 80-85 pounds, while claimant has a grip 
 
         strength of approximately 70 (pounds) in each hand.  The doctor 
 
         opined that claimantOs grip strength could decrease with 
 
         repetitive work activity and that such would be consistent with 
 
         the type of problem he has.  The doctor opined that he sees more 
 
         of "these problems" in the meat packing industry than in some 
 
         other industries because of the hard, repetitive nature of that 
 
         work.  The doctor stated that lateral epicondylitis usually does 
 
         not leave any permanent impairment.
 
         
 
              The doctor reported that claimant mentioned low back pain 
 
         only on October 18, 1983 and May 11, 1984.
 
         
 
              Peter D. Wirtz, M.D., is a member of the American Board of 
 
         Orthopedic Surgery and the America Academy of Orthopedic 
 
         Surgeons.  The doctor first examined claimant on June 6, 1984.  
 
         In a deposition of June 20, 1985, Dr. Wirtz reported that a Dr. 
 
         Socarras performed an electromyographic study on October 8, 1984 
 
         and opined that no abnormality existed as far as conduction 
 
         studies or electromyographic evaluation.  Dr. Wirtz opined that, 
 
         based upon loss of five degrees of right elbow motion, claimant 
 
         had a three percent impairment of the right upper extremity, but 
 
         did not have other permanent physical impairment.  The doctor 
 
         subsequently evaluated claimant on May 1, 1985.  He opined that, 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  16
 
         
 
         
 
         other than his elbow impairment, claimant had no orthopedic 
 
         findings that would indicate an impairment of his body.  Dr. 
 
         Wirtz opined that he would not recommend additional treatment 
 
         orthopedically for claimant.  He opined that, based on his 
 
         examination of May 1, 1985, claimant has no activity 
 
         restrictions.  The doctor reported that he was familiar with the 
 
         physical requirements of boning at Oscar Mayer and reported that 
 
         claimant was physically fit to perform the duties of a boner as 
 
         described by defense counsel.  He further opined that the 
 
         physical activity required for doing boning work would not 
 
         aggravate and cause musculoskeletal strain in the back.  
 
         Following an extended hypothetical question concerning claimant's 
 
         symptoms and various evaluations, Dr. Wirtz opined that 
 
         claimant's September 13, 1983 episode of back spasm at home would 
 
         be a substantial factor in any disability or symptoms that he 
 
         would have had after that date.  The doctor further opined that, 
 
         if claimant on October 15, 1983, while riding in a car, had a 
 
         "flare-up" of his back, that flare-up would be a causative factor 
 
         in any signs and symptoms of the back or legs after that date.  
 
         Dr. Wirtz opined that claimant would benefit from treatment at 
 
         the Mercy Hospital Pain Center.  Dr. Wirtz opined that he would 
 
         nOt have performed surgery based upon findings on 
 
         electromyographic study in 1981.  He stressed that nerve surgery 
 
         [in the upper extremity] should be done on objective findings 
 
         and, that if the electromyographic study did not indicate 
 
         permanent damage, he did not feel surgery would benefit a patient 
 
         any more than non-surgical treatment.  Dr. Wirtz stated, 
 
         regarding his rating of claimant's back, that he used the AMA 
 
         guides as a guideline only and that, with claimant's straight leg 
 
         raising in a sitting position normal, the loss of 10 degrees of 
 
         full flexion while standing may be due to voluntary restriction 
 
         of bending.  On cross-examination, Dr. Wirtz stated a possibility 
 
         exists that boning hams could possibly produce an acute lumbar 
 
         strain.
 
         
 
              The doctor stated that, upon neurological examination of 
 
         August 6, 1984, claimant had decreased feeling over the index and 
 
         fifth fingers of both hands, worse on the right, and that the 
 
         claimant had a TinelOs sign on the ulnar nerve, right and left, 
 
         to the fifth fingers.  The doctor opined that claimant was 
 
         capable of doing boning table work.  The doctor stated that he 
 
         did not advise claimant in May, 1985 that he should not go back 
 
         to work at Oscar Mayer and that he did not recall advising 
 
         claimant in May, 1985 that he should pursue vocational 
 
         rehabilitation, but reported that such would be appropriate 
 
         advice.  The doctor also stated he did not advise claimant in 
 
         May, 1985 that he should obtain a TENS Unit and use it for 
 
         possible relief of his back symptoms, but reported that such may 
 
         benefit claimant.
 
         
 
              In a deposition of June 19, 1986, Dr. Wirtz stated that he 
 
         had seen claimant on February 13, 1986 and that claimant then had 
 
         indicated he had been evaluated in the Ames area and was on 
 
         Social Security because of multiple problems.  Claimant's 
 
         symptoms included lower backache off to the right side as well as 
 
         right elbow stiffness and bilateral hand numbness.  Examination 
 
         of the lower back did not reveal muscle spasm.  Claimant was able 
 
         to flex his back 30 degrees while standing, extension of his back 
 
         was 15 degrees and lateral flexion was 30 degrees right, 30 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  17
 
         
 
         
 
         degrees left.  Straight leg raising in the sitting position was 
 
         90 degrees on the right and 90 degrees on the left; supine 
 
         position was 40 degrees on the left, 40 degrees on the right with 
 
         backache.  Knee jerks were 2 on the right and 2 on the left and 
 
         ankle jerks were 0 on the left and 0 on the right.  On 
 
         examination of the big toe, extensor hallicus longus, revealed 
 
         five over five and no sensory deficit was noted in the lower 
 
         extremities.  Flexion of the patient's knees and flexion of the 
 
         hips gave pain in the back area.
 
         
 
              Examination of the hand showed claimant had decreased 
 
         feeling over the thumb, index, long and ring fingers of both 
 
         hands, worse on the right than on the left.  Claimant had Tinel 
 
         sign on the forearm just proximal to the carpal tunnel release 
 
         scar which radiates to the long finger and to the elbow.  The 
 
         left median nerve did not have a Tinel sign.  The Tinel at the 
 
         elbow was positive on the right with radiation to the shoulder 
 
         and, on the left, was negative.  Laterally, the right elbow had a 
 
         well-healed scar.  The range of motion of the right elbow was 15 
 
         degrees to 140 degrees whereas the left was 0 degrees to 140 
 
         degrees.  Dr. Wirtz again stated that claimant's only physical 
 
         impairment was an elbow loss of motion of 15 degrees equaling a 
 
         three percent impairment of the right upper extremity under the 
 
         AMA guides.  Dr. Wirtz reported that Marvin M. Hurd, M.D., 
 
         performed an electromyographic study on claimant to evaluate the 
 
         upper extremity on October 8, 1984 and concluded that the study 
 
         revealed no abnormalities in either upper extremity.  Dr. Wirtz 
 
         reported that Dr. Hurd's study indicated that claimant's 
 
         neurological surgery left him with no permanent impairment.  Dr. 
 
         Wirtz reported that Dr. Hurd evaluated by way of conduction 
 
         studies the right median, right ulnar at the wrist, the left 
 
         median, the left ulnar at the wrist, the right ulnar and the left 
 
         ulnar at the elbow and that the nerve conduction studies were 
 
         normal.
 
         
 
              Dr. Wirtz opined that the location of claimant's symptoms in 
 
         the right lower back area in the muscular area around the pelvis 
 
         would not be indicative of a sacroiliac strain.  Likewise, the 
 
         doctor indicated that x-rays of May 1, 1985 and August 6, 1985 
 
         were not indicative of a problem with sacroiliac strain.  Dr. 
 
         Wirtz indicated that claimant did not have symptoms in the 
 
         inguinal area of the body and that he saw no possibility of a 
 
         herniated disc in claimant's low back.  Dr. Wirtz indicated he 
 
         had reviewed Dr. walker's letters and that they did not alter his 
 
         opinions or conclusions.  On cross-examination, Dr. Wirtz opined 
 
         that, assuming 150 degrees is normal, claimant lacks 10 degrees 
 
         of flexion and lacks 10 degrees of extension, which would be a 25 
 
         degree loss of motion equal to three percent based,upon lack of 
 
         extension and three percent based upon loss of 10 degrees of 
 
         flexion.  He agreed that, on the left extremity, assuming normal 
 
         to be 150 degrees, claimant would have a three percent impairment 
 
         of the extremity because of loss of flexion.  Dr. Wirtz stated 
 
         that only abnormal findings were mentioned in his report and 
 
         clinical notes.
 
         
 
              Dr. Wirtz reported that he evaluated claimant's back for 
 
         disability in accordance with the AMA guides.  The doctor 
 
         reported that, on February 13, claimant's flexion was to 30 
 
         degrees forward with his legs straight while standing and that, 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  18
 
         
 
         
 
         if such correlated with other ranges of motions, claimant would 
 
         have an impairment.  The doctor stated that he would agree with 
 
         the AMA guides and give a physical impairment of six percent for 
 
         such flexion O[i]f the restriction of motion at thirty degrees 
 
         was based on a back condition..."  The doctor reported that, 
 
         under the AMA guides, extension to 15 degrees would represent 
 
         between a one and two percent impairment.  The doctor agreed that 
 
         claimant's lateral flexion on gross measurement was 30 over 30.  
 
         He then stated he had used the AMA guides for evaluating 
 
         claimant's physical impairment upon the measurement recordings 
 
         only as "an overview as to the motions."
 
         
 
               The doctor explained that he did not use the AMA guides 
 
         portion pertaining to nerves in determining physical impairment 
 
         of claimant's median and ulnar nerve because claimant's EMG was 
 
         normal.  The doctor reported with respect to claimant's positive 
 
         Tinel sign that, on the right side, the median nerve was 
 
         percussed in the forearm just on the elbow side of the wrist and 
 
         just on the elbow side of the scar and that claimant had 
 
         radiation to the elbow which is not correct.  He stated that 
 
         claimant also described a radiation to the long finger which is 
 
         correct, but that radiation both ways is not common.  The doctor 
 
         stated that the left median nerve of the wrist did not have a 
 
         Tinel sign and that the Tinel sign at the elbow on the right over 
 
         the ulnar nerve radiated to the shoulder, which is not 
 
         appropriate, whereas,on the left there was no Tinel sign.  The 
 
         doctor described the Tinel sign as a physical examination 
 
         technique that relies upon the patient on a subjective basis as 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  19
 
         
 
         
 
         to what is wrong with the patient.  He reported that, in 
 
         claimant's' case, without a positive EMG, he felt it had little 
 
         reliability.  Dr. Wirtz reported that his assumption was that 140 
 
         degrees of flexion was normal for claimant and that 15 degrees of 
 
         loss of extension was an abnormality.  He agreed he had not given 
 
         a rating for any loss of flexion.
 
         
 
              Wayne E. Rouse, M.D., is a board-certified family 
 
         practitioner.  Dr. Rouse initially indicated that he had no 
 
         medical records showing he had treated claimant for back 
 
         difficulties prior to 1983, but later reported that he had seen 
 
         claimant for acute lumbosacral muscle spasm on January 12, 1968.  
 
         Dr. Rouse hospitalized claimant between September 13, and October 
 
         1, 1983 for recurrent spasm of the lumbosacral area requiring 
 
         medication and physical therapy.  Dr. Rouse indicated that, from 
 
         October, 1983 through May, 1984, claimant had probable muscle 
 
         spasm, limitation of back motion, and at times positive straight 
 
         leg raising.  Dr. Rouse opined that there was a causal 
 
         relationship between the condition for which he saw claimant in 
 
         September, 1983 and the incidents as related in exhibits 1 and 2 
 
         of Dr. Rouse's deposition.  Exhibit 1 is an outpatient admission 
 
         report of March 7, 1983 which states:  "3/2/83 pulling meat off 
 
         line twisted back.O  Exhibit 2 is hand-written notes.  A note of 
 
         March 7, 1983 states:  "pain in lower back since 3/2."  Dr. Rouse 
 
         indicated he had not placed any specific weight lifting 
 
         limitations on claimant.  He later indicated that he advised 
 
         claimant to not lift over 25 pounds.  He reported that he had 
 
         advised claimant to perform exercises for back stretching and 
 
         strengthening and to walk to tolerance as a form of exercise.  
 
         The doctor stated that he had advised claimant to not return to 
 
         work at Oscar Mayer because he felt that claimant's job, as 
 
         described to him, would aggravate claimant's condition.  The 
 
         doctor reported his understanding of the job as involving 
 
         standing on an uneven surface, twisting of claimant's back and 
 
         working in a cold, moist and damp environment.  He opined that 
 
         those conditions could be condusive to aggravating chronic, 
 
         recurrent back strain and spasm.  Dr. Rouse indicated that 
 
         claimant is five feet eleven inches tall and that the ideal 
 
         weight for a large framed individual of claimant's height and age 
 
         would be between 175-185 pounds.  He reported that, as of April 
 
         6, 1987 claimant weighed 205 pounds.  Dr. Rouse felt that a 
 
         sloped floor and moving meat could cause a back problem, but 
 
         agreed it would be difficult to ascertain what slope would cause 
 
         an injury.  He reported that he had never been to Oscar Mayer's 
 
         plant and that he had not seen any video tapes of the sort of 
 
         work claimant had done.  Dr. Rouse reported that, in responding 
 
         to the earlier hypothetical question regarding claimant, he had 
 
         felt that claimant had lost the symptoms in his low back while 
 
         off work.  Dr. Rouse indicated that claimant had informed him 
 
         that claimant stood in position working on a line as a boner and 
 
         that that gave him problems.  The doctor reported he was not 
 
         familiar with the sort of work a boner does.  Dr. Rouse reported 
 
         that, in his April 9, 1985 letter, he had assumed that the 
 
         opinions of Dr. Gitchell and Dr. Winston, given November, 1983 
 
         and June, 1984, respectively, were still extant.  He subsequently 
 
         explained that he did not have correspondence concerning any  
 
         follow-up visit with Dr. Gitchell and that, therefore, in the 
 
         April, 1985 letter, he was referring to his own clinical notes 
 
         regarding claimant and indicating that claimant was still having 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  20
 
         
 
         
 
         difficulty.  He therefore felt claimant should not return to 
 
         work.  Dr. Rouse reported his clinical notes indicate that, on 
 
         January 12, 1968 claimant was treated with acute lumbosacral 
 
         muscle spasm, was rechecked on January 19, 1968 and returned to 
 
         work on January 22, 1968.  He reported that, in 1976, claimant 
 
         complained of back pain, but the clinical condition found was 
 
         pleurisy with muscle spasm.  Dr. Rouse indicated he had not 
 
         detected any muscle atrophy in claimant.
 
         
 
              Deposition exhibit 1 is a copy of a Dallas County Hospital 
 
         emergency outpatient record indicating an admission date of March 
 
         7, 1983 and reporting spine strain, indicating that on March 2, 
 
         1983 "pulling meat off line twisted back.O  Page two of exhibit 
 
         1, handwritten medical notes of September 27, 1982, March 7, 
 
         1983, and March 14, 1983 report back pain, initially pain on the 
 
         right side of the back under the shoulder blade.  The March 7 
 
         note reports pain in the lower back since March 2.  It also 
 
         reports that pain is across the back with sharp pain in the 
 
         middle at the level of L5.  The March 14, 1983 note reports that 
 
         claimant is still tender as above.
 
         
 
              Deposition exhibit 2 is physical therapy records indicating 
 
         that initial treatment was on March 14, 1983 through Dr. 
 
         Deranleau.
 
         
 
              Illness and accident records for claimant reveal that 
 
         claimant has had a past pattern of absenteeism for which he had 
 
         received written warnings and that claimant had had two prior 
 
         back pain complaint investigations while at Oscar Mayer, one 
 
         occurring when he slipped on a stair and the other occurring when 
 
         he slipped on loose shower in the menOs locker room.
 
         
 
              Joint exhibit 19 indicates that claimant received a service 
 
         pin on July 28, 1974 and on July 28, 1979 as well as a notation 
 
         of a 15-year service pin awarded to Charles McBirnie, undated.  
 
         Oscar Mayer awarded all pins.
 
         
 
              Joint exhibit 20 is a copy of a newspaper article entitled 
 
         "Workers complain about hand numbness.O  The article contains an 
 
         allegation by an unidentified Oscar Mayer worker that the 
 
         condition (of carpal tunnel syndrome) started showing up after 
 
         production requirements were raised at the (Oscar Mayer) plant.  
 
         Page 3 of joint exhibit 20 is another article by the same 
 
         reporter entitled "Oscar cited for health hazard."  The article 
 
         states that the Iowa Occupational Safety and Health Agency had 
 
         issued a citation to the Oscar Mayer plant as well as imposed a 
 
         $4,000 fine following an inspection wherein the agency found that 
 
         ham boning employees had been exposed to "undue repetitive motion 
 
         trauma.  This trauma was caused due to repeated hand and wrist 
 
         exertions causing, aggravating or precipitating the carpal tunnel 
 
         syndrome, tendonitis, ganglion cysts, numbness and tingling of 
 
         the hands, and sprains and strains of the hands, wrists, arms and 
 
         shoulders.O
 
         
 
              Defendants' exhibit 1 is a computer printout of jobs 
 
         prepared by Vocomp Output Analysis.
 
         
 
              Defendants' exhibit 2 is an International Rehabilitation 
 
         Associates Inc.  Vocomp report concerning claimant.  The reporter 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  21
 
         
 
         
 
         states that, in considering claimant's physical restrictions, 
 
         considered jobs were light, defined as lifting or carrying 20 
 
         pounds and/or frequent walking and standing.  The job title 
 
         search was also limited to jobs which typically did not involve 
 
         stooping, kneeling and crawling, reaching, using the hands and 
 
         using the fingers.  Jobs were selected which had at maximum a 
 
         specific vocational preparation time of 12 months as well.  
 
         Vocational possibilities listed included miller wet process, Wad 
 
         compressor operator adjuster, bulk plant operator, steep tender, 
 
         honey processor, chiller tender, second operator mill tender, 
 
         quality control technician, concreting supervisor, and cabin 
 
         equipment supervisor.
 
         
 
              Defendants' exhibit 3 is an International Rehabilitation 
 
         Associates report of specialist Cecilia O'Brien concerning the 
 
         disability of carpal tunnel regarding claimant.  Beyond the 
 
         carpal tunnel and the notation of the 10% rating to the upper 
 
         extremity on both left and right per Dr. Grundberg, the 
 
         specialist also notes claimant's 1983 hospitalization for acute 
 
         back spasms.  The report states that claimant refused to answer 
 
         questions pertaining to his finances, stating it was none of 
 
         Oscar Mayer's business and that claimant was unwilling to 
 
         delineate job ideas or interests indicating that "the state 
 
         people said 'he was unemployable'.O  The report also contains the 
 
         following O...attorney for claimant, then stated that this 
 
         specialist was placing his client in an awkward position because 
 
         he was on social security.  He could not afford to support his 
 
         family or [sic] less than that and this specialist could not 
 
         guarantee him a wage equal to or greater than what he was now 
 
         receiving,..."
 
         
 
              Joint exhibit 24 is a stipulation of the parties that 
 
         claimant's disability is caused by repetitive use of hands, 
 
         wrists and elbows and that such use is more common in a meat 
 
         packing plant than outside of claimant's occupation.
 
         
 
              Joint exhibit 1 is medical reports relative to claimant.  A 
 
         November 11, 1986 report of William R. Boulden, M.D., reports 
 
         that the doctor has reviewed claimant's 1983 films and that early 
 
         degenerative changes were present at that time.  The doctor 
 
         further states that he would not rate claimant's back because 
 
         claimant had preexisting degenerative changes.  An October 2, 
 
         1986 report of Dr. Boulden reports that the CT Scan shows 
 
         degenerative disc disease at L4-5, some at L5-Sl with some minor 
 
         foraminal stenosis secondary to the degenerative process.  There 
 
         was no evidence of any herniated disc.  On September 15, 1986, 
 
         Dr. Boulden found claimant's hand very tender in the right 
 
         epicondylar region over a well-healed incision.  Claimant had 
 
         full flexion, pronation and supination.  He had pain extending to 
 
         neutral degrees.  He had bilateral TinelOs of both wrists and a 
 
         positive Phalen's at both wrists.  AllenOs test was normal and 
 
         there was no Thenar muscle wasting.  The doctor reported that 
 
         claimant had two "MGs" since carpal tunnel release and that both 
 
         were normal.  On examination of claimant's back, claimant had 
 
         left and right lateral bending of 30 degrees in each plane with 
 
         extension of 30 degrees.  Claimant had a lot of low back pain 
 
         with forward flexion and right posterior thigh pain.  Straight 
 
         leg raising on the right caused posterior right thigh pain to the 
 
         knee, negative on the left.  Great toe extensors were 4/5 on the 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  22
 
         
 
         
 
         right as compared to the left.  Deep tendon reflexes were equal 
 
         and symmetrical in the knees and ankles.
 
         
 
              An October 18, 1985 Individual Written Rehabilitation 
 
         Program Closure Addendum, signed by Tim Grasey as counselor, 
 
         reports that claimant's file is being closed as a result of the 
 
         evaluation.  The reported states "The pain factor and loss of 
 
         sensation of the hands, make it unlikely you can work 
 
         competitively.  Since our services would not improve chances of 
 
         employment you are ineligible for services.  If things improve 
 
         you can reapply."  An October 1, 1985 report of Gerald Bennett, 
 
         counselor, states that from the beginning the counselor's 
 
         impression was that claimant felt evaluation and vocational 
 
         planning were quite futile.  The reporter characterizes claimant 
 
         as a rather typical, middle aged worker who has been disabled 
 
         from doing the physical work that he has performed basically all 
 
         of his life.  He characterizes this as a rather overwhelming 
 
         situation in that many of these workers enjoy their work and 
 
         really do not plan to do anything other than what they have been 
 
         doing, perhaps for decades.  He states that claimant appears to 
 
         be very much in that position.  The reporter states that the 
 
         staff overall felt claimant was not employable at that time and 
 
         the counselor states that perhaps involvement in a pain clinic to 
 
         help him adjust to the distress that he frequently knows might be 
 
         a more profitable route for claimant.  The reporter notes that 
 
         the staff felt there might be a depression component in 
 
         claimant's lack of ability to concentrate and discuss vocational 
 
         planning.  He notes that some staff members felt claimant could 
 
         benefit from counseling regarding the way he feels about himself 
 
         and his vocational future.  He states it was suggested to 
 
         claimant a number of times that, if he is able to make a better 
 
         adjustment to his discomfort and stated pain, he might want to 
 
         consider reevaluation at a later date.
 
         
 
              A June 24, 1985 report of James A. Hardinger, D.O., reports 
 
         an impression of low back pain secondary to unstable low back and 
 
         paresthesias of both upper extremities secondary to old carpal 
 
         tunnel syndrome and ulnar nerve compression.  He reports that 
 
         reflexes in claimant's lower extremities were normal with 
 
         circulation and neurofunction in both lower extremities appearing 
 
         normal.  Claimant had very poor lower back mobility.  He had a 
 
         straight leg raising test positive at 30 degrees on both the 
 
         right and left side.  Hip abduction and adduction caused 
 
         discomfort on both sides.  Claimant was able to attain 90 degrees 
 
         of flexion at both hip joints, but had very poor forward flexion, 
 
         possibly less than 90 degrees at his waist, also with restricted 
 
         rotation.
 
         
 
              In a July 17, 1985 report, John R. Walker, M.D., stated 
 
         that, at that time, "subsequent and because of and only following 
 
         the injuries that he has suffered at the Oscar Mayer Company," 
 
         claimant has the following persistent complaints:
 
         
 
              1.  Constant pain in the posterior lateral aspect of the 
 
         right elbow which radiates down from the lateral epicondyle to 
 
         the dorsum of the wrist into the forearm;
 
         
 
              2.  Cannot extend his arms completely with all ranges of 
 
         motion painful, particularly if they are repetitive;
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  23
 
         
 
         
 
         
 
              3.   Grip in the right hand is weak and elbow aches and, 
 
         when resting the elbow on the table, it is tender to touch;
 
         
 
              4.  An aching of the palm of the right hand with a tingling 
 
         sensation especially involving the right thumb, the second, third 
 
         and fourth fingers as well.  Claimant has a loss of strength and 
 
         grip and does not have good proprioception and cannot feel well 
 
         and cannot pick up small items such as coins or stamps without 
 
         actually looking at them.  The doctor reports he has apparently 
 
         lost some tactful sensation and also has difficulty in turning 
 
         pages of a book or handling paper money;
 
         
 
              5.  In the left elbow, arm, hand and fingers, claimant has 
 
         the same complaints as on the right, except not as severe.  He 
 
         notes that claimant does not have the lateral, epicondylar pain 
 
         nor the anterior arm pain.  He notes that claimant feels the 
 
         range of elbow motion on the left is normal;
 
         
 
              6.  In the lumbosacral area, Dr. Walker reports claimant 
 
         notes pain and aching in the midline which radiates especially to 
 
         the right sacroiliac area.  He notes that the pain is made worse 
 
         by sitting and standing for any length of time and that all 
 
         twisting, bending or lifting makes the pain increase;
 
         
 
              7.  Severe right sciatic notch pain with sitting 
 
         particularly and only in the right leg, thigh and buttock.  
 
         Claimant has numbness on the right, anterior thigh, completely 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  24
 
         
 
         
 
         noted when sitting only.  Claimant has some posterior thigh pain 
 
         through the posterior aspect of the knee with the knee becoming 
 
         stiff.
 
         
 
              Dr. Walker states that claimant has to help his hip flex by 
 
         grabbing his pant leg and lifting his leg.
 
         
 
              Dr. Walker reports that AP and lateral views of claimantOs 
 
         elbows are within normal limits as are AP and lateral views of 
 
         the forearms and wrists.  He reports that AP and lateral views 
 
         and right, left, oblique views and spot views of the lumbar spine 
 
         reveal a spina bifida occulta of S-1.  Sacroiliac joints appear 
 
         to be within normal limits.  The doctor opines that he did not 
 
         believe there was any particular narrowing of the fifth lumbar 
 
         disc and that the disc spaces were within normal limits.
 
         
 
              Dr. Walker opined that claimant had lost elbow motion and 
 
         had certainly lost a great deal of tactile sensation as well as 
 
         stereognosis involving the fingers and thumbs of both hands.  He 
 
         characterized this as residuals of his median and ulnar nerve 
 
         problems and surgical decompressions and residuals following the 
 
         decompressions.  Dr. Walker opined that claimant had a permanent 
 
         impairment of the right upper extremity of 32% and that claimant 
 
         had a permanent impairment of the left upper extremity of 24%.  
 
         He reported that claimant also had a mild lumbosacral sprain, but 
 
         more particularly a chronic, very painful sacroiliac sprain, 
 
         giving him a so-called telalgic radiation of pain into the 
 
         anterior thigh and probably into the posterior aspect of the 
 
         thigh as well.  The doctor reported that this was brought on by 
 
         claimant's original injuries at the plant as described in the 
 
         first paragraphs of the doctor's report.  The first paragraph of 
 
         the doctor's report deals with the development of claimant's 
 
         upper extremity problems.  Dr. Walker felt that claimant could be 
 
         rehabilitated fairly well with either a sacroiliac arthrodesis or 
 
         multiple injections of the right sacroiliac joint with Cortisone 
 
         and Xylocaine.
 
         
 
              In a report of February 13, 1986, Peter D. Wirtz, M.D., 
 
         indicated that, on examination of the low back, claimant had no 
 
         muscle spasm, flexed to 30 degrees while standing, with extension 
 
         to 15 degrees and lateral flexion of 30/30.  Straight leg raising 
 
         in the sitting position was 90/90 and in the supine position was 
 
         40/40 with backache.  Knee jerks were 2/2 and ankle jerks were 
 
         0/0.  Extensor hallicus longus was 5/5 with no sensory deficit in 
 
         the lowers.  Flexion of claimant's knee and hips gave pain in the 
 
         back area.  On examination of the hand, claimant had decreased 
 
         feeling over the thumb, index, long and ring fingers of both 
 
         hands, right worse than left.  Tinel sign was present in the 
 
         forearm proximal to the carpal tunnel release scar radiating to 
 
         the long finger and the elbow.  The left median nerve did not 
 
         have a Tinel sign.  Tinel sign was positive on the right to the 
 
         shoulder and negative on the left.  There were well-healed scars 
 
         medially as well as a well-healed scar laterally on the right 
 
         elbow.  Range of motion of the right elbow was 15 degrees to 140 
 
         degrees and on the left 0 degrees to 140 degrees.  Dr. Wirtz 
 
         opined that claimant's loss of motion of the right elbow resulted 
 
         in a three percent impairment of the upper extremity.  He further 
 
         opined that, since claimant demonstrated no objective findings 
 
         for neurological involvement of the lower back nor objective 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  25
 
         
 
         
 
         restriction, he had a musculoskeletal strain and not a permanent 
 
         impairment.
 
         
 
              In an August 6, 1984 report, Dr. Wirtz had diagnosed 
 
         claimant's conditions as, (1) status postop bilateral carpal 
 
         tunnel release; (2) status postop bilateral ulnar nerve tunnel 
 
         release; (3) status postop bilateral elbow ulnar nerve 
 
         compression; (4) status postop right lateral extensor tendon 
 
         release; (5) neuropraxia, median nerve, bilaterally, and ulnar 
 
         nerve, elbow, bilaterally; (6) right elbow stiffness; (7) 
 
         musculoskeletal strain, lower back area.
 
         
 
              On June 20, 1984, Stuart R. Winston, M.D., a neurosurgeon, 
 
         reported that claimant was then overweight, being 215 pounds on 
 
         examination and that claimant bends and extends abnormally with 
 
         limited flexion.  He reported that reproducing claimant's work 
 
         situation with rotation about the waist caused an increase in his 
 
         difficulty with lumbosacral pain.  Dr. Winston described 
 
         claimant's work situation as requiring lifting ten pounds, 
 
         twisting to the left about 460 times per day and working on a 
 
         floor which was slanted, requiring claimant to lift at an unusual 
 
         angle.  Dr. Winston reported claimant's gait as essentially 
 
         normal though claimant favored the right lower extremity upon 
 
         first arising until he "gets going some."  He characterized 
 
         claimant's strength as excellent with straight leg raising being 
 
         negative.  Reflexes were symmetric but reduced at the ankles 
 
         bilaterally.  The doctor's impression was one of chronic 
 
         recurrent lumbosacral strain, obesity and a chronic pain 
 
         syndrome.  Electrodiagnostic study of the paraspinals and lower 
 
         extremities were negative.  Dr. Winston opined that a chronic 
 
         pain center might be advantageous to claimant and stated he had 
 
         "a great deal of difficulty in seeing how this man can return to 
 
         his former occupation.O
 
         
 
              Marvin Hurd, M.D., interpreted nerve conduction studies, 
 
         that is, an EMG study of the lower extremities as normal.
 
         
 
              Robert Deranleau, M.D., reported in notes of September 27, 
 
         1982 that claimant had pain in the right side of the back under 
 
         the shoulder blade; he reported on March 7, 1983 that claimant 
 
         had had pain in the lower back since March 2, 1983 with the leg 
 
         feeling tight.  He also reported that the pain was across the 
 
         back with a sharp pain in the middle level, apparently at L5.  On 
 
         March 14, 1983, the doctor reported that claimant was still 
 
         tender, as above.  Medical notes indicate that, on August 23, 
 
         1971, claimant twisted his back at work and it began to hurt the 
 
         next day.  The diagnosis was apparently of a strain of the right 
 
         lower back.  A note of July 5, 1979 indicates that claimant fell 
 
         and landed on the back, bruising the lower back.  A note of June 
 
         23, 1981 indicates that claimant has pain in the right elbow and 
 
         wrist, his arm goes to sleep and his wrist aches.  The note 
 
         further states that the left wrist aches and that claimant drops 
 
         things, especially with the right hand.
 
         
 
              A discharge summary of Dr. Deranleau from the Dallas County 
 
         Hospital dated August 29, 1980 for an admission of August 27, 
 
         1980 reports that claimant has had a history of muscle spasms in 
 
         his shoulders and back and that claimant was at work and had a 
 
         sudden onset of back pain which radiated to his chest.  The 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  26
 
         
 
         
 
         Dallas County Hospital Emergency Outpatient record for an 
 
         admission date of March 17, 1978 indicates that, on March 2, 
 
         1983, claimant was pulling meat of the line and twisted his back.  
 
         The diagnosis is one of spine strain.  Nabil Faltas, M.D., 
 
         interpreted x-rays of the lumbar spine of March 8, 1983 as 
 
         showing a questionable borderline narrowing of the L-5/S-1 
 
         intervertebral disc space.  Also noted was an incomplete fusion 
 
         of the spinous process of S-1.  An outpatient emergency record 
 
         with an admission date of apparently March 17, 1978 reports that 
 
         claimant slipped and hit his right hand on a table and the hand 
 
         was painful and swollen below the fourth and fifth digits.
 
         
 
              On April 9, 1985, Wayne E. Rouse, M.D., reported that 
 
         claimant's job involved standing on an uneven floor while doing 
 
         considerable lifting.  He opined that claimant's back complaints 
 
         were directly related to the job performed and stated that 
 
         claimant was precluded from similar employment due to his back 
 
         condition.  Dr. Rouse indicated that the point of maximum 
 
         recuperation would be December, 1984 or January, 1985 in that the 
 
         symptomatology seems to be leveling off with neither progression 
 
         nor improvement.  He reported that "at that time" he would not 
 
         anticipate further improvement medically in claimant's condition.  
 
         Dr. Rouse indicated that claimant's physical limitations resulted 
 
         directly from his work at Oscar Mayer.  He reported claimant's 
 
         physical limitation as of April 8, 1985 as follows: Claimant 
 
         awoke about three times a night with pain in his low back with 
 
         radiation of pain into the right leg; riding in a car caused 
 
         claimant's right leg to go to sleep with leg becoming completely 
 
         numb after approximately one hour of riding; right leg sensation 
 
         would return after five to ten minutes of activity.  Prolonged 
 
         sitting for more than one hour caused numbness and increasing 
 
         pain in the low back with relief from pain achieved only from 
 
         exercise or from relaxing in a hot tub.  The doctor stated there 
 
         are permanent physical limitations from the injury sustained 
 
         while working at Oscar Mayer and that claimant would have "these 
 
         limitations of duration of time, position, and physical 
 
         capabilities within the time frames mentioned above."
 
         
 
              A return to work slip of Dr. Rouse dated April 2, 1976 
 
         contains under remarks, the notation "[c]ontusion of the peronal 
 
         nerve and bone on right lower leg.O
 
         
 
              Robert Gitchell, M.D., an orthopaedic surgeon, reported on 
 
         December 19, 1983 that claimant stated his job involved handling 
 
         approximately 25-pound bundles of meat about 450 times each day. 
 
          Claimant also stated that the work floors were slanted and that 
 
         this may bother claimant as well.  On examination, straight leg 
 
         raising was positive on the right at 80 degrees and negative on 
 
         the left; knee jerks were 2/2; ankle jerks were 1/1; atrophy was 
 
         not noted in either calf or thigh; sensation was grossly intact 
 
         in the lowers; range of motion of the back was fair with pain at 
 
         the extremes.  Claimant was tender at the right S1 joint although 
 
         there was no tenderness in the sciatic notch.  He was tender in 
 
         the lumbosacral spine at about the L4-5 area.  The doctor stated 
 
         that he had programmed claimant on abdominal and back extensor 
 
         exercises as he felt claimant needed to greatly improve the 
 
         supporting structures of his back if he were to return to doing 
 
         heavier type work as he had done in the past.  The doctor thought 
 
         that, in four to six weeks from the time of the report, claimant 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  27
 
         
 
         
 
         could consider going back to work.  He reported that he would 
 
         like to see claimant in approximately four weeks to check his 
 
         progress.
 
         
 
              A September 15, 1983 note of Dr. Rouse reports that claimant 
 
         has severe back spasm and that claimant has a history of 
 
         recurrent back spasm, apparently without complaints of trauma.
 
         
 
              Arnis Grundberg, M.D., performed a lateral epicondylitis of 
 
         claimant's right elbow on April 25, 1983.  Dr. Grundberg has 
 
         opined that claimant can perform light work involving lifting 20 
 
         pounds on an infrequent basis.  He further reported that claimant 
 
         should not work in extreme cold and that claimant was moderately 
 
         restricted as to stooping, kneeling or crouching to pick up 
 
         something light from the floor; as to crawling under a table to 
 
         plug in a cord; as to reaching out with one or both arms and, as 
 
         to grasping, holding, turning or handling an object with the 
 
         fingers.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the nature and extent of claimantOs 
 
         disability as a result of his July 1, 1979 and March 15, 1981 
 
         conditions affecting his upper extremities.  Claimant contends 
 
         the extremity conditions are occupational diseases under Chapter 
 
         85A and should be evaluated industrially.  Defendants contend 
 
         claimant's conditions result in scheduled member disability 
 
         pursuant to Iowa Code section 85.34(2)(m).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              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).
 
         
 
              Iowa Code section 85A.8 provides:
 
         
 
              Occupational diseases shall be only those diseases 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  28
 
         
 
         
 
              which arise out of and in the course of the employee's 
 
              employment.  Such diseases shall have a direct causal 
 
              connection with the employment and must have followed 
 
              as a natural incident thereto from injurious exposure 
 
              occasioned by the nature of the employment.  Such 
 
              disease must be incidental to the character of the 
 
              business, occupation or process in which the employee 
 
              was employed and not independent of the employment.  
 
              Such disease need not have been foreseen or expected 
 
              but after its contraction it must appear to have had 
 
              its origin in a risk connected with the employment and 
 
              to have resulted from that source as an incident and 
 
              rational consequence.  A disease which follows from a 
 
              hazard to which an employee has or would have been 
 
              equally exposed outside of said occupation is not 
 
              compensable as an occupational disease.
 
         
 
              Iowa Code section 85.34(2)(m) provides:
 
         
 
              The loss of two-thirds of that part of an arm between 
 
              the shoulder joint and the elbow joint shall equal the 
 
              loss of an arm and the compensation therefor shall be 
 
              weekly compensation during two hundred fifty weeks.
 
             Claimant's argument apparently is that claimant's carpal, 
 
         cubital and ulnar conditions and his epicondylitis are forms of 
 
         tenosynovitis and, therefore, are occupational diseases as 
 
         tenosynovitis was among specific occupational diseases 
 
         statutorily delineated prior to the 65th General Assembly's 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  29
 
         
 
         
 
         repeal of the specific disease table.  As defendants point out in 
 
         their brief, claimant has not presented expert evidence 
 
         supporting claimant's position.  Indeed, Dr. Walker opined that 
 
         claimant's extremity conditions should be considered injuries and 
 
         not disease processes.  Likewise, claimant's conditions 
 
         apparently result from cumulative trauma to his upper extremities 
 
         arising from repetitive movements of the extremities in his job.  
 
         While the question was not before the court in McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the facts 
 
         presented in that case suggest that the Iowa Supreme Court would 
 
         find that conditions resulting from repetitive traumatic 
 
         processes are more properly evaluated as injuries under Chapter 
 
         85, rather than as diseases under Chapter 85A.  We believe such 
 
         is the better result as it provides a clearer distinction between 
 
         the nature of the disease and injury process and, thus, prevents 
 
         unnecessary confusion in the law.  Furthermore, we believe 
 
         defendants are correct in asserting that, even were claimant's 
 
         conditions found to be occupational diseases, section 85A.17 
 
         provides that compensation payable would be as provided in the 
 
         workers' compensation law.  Under Chapter 85, claimant's 
 
         extremity conditions must be evaluated under the schedule and not 
 
         industrially.
 
         
 
              We consider claimant's entitlement under the schedule.  Drs.  
 
         Wirtz, Walker and Grundberg evaluated claimant's hand.  Dr. Wirtz 
 
         alternately found a three percent impairment to the right upper 
 
         extremity and no impairment to the left upper extremity and also 
 
         a six percent impairment of the right upper extremity and a three 
 
         percent impairment to the left upper extremity.  Dr. Walker found 
 
         a 32% impairment of the right upper extremity and a 24% 
 
         impairment of the left upper extremity.  Dr. Grundberg found a 
 
         10% impairment of both upper extremities.  All three physicians 
 
         are respected, board-certified orthopaedic surgeons well known 
 
         professionally to this agency.  Additionally, Dr. Grundberg is a 
 
         member of the American Society for Surgery of the Hand, was 
 
         claimant's treating physician for all his extremity problems and 
 
         performed his right and left surgical releases and his 
 
         epicondylitis surgery.  Drs.  Wirtz and Walker were examining 
 
         physicians only and lack Dr. Grundberg's additional expertise in 
 
         conditions affecting the hand.  Dr. Grundberg has moderately 
 
         restricted claimant as to reaching out with one or both arms and 
 
         as to grasping, holding, turning or handling an object with the 
 
         fingers.  That restriction placed after long-time treatment of 
 
         claimant appears the most objective evidence of claimant's upper 
 
         extremity impairments.  For the foregoing reasons, we accept Dr. 
 
         Grundberg's opinion that claimant's condition has resulted in a 
 
         10% loss of use of each arm.  Under section 85.34(2)(m), claimant 
 
         is therefore entitled to 25 weeks of permanent partial disability 
 
         benefits on account of each extremity loss with benefits to 
 
         commence August 1, 1983.  As the losses were incurred 
 
         substantially prior to August 1, 1983 and as each loss represents 
 
         a separate injury, the benefits for each loss should be paid 
 
         concurrently.
 
         
 
              We next consider whether claimant sustained either a 
 
         specific back injury on March [2], 1983 or a cumulative back 
 
         injury in August-September, 1983.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  30
 
         
 
         
 
         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); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out ofO refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              OAn injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.]  Likewise a personal 
 
              injury includes a disease resulting from an injury .... 
 
              The result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  31
 
         
 
         
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. 0. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              The evidence reveals claimant sought treatment for back 
 
         spasm as early as 1968.  Claimant's description of his alleged 
 
         March 2, 1983 work injury is confusing in that we are unable to 
 
         determine whether claimant asserts he had a specific work 
 
         incident on that day or whether claimant merely states he 
 
         experienced pain on that date which claimant related to his job 
 
         duties.  In any event, claimant's description of his job duties 
 
         appears somewhat exaggerated.  For reasons which will be further 
 
         developed below, we are unable to say the duties per se produced 
 
         an injury to claimant's back.  Dr. Walker has opined that 
 
         claimant had an incident on March 2, 1983 when claimant was 
 
         pulling meat off the line and twisted his back and felt immediate 
 
         low back pain, which incident caused pain in the sacroiliac 
 
         joint.  Dr. Walker was an examining physician only, however, and 
 
         examined claimant long after March 2, 1983.  We are uncertain as 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  32
 
         
 
         
 
         to what Dr. Walker relied upon in reporting a March 2, 1983 
 
         incident as nursing notes for March 2, 1983 do not relate an 
 
         incident.  The only contemporaneous note of twisting is a March 
 
         7, 1983 admission note stating claimant twisted his back pulling 
 
         meat off the line.  We cannot determine whether such refers to a 
 
         specific work motion, routine work motions or claimant's self 
 
         description of the condition of claimant's back.  Claimant's 
 
         failure to testify as to specific activities of March 2, 1983 
 
         makes the point additionally confusing.  As we have no specific 
 
         testimony concerning a work incident on March 2, 1983, nor even a 
 
         medical history precisely recording any such event, we are unable 
 
         to find a specific incident of March 2, 1983 which produced 
 
         injury to claimant's back.  We, therefore, consider claimant's 
 
         allegation of a cumulative injury.
 
         
 
              Dr. Rouse, claimant's family practitioner, has stated a 
 
         causal relation exists between the conditions related on a 
 
         medical note and outpatient admission record of March 7, 1983 and 
 
         the condition for which the doctor treated claimant in September, 
 
         1983.  He acknowledged he was unfamiliar with the work a boner 
 
         performs, but for claimant's description of claimant's work 
 
         duties.  The doctor opined claimant's work conditions, as the 
 
         doctor understood those conditions, could be condusive to 
 
         aggravating chronic, recurrent back strain and spasm.  The doctor 
 
         had understood that claimant's condition had improved while 
 
         claimant was off work.  Claimant reported at hearing that his 
 
         back continued to ache while he was off work from April 24, 1983 
 
         to August 1, 1983 and that he did exercises and used hot soaks to 
 
         relieve his condition during that period.  Such is inconsistent 
 
         with Dr. Rouse's understanding and appears inconsistent with the 
 
         onset of claimant's severe back spasm on September 13, 1983.  On 
 
         that date, a Tuesday, claimant had not worked almost four full 
 
         days on account of a sore throat before the onset of his 
 
         debilitating symptoms.  Claimant, himself, testified that, on 
 
         Monday, he was ObackwiseO ready to return to work.  On Tuesday, 
 
         while sitting on his sofa at home, he experienced severe back 
 
         spasm for which he was hospitalized.  Claimant's worse symptoms 
 
         were far removed from any actual work activity.  One would 
 
         generally expect an individual's most severe symptoms which are 
 
         aggravating a condition to be present while the individual is 
 
         working or in close chronology to work activities.  Claimant's 
 
         actual history, therefore, discounts the weight to be given Dr. 
 
         Rouse's opinion concerning a work related aggravation of 
 
         claimant's underlying back condition.
 
         
 
              Dr. Wirtz, on the other hand, has opined that claimant's 
 
         back spasm at home on September 13, 1983 would be a substantial 
 
         factor in claimant's symptoms and [physical] disability after 
 
         that date.  Dr. Wirtz does not relate the September 13, 1983 
 
         spasm to claimant's work.  For reasons noted above, it appears 
 
         inconsistent to relate that spasm episode to work which claimant 
 
         had not performed for some four days.
 
         
 
              Dr. Boulden initially stated claimant had myofascial pain 
 
         which claimant's work may or may n t have produced.  He later 
 
         stated it was possible [emphasis added] claimant's job as 
 
         described in claimant s counsel's hypothetical question could 
 
         aggravate an underlying degenerative condition or accelerate 
 
         degenerative disc disease.  Dr. Boulden had earlier stated that 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  33
 
         
 
         
 
         the job viewed on video should not physically tax the back.  We 
 
         discount this statement somewhat as the video does not show the 
 
         job claimant actually performed, but rather a job with both noted 
 
         similarities and dissimilarities.  The job recorded on the video 
 
         does not involve a great deal of twisting of the lower back, 
 
         however.  Dr. Boulden reported that the one-fourth inch floor 
 
         slope should not produce back problems with proper back use.  
 
         Such appears reasonable.  Mr. Schumacher testified that federal 
 
         regulations require a one-eighth to one-fourth inch slope in 
 
         packing plant construction.  It appears highly unlikely such 
 
         sloping would be required if the slope were a usual or recognized 
 
         cause of back ailments in packing house employees.  [We note in 
 
         passing that we know of no other workers' compensation claim in 
 
         which the slope of the packing house floor was implicated as a 
 
         causative factor in claimant's back complaints.  Again, if the 
 
         slope can produce such problems and the slope is routinely 
 
         required in packing plants, we find it unusual that we are 
 
         unaware of other cases where such claim is made.]  The 
 
         hypothetical question to which Dr. Boulden responded referenced 
 
         to claimant boning approximately 50 butts per hour, each weighing 
 
         10 to 25 pounds.  Mr. Severns reported that butts to be boned 
 
         would weigh between 7 3/4 and 12 pounds and that an average 
 
         worker would be expected to bone 42 butts per hour.  Claimant 
 
         stated the average weight of butts was 7 to 15 pounds.  He 
 
         further testified that, after his hand surgeries, he needed 
 
         co-workers' help to meet his boning production quotas.  He stated 
 
         he was running at only approximately 30% on his August, 1983 work 
 
         return.  The above facts undermine the hypothetical question as 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  34
 
         
 
         
 
         placed and further make it doubtful that claimant's work 
 
         conditions produced his spasmatic back condition.  Further, as 
 
         noted earlier, claimant had episodes of back spasm over an 
 
         extended time and even predating his Oscar Mayer employment.  
 
         Thus, while we do not doubt that claimant has seriously disabling 
 
         back complaints and we sympathize with the distress these 
 
         undoubtedly cause him and his family, we cannot say on this 
 
         record that those complaints arose out of and in the course of 
 
         his employment.  For that reason, claimant's claim must fail.
 
         
 
              As we have not found an injury which arose out of and in the 
 
         course of claimant's employment, we need not address the 
 
         remaining questions that claimant's claim presents.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant's conditions in his upper extremities are the 
 
         result of cumulative traumatic injury and are not disease 
 
         processes.
 
         
 
              Claimant had a decompression of the right carpal and ulnar 
 
         tunnels and of the ulnar nerve at the right elbow on January 18, 
 
         1982.  Claimant had decompression of the median and ulnar nerves 
 
         of the left wrist and of the ulnar nerve at the left elbow on 
 
         March 10, 1982.  Claimant had a lateral epiconylotis surgery on 
 
         April 25, 1983.
 
         
 
              Claimant performed repetitive movement of his upper 
 
         extremities on his job; such repetitive movement culminated in 
 
         his carpal, cubital and ulnar conditions.
 
         
 
              Claimant's conditions in his upper extremities are evaluated 
 
         under the schedule and not industrially.
 
         
 
              Drs.  Wirtz, Walker and Grundberg are all respected, 
 
         board-certified orthopaedic surgeons.
 
         
 
              Dr. Grundberg is a member of the American Society for 
 
         Surgery of the Hand.
 
         
 
              Dr. Grundberg was claimant's treating physician for 
 
         claimant's extremity problems and performed claimant's right and 
 
         left surgical releases and his epicondylitis surgery.
 
         
 
              Drs. Wirtz and Walker examined claimant only and lack 
 
         additional expertise in hand conditions.
 
         
 
              Claimant is moderately restricted as to reaching out with 
 
         one or both arms and as to grasping, holding, turning or handling 
 
         an object with the fingers.
 
         
 
              Claimant sought treatment for back spasm on various 
 
         occasions from 1968 onward.
 
         
 
              Claimant began work at Oscar Mayer in 1969.
 
         
 
              It is unclear whether claimant had a specific work incident 
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  35
 
         
 
         
 
         on March 2, 1983 or experienced pain while performing his regular 
 
         work duties.
 
         
 
              Claimant had physical therapy at Dallas County Hospital for 
 
         a period beginning March 14, 1983 to relieve his back condition.
 
         
 
              Claimant was off work from April 25, 1983 to August 1, 1983 
 
         following his epicondylitis surgery.
 
         
 
              Claimant's back continued to ache while he was off work.
 
         
 
              Claimant did exercises and used hot soaks to relieve his 
 
         condition while he was off work.
 
         
 
              Claimant returned to work on August 1, 1983.
 
         
 
              Claimant worked on the Boston butt boning line.
 
         
 
              Claimant boned butts with weights of from 7 3/4 pounds to 15 
 
         pounds.
 
         
 
              Workers were expected to bone 42 butts per hour.
 
         
 
              Co-workers assisted claimant in making his production quotas 
 
         following his extremity surgeries.  Claimant was boning 
 
         approximately 30% of quota after claimant's August 1, 1983 work 
 
         return.
 
         
 
              The boning area floor has a one-fourth inch per foot slope 
 
         to the drain.
 
         
 
              Federal regulations require a one-eighth inch to one-fourth 
 
         inch slope in meat packing facilities.
 
         
 
              With proper back use, a one-fourth inch floor slope should 
 
         not produce back problems.
 
         
 
              Claimant last worked for Oscar Mayer on Friday, September 9, 
 
         1983.
 
         
 
              Claimant was off work Monday and Tuesday, September 12 and 
 
         13, 1983 on account of a sore throat.
 
         
 
              On Monday, September 12, 1983, claimant was ready to return 
 
         to work as regards his back.
 
         
 
              On Tuesday, September 13, 1983, in the afternoon while 
 
         sitting on his sofa at home, claimant experienced severe back 
 
         spasm for which he was subsequently hospitalized.
 
         
 
              Claimant's back spasm at home on September 13, 1983 was 
 
         remote in time from his work at Oscar Mayer.
 
         
 
              Dr. Rouse was unfamiliar with claimant's work conditions as 
 
         claimant described those conditions.
 
         
 
              At hearing, claimant appeared to exaggerate the difficulties 
 
         in his work conditions.
 
         
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  36
 
         
 
         
 
              The hypothetical question placed to Dr. Boulden was 
 
         inconsistent with claimant's actual job duties and claimant's 
 
         actual job performance.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his upper extremities conditions of 10% of the 
 
         right arm and 10% of the left arm.
 
         
 
              Claimant has not established a back condition which 
 
         condition arose out of and in the course of his employment, 
 
         either by way of a specific work injury of March, 1983 or by way 
 
         of a cumulative injury during August-September, 1983.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for twenty-five (25) weeks on account of his right arm 
 
         at the rate of two hundred fifty-six and 58/100 dollars ($256.58) 
 
         per week with those benefits to commence August 1, 1983.
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for twenty-five (25) weeks on account of his left arm at 
 
         the rate of two hundred fifty-six and 58/100 dollars ($256.58) 
 
         per week with those benefits to commence on August 1, 1983.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              Defendants pay the costs for proceedings in file numbers 
 
         692457 and 700671 pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              Claimant take nothing from proceedings in file numbers 
 
         756245 and 756247.
 
         
 
              Claimant pay the costs for proceedings in file numbers 
 
         756245 and 756247 pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              Defendants file Claim Activity Reports as requested by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                         HELEN JEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         MCBIRNIE V. OSCAR MAYER & COMPANY
 
         Page  37
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100, 1107, 1108.40
 
                                                 1803.1, 2203, 2209
 
                                                 Filed March 31, 1988
 
                                                 HELEN JEAN WALLESER
 
         
 
         
 
         CHARLES E. MCBIRNIE,
 
                                            File Nos. 692457, 700671
 
             Claimant,                                756245, 756247
 
         
 
         VS.                                       R E V I E W -
 
         
 
         OSCAR MAYER & COMPANY,                 R E 0 P E N I N G
 
         
 
              Employer,                          D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803.1, 2203, 2209
 
         
 
              Claimant's argument that upper extremity conditions 
 
         resulting from repetitive movement at work were occupational 
 
         diseases failed.  Held to be cumulative trauma.  Compensation 
 
         awarded under the schedule with ratings of treating physician 
 
         accepted over ratings of examining physicians.
 
         
 
         1100, 1107, 1108.40
 
         
 
              Claimant did not establish spasmatic back condition arose 
 
         out of and in the course of employment.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHERYL ANN ENDERLE,
 
                                                      FILE NO. 693872
 
              Claimant,
 
                                                       R E V I E W -
 
         VS.
 
                                                    R E O P E N I N G
 
         CITY OF DAVENPORT,
 
                                                      D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.,
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement that was filed on February 16, 1982.  The action is 
 
         brought by Cheryl Ann Enderle, claimant, against the City of 
 
         Davenport, employer and self-insured defendant for benefits as a 
 
         result of an injury that occurred on January 13, 1982.  A hearing 
 
         was held on October 16, 1986 in Davenport, Iowa and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of joint exhibits 1 through 16; the testimony of Cheryl Ann 
 
         Enderle (claimant); and the testimony of defendant's witnesses 
 
         Robert E. Garner (police officer), Larry Brown (health spa 
 
         manager), and Larry W. Frey (police sergeant).
 
         
 
                                   STIPULATIONS
 
         
 
              At the time of the hearing the parties stipulated to the 
 
         following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the injury.
 
         
 
              That the claimant sustained an injury on January 13, 1982 
 
         which arose out of and in the course of her employment with the 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         that the claimant was entitled to and was paid temporary 
 
         disability benefits intermittently between January 14, 1982 and 
 
         November 1, 1982.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits in the event of an award is November 2, 1982.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $131.17.
 
              That the claimant was paid seven weeks of compensation at 
 
         the rate of $131.17 per week prior to the hearing.
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   2
 
         
 
         
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury of January 13, 1982 was the cause of any 
 
         permanent partial disability.
 
         
 
              Whether the claimant is entitled to any permanent partial 
 
         disability benefits.
 
         
 
              Whether the claimant is entitled to the payment of certain 
 
         medical expenses with two chiropractors, Kenneth J. Meyer, D.C., 
 
         and J. Larry Troxell, D.C.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered though only 
 
         certain pertinent evidence is mentioned in this opinion.
 
         
 
              Claimant is 48 years old.  She began working for the City of 
 
         Davenport in May of 1980.  She was injured on January 13, 1982.  
 
         She was employed as a records clerk in the police department at 
 
         the time of the injury and returned to this job after the injury.  
 
         Since returning to work she has been promoted from records clerk 
 
         to senior records clerk.  Her duties include typing, filing, 
 
         microfilming, keeping books and records, and distributing 
 
         supplies.  She is performing the same duties now that she 
 
         performed prior to the injury.
 
         
 
              At approximately 3:45 p.m. on January 13, 1982, a power 
 
         outage occurred at work.  Claimant was proceeding into the 
 
         electrical room next to her office to assist another employee to 
 
         restore the power when she tripped on the carpet and fell on her 
 
         right side.  The evidence is in conflict as to whether she was 
 
         unconscious for a short period of time or not.  She said she 
 
         twisted as she fell and hit her head, right arm, right hip and 
 
         right leg when she fell.
 
         
 
              Claimant received emergency treatment at Mercy Hospital in 
 
         Davenport (Exhibit 2).  She complained of headache, neck pain, 
 
         right elbow pain and right hip pain at the emergency room.  At 
 
         the hearing she stated she also had right knee, right arm and low 
 
         back pain.  She told the nurse at the emergency room that it felt 
 
         like her hip "went out.O  She told the doctor at the emergency 
 
         room that she threw her hip out, which is something she does all 
 
         of the
 
         
 
         
 
         time.  She was on her way to the chiropractor to get it fixed but 
 
         instead came to the emergency room at the hospital on the advice 
 
         of her supervisor.  X-rays were normal except there was a 
 
         question whether a dense line across the neck of the femur was an 
 
         impacted fracture from the injury or whether it was a preexisting 
 
         condition.  It was later determined that it was not an impacted 
 
         fracture due to this accident (Ex. 9).  Claimant's supervisor, 
 
         Major Robert E. Garner, filed an accident report with the City of 
 
         Davenport on the following day on January 14, 1982  (Ex. 16).
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   3
 
         
 
         
 
         
 
              At the hearing claimant testified that her current 
 
         complaints were her right knee, hip and back.  She can only stand 
 
         or sit approximately one hour at a time because her back hurts.  
 
         It is hard to turn her head to the left or the right or up and 
 
         down.  She cannot bend forward or backward without pain.  She 
 
         claimed to have pain down the right leg and that she limps when 
 
         she walks.  She cannot ride in a car for over an hour without 
 
         either laying down or getting out to walk.  She denied any 
 
         injuries or physical health problems either before or after the 
 
         instant injury.  However, claimant's treatment record with Dr. 
 
         Meyer shows a number of injuries and numerous other health 
 
         problems.  More specifically the office note of Dr. Meyer on 
 
         April 26, 1972 mentions a fall from a bicycle; the office note of 
 
         October 8, 1973 notes a fall off a bed; and the office note on 
 
         March 10, 1975 states that she fell flat on her face just to 
 
         mention a few of the injuries recorded there (Ex. 6).  It was 
 
         also brought out that she was rear ended in an automobile 
 
         accident in June of 1986, but the claimant stated that this 
 
         affected her upper back between her shoulder blades.
 
         
 
              Sergeant Larry W. Frey, a Davenport police officer, 
 
         testified that he is the claimant's supervisor.  He is in daily 
 
         contact with her and her desk is in his view.  She has never 
 
         complained of inability to do any job.  She sits at her desk most 
 
         of the day except to get up to wait on people or to go to the 
 
         files.  He has never had to assign any of her tasks to anyone 
 
         else.  Claimant's absences from work after the injury are no 
 
         greater than they were before the injury (Ex. 13).
 
         
 
              Claimant testified.that she was first treated by J. H. 
 
         Sunderbruch, M.D., who is a general surgeon in Davenport.  Dr. 
 
         Sunderbruch furnished a report on January 21, 1983.  He saw the 
 
         claimant several times between January of 1982 and January of 
 
         1983.  In the course of her treatment he sent her to Richard L. 
 
         Kreiter, M.D., an orthopedic surgeon; Byron R. Rovine, M.D., a 
 
         neurologist; and the University of Iowa Hospitals and Clinics 
 
         where she was examined in both the orthopedic and neurology 
 
         departments.  Dr. Sunderbruch stated that claimant was suffering 
 
         from degenerative arthritis in her right hip, which may have been 
 
         aggravated by her fall.  However, he adds that there is a severe 
 
         emotional overlay in this entire problem.  He felt the accident 
 
         of January 13, 1982 was not the precursor of her true complaints 
 
         (Ex. 9).
 
         
 
              Dr. Kreiter first saw claimant in January of 1982 and last 
 
         saw her in February of 1985.  He reports on October 21, 1985, 
 
         that her chief complaint was low back pain.  He reviewed the 
 
         record of Kenneth J. Meyer, D.C., and determined claimant saw 
 
         Meyer for right hip pain and sought chiropractic care from Dr. 
 
         Meyer from 1972 through December of 1983.  She continued to have 
 
         chronic hip problems up until the present time.  His x-rays 
 
         demonstrated degenerative osteoarthritis of the hip.  Dr. Kreiter 
 
         concluded:
 
         
 
              ...In any event it would be my opinion that Ms. Enderle 
 
              has had a longstanding history of recurrent back and 
 
              hip problems dating back to 1972 and that the injury 
 
              that is in question may well have aggravated a 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   4
 
         
 
         
 
              pre-existing condition, but from the physical findings, 
 
              does not seem to have accelerated the condition to any 
 
              significant degree.
 
         
 
         (Ex. 5)
 
         
 
              Dr. Rovine, the neurologist, saw claimant on March 12, 1982 
 
         and December 6, 1982 for pain in the entire right side -- hand, 
 
         arm, thigh, leg and foot.  She had been on crutches for eight 
 
         weeks.  On March 12, 1982, Dr. Rovine concluded:
 
         
 
                 I can find no evidence that this woman's pain is on 
 
              the basis of sciatic radiculopathy or neuropathy.  
 
              There is no evidence to suggest that she has a 
 
              herniated or extruded disc.  I get some impression from 
 
              some of the conflicting statements and bizarre 
 
              complaints that there may be a large functional element 
 
              in this woman's clinical syndrome with complaining far 
 
              beyond the scope of any organic findings clinically or 
 
              by x-ray to explain her problem.
 
         
 
                 Once it has been decided once and for all whether or 
 
              not she has had any fractures and when full 
 
              mobilization is again permitted, I would suggest a 
 
              rigorous physical therapy program to attempt rapid 
 
              rehabilitation to normal function.  If she does not 
 
              respond adequately and her complaints increase, in the 
 
              absence of organic findings to back up her complaints, 
 
              psychiatric evaluation may well be helpful.
 
         (Ex. 8).
 
         
 
              Dr. Rovine reconfirmed the same findings on December 6, 
 
         1982.  However, a CT scan ordered by Dr. Sunderbruch on November 
 
         22, 1982 (Ex. 2, page 5) indicated a protrusion of the left side 
 
         of the L4-5 disc.  Dr. Rovine did not think a myelogram was 
 
         clinically  indicated, but he informed the claimant that this 
 
         would be her next step if she wanted to explore it further.  
 
         Claimant indicated that her doctor had told her that she had 
 
         already received the maximum allowable amount of radiation for 
 
         that year.  Dr. Rovine again concluded his report by saying that 
 
         claimant should be evaluated psychiatrically (Ex. 8).
 
         
 
              On October 27, 1982, claimant was simply sitting and heard a 
 
         popping sound in her back between her spine and her right hip.  
 
         She reported to St. Luke's Hospital for emergency treatment (Ex. 
 
         3).  St. Luke's told her it was her sciatic nerve.
 
         
 
              Claimant was examined at the University of Iowa Hospitals 
 
         and Clinics in January of 1983 in both the orthopedic and 
 
         neurology departments.  X-rays, CT scans, myelogram and EMG and 
 
         MCV studies were all normal.  The university doctors found that 
 
         claimant had mild degenerative arthritis of the right hip.  They 
 
         recommended medication and physical therapy.  Epidural steroid 
 
         shots could be considered.  No return was scheduled (Ex. 4).
 
         
 
              On January 31, 1983, the City of Davenport informed the 
 
         claimant by letter that they had gone to considerable expense to 
 
         treat her complaints and that they had determined that her 
 
         degenerative arthritis condition was the cause of her continued 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   5
 
         
 
         
 
         medical problems.  Therefore, future medical claims would have to 
 
         be submitted through the health insurance carrier and absences 
 
         from work would be charged to her sick leave (Ex. 15).
 
         
 
              Dr. Meyer, the chiropractor, submitted the claimant's 
 
         chiropractic record from February 3, 1971 through December 16, 
 
         1983.  Claimant saw him approximately 20 or 30 times every year 
 
         for multiple complaints many of which were the right hip and 
 
         back, neck and right shoulder pain, and leg pains.
 
         
 
              Claimant began seeing J. Larry Troxell, D.C., on December 
 
         13, 1983.  He diagnosed soft tissue damage of the lumbar and 
 
         sacroiliac region from the injury of January 13, 1982.  He stated 
 
         that the injuries that she received resulted in a 25 percent 
 
         impairment.  He recommended chiropractic treatment once a week 
 
         for the rest of her life (Ex. 10).  Claimant's total bill with 
 
         him as of September 5, 1985 was $4,250 (Ex. 12).  At the hearing 
 
         claimant testified that she had continued to see Dr. Troxell and 
 
         that her current bill was approximately $7,000.  She stated that 
 
         she sees him twice a week.
 
         
 
              At the request of the employer claimant was examined by W. 
 
         J. Robb, M.D., on August 9, 1985.  Claimant complained of back 
 
         and right leg pain and trouble sitting, standing, bending and 
 
         reaching.  She walked with a limp favoring her right leg.  He 
 
         performed an extensive examination and concluded as follows:
 
         
 
         
 
              Diagnosis:  1.  SPRAIN, LUMBOSACRAL SPINE, SECONDARY
 
                              TO FALL AT WORK, JANUARY 13, 1982
 
                          2.  DEGENERATIVE ARTHRITIS, RIGHT HIP
 
                          3.  PSYCHOSOMATIC DISEASE, FUNCTIONAL
 
                              OVERLAY SECONDARY TO TRAUMA
 
         (Ex. 7)
 
         
 
              Dr. Robb added that claimant continued to have back and leg 
 
         pain because she did not adequately perform exercises that had 
 
         been prescribed for her.  Most of her pain is due to the 
 
         degenerative arthritis in her hip and only a minimal amount of 
 
         her pain was due to her back.  He stated that settlement of her 
 
         litigation would improve her condition.  He gave claimant a five 
 
         percent permanent impairment rating of her body as a whole as a 
 
         result of the injury to the back, but added that this impairment 
 
         was largely due to her failure to perform the exercises which had 
 
         been prescribed and that she was not motivated to do so in the 
 
         future.  Dr. Robb stated that she also had an impairment of 20 
 
         percent of the body as a whole due to degenerative arthritis of 
 
         the hip but it was not due to the accident nor did the accident 
 
         significantly alter or aggravate her hip condition.  She had no 
 
         impairment due to her head, neck, right upper extremity or right 
 
         knee complaints.  In his opinion, further chiropractic 
 
         manipulation is not necessary now or for the rest of her life.  
 
         Rather her progress and improvement depends upon her own 
 
         activities, exercise and physical fitness (Ex. 7).
 
         
 
              Claimant testified that she went to a health spa twice a 
 
         week to do her exercises.  Larry Brown, manager of the spa, 
 
         testified as to her attendance from his health spa records (Ex. 
 
         14) which showed that she attended about three or four times a 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   6
 
         
 
         
 
         month from September of 1985 to July of 1986 and then she quit 
 
         attending.
 
         
 
              F. Dale Wilson, M.D., conducted a very thorough and detailed 
 
         examination of the claimant at the request of her attorney (Ex. 
 
         11).  He also testified by deposition (Ex. 1).  He thought 
 
         claimant should have a weight lifting restriction of 
 
         approximately five pounds to 15 pounds and that she should be 
 
         allowed to change positions while working.  He believed that all 
 
         of her complaints were caused by the injury of January 13, 1982.  
 
         Dr. Wilson gave the claimant the following impairment ratings:
 
         
 
                                                         Person
 
              To recapitulate:      I. Head and neck         3%
 
                                   II. Right upper extrem-
 
                                                      ity    5%
 
                                  III. Right hip            10%
 
                                   IV. Right knee            0%
 
                                    V. Lumbar spine          9%
 
                                                            27% 
 
         disability
 
         Ex. 11)
 
         
 
         
 
              It should be noted, however, that Dr. Wilson was operating 
 
         under the false or mistaken notion that the claimant had never 
 
         had any problems prior to her injury on January 13, 1982.
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   7
 
         
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of January 13, 1982 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.w.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is-for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant testified several times that she had never had any 
 
         problems with her neck, back, hip or headaches prior to this 
 
         injury.   However, there are numerous treatments recorded by her 
 
         chiropractor, Dr. Meyer, going as far back as 1971.  His record 
 
         shows that she received treatment for both hips, pain in her 
 
         right hip, back pain, neck pain and headaches.  His record 
 
         directly contradicts her testimony.  At the emergency room she 
 
         told the nurse that it felt like her hip went out.  She told the 
 
         doctor that it does it all of the time.  Degenerative arthritis 
 
         of her right hip was established by x-rays.  She apparently had 
 
         an episode of it on October 27, 1982 when she was just sitting 
 
         and her hip popped and she sought emergency care at St. Luke's 
 
         Hospital.
 
         
 
              Dr. Sunderbruch, Dr. Kreiter, Dr. Rovine and the University 
 
         of Iowa Orthopedic and Neurology Departments all diagnosed 
 
         degenerative arthritis of the claimant's right hip as their 
 
         primary diagnosis for her complaints.  Dr. Sunderbruch, Dr. 
 
         Rovine and the Orthopedic and Neurology Department apparently 
 
         were not specifically asked and therefore did not make a 
 
         statement on whether the accident of January 13, 1982 (1) caused 
 
         or aggravated her degenerative hip condition; (2) caused any 
 
         permanent impairment; or (3) warranted an impairment rating.  Dr. 
 
         Kreiter did say that the injury did not accelerate her 
 
         longstanding arthritis condition but it may well have aggravated 
 
         it.  Dr. Kreiter did not give an opinion on permanent impairment 
 
         and did  not give an impairment rating.  Dr. Meyer, claimant's 
 
         chiropractor, found that all of her complaints were caused by the 
 
         fall but did not make a finding of permanent impairment and he 
 
         did not give an impairment rating.
 
         
 
              Dr. Troxell, the second chiropractor that the claimant 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   8
 
         
 
         
 
         consulted, said the accident caused soft tissue damage and 
 
         assessed an impairment rating of 25 percent of the body as a 
 
         whole.  He did not indicate how he arrived at this percentage.
 
         
 
              Dr. Wilson found the accident was responsible for the 
 
         claimant's complaints and found permanent impairment in the 
 
         amount of 27 percent of the body as a whole.  He gave an 
 
         extremely detailed account of how he determined his ratings.
 
         
 
              Dr. Robb found permanent impairment of the body as a whole. 
 
          He said that five percent was for her back symptoms due to the 
 
         injury on January 13, 1982, but 20 percent was not due to this 
 
         injury, but rather was due to the degenerative arthritic hip 
 
         disease.  Varied Industries v. Sumner, 353 N.W.2d 402 (Iowa 
 
         1984). of the five percent which Dr. Robb attributed to this 
 
         injury he said most of that was due to the claimant's failure to 
 
         do her prescribed exercises and her lack of motivation to do so 
 
         in the future.  Dr. Robb did not explain how he arrived at his 
 
         ratings but normally orthopedic surgeons use either the 
 
         orthopedic guide or the AMA Guide or both.
 
         
 
              Dr. Wilson's percentage ratings must be discounted.  He 
 
         stated several times in his report and in his deposition 
 
         testimony that the claimant had no problems preexisting this 
 
         injury.  However, this is not correct.  Claimant, on the 
 
         contrary, had many, many problems before this injury according to 
 
         Dr. Meyer (Ex. 6) and her own remarks in the emergency room and 
 
         the fact that her hip popped simply while sitting and caused her 
 
         to go to the emergency room again on October 27, 1982.
 
         
 
              Dr. Troxell's rating is 25 percent but he gives no 
 
         underlying basis for his rating.
 
         
 
              In addition, several doctors commented about the significant 
 
         emotional overlay of the claimant.  Dr. Rovine felt she needed 
 
         psychiatric assistance.  He also suggested secondary gain factors 
 
         as affecting the claimant's many bizarre symptoms and statements. 
 
          There were many indications from the doctors that the claimant's 
 
         complaints exceeded her organic finding of disease.
 
              Based primarily on the opinion of Dr. Robb, who is the 
 
         defendants' own doctor, and who is the only one who directly 
 
         addressed the impairment issue, it is found that there is some 
 
         slight degree of permanent impairment, but it is not large, it is 
 
         slight.  Dr. Robb rated the claimant's permanent impairment as 
 
         five percent of the body as a whole due to her back complaints.  
 
         Dr. Wilson and Dr. Troxell, who were claimant's doctors, also did 
 
         find some impairment and gave ratings.
 
         
 
              Claimant has numerous detailed subjective complaints.  She 
 
         has incurred $7,000 worth of chiropractic care expense to treat 
 
         the symptoms.  However, many of these symptoms and numerous other 
 
         symptoms existed prior to this injury and she received 
 
         chiropractic care for them.  Her pattern of chiropractic care 
 
         after the injury appears to be no different than her pattern of 
 
         chiropractic care prior to the injury.  In spite of her 
 
         subjective complaints the claimant has returned to work and does 
 
         her job in a normal manner.  Frey testified that he observes her 
 
         every day, all day.  She sits at her desk without complaint or 
 
         any physical signs of pain and does her work without any 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page   9
 
         
 
         
 
         noticeable difficultly.  He has never had to assign any of her 
 
         tasks to anyone else.
 
         
 
              THEREFORE, based upon the foregoing discussion, it is 
 
         determined that the claimant has sustained an industrial 
 
         disability of 10 percent of the body as a whole based primarily 
 
         on Dr. Robb's determination that her back is impaired due to this 
 
         injury, the claimant's subjective complaints of pain, and the 
 
         supporting evidence from Dr. Wilson and Dr. Troxell.
 
         
 
              Iowa Code section 85.27 provides that the employer shall 
 
         furnish "reasonable" medical care.  It is found that the employer 
 
         did provide reasonable medical care in this case.  They provided 
 
         the services of Dr. Sunderbruch, a family practice physician and 
 
         general surgeon; Dr. Kreiter, an orthopedic surgeon; Dr. Rovine, 
 
         a neurosurgeon; and the expertise of the orthopedic department 
 
         and the neurology department of the University of Iowa Hospitals 
 
         and Clinics.  The employer paid for x-rays, CT scans, a 
 
         myelogram, and an EMG and NCR test.  All of these tests proved 
 
         negative for any disease other than degenerative arthritis of 
 
         some longstanding that probably predated this injury.  At this 
 
         point the employer determined that reasonable care had been 
 
         provided.  This decision concurs with their decision for the 
 
         reasons set forth above.  Claimant was provided reasonable 
 
         medical care at that point.
 
         
 
              The care of Dr. Meyer and Dr. Troxell was not authorized by 
 
         the employer as required by Iowa Code section 85.27 nor was it 
 
         reasonable in view of the care that the employer had already 
 
         provided.  Furthermore, the effectiveness of this care is in 
 
         question when the patient's condition does not improve or 
 
         significantly change.  Dr. Troxell has treated the claimant two 
 
         or three times a week for over three years.  Claimant owes him 
 
         $7,000.  Dr. Troxell feels that claimant will continue to need 
 
         treatments on a regular basis for the rest of her life.  It is 
 
         noted also that the claimant saw Dr. Meyer approximately 20 or 30 
 
         times a year from 1971 through 1983 for these same or similar 
 
         complaints.  Dr. Robb states that further chiropractic 
 
         manipulation was not necessary.  Rather what this claimant needed 
 
         was to perform the exercises which had been prescribed for her 
 
         (Ex. 7).  Dr. Kreiter also opposed chronic constant chiropractic 
 
         treatment in the case of this patient (Ex. 5).  Dr. Wilson, the 
 
         evaluating doctor for the claimant, also felt that no further 
 
         rehabilitation was needed (Ex. 11).
 
         
 
              Claimant appears to be entitled to certain mileage expenses. 
 
          In her testimony she stated that she traveled 120 miles round 
 
         trip from her home in Davenport to Iowa City and return.  A claim 
 
         also appears to be made for four miles to Mercy Hospital and six 
 
         miles to Dr. Rovine (Ex. 12).  Total mileage claimed is than 130 
 
         miles.  This claim was not disputed by the defendants.  
 
         Therefore, it is determined that the claimant is entitled to 
 
         medical mileage of 130 miles at the rate of $.24 per mile and 
 
         should be reimbursed in the amount of $31.20.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page  10
 
         
 
         
 
         
 
              Based upon the testimony of Dr. Robb, Dr. Wilson and Dr. 
 
         Troxell, the claimant did sustain some permanent impairment from 
 
         this injury.  Dr. Robb assessed a five percent permanent 
 
         impairment rating of the body as a whole as a result of the 
 
         injury to the back.
 
         
 
              Claimant has been able to perform her regular job as well 
 
         after the injury as before the injury from all outward 
 
         appearances but with considerable difficulty according to the 
 
         claimant's subjective complaints.
 
         
 
              Claimant has sustained a 10 percent industrial disability to 
 
         the body as a whole.
 
         
 
              That the claimant incurred 130 miles of authorized medical 
 
         mileage.
 
         
 
              That the defendants did provide reasonable medical care to 
 
         the claimant for this injury.
 
         
 
              That the treatment of Dr. Meyer and Dr. Troxell was not 
 
         authorized by the employer and was not reasonable under the 
 
         circumstances.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That the injury of January 13, 1982 was the cause of some 
 
         permanent disability.
 
         
 
              That the claimant is entitled to 50 weeks of permanent 
 
         partial disability benefits based upon 10 percent of the body as 
 
         a whole as industrial disability.
 
         
 
              That claimant is entitled to $31.20 of medical mileage as 
 
         shown above.
 
         
 
              That the defendants proved that reasonable medical care had 
 
         been provided to the claimant as required by Iowa Code section 
 
         85.27.
 
         
 
              That any other medical treatment incurred by the claimant 
 
         without authorization, specifically Dr. Meyer and Dr. Troxell, 
 
         was not reasonable medical expense within the context of Iowa 
 
         Code section 85.27.
 
         
 
                                      ORDER
 
         
 
              WHEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         thirty-one and 17/100 dollars ($131.17) per week in the total 
 
         amount of six thousand five hundred fifty-eight and 50/100 
 
         dollars ($6,558.50) commencing on November 2, 1982.  That the 
 

 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page  11
 
         
 
         
 
         defendants pay this amount in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendants are entitled to a credit for any amounts 
 
         previously paid.
 
         
 
              That defendants pay claimant thirty-one and 20/100 dollars 
 
         ($31.20) in medical mileage expense.
 
         
 
              That defendants are to pay the cost of this proceeding 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         formerly Iowa Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1.
 
         
 
         
 
              Signed and filed this 31st day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             WALTER R. McMANUS, JR.
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
                                             
 
         
 
         
 
         
 
         ENDERLE V. CITY OF DAVENPORT
 
         Page  12
 
         
 
         
 
        
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Allan Hartsock
 
         Mr. Craig L. Kavensky
 
         Mr. H. Reed Doughty
 
         Attorneys at Law
 
         4th Floor Rock Island Bldg.
 
         P. 0. Box 428
 
         Rock Island, Illinois 61204
 
         
 
         Mr. Mark F. Cyr
 
         Attorney at Law
 
         116 E. 6th St.
 
         Davenport, Iowa 52803
 
         
 
         Mr. Steven C. Lussier
 
         Staff Attorney Legal Dept.
 
         City Hall
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1108.50; 1402.40
 
                                                  1402.60; 1803
 
                                                  Filed March 31, 1987
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHERYL ANN ENDERLE,
 
                                                      FILE NO. 693872 
 
              Claimant,
 
                                                       R E V I E W -
 
         VS.
 
                                                     R E 0 P E N I N G
 
         CITY OF DAVENPORT,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.50; 1402.40; 1803
 
         
 
              Claimant fell at work and had multiple complaints of injury 
 
         and pain.  Several doctors mentioned heavy psychological overlay. 
 
          Claimant allowed 10 percent permanent partial disability based 
 
         on defendant's doctor's evaluation of five percent permanent 
 
         partial disability and other evidence.
 
         
 
         1402.60
 
         
 
              It was determined that employer provided reasonable medical 
 
         by providing a family physician and general surgeon, a 
 
         neurologist, orthopedic surgeon, and the neurology and orthopedic 
 
         departments at the University of Iowa.  Chiropractic bills in 
 
         excess of $7,000.00 denied from chiropractor who said she would 
 
         need weekly treatment the rest of her life.  Her chiropractic 
 
         pattern was the same after the accident as before the accident.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANICE PRINDLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 694423
 
            vs.                           :
 
                                          :          R E V I E W -
 
            MORSE RUBBER PRODUCTS,        :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon 
 
            claimant's petition filed June 10, 1988.  Claimant sustained 
 
            a work injury on January 6, 1982 creating symptomatology in 
 
            the arms, shoulder and neck.  After filing a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act from defendant employer Morse Rubber 
 
            Products and its insurance carrier, CNA Insurance, the 
 
            parties entered into a stipulation and agreement for 
 
            settlement pursuant to Iowa Code section 86.13 which was 
 
            approved by a deputy industrial commissioner on August 4, 
 
            1986.
 
            
 
                 The agreement for settlement in pertinent part provided 
 
            for certain periods of temporary total disability/healing 
 
            period and further provided that claimant had sustained a 
 
            ten percent permanent partial disability to the body as a 
 
            whole.
 
            
 
                 Hearing on the review-reopening petition was had in 
 
            Burlington, Iowa, on May 24, 1990.  The record consists of 
 
            claimant's exhibits 1 through 17, defendants' exhibits 8 
 
            through 10 and claimant's testimony.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of her employment with Morse Rubber 
 
            Products on January 6, 1982; that the proper rate of weekly 
 
            benefits is $150.65; that defendants made certain payments 
 
            pursuant to the agreement for settlement approved in 1986.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused additional temporary or permanent 
 
            disability, the extent of each and the commencement date of 
 
            the latter; the extent of claimant's entitlement to medical 
 
            benefits (it being stipulated that the fees charged for 
 
            medical services or supplies were fair and reasonable and 
 
            incurred for reasonable and necessary medical treatment, but 
 
            authorization by defendants was disputed and the stipulation 
 
            entered into by the parties is inconsistent with defendants' 
 
            attached statement of disputed issues with respect to 
 
            whether the expenses were causally connected to the work 
 
            injury); taxation of costs.
 
            
 
                 Of course, in a review-reopening proceeding, it is 
 
            necessary for claimant to establish a change in condition in 
 
            order to recover additional benefits based on permanent 
 
            disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was employed by Morse Rubber Products for 
 
            approximately five years until losing that position in a 
 
            general layoff in January 1983.  She has not worked for 
 
            defendant since then.  Her job responsibilities included 
 
            some heavy lifting and painting and some repetitive motion 
 
            work involving, especially, the right hand.
 
            
 
                 Claimant developed pain in both shoulders, elbows and 
 
            forearms, cramping in her hands with aching and numbness and 
 
            tingling into the fingers, which caused her to seek 
 
            treatment from Jerry L. Jochims, M.D., on December 8, 1981.  
 
            Dr. Jochims is an orthopaedic surgeon and testified by 
 
            deposition on May 27, 1986 (prior to the agreement for 
 
            settlement).
 
            
 
                 Claimant eventually underwent a carpal tunnel surgical 
 
            release in 1982 and surgery for ulnar nerve compression with 
 
            cubital tunnel syndrome on the right side in 1985.  Claimant 
 
            also developed neck and shoulder pain on the right side; the 
 
            ulnar nerve surgery was to some degree exploratory in nature 
 
            and undertaken because it was more conservative and of less 
 
            potential risk than cervical surgery.  However, neck pain 
 
            symptoms did not completely resolve.
 
            
 
                 Dr. Jochims testified that claimant's symptoms were 
 
            related to employment at Morse Chain, apparently meaning 
 
            defendant.  However, he also testified on cross-examination 
 
            as follows:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Q.  Now, we're going forward to April of 1984.  
 
                 And then she starts working at Sheller-Globe.  The 
 
                 work that she did at Sheller-Globe includes such 
 
                 things as removing a pad from a conveyor, checking 
 
                 it for defects, both visually and by feel, 
 
                 trimming it, using scissors and a knife or another 
 
                 trimming tool, and then putting this pad aside for 
 
                 the next operation, and this is a continuing 
 
                 situation.  The pad itself weighs, oh, up to 15 
 
                 pounds.
 
            
 
                 She -- She starts that job on April 17th of '84, 
 
                 and she continues working regularly at 
 
                 Sheller-Globe, doing this type of work, until 
 
                 March of '85, when she has the ulnar nerve 
 
                 decompression surgery.
 
            
 
                 In January of '85 -- now that's, of course, before 
 
                 the last surgery -- she complains of pain in her 
 
                 right arm, and this is -- and the other complaints 
 
                 of the pain in the shoulder and the neck, which 
 
                 are reflected in your -- your notes.
 
            
 
                 Now, assuming those employment facts, if I've got 
 
                 a period of time with Morse Rubber and then a 
 
                 period of time with Sheller-Globe, and, again, 
 
                 using your knowledge of Mrs. Prindle's condition, 
 
                 can you tell us with a reasonable degree of 
 
                 medical certainty whether Mrs. Prindle's present 
 
                 problems are caused by her work at Morse Rubber or 
 
                 whether they're caused by her work at 
 
                 Sheller-Globe?
 
            
 
                 A.  I don't know.
 
            
 
                 Q.  Okay.  Would it be fair to say that the type 
 
                 of work that I've described, not very eloquently, 
 
                 but tried to describe at Sheller-Globe, would 
 
                 aggravate the problems that she previously had?
 
            
 
                 A.  By way of clarification, my understanding of 
 
                 aggravation is to take one set of conditions or 
 
                 intensity of complaint and make it larger.  And if 
 
                 I were to look at it in that particular light, I 
 
                 don't believe that the overall intensity of her 
 
                 complaints nor the findings related thereto is 
 
                 greater now than what it was prior to her transfer 
 
                 from one place to the other.
 
            
 
            (Dr. Jochims' deposition, page 19, line 13 through page 20, 
 
            line 23)
 
            
 
                 Claimant indeed commenced working for Sheller-Globe 
 
            (now apparently known as United Technology) on April 17, 
 
            1984.  The work, as a finish operator, included trimming 
 
            pads and covers with scissors.  Claimant testified that, in 
 
            her opinion, the Sheller-Globe job caused pain in her arms, 
 
            shoulders and neck.  In fact, she filed a petition in 
 
            arbitration on June 6, 1986 against that employer, alleging 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            an aggravation of her preexisting condition to the neck, 
 
            shoulder and right arm, although that petition was 
 
            subsequently dismissed without prejudice on April 29, 1987.
 
            
 
                 After the agreement for settlement had been approved, 
 
            claimant developed recurrent pains across her back and in 
 
            the neck.  She returned to Dr. Jochims, who eventually 
 
            referred her to Christopher Loftus, M.D.  Dr. Loftus is a 
 
            neurosurgeon and assistant professor of neurosurgery at the 
 
            University of Iowa Hospitals and Clinics.  He testified by 
 
            deposition on May 15, 1989.
 
            
 
                 Dr. Loftus first saw claimant on August 8, 1986 and has 
 
            been her treating physician since.  On August 29, claimant 
 
            had further electrical studies and a computerized tomography 
 
            scan of the neck, both of which were read as normal.  Dr. 
 
            Loftus began with conservative therapy, including a cervical 
 
            collar and anti-inflammatory agents upon a putative 
 
            diagnosis of cervical osteoarthritis with radiculopathy.
 
            
 
                 By October 14, claimant reported complete resolution of 
 
            pain and on examination showed complete resolution of what 
 
            Dr. Loftus had originally seen as a neurological deficit.  
 
            She was released to return to work.  However, by one week 
 
            later, after returning to work for one week with 
 
            Sheller-Globe, her pain syndrome had recurred.  In November, 
 
            myelography showed osteophytes and nerve root compression at 
 
            both C6 and C7, leading to Dr. Loftus' recommendation of 
 
            surgical decompression and fusion.
 
            
 
                 On November 18, 1986, claimant underwent a two-level 
 
            discectomy and fusion at C5-6 and C6-7.  Although Dr. Loftus 
 
            felt that claimant had a good result from surgery, by the 
 
            time of hearing she felt worse.  She, of course, continued 
 
            to work for Sheller-Globe.
 
            
 
                 Dr. Loftus believed the work claimant returned to 
 
            (Sheller-Globe) aggravated her condition to bring on her 
 
            symptomatology.  In specific, the worsening of claimant's 
 
            condition following surgery was connected to returning to 
 
            work at Sheller-Globe and doing repetitive motion work.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The parties have agreed that claimant sustained a work 
 
            injury while employed with Morse Rubber Products.  That 
 
            employment relationship ended in January 1983.  In April 
 
            1984, claimant began a repetitive motion job with 
 
            Sheller-Globe and had been so employed for in excess of two 
 
            years when the agreement for settlement was submitted and 
 
            approved.  Obviously, Dr. Jochims' opinion was a substantial 
 
            factor in the parties reaching agreement for settlement 
 
            purposes.
 
            
 
                 Shortly thereafter, claimant developed increased 
 
            symptoms while working at Sheller-Globe and underwent a 
 
            major cervical operative procedure.
 
            
 
                 The key issue in this case is whether claimant's 
 
            cervical operation and subsequent disability is causally 
 
            related to the initial work injury as opposed to an 
 
            aggravation causally related to her continued employment by 
 
            Sheller-Globe.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 6, 
 
            1982 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Early on, Dr. Jochims was somewhat unclear, but 
 
            essentially indicated his belief that claimant's condition 
 
            in 1986 was causally related to the initial work injury.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The subsequent treating physician, Dr. Loftus, has pointed 
 
            to claimant's work with Sheller-Globe as aggravating her 
 
            condition.  Given the more recent opinion of treating 
 
            surgeon Loftus and the obvious fact that substantial 
 
            employment from 1984 to 1990 involving repetitive motion 
 
            (which claimant herself believes causes arm, shoulder and 
 
            neck pain) is a very significant intervening event, it must 
 
            be held that claimant has failed to meet her burden of proof 
 
            in establishing the necessary causal nexus between the 
 
            original work injury and either the symptomatology giving 
 
            rise to the surgical procedure or her current condition of 
 
            ill being.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 Each party shall be assessed its own costs pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50
 
                           Filed January 28, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JANICE PRINDLE,     :
 
                      :
 
                 Claimant, :
 
                      :         File No. 694423
 
            vs.       :
 
                      :          R E V I E W -
 
            MORSE RUBBER PRODUCTS,   :
 
                      :        R E O P E N I N G
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            CNA INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Claimant failed to show causal nexus in review-reopening 
 
            between original injury and current disability where she 
 
            worked for several years in intervening job.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT WALTER GEORGE,
 
                                                       FILE NO. 694775
 
              Claimant,
 
                                                         R E V I E W
 
         VS.
 
                                                      R E 0 P E N I N G
 
         
 
         DUBUQUE PACKING COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement brought by Robert Walter George, claimant, against 
 
         Dubuque Packing Company, employer and self-insured defendant, for 
 
         benefits as a result of an injury that occurred on February 2, 
 
         1982.  A hearing was held on November 12, 1986 at Dubuque, Iowa 
 
         and the case was fully submitted at the close of the hearing.  
 
         The record consists of (1) the testimony of Robert Walter George 
 
         (claimant); (2) the testimony of Robert L. Luthro (private 
 
         employment agency proprietor); (3) claimant's exhibits 1 through 
 
         7; and (4) defendant's exhibits A through D.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the injury.
 
         
 
              That the claimant sustained an injury on February 2, 1982 
 
         which arose out of and in the course of his employment with the 
 
         employer.
 
         
 
              That the injury is the cause of temporary disability during 
 
         a period of recovery and that the claimant is entitled to and has 
 
         been paid temporary disability benefits from February 2, 1982 
 
         through March 14, 1985.
 
         
 
              That the injury is the cause of permanent disability and 
 
         that the claimant has received permanent partial disability 
 
         benefits for 10 percent of the body as a whole for 50 weeks 
 
         commencing on March 15, 1985.
 
         
 
              That the weekly rate of compensation in the event of an
 
          additional award is $272.30 per week.
 
         
 
               That all requested medical benefits have been or will be 
 
          paid by the defendant.
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   2
 
         
 
         
 
         
 
               That the employer has paid and the employee has received 
 
          $25,488.00 in benefits from a disability retirement plan with 
 
          payments beginning in October of 1982.
 
         
 
               That the defendant has paid the claimant 210 weeks of 
 
          compensation at the rate of $272.32 per week prior,to the 
 
          hearing for which the defendant is entitled to a credit for 
 
          benefits paid.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant is an odd-lot employee and entitled to 
 
         permanent total disability benefits under the application of that 
 
         principle of law.
 
         
 
              Whether the claimant is entitled to additional permanent 
 
         partial disability benefits and more specifically whether the 
 
         claimant is permanently and totally disabled.
 
         
 
              Whether the defendant is entitled to a credit under Iowa 
 
         Code section 85.38(2) for $24,488.00 in disability retirement 
 
         benefits paid to the claimant.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 49 years old at the time of the injury and 54 
 
         years old at the time of the hearing.  He has an eighth grade 
 
         education and has completed no other formal education or training 
 
         either through the union, the employer or otherwise.  Claimant 
 
         started to work for Dubuque Packing Company in 1947 as a 
 
         messenger boy when he was 15 years old.  Later he loaded and 
 
         unloaded trucks and boxcars on the dock.  After that he became an 
 
         utility truck driver driving tankers, semitrailers and flatbed 
 
         trucks.  The job of truck driver included loading and unloading 
 
         the trucks, usually alone but occasionally with help.  Claimant 
 
         has worked for this employer for 35 years and this employer has 
 
         been his only employer.
 
         
 
              At the time of the injury claimant was the driver of a 
 
         flatbed straight truck.  This job involved pushing, pulling, 
 
         bending, lifting and other forms of manual labor generally to 
 
         load and unload the trucks.  Claimant handled bags, barrels, 
 
         boxes and bundles of salt, sugar, spices and chemicals as well as 
 
         machinery and equipment.  He lifted cargo that weighed from
 
         20 or 30 pounds up to 100 pounds.  Barrels that weighed 500 to 
 
         600 pounds were tipped and rolled on the rims.  Normally, 
 
         claimant worked alone.
 
         
 
              On February 2, 1982, claimant was picking up barrels that 
 
         weighed approximately 70 to 75 pounds from the ground and was 
 
         swinging them onto the bed of a truck.  As he did so his back 
 
         went out and he went down on his knees.  He reported this to his 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   3
 
         
 
         
 
         supervisor who sent him to first aid.  When hot packs did not 
 
         alleviate his condition he was sent to L. C. Faber, M.D., the 
 
         company physician who admitted claimant to Finley Hospital in 
 
         Dubuque for conservative treatment of bedrest, medication, 
 
         physical therapy and exercises.  Claimant was hospitalized from 
 
         February 15, 1982 to February 18, 1982 for lumbrosacral strain.  
 
         Initially, he had no leg pain but later developed left anterior 
 
         thigh pain (Exhibit 2, pages 51 & 58).   A myelogram showed no 
 
         evidence of a herniated disc (Ex. 2, p. 45).  X-rays were 
 
         negative for injury (Ex. 2, p. 46).  The films however showed a 
 
         lumbar hyperlordosis, kyposis, minimal L-5 subluxation, a left 
 
         side L-5 spondylolysis and degenerative changes through the 
 
         lumbar spine (Ex. 2, pp. 42, 45 & 46).  The x-rays also showed an 
 
         anomaly in that claimant had six lumbar vertebrae instead of five 
 
         (Ex. 2, p. 46).  A left leg venogram ordered by Dr. Faber on 
 
         April 1, 1982 showed a normal left leg (Ex. 2, p. 3).
 
         
 
              Dr. Faber referred claimant to Eugene E. Herzberger, M.D., a 
 
         board certified neurosurgeon in Dubuque, Iowa.  He first saw 
 
         claimant on April 8, 1982 for low back pain and left leg pain.  
 
         An EMG performed by Sarah Werner, M.D., a medical neurologist was 
 
         normal (Ex. 3, p. 29).  Claimant was hospitalized at Mercy 
 
         Hospital on April 9, 1982.  An epidural venogram ruled out a 
 
         herniated disc in the upper lumbar region (Ex. 3, p. 30; Ex. A, 
 
         pp. 6 & 7).  This test along with the earlier myelogram done by 
 
         Dr. Faber did not rule out a herniated disc, but greatly reduced 
 
         the likelihood of it (Ex. 3, p. 28; Ex.  A, p. 7).  Dr. 
 
         Herzberger said that the anomaly of the presence of a sixth 
 
         lumbar vertebrae which continued to show up on later films 
 
         probably had no significance as far as this injury is concerned 
 
         (Ex. A, p. 9).
 
         
 
              X-rays of the right knee on May 13, 1982 were normal and 
 
         these right knee symptoms cleared eventually (Ex. 6, p. 22).  A 
 
         report from a CT scan in Davenport of a spondylolysthesis was 
 
         determined to be false (Ex. A, p. 10; Ex. 6, p. 25).  X-ray 
 
         reports of a spondylolysis, which was a congenital condition, 
 
         were not involved with this injury and they did not effect it 
 
         (Ex.  A, p. 11; Ex. 6, p. 25).  However, the enhanced fourth 
 
         generation CT scan done at Davenport on May 20, 1982 did show a 
 
         bulging disc at L-6, S-1 (Ex. 6, p. 51).  Claimant was 
 
         hospitalized at Mercy Hospital in Dubuque and the herniated disc 
 
         was excised and removed on June 3, 1982 but the protrusion was 
 
         actually determined to be
 
         
 
         between L-5 and L-6 at the time of surgery (Ex. A, pp. 11, 12 & 
 
         13; Ex. 6, p. 42).
 
         
 
              After the surgery claimant continued to complain of the same 
 
         low back and left leg pain.  Dr. Herzberger next considered 
 
         whether the claimant had an infection between the discs or a 
 
         neoplasm (tumor).   A bone scan was performed at Mercy Hospital 
 
         on August 6, 1982 and Dr. Herzberger ruled out both an infection 
 
         and a neoplasm (Ex. A, p. 14; Ex. 6, p. 76).  Physical therapy 
 
         was ordered in September and October of 1982 (Ex. A. pp. 15 & 16; 
 
         Ex. 6, pp. 80 & 83).  Repeat x-rays, another CT scan and another 
 
         myelogram done on December 6, 1982 showed no change over those 
 
         done in May of 1982 and these tests revealed no evidence of 
 
         injury (Ex. A, p. 16; Ex. 6, p. 87).  Claimant was hospitalized 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   4
 
         
 
         
 
         again on May 17, 1983.  Again another CT scan and another 
 
         myelogram confirmed without any question that there were no 
 
         herniated discs (Ex. A, pp. 17 & 18; Ex. 6, p. 91).
 
         
 
              On May 18, 1983, claimant was evaluated by Lynn D. Kramer, 
 
         M.D., a medical neurologist at Dubuque who reported to Dr. 
 
         Herzberger as follows:
 
         
 
                   Impression: There does appear to be some mild 
 
              irritation of the L5 root on the left although this is mild 
 
              as mentioned.  The patient seems to be extremely pain 
 
              sensitive at the time of the study.  I see little on 
 
              physical examination to confirm an existing radiculopathy 
 
              and the EMG evaluation does not demonstrate anything 
 
              particularly conclusive either. (Ex. 3, pp. 21 & 39)
 
         
 
              Claimant was evaluated at the University of Iowa Hospitals 
 
         and Clinics, Department of Neurology on June 13, 1983 by Thoru 
 
         Yamada, M.D., for back and left leg pain who concluded as 
 
         follows: "In summary, the patient appears to have an L3-L4 
 
         radiculopathy.  He will be treated symptomatically with Naprosyn 
 
         250 mg po BID.  He will be followed by his local physician.  
 
         Thank you.O (Ex. 3, pp., 32, 33 & 34).
 
         
 
              Dr. Herzberger hospitalized claimant again on October 10, 
 
         1983 through October 15, 1983 for three epidural steroid blocks 
 
         and extensive physical therapy (Ex. A, pp. 20 & 21; Ex. 6, pp. 
 
         122 through 152).  The epidural steroid injections provided 
 
         temporary relief; however, the old painful symptoms in his back 
 
         and left leg returned by November 18, 1983 (Ex. A, p. 21).  In 
 
         addition, claimant's disability pension which had begun in 
 
         October of 1982 (Ex. A, p. 20) was threatened by changes in 
 
         company policy.  Claimant had gained weight, complained of 
 
         sleeplessness, and exhibited tension, stress and depression.  Dr. 
 
         Herzberger did not think his physical symptoms would improve 
 
         until his social and economic problems resolve in a satisfactory 
 
         manner.  Dr. Herzberger suggested pain therapy and a psychiatrist 
 
         in 1984, but claimant refused to follow either one of these two 
 
         recommendations (Ex. A, pp. 21 & 22).  Claimant continued to have 
 
         what claimant considered to be intractable low back and left 
 
         sciatic pain but he denied any psychosomatic element.
 
         
 
              Dr. Herzberger then decided that since a year and a half had 
 
         transpired since the tests in May of 1983, that it was advisable 
 
         to hospitalize the claimant again for a metrizamide myelogram and 
 
         CT scan and a bone scan on October 10 & 11, 1984 at Finley 
 
         Hospital (Ex. A, p. 23; Ex. 2, pp. 2, 4, 5 & 6 through 40).  
 
         Again these tests did not disclose any disc herniation but on the 
 
         contrary produced normal results.  They did not show any change 
 
         from the 1982 and 1983 myelograms and CT scans other than to 
 
         confirm the degenerative changes (Ex. A, pp. 23 & 24; Ex. 2, pp. 
 
         6 & 19 through 22).  Dr. Herzberger did not consider that these 
 
         degenerative changes were severe (Ex. A, p. 44).
 
         
 
              Claimant continued to be nervous, sleepless and depressed 
 
         and was dissatisfied with Dr. Herzberger because the doctor only 
 
         gave him an impairment rating of 10 percent of the body as a 
 
         whole.  Dr. Herzberger suggested that claimant try the University 
 
         of Wisconsin Industrial Medicine Department for a more detailed 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   5
 
         
 
         
 
         and objective assessment.  Such an assessment was not introduced 
 
         into evidence.  Dr. Berzberger last saw claimant on April 11, 
 
         1985 (Ex. A, p. 25).
 
         
 
              Dr. Herzberger had no explanation for claimant's persistent 
 
         pain.  When he ruled out all physical and objective explanations 
 
         he followed the common practice of recommending pain therapy and 
 
         a psychiatrist (Ex. A, pp. 26 & 27).  Dr. Herzberger testified 
 
         that he saw claimant for 30 outpatient visits and that he 
 
         hospitalized claimant four times under his care (Ex. A, p. 27).  
 
         Claimant's case was exceptional in that he never seemed to 
 
         stabilize (Ex. A, p. 28).  The doctor said that a normal 
 
         impairment evaluation for a person who underwent disc surgery and 
 
         did well would be five percent, however, since claimant did not 
 
         do well, even though there was no physical explanation for it, he 
 
         allowed 10 percent.   Dr. Herzberger said he has performed 
 
         approximately 4,000 disc surgeries in his career practice (Ex. A, 
 
         pp. 28 & 29).  He admitted that a portion of an impairment rating 
 
         is based on pain and therefore it tends to be somewhat arbitrary 
 
         or approximate (Ex. A, pp. 22 & 31).  Dr. Herzberger continued to 
 
         recommend pain therapy and a psychiatrist to pinpoint the 
 
         stresses which were triggering or amplifying the claimant's pain 
 
         (Ex. A, pp. 30 & 31).
 
         
 
              The following dialogue between Dr. Herzberger and counsel 
 
         permitted Dr. Herzberger to give his insights into the claimant's 
 
         failure to recover.
 
         
 
              Q.  Is it your opinion, Doctor, that there may exist some 
 
              sort of functional overlay with regard to Mr. George's 
 
              current condition?
 
         
 
              A.  We have to speak about 1985 as the latest condition.  I 
 
              don't like to use the word "functional overlay" because it 
 
              has been used traditionally in a noncomplimentary way in 
 
              relation to patients.  I don't like to use it therefore.
 
         
 
              Q.  What word would you -- what term or phrase would you 
 
              prefer to use?
 
         
 
              A.  I would say that I was aware of the fact that Mr. George 
 
              had the personality that made him inclined to worry a lot 
 
              and to be rather nervous and that his financial situation, 
 
              his work situation has created tremendous stresses and that 
 
              he was living with an uncertainty of his future as far as 
 
              pension or benefits is concerned.  He realized he may not be 
 
              able to do the heavy work.  He didn't have light work 
 
              available to him.  He was too old in order to go to look for 
 
              employment at least in Dubuque in 1982, O83.  We had a 
 
              recession.  There were no jobs even for young very healthy 
 
              people and I felt all along that his type of personality and 
 
              whatever stresses he may have may play a role in this and I 
 
              would have been very interested to have somebody delve into 
 
              that area and find out. (Ex. A, p. 37 & 38)
 
         
 
              Dr. Herzberger reconfirmed that claimant was not able to do 
 
         heavy physical work, which excluded driving a truck.  He stated 
 
         that the claimant was only capable of light work that would allow 
 
         him to change the positions of sitting, bending and walking and 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   6
 
         
 
         
 
         that he would be qualified to do administrative work (Ex. A, p. 
 
         36; Ex. 3, p. 13).
 
         
 
              Claimant testified that he last saw Dr. Herzberger in March 
 
         of 1985.  Dr. Herzberger was his only treating physician and that 
 
         he has not sought medical attention from him or any other doctor 
 
         since then.  Claimant denied any other workers' compensation or 
 
         bodily injury claims.  He had no injuries prior to or after the 
 
         injury of February 2, 1982 that affected his current condition.  
 
         He has not worked since February 2, 1982.  He has been receiving 
 
         a disability retirement pension since October of 1982 in the 
 
         amount of $1,062 per month (Ex. D).
 
         
 
              Claimant conceded that he had not sought or applied for any 
 
         employment of any kind since his injury on February 2, 1982.  He 
 
         admitted that if he took a full time job his disability 
 
         retirement pension would be discontinued.  Also, if he earned 
 
         more than $6,000 in any kind of employment it would probably be 
 
         reduced.  Claimant applied for social security disability but his 
 
         claim was denied.  Vocational rehabilitation training was never
 
         
 
         
 
         
 
         offered by the employer and was never requested by the claimant. 
 
          He admitted that he refused to see the psychiatrist.  He 
 
         declined to go to a pain clinic because he would have to go out 
 
         of town and be gone from home for five to six weeks and he was 
 
         not told that the employer would pay for it.
 
         
 
              The findings of the Social Security Administration were as 
 
         follows:
 
         
 
              The following reports were used in deciding your claim: Dr. 
 
              C. Schultz's report dated 10/22/82;, Dr. E. Herzberger's 
 
              report dated 9/30/82; Finley Hospital's report dated 
 
              2/18/82; Mercy Hospital's reports dated 5/13/82 to 6/6/82.
 
         
 
              You said you were unable to work because of a back 
 
              condition.  The medical evidence shows that you do have a 
 
              back condition which has required surgery.  While you do 
 
              have some back pain, you have the satisfactory use and 
 
              movement of your back.  We realize that your condition 
 
              prevents you from returning to your usual job as that of a 
 
              truck driver, however, you should be able to perform a job 
 
              requiring less physical exertion.  You should be able to 
 
              lift 20 pounds maximum with frequent lifting and/or carrying 
 
              of objects weighing up to 10 pounds.  You should also be 
 
              able to walk and stand approximately 6 hours per an 8 hour 
 
              working day.  You should also be able to perform a job that 
 
              does not require large amounts of pushing or pulling 
 
              movements.
 
              (Ex. 5, p. 8)
 
         
 
              Dr. Faber, the company doctor, said on April 19, 1983, that 
 
         claimant did not get better because he chose instead to receive 
 
         $279.30 per week in workers' compensation and $795.25 a month in 
 
         disability retirement pension which amounts to $1,912.45 per 
 
         month without doing any work (Defendant's Ex. C).
 
         
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   7
 
         
 
         
 
              Claimant testified that many of his former activities have 
 
         been eliminated or restricted because he is in constant pain 100 
 
         percent of the time in his back and left leg and the pain shoots 
 
         down into his left foot.  Treatment did not improve his 
 
         condition, but instead he got worse and he testified that it 
 
         continued to get worse at the time of the hearing.
 
         
 
              Claimant testified that he saw F. Dale Wilson, M.D., of 
 
         Davenport, Iowa, for an evaluation at the request of his 
 
         attorney.  Dr. Wilson testified that he is a general surgeon who 
 
         is 75 years of age and currently specializes in doing impairment 
 
         examinations and evaluations.  He performs about eight 
 
         examinations per week primarily for claimants and he performs 
 
         about two or three examinations per week for claimants' counsel 
 
         specifically (Ex. 1, p. 9).  A very respectable curriculum vitae 
 
         is shown at exhibit 1, deposition exhibit 1.
 
         
 
              Dr. Wilson examined and evaluated the claimant one time on 
 
         March 18, 1986 for approximately an hour or one and one-half 
 
         hours.  Claimant had high blood pressure and should have been on 
 
         medication but was not (Ex. 1, p. 12).  Claimant was also 60 
 
         pounds overweight.  He weighed 235 pounds and his height was five 
 
         feet nine inches (Ex. 1, p. 13).
 
         
 
              Claimant complained of continuous pain in his low back that 
 
         radiated into his left leg and left foot which subjectively 
 
         limited his ability to walk, sit, stand, run, jump, kneel, 
 
         crouch, or lift (Ex. 1, pp. 20-22).  He was also fearful, 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   8
 
         
 
         
 
         depressed and woefully discouraged (Ex. 1, p. 23).  Dr. Wilson 
 
         performed a very careful and extensive examination of the 
 
         claimant (Ex. 1, pp. 24-57).  He said in a written report dated 
 
         March 18, 1986 that unless some method of relieving pain is found 
 
         that claimant is totally and permanently disabled (Ex. 1, Dep.  
 
         Ex. 2, P. 4).  In his deposition, however, Dr. Wilson testified 
 
         that claimant was not actually permanently and totally disabled, 
 
         but rather had a 37 percent permanent impairment (Ex. 1, p. 65).  
 
         Dr. Wilson's impairment rating is as follows:
 
          
 
               Impairment evaluation:
 
          
 
                    Discectomy                                 5%
 
         
 
                    A.  Motion loss:  Flexion                  2
 
                                                               3
 
          
 
                                      Lateral                  1
 
          
 
                                      Rotation                 3
 
                                                               6
 
                                                              15%  Motion
 
         
 
                     B.  Pain                                       7
 
          
 
                     C.  Weakness for weight lifting,
 
                         standing, sitting                      7
 
          
 
                     D.  Nerve control, sciatica, sensory
 
                         loss                                   3
 
                                                               37%  
 
         Person
 
         (Ex. 1, Dep.  Ex. 1, p. 5)
 
         
 
              Dr. Wilson added that it was his experience that the 
 
         vocational rehabilitation people did not consider a man with an 
 
         eighth grade education who has previously worked as an ordinary 
 
         laborer or a truck driver as a good candidate for rehabilitation 
 
         (Ex. 1, P. 70).
 
         
 
         
 
              Robert L. Luthro, who has operated a private employment 
 
         service for 26 years, had reviewed the deposition of Dr. 
 
         Herzberger and the deposition of Dr. Wilson as well as the 
 
         restrictions suggested by each of these doctors.  He testified 
 
         that there are some jobs that the claimant should be able to do.  
 
         Sales representative, either telephone or in person visit sales, 
 
         require little training, driving or walking and earnings would be 
 
         based upon commissions.  Plant assembly work could fit the 
 
         claimant's condition and pay $3.35 to $7.00 per hour.  
 
         Cashier,jobs or ticket sales would pay pay $4.00 to $5.00 per 
 
         hour.  There were also opportunities driving small trucks.  
 
         Claimant could also drive forklifts which are operated by buttons 
 
         at $3.35 to $7.00 per hour.  He could also spot trucks on a dock.  
 
         Telephone solicitor or collector pays $3.35 to $5.00 per hour 
 
         plus commissions.  Entry pay in Dubuque runs about $5.50 to $6.00 
 
         per hour.  He was not asked to find a job for this claimant but 
 
         he has found jobs for persons in the fifties with an eighth grade 
 
         education and within the prescribed medical restrictions.
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Luthro conceded that telephone jobs are drive or campaign 
 
         types of work which are short term, high turnover and unstable.  
 
         It is not a career type of job.  Cashier and ticket sale jobs 
 
         tend to be automated and require some training.  A plant assembly 
 
         job would require a pre-employment physical and a 50 year old 
 
         applicant with a medical history would be at a disadvantage.  
 
         Partially impaired persons are not preferred and there is not a 
 
         surplus of jobs in the Dubuque economy.  If certain highway 
 
         contracts come into being in the future then there could be jobs 
 
         for counters, checkers and traffic control people.
 
         
 
              Claimant's exhibit 7 is a letter from the employer to the 
 
         claimant dated March 26, 1985, concerning his workers' 
 
         compensation and disability retirement pension benefits.  Among 
 
         other things the letter states that claimant's workers' 
 
         compensation benefits will not be effected by his pension 
 
         benefits.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In order to be considered an odd-lot employee the burden of 
 
         proof is upon the employee to produce substantial evidence that 
 
         the worker is not employable in the competitive labor market.  It 
 
         is normally encumbent upon the injured worker to demonstrate a 
 
         reasonable effort to secure employment in the area of residence. 
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104, 106 (1985).  In 
 
         this case claimant testified that he has made no effort to find 
 
         any employment of any kind.  Dr. Herzberger felt that claimant 
 
         could do light work and administrative work.  Luthro testified 
 
         that there were a number of jobs which the claimant could do if 
 
         he tried.  The Social Security Administration also believes that 
 
         there were a number of jobs which the claimant
 
         could perform.  Claimant, therefore, has failed to make a prima 
 
         facie case by proving that he is not employable in any well known 
 
         branch of the labor market.  Claimant did not prove that he is an 
 
         odd-lot employee.  Therefore, the burden of proof did not shift 
 
         to the employer to demonstrate that regular employment was 
 
         available to claimant.  Consequently, the claimant cannot be 
 
         considered to be permanently and totally disabled under the 
 
         odd-lot doctrine or otherwise.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 2, 1982 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         no be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  10
 
         
 
         
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered.....     In determining industrial 
 
              disability, consideration
 
              may be given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because of the 
 
              injury, to engage in employment for which he is fitted. * * 
 
              * 
 
         
 
              Claimant has not proven that he is permanently and totally 
 
         disabled.  Iowa Code section 85.34(3); Diederich, 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935).
 
         
 
              None of the physicians suggested that claimant was 
 
         permanently and totally disabled, except Dr. Wilson, in his 
 
         written report (Ex. 1, Dep. Ex. 2, p. 4).  However, Dr. Wilson 
 
         retracted this statement in his deposition testimony (Ex. 1, pp. 
 
         64 & 65).  Dr. Herzberger, Dr. Wilson and Dr. Yamada all felt 
 
         that claimant was unable to return to truck driving or heavy 
 
         manual work.  However, Dr. Herzberger thought that claimant could 
 
         do light work or administrative work.  The Social Security 
 
         Administration denied the claimant disability retirement because 
 
         they felt that there were a number of jobs that the claimant 
 
         could do.  Luthro testified that there were a number of jobs that 
 
         claimant could do. Therefore, it is determined that claimant is 
 
         not permanently and totally disabled.
 
         
 
              Claimant has proven that he is permanently and partially 
 
         disabled as a result of the injury of February 2, 1982.  Dr. 
 
         Herzberger awarded a 10 percent permanent impairment rating.  He 
 
         said five percent would be a normal amount of impairment but due 
 
         to the claimant's continuing severe subjective symptoms of pain, 
 
         he allowed a 10 percent permanent impairment rating even though 
 
         he could find no professional, medical, objective, physical 
 
         reasons for the claimant's complaints of pain.  He did say 
 
         however, that they were related to the claimant's social and 
 
         economic situation and he did not look for the claimant to 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  11
 
         
 
         
 
         improve until these problems were resolved.  Dr. Wilson did award 
 
         a 37 percent permanent impairment rating but in this case 
 
         deference must be given to Dr. Herzberger who is a neurosurgeon 
 
         and the treating physician.  He saw the claimant approximately 30 
 
         times and hospitalized him four times.  By comparison, Dr. Wilson 
 
         is a general surgeon who only saw the claimant on one occasion 
 
         for a short period of time and then specifically for the reason 
 
         of giving an impairment rating for litigation purposes.  Also, 
 
         Dr. Wilson did not examine any of the many x-rays, CT scans or 
 
         myelograms.  In applying the weight to be given to the evidence 
 
         of these two physicians the principles considered in Rockwell 
 
         Graphics System, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985) were 
 
         considered and applied.
 
         
 
              Dr. Yamada and Dr. Kramer did not make a finding of 
 
         permanent impairment and neither doctor gave an impairment 
 
         rating.
 
         
 
         
 
         
 
              Claimant is age 54 and has an eighth grade education. it 
 
         would be difficult for a man this age to change jobs under any 
 
         circumstances.  If training is required for a new job it will be 
 
         more difficult to either complete the training or to obtain 
 
         employment after the training is completed.  In addition, 
 
         claimant indicated that his reading and writing skills are not as 
 
         good as he would like them to be because he did not use them in 
 
         his former employment.
 
         
 
              Claimant has few, if any, transferable skills.  He started 
 
         to work for this employer at age 15 doing manual labor and 
 
         driving trucks.  This is the only employment which he has ever 
 
         had from age 15 up to age 49 when he was injured.  Therefore his 
 
         experience and qualifications are somewhat limited in the context 
 
         of the total labor market opportunities and claimant cannot go 
 
         back to the manual labor and truck driving he formerly 
 
         performed.
 
         
 
              Claimant's motivation to work was placed in question by Dr. 
 
         Faber who pointed out that claimant would actually lose money if 
 
         he returned to work.  Claimant himself said that a full time job 
 
         would,terminate his disability retirement pension and indicated 
 
         that if he took part time employment and earned over $6,000 per 
 
         year it would reduce his disability retirement pension.  
 
         Claimant's wife is employed.  His children are all adults at this 
 
         time, but one child is in college.  Claimant has not seen a 
 
         doctor for treatment for his back or leg complaints since March 
 
         of 1985.  Claimant refused to see a psychiatrist even though it 
 
         was recommended by his treating physician.  He refused to go to a 
 
         pain clinic as recommended by his treating physician.  Claimant 
 
         has not sought out any vocational rehabilitation and none was 
 
         offered.  Claimant has not looked for any work or applied for any 
 
         work of any kind.  Claimant has become overweight and developed 
 
         hypertension for which he should be taking medication since the 
 
         injury but which is not due to the injury.
 
         
 
              A number of witnesses testified that the Dubuque economy is 
 
         bad and that it is difficult for young unimpaired persons to find 
 
         a job.  However, all workers are victims of an economic downturn 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  12
 
         
 
         
 
         and claimant should not be entitled to additional compensation 
 
         because employment opportunities are restricted due to an 
 
         economic downturn.  Webb v. Lovejoy Construction Co., II Iowa 
 
         Industrial Commissioner Report 430, 435 (Appl. Decn. 1981). 
 
         (District Court Affirmed and Supreme Court Appeal dismissed.)
 
         
 
              An employee making a claim for industrial disability will 
 
         benefit by a showing of some attempt to find work.  Hild v. 
 
         Natkin & Company, I Iowa Industrial Commissioner Report 144 
 
         (Appl. Decn. 1981); Beintema v. Sioux City Engineering Company, 
 
         II Iowa Industrial Commissioner Report 24 (1981); Cory v. 
 
         Northeastern States Portland Cement Co., Thirty-three Biennial 
 
         Report, Iowa Industrial Commissioner 104 (1976).
 
         
 
              Consideration may be given to an employee's plan for 
 
         retirement.  Swan v. Industrial Engineering Equipment Co., IV 
 
         Iowa Industrial Commissioner Report 353 (1984) as we; as current 
 
         retirement benefits being received.  McDonough v. Dubuque 
 
         Packing Co., I-1, Iowa Industrial Commissioner Decisions 152 
 
         (1984).  There is sufficient evidence in this case summarized 
 
         above from which it could be concluded that claimant has already 
 
         retired.  Employers are responsible for the reduction in earning 
 
         capacity caused by a work injury but they are not responsible for 
 
         a reduction in actual earnings because the employee resists 
 
         returning to work.  Williams v. Firestone Tire & Rubber Co., III 
 
         Iowa Industrial Commissioner Reports 279 (1982).
 
         
 
              Claimant has testified to continuing severe pain in his back 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  13
 
         
 
         
 
         and left leg that shoots down to his left foot 100 percent of the 
 
         time.  There is also evidence that claimant has suffered 
 
         emotionally in the way of sleeplessness, tension, stress and 
 
         depression.  However, several hospitalizations, numerous x-rays, 
 
         four myelograms and CT scans, two venograms, a bone scan and the 
 
         expertise of a competent neurosurgeon failed to produce any 
 
         medical explanation for claimant's symptoms.  Pain that is not 
 
         substantiated by physical findings is not a substitute for 
 
         impairment.  Waller v. Chamberlain Mfg. Company, II Iowa 
 
         Industrial Commissioner Report 417,425 (1981).
 
         
 
              In making this decision it is also noted that the wage base 
 
         in Dubuque and at this employer is considerably less than it was 
 
         at the time of the injury.
 
         
 
              Based on the foregoing factors it is determined that 
 
         claimant has sustained a 40 percent industrial disability to the 
 
         body as a whole due to this injury of February 2, 1982.
 
         
 
              Defendant has claimed a credit under Iowa Code section 
 
         85.38(2). This section of the Code provides as follows:
 
         
 
              Credit for benefits paid under group plans.  In the event 
 
              the disabled employee shall receive any benefits, including 
 
              medical, surgical or hospital benefits, under any group plan 
 
              covering nonocupational disabilities contributed to wholly 
 
              or partially by the employer, which benefits should not have 
 
              been paid or payable if any rights of recovery existed under 
 
              this chapter, chapter 85A or chapter 85B, then such amounts 
 
              so paid to said employee from any such group plan shall be 
 
              credited to or against any compensation payments, including 
 
              medical, surgical or hospital, made or to be made under this 
 
              chapter, chapter 85A or chapter 85B.  Such amounts so 
 
              credited shall be deducted from the payments made under 
 
              these chapters.  Any nonoccupational plan shall be 
 
              reimbursed in the amount so deducted.  This section shall 
 
              not apply to payments made under any group plan which would 
 
              have been payable even though there was an injury under this 
 
              chapter or an occupational disease under chapter 85A or an 
 
              occupational hearing loss under chapter 85B.  Any employer 
 
              receiving such credit shall keep such employee safe and 
 
              harmless from any and all claims or liabilities that may be 
 
              made against them by reason of having received such payments 
 
              only to the extent of such credit.
 
         
 
              The only evidence in support of a credit is exhibit D 
 
         (however, exhibit D merely states that claimant retired on 
 
         September 31, 1982 under disability retirement and receives 
 
         $1,062 per month until it reduces upon the receipt of social 
 
         security benefits.  There is nothing in exhibit D to establish a 
 
         credit for the defendant's payment of these benefits.  This code 
 
         section expressly states it does not apply to benefits which 
 
         would have been payable even though a compensable injury 
 
         occurred.  No showing has been made that claimant would not have 
 
         received his disability retirement benefits if an injury 
 
         compensable under workers' compensation were the cause of the 
 
         disability.  Moreover, claimant introduced a letter from the 
 
         employer which states that the workers' compensation benefits 
 
         will not affect the claimant's right to disability retirement 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  14
 
         
 
         
 
         benefits (Ex. 7).  The retirement plan document itself was not 
 
         introduced into evidence.  The plan document itself is the best 
 
         evidence of what it provides.  Consequently, it is determined 
 
         that defendant has failed to prove by a preponderance of the 
 
         evidence that they are entitled to a credit.  On the contrary, 
 
         the claimant has demonstrated that the defendant is not entitled 
 
         to a credit.  Hebensperger v. Motorola Communications and 
 
         Electronics, Inc., II Iowa Industrial Commissioner Reports 187 
 
         (1981).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury to his back on February 2, 
 
         1982 in the course of his employment while swinging 70 to 75 
 
         pound barrels from the ground onto a truck.
 
         
 
              That the injury caused a permanent partial impairment to the 
 
         body as a whole.
 
         
 
              That claimant could not return to his old job as a truck 
 
         driver or perform manual labor duties.
 
         
 
              That claimant is receiving $1,062 per month from a 
 
         disability retirement pension from the employer since September 
 
         31, 1982.
 
         
 
              That claimant has not sought any work of any kind or applied 
 
         for any jobs since the date of the injury.
 
         
 
         
 
              That claimant has not sought any medical treatment for this 
 
         injury since March of 1985.
 
         
 
              That claimant has sustained an industrial disability of 40 
 
         percent to the body as a whole.
 
         
 
              That defendant has introduced no evidence to support 
 
         entitlement to credit under Iowa Code section 85.38(2).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principals of law previously mentioned, the following conclusions 
 
         of law are made:
 
         
 
              That claimant did not make a prima facia showing of 
 
         permanent total disability.
 
         
 
              That claimant is not permanently, totally disabled under the 
 
         odd-lot doctrine or otherwise.
 
         
 
              That the injury of February 2, 1982 was the cause of a 40 
 
         percent permanent partial disability as industrial disability to 
 
         the body as a whole.
 
         
 
              That defendants did not sustain the burden of proof by a 
 

 
         
 
         
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page  15
 
         
 
         
 
         preponderance of the evidence that they are entitled to a credit 
 
         in the amount of $24,488.00 for disability retirement pension 
 
         benefits paid to the claimant.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant two hundred (200) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy-two and 30/100 dollars ($272.30) per week commencing on 
 
         March 15, 1985 in the total amount of fifty-four thousand four 
 
         hundred sixty and no/100 dollars ($54,460.00) less credit for 
 
         fifty (50) weeks of permanent partial disability benefits 
 
         previously paid.
 
         
 
              That defendant pay  accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant will pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              That defendant file claim activity reports as required  by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 21st day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             WALTER R. McMANUS, JR.
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 North Wacker Drive
 
         Suite 740
 
         Chicago, Illinois 60606
 
         
 
         Mr. Alfred E. Hughes
 
         Attorney at Law
 
         325 Dubuque Bldg.
 
         Dubuque, Iowa 52001-6816
 
         
 
         
 
         
 
 
            
 
 
 
 
 
            
 
                 
 
         
 
                                                    1402.40; 1701; 1803
 
                                                    1804; 4100
 
                                                    Filed April 21, 1987 
 
                                                    WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT WALTER GEORGE,
 
                                                      FILE NO. 694775
 
              Claimant,
 
                                                       R E V I E W
 
         VS.
 
                                                     R E 0 P E N I N G 
 
         DUBUQUE PACKING COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         4100
 
         
 
              Claimant was not odd-lot.  His treating physician said he 
 
         could do light work and administrative work.  An employment 
 
         specialist testified that there were jobs that claimant could do.  
 
         The Social Security Administration found that there were jobs 
 
         claimant could do in denying Social Security Disability benefits.  
 
         Claimant testified that he has made no efforts to find any 
 
         employment.  Prima facie case not made.
 
         
 
         
 
         1402.40; 1804
 
         
 
              For the same reasons claimant was found not be permanently 
 
         and totally disabled.
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant, age 54; 8th grade education; who worked 35 years 
 
         for the same employer as a truck driver as his only employment in 
 
         life; who had limited reading and writing skills; awarded 10 
 
         percent impairment by his treating physician and 37 percent by 
 
         claimant's evaluating physician; who had made no efforts to find 
 
         employment, who would lose his disability retirement pension if 
 
         he took employment; was awarded 40 percent permanent partial 
 
         disability as industrial disability.  His complaints of pain 
 
         which got worse instead of better could not be established by 
 
         innumerable medical tests.
 
         
 
         GEORGE V. DUBUQUE PACKING COMPANY
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
         1701
 
         
 
              No 85.38(2) credit allowed for employer's payment of 
 
         disability retirement pension because employer did not prove any 
 
         entitlement to a credit and did not introduce the plan document 
 
         into evidence either.