Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD M. HAAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 699381
 
            ST. REGIS PAPER CO.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant permanent total disability benefits on account of 
 
            his March 29, 1982 work-related injury.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and claimant's exhibits 1 through 5.  
 
            Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendants state the issues on appeal are:
 
            
 
                 1.  Whether the deputy erred in excluding defendants' 
 
            cross-examination of the claimant. 
 
            
 
                 2.  Whether the deputy erred in determining that 
 
            claimant was a credible witness?
 
            
 
                 3.  Whether the deputy erred in finding a causal 
 
            connection between claimant's work injury and his current 
 
            disability?
 
            
 
                 4.  Whether claimant is disabled from employment on 
 
            account of a non-work related cardiovascular problem?
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed May 11, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of the law in the arbitration decision 
 
            are appropriate to the issues and evidence.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.  Additional 
 
            analysis is necessary to determine whether the deputy erred 
 
            in excluding defendants' cross-examination of the claimant.  
 
            
 
                 Pursuant to Iowa Rules of Civil Procedure 134 made 
 
            applicable by rule 343 IAC 4.35, a deputy industrial 
 
            commissioner filed a ruling imposing sanctions upon 
 
            defendants' attorney for failure to comply with an order 
 
            compelling discovery.  The ruling indicated that the record 
 
            would be closed to further activity or evidence by 
 
            defendants.  The ruling stated that the record could be 
 
            opened for further activity upon compliance with the ruling.  
 
            Defendants did not comply with the ruling and proceeded to 
 
            hearing.  The defendants do not assert that the deputy erred 
 
            in imposing sanctions for its failure to comply with the 
 
            agency's order.  Defendants assert that the deputy erred in 
 
            excluding the cross-examination of claimant.  
 
            
 
                 It was not an abuse of discretion by the deputy to 
 
            order the record closed to further activity by the 
 
            defendants until the time that the defendants complied with 
 
            the ruling.  "Imposition of such sanctions is vested in the 
 
            discretion of trial court and we will not reverse such an 
 
            order unless there has been an abuse of that discretion."  
 
            Wernimont v. International Harvester Corp., 309 N.W.2d 137, 
 
            143 (Iowa App. 1981).  Defendants failed to comply with an 
 
            order compelling discovery.  The deputy industrial 
 
            commissioner assigned to the hearing did not have the 
 
            authority to disregard a prior ruling by another deputy 
 
            industrial commissioner.  The cross-examination by 
 
            defendants of claimant was properly excluded.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was born August 19, 1935.
 
            
 
                 2.  Claimant completed the tenth grade.
 
            
 
                 3.  Claimant began his employment with defendant 
 
            employer in 1962.  The majority of claimant's work 
 
            experience is in the field of heavy, manual labor.
 
            
 
                 4.  Claimant has a long history of low back problems.  
 
            
 
                 5.  Claimant underwent fusion surgery at the L3-L4 
 
            level in January 1965 and received impairment ratings of 10 
 
            to 30 percent of the body as a whole and 25 percent of the 
 
            body as a whole in September 1966.
 
            
 
                 6.  Claimant returned to his same job with defendant 
 
            employer and suffered additional low back injuries which 
 
            kept him off work, but he always returned to his job.
 
            
 
                 7.  Claimant received a work-related low back injury on 
 
            March 29, 1982 when he attempted to lift a stuck overhead 
 
            trailer door.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 8.  Claimant had a preexisting low back injury which 
 
            was substantially and materially aggravated by his injury of 
 
            March 29, 1982.
 
            
 
                 9.  Claimant returned to work on May 12, 1982 but left 
 
            work on June 22, 1982 on account of his back pain.
 
            
 
                 10. Claimant obtained a work release in February of 
 
            1984 and returned to work in March 1984 to his position as 
 
            shipping clerk.  
 
            
 
                 11. Shortly after claimant's return to work, Georgia 
 
            Pacific bought the defendant employer and all employees had 
 
            to reapply for positions.  On July 14, 1984 Georgia Pacific 
 
            informed claimant that he would not be rehired.
 
            
 
                 12. Claimant's physicians opined that claimant has only 
 
            a 50 percent chance of improvement if he underwent surgery 
 
            for his low back pain.
 
            
 
                 13. On January 19, 1989, Ernest Found, M.D., opined 
 
            that claimant had an additional 15 percent medical 
 
            impairment on account of the injury at L4-L5 level and 
 
            indicated that claimant will not be able to seek employment 
 
            that will require prolonged standing, any lifting, 
 
            repetitive bending or stooping.
 
            
 
                 14. Claimant is no longer able to do heavy, manual 
 
            labor on account of his work-related back injury of March 
 
            29, 1982.
 
            
 
                 15. Don Laverz, a counselor for the Division of 
 
            Vocational Rehabilitation Services, upon meeting with 
 
            claimant and reviewing his medical records, opined that 
 
            claimant will not be able to find competitive employment.
 
            
 
                 16. Due to claimant's age and education claimant is not 
 
            a candidate for the rehabilitation program at the a 
 
            University of Iowa Hospitals and Clinics.
 
            
 
                 17. Claimant's testimony was credible.
 
            
 
                 18. Claimant has a 100 percent reduction of earning 
 
            capacity as a result of his March 29, 1982 work-related 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Defendants' cross-examination of claimant was properly 
 
            excluded.  Defendants failed to comply with an order 
 
            compelling discovery and a ruling was filed ordering the 
 
            record closed to further activity and evidence by the 
 
            defendants until such time that defendants complied with the 
 
            order.  Defendants never complied with the order.
 
            
 
                 The greater weight of the evidence supports the 
 
            conclusion that a causal connection exists between 
 
            claimant's March 29, 1982 work-related injury and his 
 
            disability.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The greater weight of the evidence supports the 
 
            conclusion that claimant is permanently totally disabled as 
 
            a result of his March 29, 1982 work-related injury to his 
 
            lower back.  Claimant's disability is not related to his 
 
            cardiovascular problems.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant compensation for permanent 
 
            total disability at the stipulated rate of two hundred 
 
            twelve and 20/100 dollars ($212.20) per week during the 
 
            period of the claimant's disability commencing with the 
 
            injury date of March 29, 1982.  
 
            
 
                 That all accrued unpaid weekly benefits be paid in a 
 
            lump sum together with interest from the date each payment 
 
            became due in accordance with Iowa Code section 85.30.
 
            
 
                 That defendants shall be given credit for any benefits 
 
            previously paid and for the six (6) weeks claimant worked, 
 
            May 12, 1982 to and including June 22, 1982.
 
            
 
                 That defendants shall reimburse claimant in the amount 
 
            of one thousand two hundred fifty and 92/100 ($1,250.92) for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            medical, drug, and transportation bills, and to pay four 
 
            thousand seventy-eight and 92/100 dollars ($4,078.92) for 
 
            medical bills directly to the providers of the services to 
 
            claimant, totaling five thousand three hundred twenty-nine 
 
            and 84/100 dollars ($5,329.84) as set out in Attachment A of 
 
            the prehearing report.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the cost of transcription of the hearing 
 
            proceeding pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Louis P. Pfeiler
 
            Attorney at Law
 
            679 Bluff Street
 
            Dubuque, Iowa 52001
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102 Executive Square
 
            400 Main Street
 
            Davenport, Iowa 52801
 
            
 
            Mr. E. J. Giovannetti
 
            Ms. Anne L. Clark
 
            Attorneys at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2900
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            BJO
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD M. HAAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 699381
 
            ST. REGIS PAPER CO.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2900
 
            Pursuant to Iowa Rules of Civil Procedure 134 made 
 
            applicable by rule 343 IAC 4.35, a deputy industrial 
 
            commissioner filed a ruling imposing sanctions upon the 
 
            defendants' attorney for failure to comply with an order 
 
            compelling discovery.  The ruling indicated that the record 
 
            would be closed to further activity or evidence by 
 
            defendants.  The ruling stated that the record could be 
 
            opened for further activity upon compliance with the ruling.  
 
            Defendants did not comply with the ruling and proceeded to 
 
            hearing.
 
            Held on appeal that it was not an abuse of discretion by the 
 
            deputy to order the record closed to further activity by the 
 
            defendants until the time that the defendants complied with 
 
            the ruling.  "Imposition of such sanctions is vested in the 
 
            discretion of trial court and we will not reverse such an 
 
            order unless there has been an abuse of that discretion."  
 
            Wernimont v. International Harvester Corp., 309 N.W.2d 137, 
 
            143 (Iowa App. 1981).  Defendants failed to comply with an 
 
            order compelling discovery.  The cross-examination by 
 
            defendants of claimant was properly excluded.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD M. HAAS,
 
         
 
              Claimant,
 
                                                 File No. 699381
 
         vs.
 
                                              A R B I T R A T I O N
 
         ST. REGIS PAPER CO.,
 
                                                 D E C I S I O N
 
              Employer,
 
                                                    F I L E D
 
         and
 
                                                   MAY 11 1989
 
         WAUSAU INSURANCE COMPANIES,
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
                                        
 
                                        
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Richard M. Haas, against St. Regis Paper Co., employer, and 
 
         Wausau Insurance Companies, insurance carrier, to recover 
 
         benefits as a result of an injury sustained on March 29, 1982.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Dubuque, Iowa, on February 7, 1989.  
 
         This matter was filed as a review-reopening but claimant's 
 
         counsel indicated at the hearing that it is, in fact, an 
 
         arbitration.  The defendants were sanctioned by Deputy Larry 
 
         Walshire per order on July 11, 1988 and the record was closed to 
 
         further activity or evidence by defendants.  The record in this 
 
         proceeding consists of the testimony of claimant; Delilah Haas, 
 
         claimant's wife; and exhibits 1 through 5.  The parties offered 
 
         exhibits as joint exhibits but because of the sanction order 
 
         referred to above, the exhibits were received into the record as 
 
         claimant's exhibits.
 
         
 
                                      ISSUE
 
         
 
              The issue in this case is the nature and extent of 
 
         claimant's disability, but if permanent disability is found it is 
 
         an industrial disability with benefits beginning July 1, 1984.  
 
         Also, as per stipulations of parties, healing period or temporary 
 
         total disability is not applicable.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The undersigned deputy allowed defendants to cross-examine 
 
         claimant at the hearing.  This was in error on behalf of the 
 
         deputy due to the sanctions previously ordered by another deputy 
 
         who ordered no further activity or presentation of evidence on 
 
         behalf of defendants.  This error is being corrected by the 
 
         undersigned not considering any testimony presented in this case 
 
         as a result of defendants' cross-examination of claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant injured his back at work on March 29, 1982 when he 
 
         bent over to lift an overhead trailer door and the door stuck. 
 
         Claimant testified he felt a pop in his back.  Claimant sought 
 
         medical help soon thereafter.  Claimant returned to work May 12, 
 
         1982 through June 22, 1982.  Claimant testified that when he 
 
         first returned to work at the same position he had prior to his 
 
         March 29, 1982 injury, the pain had subsided but it became worse 
 
         until he had to stop working.  Claimant said that he filed for 
 
         social security disability benefits in November 1983 and was not 
 
         successful in obtaining benefits.  Claimant said he received a 
 
         release to return to work and in February 1984, claimant applied 
 
         for the return to his same job with the employer.  Claimant 
 
         testified that the employer told him that he had not recovered 
 
         yet.  Claimant stated he understood that under the union 
 
         agreement, if he was off work two years the employer could 
 
         terminate him.  The employer did not hire claimant so claimant 
 
         filed a grievance with the union and when it proceeded to the 
 
         arbitration stage, the employer rehired claimant again to his 
 
         shipping clerk job around March 29, 1984.  Claimant stated he 
 
         worked four weeks and was not able to do all the required work. 
 
         Claimant indicated he was not to do lifting and had to get help 
 
         to lift.  Claimant said that the employer told him that if he 
 
         could not lift, the employer would have to get someone else.  
 
         Around the middle of July 1984, the employer was bought by 
 
         Georgia Pacific Paper Company and all the employees had to 
 
         reapply.  On July 15, 1984, claimant stated that his application 
 
         was not accepted by the new owner and therefore he had no job.  
 
         Claimant emphasized that he has not been gainfully employed since 
 
         July 15, 1984.  Claimant testified that he has tried to find 
 
         manual labor work but nothing was available.  Claimant contended 
 
         that he couldn't work but wanted to try.  Claimant stated he 
 
         could not do any work involving bending or lifting.  Claimant 
 
         filed for social security again and began receiving it in March 
 
         1988.  Claimant contended that just prior to his March 29, 1982 
 
         injury, his general health was good but he suffered from high 
 
         blood pressure.  Claimant emphasized that he recovered from his 
 
         1963 injury and was able to do his job with the employer.  
 
         Claimant stated that he cannot lift 10 pounds, walk more than 
 
         five blocks at a time, stand more than 15 to 20 minutes, sit more 
 
         than two hours, do any bending without a handrail, or put on his 
 
         shoes or socks alone, without a lot of discomfort.
 
         
 
              Claimant's medical records have the following notation:
 
         
 
              July 19, 1963 he twisted his back while moving a skid by 
 
              hand at the Dubuque container company on Kerper Blvd. in 
 
              Dubuque, Iowa.  He was off work for several days following 
 
              the injury....
 
         
 
              5-4-64:  He states that he has continued to have some low 
 
              back disability off and on and not necessarily related to 
 
              work but even on sudden turns or sudden moves....He went to 
 
              pick up his little girl and he had sudden severe pain and he 
 
              was hardly able to straighten up....Examination today 
 
              reveals no motion in the lumbar spine and the lumbar spine 
 
              is reversed....
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 ....
 
              
 
              5-18-64:  Low back brace fitted today.  Retn in 2 wks.  This 
 
              will be a month he has been off work, will re-evaluate him 
 
              at this time....
 
              
 
                 ....
 
              
 
              6-10-64:  Myelogram at Xavier shows an extruded L3 disc ....
 
              
 
              6-19-64:  Lumbar disc excised today
 
         
 
                 ....
 
              
 
              1-8-65:  Surgery at Mercy Hospital
 
         
 
         This operation involved an L3-L4 fusion.
 
         
 
              1-20-65:  Body cast applied at Mercy Hospital
 
              
 
                 ....
 
              
 
              1-28-65:  He will have permanent partial disability between 
 
              10--30 per cent of the whole man.  No rating can be given 
 
              for at least one year....
 
              
 
                 ....
 
              
 
              9-8-67:  ...There is tenderness in the lumbosacral area and 
 
              left eiliolumbar angle.  His condition is identical to when 
 
              I first saw him on 12-9-63 and I do not believe the 
 
              myelogram, disc surgery, and fusion altered his cause.  I 
 
              advised him to live with his problem or see Dr. Henderson.
 
         
 
         (Ex. 2)
 
         
 
              On December 2, 1966, T. J. Greteman, M.D., opined:
 
         
 
              I think this man is suffering from the frequent 
 
              complications of disk surgery and fusion....I think one 
 
              should call the present situation a permanent one and 
 
              believe there is approximately 25 per cent functional loss 
 
              of the body total.
 
         
 
         (Ex. 2, p. 7)
 
         
 
              J. G. Nemmers, M.D., on July 22, 1972, upon claimant being 
 
         admitted to Mercy Medical Center, indicated the following:
 
         
 
                 Examination:  He has zero motion in the lumbar spine and 
 
              list of the trunk to the left.  All motions produce pain.  
 
              He has good motion in the hips but some limitation of right 
 
              hip flexion because of pain in the left lumbar area....
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 ....
 
         
 
                 Diagnosis:  Central lumbar disk syndrome.
 
         
 
         (Ex. 2, p. 8)
 
         
 
              Dr. Nemmers' medical records on October 11, 1977 reflect the 
 
         following:
 
         
 
                 Two weeks ago he noted a gradual onset of back pain.  He 
 
              also has pain down the back of both legs.  He did not go to 
 
              work yesterday or today.  He states that he has gotten along 
 
              well since 1972 and he would have some back pain, but always 
 
              related it to stress at work, but this time he did not do 
 
              anything to bring it on and is lasting longer than usual.
 
         
 
                 ....
 
         
 
              Diagnosis:  Lumbosacral strain.
 
         
 
         (Ex. 2, p. 9)
 
         
 
              Gerald L. Meester, M.D., examined claimant June 18, 1979.  
 
         Dr. Meester's records indicate that claimant felt a sudden snap 
 
         in his low back when he picked up a dock plate.  Dr. Meester gave 
 
         claimant a release to return to work on August 13, 1979.  These 
 
         same records indicate that on March 31, 1980 claimant was back to 
 
         Dr. Meester, whose records indicate that claimant told the doctor 
 
         that his condition was about the same as it was before his last 
 
         lifting injury.  The doctor noted "I don't believe that there has 
 
         been any impairment added to that which is already present."
 
         
 
              Dr. Meester saw claimant again on November 23, 1981 for 
 
         injury to the low back with some pain in the leg.  Dr. Meester's 
 
         records indicate that claimant told him that claimant was riding 
 
         on a fork truck at work.  Dr. Meester wrote as follows:
 
         
 
              Impression:  Probable acute lumbar strain.
 
         
 
                 ....
 
         
 
              12-7-81:  He is back and is doing much better....He still 
 
              has tight hamstrings, but he has very little discomfort.  It 
 
              is all across the low back.  It is mostly tightness when he 
 
              has been sitting for too long a period of time, but other 
 
              than this seems to becoming along well....He can go back to 
 
              work on 12-21-81 and he will go from there.
 
         
 
              1-20-82:  ...His symptoms are similar to spinal stenosis and 
 
              he may have with his fusion go on to develop a mild spinal 
 
              stenosis, but at this point it certainly does not warrant 
 
              anything else.
 
         
 
         (Ex. 2, p. 12)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On April 29, 1982, L. G. Werner, M.D., wrote in relation to 
 
         claimant's metrizamide lumbar myelogram:
 
         
 
              Examination reveals the presence of an extradural filling 
 
              defect at the L4-5 level.  This was noted to be present 
 
              centrally on the cross table lateral views and affecting the 
 
              nerve roots bilaterally at that level.  There also is a 
 
              small subarachnoid cyst noted extending off the distal end 
 
              of the caudal portion of the sac.  The exam otherwise is 
 
              unremarkable.
 
         
 
         (Ex. 2, p. 16)
 
         
 
              Dr. Meester's medical records on June 30, 1982 reflect the 
 
         following:
 
         
 
              HISTORY:  This is a gentleman who is a workman's 
 
              compensation injury and he has had multiple workman's 
 
              compensation injuries....
 
         
 
                 ....
 
         
 
              IMPRESSION:  Low back pain, possible postfusion stenosis. 
 
              Possible reherniation of ruptured disc.
 
         
 
         (Ex. 2, p. 19)
 
         
 
              On June 12, 1982, Dr. Meester wrote:
 
         
 
              His myelogram at that point was interpreted [sic]
 
              by the radiologist as being consistent with a central 
 
              herniated disc at the L4-5 level.
 
         
 
                 I am also aware that Mr. Haas has a long history of back 
 
              problems and multiple surgeries on his back, and while 
 
              certainly a back that has been operated on twice and has a 
 
              chronic number of problems, such as he has is more than 
 
              likely to be injured and re-injured.  His complaints are 
 
              temporally related to a lifting incident while at work in 
 
              March of 1982.  As far as I am concerned, his current 
 
              complaints are related directly to this incident at work 
 
              because this is what the patient himself told me.
 
         
 
                 I do not feel it is my responsibility to establish any 
 
              other relationship other than that which the patient tells 
 
              me directly.
 
         
 
         (Ex. 2, p. 20)
 
         
 
              Dr. Meester had indicated in August 1982 that neither he nor 
 
         his partner, who did the original fusion, were willing at that 
 
         time to undertake re-exploration of the disc space surgery.  On 
 
         August 10, 1982, Dr. Meester suggested consultation at either 
 
         Iowa City or the Mayo Clinic.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The University of Iowa Hospitals and Clinics records on 
 
         February 7, 1983, reflect that the patient was seen by Dr. 
 
         Lehmann and was given the options of conservative therapy versus 
 
         surgery. Dr. Lehmann advised claimant that the percent of success 
 
         through surgery was approximately 50 percent but 30 to 35 percent 
 
         of the people unchanged and 10 to 15 percent of the people worse 
 
         after the surgery.  At this time claimant was given time to 
 
         consider the options of surgery and to return in April or May 
 
         after a CT scan had been done.  The University Hospital notes of 
 
         June 6, 1983 reflect the following:
 
         
 
              IMPRESSION:  The patient was seen and examined with Dr. 
 
              Lehmann.  We feel he may have a L4-5 herniated nucleus 
 
              pulposus, even in the presence of a stable fusion mass.
 
         
 
              RECOMMENDATIONS:  The patient had the options of 
 
              conservative treatment versus a chymopapain injection 
 
              discussed.  He only has a 50% chance of improvement with 
 
              another procedure.  He would like to take this option.  We 
 
              will have him return on August 8, 1983 for admission and a 
 
              chymopapain injection at L4-5 scheduled for August 9th.
 
         
 
         (Ex. 2, p. 26)
 
         
 
              On September 23, 1983, claimant was seen again at the 
 
         University of Iowa Hospitals after having a cymopapain injection. 
 
         The patient complained of more and worse pain since this 
 
         procedure.
 
         
 
              On November 3, 1983, the University of Iowa Hospitals and 
 
         Clinics radiologic consultation report reflects the following:
 
         
 
                 There is narrowing of the disc space between L3 and L4 
 
              and L4 and L5.  Osteophyte formation can be seen on the 
 
              anterior border of L3.  The epiphseal joints appear normal.
 
         
 
                 Impression:  Degenerative disc disease of lower lumbar 
 
              spine.
 
         
 
         (Ex. 2, p. 28)
 
         
 
              On November 3, 1983, Dr. Lehmann of the University of Iowa 
 
         Hospitals wrote the following:
 
         
 
              IMPRESSION:  Mr. Haas presumes a dilemma at this point.  His 
 
              lack of symptomatic relief from the chymopapain injection is 
 
              not inconsistent with the percentage of success that was 
 
              given to him preoperatively, and at this point it is not 
 
              clear to us whether surgical intervention or conservative 
 
              therapy would be to the patient's best interest.  Dr. 
 
              Lehmann discussed this with the patient and gave him several 
 
              options; #1 - To become more aggressive and perform a 
 
              myelogram, leading to a possible L4-L5 canal release and 
 
              repair of the pseudarthrosis.  #2 - The patient could be 
 
              given a medical work release and allowed to return to his 
 
              job to see how that affected his pain syndrome.  #3 - Look 
 
              for another job which would not require lifting.  #4 - 
 
              Investigate the possibility of receiving Social Security 
 
              Disability.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Ex. 2, p. 29)
 
         
 
              Dr. Lehmann, on February 3, 1984, wrote:
 
         
 
              We released Mr. Haas for full employment, although he will 
 
              use his discretion in excessively demanding physical 
 
              activity.  The patient will return to clinic in 3 months and 
 
              to update us on his symptoms.  If cannot tolerate gainful 
 
              employment, we will reconsider the possibility of a 
 
              myelogram to look for a stenotic lesion and possible 
 
              surgical intervention.
 
         
 
         (Ex. 2, p. 31).
 
         
 
              On May 7, 1984, Dr. Lehmann wrote:  "IMPRESSION:  The 
 
         patient was seen and examined with Dr. Lehmann and we feel that 
 
         Mr. Haas should be able to return to work as a shipping clerk 
 
         without restriction.  We will dictate a letter to the company to 
 
         that affect."  (Ex. 2, p. 31)  On September 17, 1984, Dr. Lehmann 
 
         wrote:  "IMPRESSION:  Continued back and leg pain possibly 
 
         secondary to degenerative changes both above and below levels of 
 
         the fusion....and see him back in 6 months."  (Ex. 2, p. 32) 
 
         Approximately six months thereafter, Dr. Lehmann again saw 
 
         claimant and wrote:  "IMPRESSION:  Patient has chronic low back 
 
         pain with radicular symptoms in the left lower extremity that has 
 
         not changed in the last six months."  (Ex. 2, p. 33) on October 
 
         30, 1985, Dr. Lehmann wrote the following:
 
         
 
              IMPRESSION:  Chronic lower back pain.
 
         
 
         
 
              ...The possibility of evaluating the patient for surgery 
 
              with a myelogram and CT was discussed.  Patient will call 
 
              back if he desires the surgery.  It is felt that the patient 
 
              has an additional 15 percent permanent impairment of his 
 
              body as a whole over and above previous impairment and 
 
              related to an injury at work in March, 1982.  The patient 
 
              will return to clinic in six months or sooner if he desires.
 
         
 
         (Ex. 2, p. 36)
 
         
 
              On August 15, 1986, Dr. Lehmann wrote:
 
         
 
                 Mr. Haas was recently discharged from the hospital for 
 
              diagnostic evaluation including myelogram and CT.  At the 
 
              present time he continues to have pain in both calves which 
 
              he says about 80% of his pain is very active, he gets pain 
 
              radiating all the way up the legs associated with back pain. 
 
              He feels like he definitely is not getting any better and he 
 
              would like to have every opportunity to improve and 
 
              therefore would have repeat lumbar surgery even if it only 
 
              has a 50/50 chance of making him better.
 
         
 
                  ....
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                 Impression:  Status post fusion at L3-4 and status post 
 
              chemonucleolysis L4-5 with degeneration of the disc at L4-5. 
 
              There is spinal stenosis at L4-5.
 
         
 
                 Recommendation:  We've recommended to the patient that 
 
              he may be benefited [sic] from decompressive surgery and 
 
              fusion of the L4-5 motion segment.  This procedure only 
 
              offers him approximately a 50% chance of getting any 
 
              substantial improvement.  We advised his [sic] that we 
 
              should consider this problem carefully and not schedule 
 
              surgery at this time. He will be seen back here in November 
 
              for a return followup.
 
         
 
         (Cl Ex. 2, p. 40)
 
         
 
              On September 8, 1986, Dr. Lehmann, who at this time 
 
         identified himself as Professor, Department of Orthopaedic 
 
         Surgery, at the University of Iowa, wrote to claimant:
 
         
 
                 Please be advised that your [sic] under my care for 
 
              chronic low back and bilateral leg pain.  It's our 
 
              impression that this condition has come on as a result of a 
 
              work related injury.  The nature of this injury is 
 
              documented in the medical notes.  In view of the fact that 
 
              you have had continued low back and leg pain with total 
 
              disability, we have advised you that it may be necessary to 
 
              further evaluate your back with a myelogram, CAT scan and 
 
              EMG's....It's our impression that these medical tests and 
 
              the admission to the hospital associated with these tests 
 
              was of medical necessity.
 
         
 
         (Ex. 2, p. 41)
 
         
 
              On April 14, 1987, claimant saw R. Clemons, M.D., at the 
 
         Mercy Health Center, Dubuque, Iowa, for what appears to be a 
 
         patient identification and reason for disability determination 
 
         due to claimant filing for social security disability benefits.  
 
         Dr. Clemons' records reflect the following:  "ASSESSMENT:  
 
         Chronic back problems with history of several previous surgeries 
 
         for degenerative disc disease."  (Ex. 2, p. 44)  On April 30, 
 
         1987, claimant returned to the University of Iowa Hospitals and 
 
         at that time saw Dr. J. N. Weinstein.  His report reflects the 
 
         following:
 
         
 
              He has worked only one month in the past 5 years and is 
 
              currently not working.  He does some work and other than 
 
              that he has filed for Social Security disability.
 
         
 
                  ....
 
              
 
              Impression:  the patient was seen with Dr. Weinstein.  It is 
 
              agreed that he probably has a 50% chance of improvement with 
 
              surgery.  We feel the first part of his evaluation and 
 
              treatment should be an epidural injection.  This is to be 
 
              done on 5-4 and we will see him in clinic following that to 
 
              see how he is doing.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl Ex. 2, p. 45)
 
         
 
              Claimant did undergo the epidural steroid injection on May 
 
         4, 1987 as recommended, but on June 4, 1987, on his return to 
 
         University of Iowa Hospitals, claimant claimed little relief and 
 
         complained of basically the same low back pain with radiation to 
 
         both legs.  At this time he was seen by Dr. Schaeffer, who wrote: 
 
         "Pt. has probable spinal stenosis causing his leg pain and LBP. 
 
         Because the pt. received at least a small amount of benefit from 
 
         the epidural steroid injection, we would like to try an epidural 
 
         morphine injection in the Pain Clinic to see if he can achieve 
 
         more long-lasting relief with it."  (Ex. 2, p.,47)  On August 6, 
 
         1987, Dr. J. N. Weinstein, Associate Professor, Spine Treatment 
 
         and Research Center, University of Iowa Hospitals and Clinics, 
 
         wrote in response to an attorney's letter pertaining to 
 
         claimant's social security benefits claim as follows:  "To assess 
 
         if Mr. Haas if [sic] capable of doing light work as suggested by 
 
         the Social Security Office, I would like to recommend that he be 
 
         scheduled for a functional capacity evaluation."  (Ex. 2, p. 48)  
 
         On September 3, 1987, claimant did have a one day functional 
 
         capacity assessment at the University of Iowa Hospitals by Eugene 
 
         F. Gauron, Ph.d., who indicated that claimant "has progressively 
 
         drawn in his horizons and contracted his life, all out of respect 
 
         for the pain barrier.  He is not physically active and is not 
 
         employed in any way."  Dr. Gauron further indicated that the 
 
         claimant should change the direction of his life toward expanding 
 
         his horizons and doing more and more instead of less and less. 
 
         Claimant was again seen by Dr. Weinstein, who wrote on September 
 
         14, 1987 after reviewing the functional capacity assessment and 
 
         evaluation with the spine team:
 
         
 
              2.) If no surgery is indicated, I feel that a low back 
 
              pain rehabilitation program would be helpful for you as 
 
              you are extremely deconditioned and could benefit from 
 
              some back education regarding the care of your back and 
 
              pain control. However, prior to entering such a program, 
 
              it would be necessary to settle any.litigation that is 
 
              still pending. 3.) Your cardiovascular assessment shows 
 
              that your functional aerobic impairment is 70%, or an 
 
              extreme impairment.  This indicates that at this time you 
 
              would be suitable for only sedentary work tasks.
 
         
 
         (Ex. 2, p. 52)
 
         
 
              On September 9, 1987, Mary Lou Fairchild, LPT, who was 
 
         involved in claimant's one day functional assessment at the 
 
         University of Iowa, wrote:
 
         
 
              Observations
 
         
 
                 Mr. Haas is very deconditioned.  His leg strength is 
 
              poor limiting his ability to use good body mechanics.  He 
 
              appears unmotivated to get back to some kind of work.  He 
 
              seems mildly depressed and withdrawn. .Mr.  Haas could be a 
 
              viable Rehab Candidate if he is willing to set some goals 
 
              and find payment.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Ex. 2, p. 54)
 
         
 
              Claimant was seen by Ernest Found, M.D., on September 23, 
 
         1987 at the University of Iowa Hospitals and Clinics and the 
 
         clinical notes reflect the following:
 
         
 
              We feel that the patient has a mild amount of stenosis at 
 
              L4-5 but feel that surgery to take down the entire fusion 
 
              mass would have quite a bit of risk and the patient would 
 
              not necessarily get good relief.  The patient currently is 
 
              working on his social security case.  We would consider him 
 
              possibly for rehabilitation program, but we would like this 
 
              to be settled first.
 
         
 
         (Ex. 2, p. 58)
 
         
 
              On January 19, 1989, claimant returned to Ernest Found, 
 
         M.D., Assistant Professor, Spine Diagnostic and Treatment Center, 
 
         at the University of Iowa Hospitals and Clinics, whose notes 
 
         reflect the following:
 
         
 
              IMPRESSION:  Chronic low back pain status post posterior 
 
              central fusion approximately 20 years ago.  With persistent 
 
              spinal stenosis and mechanical back discomfort.  Feel that 
 
              his healing period has certainly ended.  I would estimate 
 
              his medical impairment of 15% of body as a whole.  Do not 
 
              feel that at the present time he will be able to seek 
 
              employment that will require prolonged standing, any 
 
              lifting, repetitive bending or stooping.  I am convinced 
 
              that he is really interested in returning to a working 
 
              situation, and with his advanced age and minimal vocational 
 
              possibilities, do not feel that he is a candidate for our 
 
              rehab program.  Feelings are unchanged as to his possible 
 
              improvements with surgery.
 
         
 
         (Ex. 2, p. 65)
 
         
 
              Don Lavenz, counselor at the State of Iowa Vocational 
 
         Rehabilitation Services in Dubuque, Iowa, on October 14, 1987, 
 
         wrote:
 
         
 
                 I feel the impairment level is such that, when 
 
              considered along with his education and employment 
 
              background, Mr. Haas should be viewed as incapable of 
 
              competitive employment at the SGA level.  I would encourage 
 
              him to continue his application for Social Security 
 
              disability benefits.
 
         
 
         (Ex. 4, p. 10)
 
         
 
              G. Brian Paprocki, a vocational consultant, did an 
 
         industrial disability appraisal of claimant and opined:
 
         
 
                 Based on the information noted above, it is my belief 
 
              that the claimant, Richard M. Haas, has sustained a,100% 
 
              industrial disability resultant from his most recent back 
 
              injury of 3/29/82.  Primary factors contributing to that 
 
              opinion include:  the claimant's inability to return to his 
 
              former job as a shipping clerk, or to perform any similarly 
 
              strenuous physical activities; medical suggestion that he is 
 
              limited to less than a full range of light work activities 
 
              from an exertional standpoint, on only a part-time basis, a 
 
              relative dearth of transferable skills from previous 
 
              employments; a limited education; and age.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Ex. 5, p. 5-6)
 
         
 
              Mr. Paprocki does state that he realizes that industrial 
 
         disability is a mixed question of law and fact and is not a 
 
         proper subject for his expert testimony but that his opinion was 
 
         done for the sole purpose of aiding the industrial commissioner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 29, 1982 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 29, 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              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.2nd 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, (1962).  
 
         When an aggravation occurs in the performance of an employer's 
 
         work and a causal connection is established, claimant may recover 
 
         to the extent of the impairment.  Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 620, 106 N.W.2d 591.  The Iowa Supreme Court 
 
         cites, apparently with approval, the C.J.S. statement that the 
 
         aggravation should be material if it is to be compensable.  
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              As a 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 NoW. 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."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability means reduced earning capacity.  
 
         Bodily impairment is merely one factor in a gauging industrial 
 
         disability. other factors include the worker's age, intelligence, 
 
         education, qualifications, experience, and the effect of the 
 
         injury on the worker's ability to obtain suitable work.  See 
 
         Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 
 
         1984). When the combination of factors precludes the worker from 
 
         obtaining regular employment to earn a living, the worker with 
 
         only a partial functional disability has a total disability.  See 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980.
 
         
 
              This 53-year-old claimant finished the tenth grade and began 
 
         working at manual labor when he was 16 years old and basically 
 
         continued since that time, including service in the navy.  
 
         Claimant has acquired no real transferable skills.  He worked for 
 
         defendant employer approximately 20 years before his injury.  
 
         Claimant had a long history of back trouble, which included an 
 
         L3-L4 fusion on January 8, 1965, at which time it was estimated 
 
         claimant would have a 10 to 30 percent impairment of the whole 
 
         man.  Approximately two years thereafter, T. J. Greteman, M.D., 
 
         opined that claimant was suffering from frequent complications of 
 
         the 1965 disc surgery and fusion and estimated approximately 25 
 
         percent functional loss of the total body.
 
         
 
              The fact is that claimant was performing his job at the time 
 
         of his injury on March 29, 1982.  Claimant has seen numerous 
 
         doctors and gone to the University of Iowa Hospitals and Clinics. 
 
         Dr. Meester indicated in August 1982 that neither he nor his 
 
         partner, who did the original fusion, were willing to undertake a 
 
         re-exploration of the disc space surgery and suggested that 
 
         claimant seek consultation in Iowa City or the Mayo Clinic. 
 
         Claimant did seek treatment at the University of Iowa Hospitals 
 
         and Clinics, and in February 1983 claimant was given the option 
 
         of conservative therapy versus surgery.  Claimant was advised by 
 
         Dr. Lehmann that the percent of success through surgery was 
 
         approximately 50 percent, that 35 percent of the people were 
 
         unchanged, and 10 to 15 percent of the people were worse after 
 
         the surgery.  Claimant was willing to proceed with surgery even 
 
         though he had only a 50 percent chance of improvement.  The 
 
         doctor suggested that claimant consider another procedure and 
 
         around August 9, 1983, claimant had a chymopapain injection at 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         L4-5. Claimant complained of more and worse pain after this 
 
         procedure. The University of Iowa Hospitals gave claimant other 
 
         options, but it is evident that the doctors were reluctant to 
 
         proceed with the surgery due to the risk involved.  In October 
 
         1985, Dr. Lehmann opined that the patient had an additional 15 
 
         percent permanent impairment of the body as a whole over and 
 
         above the previous impairment and related to the injury at work 
 
         in March 1982.  From medical records, it is not clear as to what 
 
         Dr. Lehmann thought claimant's impairment was in March 1982 other 
 
         than referring to the estimated 25 percent impairment that 
 
         claimant had prior to his March 29, 1982 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant made attempts to return to work and was unable to 
 
         perform the work.  Claimant has the desire to become well and to 
 
         return to work, as he has elected medical procedures of which 
 
         there is a risk in order to see if he can obtain sufficient 
 
         medical recovery in order to work.  Claimant indicated that the 
 
         employer told him if he could not lift, the employer would have 
 
         to get someone else.  Around the middle of July 1984, the 
 
         employer was bought by Georgia Pacific Paper Company and when 
 
         claimant reapplied for the job, he was not accepted by the new 
 
         owner and therefore had no job.  Claimant has not been employed 
 
         since July 15, 1984.  When claimant testified, he appeared to be 
 
         in real pain.  Claimant indicated he could not lift more than ten 
 
         pounds, walk more than five blocks at a time, stand more than 
 
         fifteen to twenty minutes, sit for more than two hours, do any 
 
         bending without a handrail, or put on his shoes and socks without 
 
         a lot of discomfort.
 
         
 
              The University of Iowa Hospitals indicated that due to 
 
         claimant's age and education he is not a candidate for their 
 
         rehabilitation program.  Dr. Meester's conclusions are for the 
 
         most part worthless in that Dr. Meester concluded that claimant's 
 
         complaints are directly related to an incident at work "because 
 
         this is what the patient himself told me."  It appears Dr. 
 
         Meester's judgment is not based on independent scientific 
 
         evidence but only what claimant told him.
 
         
 
              The greater weight of medical evidence indicates that 
 
         claimant may need further surgery but the risk is great and there 
 
         is no better than a 50-50 chance of any relief.  It medically 
 
         appears that no doctor is willing to do surgery with the risk 
 
         involved.  Claimant is willing to proceed with surgery even with 
 
         the 50-50 odds.  The undersigned deputy finds that claimant had a 
 
         preexisting injury, but that claimant's injury on March 29, 1982 
 
         substantially aggravated his preexisting condition resulting in 
 
         additional damage to the L3-L4 area of claimant's back, which has 
 
         left claimant totally disabled.
 
         
 
              It appears Mr. Paprocki, a vocational consultant, did not 
 
         have as his first goal the finding of employment for claimant, 
 
         nor does it appear he was hired to find claimant a job.  In his 
 
         appraisal of claimant (exhibit 5), he stated that he is not 
 
         objectively measuring the claimant's current academic 
 
         functioning. It is obvious then that he is speculating.  He then 
 
         draws a final analysis on page two of a six page document.  The 
 
         undersigned is looking for objective findings.  The consultant is 
 
         correct in that he has no expertise in determining the legal 
 
         question of industrial disability.  A report written as it was 
 
         leaves the undersigned with little concrete information and 
 
         results in little weight given to it.
 
         
 
              Claimant raised the odd-lot doctrine, but since claimant is 
 
         determined to be permanently and totally disabled, it is 
 
         unnecessary to consider whether claimant was an odd-lot employee.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              As to the medical bills and their authorization under 85.27, 
 
         the bills in dispute are attached to the prehearing order and 
 
         itemized therein and referred to on Attachment A.  Although it 
 
         appears that additional medical services were sought by claimant 
 
         when he was seeking social security benefits, the fact is that 
 
         those medical expenses and treatment attributed and helped in the 
 
         further determination of whether claimant could medically and 
 
         surgically be helped and returned to work or whether he was for 
 
         sure substantially or totally disabled.  This additional expert 
 
         testimony aided in whether surgery would be successful.  
 
         Defendants shall pay all those expenses, which total $5,329.84, 
 
         itemized on Attachment A to the prehearing order.  Those payments 
 
         noted thereon which have already been paid by claimant shall be 
 
         reimbursed by defendants and those not already paid shall be paid 
 
         directly to the provider of the services.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, it is found:
 
         
 
              1.  Claimant received a work-related low back injury on 
 
         March 29, 1982 when he attempted to lift a stuck overhead trailer 
 
         door.
 
         
 
              2.  Claimant had a preexisting low back injury which was 
 
         substantially and materially aggravated by his injury of March 
 
         29, 1982.
 
         
 
              3.  Claimant has a 40 percent impairment to the body as a 
 
         whole.
 
         
 
              4.  Claimant has a 100 percent reduction in earning 
 
         capacity.
 
              
 
              5.  Claimant is entitled to reimbursement of $1,250.92 in 
 
         medical, drug and transportation bills, and direct payment to the 
 
         provider of the services to the claimant for the unpaid medical 
 
         bills in the amount of $4,078.92, both totaling $5,329.84, all as 
 
         set out in Attachment A of the prehearing report.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's disability is causally connected to claimant's 
 
         work-related injury of March 29, 1982.
 
         
 
              Claimant is permanently totally disabled as a result of his 
 
         March 29, 1982 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant compensation for permanent 
 
         total disability at the stipulated rate of two hundred twelve and 
 
         20/100 dollars ($212.20) per week during the period of the 
 
         claimant's disability commencing with the date of injury, March 
 
         29, 1982.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That all accrued unpaid weekly benefits be paid in a lump 
 
         sum together with interest from the date each payment became due 
 
         in accordance with section 85.30.
 
         
 
              That defendants shall be given credit for any benefits 
 
         previously paid and for the six weeks claimant worked, May 12, 
 
         1982 to and including June 22, 1982.
 
         
 
              That defendants shall reimburse claimant in the amount of 
 
         one thousand, two hundred fifty and 92/100 dollars ($1,250.92) 
 
         for medical, drug and transportation bills, and to pay four 
 
         thousand seventy-eight and 92/100 dollars ($4,078.92) for medical 
 
         bills directly to the provider of the services to claimant, 
 
         totaling five thousand three hundred twenty-nine and 84/100 
 
         dollars ($5,329.84) as set out in Attachment A of the prehearing 
 
         report.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall an activity report upon payment
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 11th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Louis P. Pfeiler
 
         Attorney at Law
 
         679 Bluff St
 
         Dubuque, IA  52001
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Ste 102 Executive Sq.
 
         400 Main St
 
         Davenport, IA  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1804
 
                                            Filed May 11, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD M. HAAS,
 
         
 
              Claimant,
 
                                                  File No. 699381
 
         vs.
 
         
 
         ST. REGIS PAPER CO.,                  A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1804
 
         
 
              Claimant awarded permanent total disability for an injury to 
 
         his low back caused by lifting a stuck overhead trailer door. 
 
         Since claimant was determined to be permanently and totally 
 
         disabled, it was unnecessary to consider whether claimant was an 
 
         odd-lot employee.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARVIN D. GRIFFIN,
 
            Claimant,
 
        
 
        vs.                               File No. 699642
 
        
 
        FIRESTONE TIRE & RUBBER            A P P E A L
 
        COMPANY
 
                                          D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        CIGNA/INA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from a review-reopening decision awarding 
 
        permanent partial disability benefits based on an industrial 
 
        disability of 20 percent as the result of a work injury on August 
 
        24, 1981.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing and the exhibits listed in the 
 
        prehearing report. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether there is a causal relationship 
 
        between the work injury and the alleged permanent disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant began work for defendant employer in April 1971 and held 
 
        various jobs in the plant. In July 1980, a hiatal herniorrhaphy 
 
        was performed on claimant by William E. Stanley, D.O. In October 
 
        1980, claimant developed pain in the abdominal wall and Bryce 
 
        Wilson, M.D., performed exploratory surgery
 
        and removed a fatty tumor. Dr. Wilson wrote:
 
        
 
        [W]e examined on September 24, 1980.
 
        
 
        At the time of Mr. Griffin's examination in our clinic, he stated 
 
        he had lifted a heavy tire ten days prior and then reported to 
 
        his supervisor that he had pain underneath the left ribs. There 
 
        was
 
        
 
        GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 2
 
        
 
        
 
        a bulge there that was present when he was standing up, but would 
 
        disappear when he would lay down.
 
        
 
        You may not be familiar, but he had a hiatal hernia repair some 
 
        time previous to that....
 
        
 
        It would be difficult for us to relate this entirely to lifting. 
 

 
        
 
 
 
 
 
        Mr. Griffin stated the bulge had not been there prior to the 
 
        lifting, and it is not inconceivable that it could be the result 
 
        of trauma. I think we would be hard pressed to make an absolute 
 
        clinical decision that this was worked-related [sic] rather than 
 
        just a regular occurrence.
 
        (Joint Exhibit 1, page 33)
 
        
 
        In a letter dated March 21, 1983, Dr. Stanley wrote:
 
        
 
        The patient has a history of having had a hiatal herniorraphy 
 
        [sic] performed in July of 1980 for a hiatal hernia with reflux 
 
        esophagitis. The patient had improvement in his symptoms 
 
        following the hiatal herniorraphy [sic]; however, in October of 
 
        1980, the patient developed pain in the abdominal wall in the 
 
        upper left quandrant [sic]. This necessitated a surgical 
 
        procedure in October of 1980 for apparently a fatty tumor. The 
 
        patient had continuation of pain in the left upper abdominal wall 
 
        which necessitated a reoperation for an apparent hernia of the 
 
        abdominal wall in November of 1981. The patient has had some 
 
        chronic pain in the region of the abdominal surgery apparently 
 
        since that time interfering with his employment.
 
        
 
        I have examined the patient on March 21, 1983 in regard to his 
 
        left upper quandrant [sic] abdominal pain.. I feel the patient's 
 
        symptoms at the present time are secondary to his problem in the 
 
        abdominal wall of the left upper quandrant [sic] and are not 
 
        related to his hiatal hernia.
 
        
 
        (Jt. Ex. 1, p. 14)
 
        
 
        In a letter dated March 25, 1983, Dr. Stanley wrote:
 
        
 
        I do not feel that the hiatal hernia is a work related injury. In 
 
        regard to his problem with the left anterior abdominal wall, 
 
        however, it is possible that strenuous activity following removal 
 
        of his
 
        
 
        GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 3
 
        
 
        
 
        fatty tumor could have resulted in a small ventral hernia.
 
        
 
        (Jt. Ex. 1, p. 15)
 
        
 
        The parties stipulated that claimant received an injury on August 
 
        24, 1981 which arose out of and in the course of his employment. 
 
        Claimant was seen by Louis D. Rodgers on September 8, 1981 and on 
 
        November 5, 1981 Dr. Rodgers performed surgery to repair weakness 
 
        of the anterior rectus fascia. In March 1982, Dr. Rodgers 
 
        released claimant to return to work with no restrictions.
 
        
 
        Claimant returned to work and did well until he changed work in 
 
        November 1982 which required heavier lifting and effort. He was 
 
        seen by Tom D. Throckmorton, M.D., who wrote in a letter dated 
 
        March 30, 1983 that there was no underlying weakness nor hernia. 
 
        Also in that letter Dr. Throckmorton wrote that he had explained 
 
        to claimant that when an area of the abdominal wall is incised 
 
        and repaired that it does not heal beyond 85 percent of its 
 
        former strength. He further wrote that if claimant's lifting or 
 
        exertion is confined between 30 and 50 pounds claimant would not 
 
        be symptomatic.
 
        
 
        Claimant testified that he continued to work with a 30 pound 
 
        restriction placed on him by the company doctor. Claimant further 
 
        testified he was sore but did not complain. He worked until 
 

 
        
 
 
 
 
 
        November 1985 when he opted to be paid severance and retire from 
 
        work at defendant employer. Claimant's original notice and 
 
        petition in this matter was filed on January 8, 1986.
 
        
 
        Claimant was seen by Robert B. Stickler, M.D., on April 1, 1986. 
 
        In a letter dated May 14, 1986, Dr. Stickler wrote that no 
 
        weakness or defect or incisional hernia could be demonstrated, 
 
        that there was no evidence to permanent disability, and that 
 
        claimant first had his discomfort in September 1980 and claimant 
 
        described the same discomfort in April 1986.
 
        
 
        Claimant was seen by the University of Iowa Hospitals and Clinics 
 
        on August 25, 1986 which gave an impression of unknown etiology 
 
        for chronic pain and no recurrent hernia. Claimant was seen by 
 
        John Zittergruen, D.O., who wrote in an office note dated 
 
        September 12, 1986:
 
        
 
        ABD. PAIN PROBABLY INCISIONAL IN NATURE, BUT NO DEFINITE EVIDENCE 
 
        OF INCISIONAL HERNIA AT THIS TIME.
 
        
 
        Think this is probably secondary to adhesions from his previous 2 
 
        surgeries.
 
        
 
        (Jt. Ex. 1, p. 3)
 
        
 
        GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 4
 
        
 
        
 
        Claimant was also seen on March 17, 1987 by Walter J. Riley, M.D. 
 
        In a letter dated the next day, Dr. Riley wrote that claimant 
 
        felt a spontaneous hernia while lifting at work in 1980 and that 
 
        it appeared again at work in 1986.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of August 24, 1981 is causally related 
 
        to the disability on which he now bases his claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
        The opinions of experts need not be couched in definite, positive 
 
        or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 
 
        903 (Iowa 1974). An opinion of an expert based upon an incomplete 
 
        history is not binding upon the commissioner, but must be weighed 
 
        together with the other disclosed facts and circumstances. 
 
        Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical 
 
        evidence must be considered with all other evidence introduced 
 
        bearing on the causal connection between the injury and the 
 
        disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard 
 
        to medical testimony, the commissioner is required to state the 
 
        reasons on which testimony is accepted or rejected. Sondag, 220 
 
        N.W.2d 903 (1974).
 
        
 
        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).
 
        
 
        An injury is the producing cause; the disability, however, is the 
 
        result, and it is the result which is compensated. Barton v. 
 
        Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey 
 
        v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
        
 
                                      ANALYSIS
 
        
 
        The claimant has the burden of proving that his alleged permanent 
 
        disability is causally related to his work injury
 
        
 
        GRIFFIN V. FIRESTONE TIRE &RUBBER COMPANY
 
        Page 5
 
        
 
        
 
        of August 24, 1981. The question of causal connection is 
 
        essentially within the domain of expert testimony.
 
        
 
        Claimant had surgery in his left upper quadrant to repair a 
 
        hiatal hernia in July 1980. Dr. Stanley who performed the surgery 
 
        did not feel the hiatal hernia was work related. Dr. Stanley's 
 
        opinion as a treating physician should be given weight. That 
 
        opinion is uncontradicted by any medical evidence in the record. 
 
        Also, the surgery for the hiatal hernia was performed more than a 
 
        year prior to the date of injury. Claimant's hiatal hernia and 
 
        surgery for it were not work related.
 
        
 
        Claimant developed pain and again had surgery in October 1980 in 
 
        which the fatty tumor was removed during exploratory surgery. Dr. 
 
        Wilson, who performed the surgery, indicated that this was not 
 
        work related. Dr. Wilson's opinion as a treating physician should 
 
        be given weight. That opinion is uncontradicted by any medical 
 
        evidence in the record. Also, the exploratory surgery, which 
 
        resulted in removal of the fatty tumor, was performed 
 
        approximately ten months prior to the date of injury. Claimant's 
 
        fatty tumor and surgery for its removal was not work related.
 
        
 
        It appears from Dr. Stanley's letter of March 21, 1983 that 
 
        claimant had a continuation of pain from October 1980 until March 
 
        1983. That pain resulted in a third surgery performed on November 
 
        5, 1981. That surgery was to repair weakness in the anterior 
 
        rectus fascia and was performed by Dr. Rodgers. Dr. Rodgers 
 
        opined that the incision from this surgery solidly healed and 
 
        that claimant should be able to do regular work with 
 
        no-restrictions. There is no consensus amongst the doctors as to 
 
        what claimant's-condition is or whether the condition is 
 
        permanent. Dr. Stickler, who examined claimant once in 1986, 
 
        found no weakness nor incisional hernia nor any evidence of 
 
        permanent disability. Dr. Stickler described an incisional hernia 
 
        as a hernia which is developed where an incision had been made in 
 
        the abdominal wall. He testified that 90 percent of incisional 
 
        hernias occur within the first 12 to 24 months after the repair 
 
        is done. He indicated that repair of the incisional hernia would 
 
        not result in any permanency. He also testified that the records 
 
        at University of Iowa Hospitals and Clinics were consistent with 
 
        his judgment. Those records show an unknown etiology for chronic 
 
        pain and no recurrent hernia. It also appears from the medical 
 
        evidence from Dr. Stickler that claimant's problems after the 
 
        November 1981 surgery are the same as they were in September 
 
        1980.
 

 
        
 
 
 
 
 
        
 
        Dr. Zittergruen is the only physician to opine that claimant had 
 
        an incisional hernia which is directly related to the work injury 
 
        and which is a permanent impairment to the body. His opinion will 
 
        be given less weight in deciding this matter for a variety of 
 
        reasons. One reason is that he did not treat claimant at the time 
 
        or his injury. Another reason is that
 
        
 
        GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 6
 
        
 
        
 
        his opinion is inconsistent with another later examining 
 
        physician, Dr. Stickler, whose opinion is supported by the 
 
        University of Iowa Hospitals and Clinics. A further reason is 
 
        that Dr. Zittergruen inexplicably changed from an opinion of no 
 
        definite evidence of an incisional hernia and a problem secondary 
 
        to adhesions from previous surgeries to an opinion of a 
 
        work-related incisional hernia. It is unclear whether claimant's 
 
        alleged permanent condition is due to adhesions from surgeries or 
 
        an incisional hernia. This lack of clarity is apparent in the 
 
        deputy's decision. At one point in the decision it was found 
 
        that claimant's injury consisted of an incisional hernia but at 
 
        another point it was found that claimant's chronic problems are 
 
        probably due to adhesions. Another reason that Dr. Zittergruen's 
 
        opinion should be given less weight is because it appears that it 
 
        was based on an erroneous history. In 1986, he based his opinion 
 
        on claimant's previous two surgeries when in fact claimant had 
 
        had three surgeries. It is entirely possible that the two 
 
        surgeries Dr. Zittergruen was referring to were the two surgeries 
 
        prior to the work injury. Those surgeries were for problems 
 
        that, based upon uncontroverted medical opinion, were not work 
 
        related. Dr. Zittergruen's opinion is either based upon an 
 
        inaccurate history or it cannot be helpful because it is 
 
        impossible to tell which of the claimant's two surgeries he was 
 
        referencing.
 
        
 
        Dr. Stickler's opinions were based upon a complete medical 
 
        history, were logical in explaining claimant's problems and 
 
        treatments, and is consistent with the other medical evidence 
 
        with the exception of Dr. Zittergruen. Dr. Stickler's opinion 
 
        will be given greater weight than Dr. Zittergruen. Claimant's 
 
        physicians in 1983 must also be given weight as they were 
 
        treating physicians who performed the surgeries. However, none 
 
        of these doctors, Stanley, Wilson, or Rodgers gave an opinion or 
 
        stated that there was a probability that claimant had a permanent 
 
        condition that was causally related to his work injury on August 
 
        24, 1981. Dr. Riley's opinion will be given no weight because it 
 
        refers to a work injury in 1986 and claimant retired from 
 
        defendant employer in November 1985. Claimant has not proved by 
 
        the greater weight of evidence that there is a causal 
 
        relationship between the work injury of August 24, 1981 and his 
 
        alleged permanent condition.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant began work for defendant employer in 1971 and worked 
 
        various jobs as a laborer and a machine operator in the 
 
        production of automobile and truck tires.
 
        
 
        2. In July 1980, a hiatal herniorrhaphy was performed on 
 
        claimant.
 
        
 
        3. The hiatal hernia was not the result of a work-related injury 
 
        on August 24, 1981.
 
        
 

 
        
 
 
 
 
 
        GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 7
 
        
 
        
 
        4. In October 1980, exploratory surgery was performed on claimant 
 
        and a fatty tumor was removed.
 
        
 
        5. The fatty tumor was not the result of a work-related injury on 
 
        August 24, 1981.
 
        
 
        6. On August 24, 1981, claimant suffered an injury that arose out 
 
        of and in the course of his employment.
 
        
 
        7. On November 5, 1981, surgery was performed on claimant to 
 
        repair weakness of the anterior rectus fascia.
 
        
 
        8. The surgeries in July 1980, October 1980, and November 1981 
 
        were all in the left upper quadrant.
 
        
 
        9. Claimant's current condition is not the result of a work 
 
        injury on August 24, 1981.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has not proved by the greater weight of evidence that 
 
        there is a causal relationship between a work injury on August 
 
        24, 1981 and his alleged permanent disability.
 
        
 
        WHEREFORE, the decision of the deputy is reversed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from these proceedings.
 
        
 
        That defendants pay all the costs of this action including the 
 
        costs of the transcription of the hearing proceeding.
 
        
 
        Signed and filed this 20th day of December, 1988.
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARVIN D. GRIFFIN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No. 699642
 
         FIRESTONE TIRE & RUBBER
 
         COMPANY,
 
                                                 A P P E A L
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         CIGNA/INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent partial disability benefits based on an industrial 
 
         disability of 20 percent as the result of a work injury on August 
 
         24, 1981.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and the exhibits listed in the 
 
         prehearing report.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether there is a causal 
 
         relationship between the work injury and the alleged permanent 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began work for defendant employer in April 1971 and 
 
         held various jobs in the plant.  In July 1980, a hiatal 
 
         herniorrhaphy was performed on claimant by William E. Stanley, 
 
         D.O. In October 1980, claimant developed pain in the abdominal 
 
         wall and Bryce Wilson, M.D., performed exploratory surgery and 
 
         removed a fatty tumor.  Dr. Wilson wrote:
 
         
 
              [W]e examined on September 24, 1980.
 
         
 
                 At the time of Mr. Griffin's examination in our 
 
              clinic, he stated he had lifted a heavy tire ten days 
 
              prior and then reported to his supervisor that he had 
 
              pain underneath the left ribs.  There was a bulge there 
 
              that was present when he was standing up, but would 
 
              disappear when he would lay down.
 
         
 
                 You may not be familiar, but he had a hiatal hernia 
 
              repair some time previous to that ....
 
         
 
                 ....
 

 
         
 
                 It would be difficult for us to relate this entirely 
 
              to lifting.  Mr. Griffin stated the bulge had not been 
 
              there prior to the lifting, and it is not inconceivable 
 
              that it could be the result of trauma.  I think we 
 
              would be hard pressed to make an absolute clinical 
 
              decision that this was worked-related [sic] rather than 
 
              just a regular occurrence.
 
         
 
         (Joint Exhibit 1, page 33)
 
         
 
              In a letter dated March 21, 1983, Dr. Stanley wrote:
 
         
 
              The patient has a history of having had a hiatal 
 
              herniorraphy [sic] performed in July of 1980 for a 
 
              hiatal hernia with reflux esophagitis.  The patient had 
 
              improvement in his symptoms following the hiatal 
 
              herniorraphy [sic]; however, in October of 1980, the 
 
              patient developed pain in the abdominal wall in the 
 
              upper left quadrant [sic).  This necessitated a 
 
              surgical procedure in October of 1980 for apparently a 
 
              fatty tumor.  The patient had continuation of pain in 
 
              the left upper abdominal wall which necessitated a 
 
              reoperation for an apparent hernia of the abdominal 
 
              wall in November of 1981.  The patient has had some 
 
              chronic pain in the region of the abdominal surgery 
 
              apparently since that time interfering with his 
 
              employment.
 
         
 
                 I have examined the patient on March 21, 1983 in 
 
              regard to his left upper quadrant [sic] abdominal pain  
 
              ... I feel the patient's symptoms at the present time 
 
              are secondary to his problem in the abdominal wall of 
 
              the left upper quadrant [sic] and are not related to 
 
              his hiatal hernia.
 
         
 
         (Jt. Ex. 1, p. 14)
 
         
 
              In a letter dated March 25, 1983, Dr. Stanley wrote:
 
         
 
                 I do not feel that the hiatal hernia is a work 
 
              related injury.  In regard to his problem with the left 
 
              anterior abdominal wall, however, it is possible that 
 
              strenuous activity following removal of his fatty tumor 
 
              could have resulted in a small ventral hernia.
 
         
 
         (Jt. Ex. 1, p. 15)
 
         
 
              The parties stipulated that claimant received an injury on 
 
         August 24, 1981 which arose out of and in the course of his 
 
         employment.  Claimant was seen by Louis D. Rodgers on September 
 
         8, 1981 and on November 5, 1981 Dr. Rodgers performed surgery to 
 
         repair weakness of the anterior rectus fascia.  In March 1982, 
 
         Dr. Rodgers released claimant to return to work with no 
 
         restrictions.
 
         
 
              Claimant returned to work and did well until he changed work 
 
         in November 1982 which required heavier lifting and effort.  He 
 
         was seen by Tom D. Throckmorton, M.D., who wrote in a letter 
 
         dated March 30, 1983 that there was no underlying weakness nor 
 
         hernia.  Also in that letter Dr. Throckmorton wrote that he had 
 
         explained to claimant that when an area of the abdominal wall is 
 
         incised and repaired that it does not heal beyond 85 percent of 
 

 
         
 
         
 
         
 
         GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   3
 
         
 
 
 
         its former strength.  He further wrote that if claimant's lifting 
 
         or exertion is confined between 30 and 50 pounds claimant would 
 
         not be symptomatic.
 
         
 
              Claimant testified that he continued to work with a 30 pound 
 
         restriction placed on him by the company doctor.  Claimant 
 
         further testified he was sore but did not complain.  He worked 
 
         until November 1985 when he opted to be paid severance and retire 
 
         from work at defendant employer.  Claimant's original notice and 
 
         petition in this matter was filed on January 8, 1986.
 
         
 
              Claimant was seen by Robert B. Stickler, M.D., on April 1, 
 
         1986.  In a letter dated May 14, 1986, Dr. Stickler wrote that no 
 
         weakness or defect or incisional hernia could be demonstrated, 
 
         that there was no evidence to permanent disability, and that 
 
         claimant first had his discomfort in September 1980 and claimant 
 
         described the same discomfort in April 1986.
 
         
 
              Claimant was seen by the University of Iowa Hospitals and 
 
         Clinics on August 25, 1986 which gave an impression of unknown 
 
         etiology for chronic pain and no recurrent hernia.  Claimant was 
 
         seen by John Zittergruen, D.O., who wrote in an office note dated 
 
         September 12, 1986:
 
         
 
         
 
              ABD.  PAIN PROBABLY INCISIONAL IN NATURE, BUT NO 
 
              DEFINITE EVIDENCE Of INCISIONAL HERNIA AT THIS TIME.
 
         
 
                 Think this is probably secondary to adhesions from 
 
              his previous 2 surgeries.
 
         
 
         (Jt. Ex. 1, p. 3)
 
         
 
              Claimant was also seen on March l7, 1987 by Walter J. Riley, 
 
         M.D.  In a letter dated the next day, Dr. Riley wrote that 
 
         claimant felt a spontaneous hernia while lifting at work in 1980 
 
         and that it appeared again at work in 1986.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 24, 1981 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 

 
         
 
         
 
         
 
         GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   4
 
         
 
 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 130 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
                                     ANALYSIS
 
         
 
              The claimant has the burden of proving that his alleged 
 
         permanent disability is causally related to his work injury of 
 
         August 24, 1981.  The question of causal connection is 
 
         essentially within the domain of expert testimony.
 
         
 
              Claimant had surgery in his left upper quadrant to repair a 
 
         hiatal hernia in July 1980.  Dr. Stanley who performed the 
 
         surgery did not feel the hiatal hernia was work related.  Dr. 
 
         Stanley's opinion as a treating physician should be given weight. 
 
          That opinion is uncontradicted by any medical evidence in the 
 
         record.  Also, the surgery for the hiatal hernia was performed 
 
         more than a year prior to the date of injury.  Claimant's hiatal 
 
         hernia and surgery for it were not work related.
 
         
 
              Claimant developed pain and again had surgery in October 
 
         1980 in which the fatty tumor was removed during exploratory 
 
         surgery.  Dr. Wilson, who performed the surgery, indicated that 
 
         this was not work related.  Dr. Wilson's opinion as a treating 
 
         physician should be given weight.  That opinion is uncontradicted 
 
         by any medical evidence in the record.  Also, the exploratory 
 
         surgery, which resulted in removal of the fatty tumor,.was 
 
         performed approximately ten months prior to the date of injury.  
 
         Claimant's fatty tumor and surgery for its removal was not work 
 
         related.
 
         
 
              It appears from Dr. Stanley's letter of March 21, 1983 that 
 
         claimant had a continuation of pain from October 1980 until March 
 
         1983.  That pain resulted in a third surgery performed on 
 
         November 5, 1981.  That surgery was to repair weakness in the 
 
         anterior rectus fascia and was performed by Dr. Rodgers.  Dr. 
 
         Rodgers opined that the incision from this surgery solidly healed 
 
         and that claimant should be able to do regular work with no 
 
         restrictions.  There is no consensus amongst the doctors as to 
 
         what claimant's condition is or whether the condition is 
 
         permanent.  Dr. Stickler, who examined claimant once in 1986, 
 

 
         
 
         
 
         
 
         GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   5
 
         
 
         found no weakness nor incisional hernia nor any evidence of 
 
         permanent disability.  Dr. Stickler described an incisional 
 
         hernia as a hernia which is developed where an incision had been 
 
         made in the abdominal wall.  He testified that 90 percent of 
 
         incisional hernias occur within the first 12 to 24 months after 
 
         the repair is done.  He indicated that repair of the incisional 
 
         hernia would not result in any permanency.  He also testified 
 
         that the records at University of Iowa Hospitals and Clinics were 
 
         consistent with his judgment.  Those records show an unknown 
 
         etiology for chronic pain and no recurrent hernia.  It also 
 
         appears from the medical evidence from Dr. Stickler that 
 
         claimant's problems after the November 1981 surgery are the same 
 
         as they were in September 1980.
 
         
 
              Dr. Zittergruen is the only physician to opine that claimant 
 
         had an incisional hernia which is directly related to the work 
 
         injury and which is a permanent impairment to the body.  His 
 
         opinion will be given less weight in deciding this matter for a 
 
         variety of reasons.  One reason is that he did not treat claimant 
 
         at the time of his injury.  Another reason is that his opinion is 
 
         inconsistent with another later examining physician, Dr. 
 
         Stickler, whose opinion is supported by the University of Iowa 
 
         Hospitals and Clinics.  A further reason is that Dr. Zittergruen 
 
         inexplicably changed from an opinion of no definite evidence of 
 
         an incisional hernia and a problem secondary to adhesions from 
 
         previous surgeries to an opinion of a work-related incisional 
 
         hernia.  It is unclear whether claimant's alleged permanent 
 
         condition is due to adhesions from surgeries or an incisional 
 
         hernia.  This lack of clarity is apparent in the deputy's 
 
         decision.  At one point in the decision it was found that 
 
         claimant's injury consisted of an incisional hernia but at 
 
         another point it was found that claimant's chronic problems are 
 
         probably due to adhesions.  Another reason that Dr. Zittergruen's 
 
         opinion should be given less weight is because it appears that it 
 
         was based on an erroneous history.  In 1986, he based his opinion 
 
         on claimant's previous two surgeries when in fact claimant had 
 
         had three surgeries.  It is entirely possible that the two 
 
         surgeries Dr. Zittergruen was referring to were the two surgeries 
 
         prior to the work injury.  Those surgeries were for problems 
 
         that, based upon uncontroverted medical opinion, were not work 
 
         related.  Dr. Zittergruen's opinion is either based upon an 
 
         inaccurate history or it cannot be helpful because it is 
 
         impossible to tell which of the claimant's two surgeries he was 
 
         referencing.
 
         
 
              Dr. Stickler's opinions were based upon a complete medical 
 
         history, were logical in explaining claimant's problems and 
 
         treatments, and is consistent with the other medical evidence 
 
         with the exception of Dr. Zittergruen.  Dr. Stickler's opinion 
 
         will be given greater weight than Dr. Zittergruen.  Claimant's 
 
         physicians in 1983 must also be given weight as they were 
 
         treating physicians who performed the surgeries.  However, none 
 
         of these doctors, Stanley, Wilson, or Rodgers gave an opinion or 
 
         stated that there was a probability that claimant had a permanent 
 
         condition that was causally related to his work injury on August 
 
         24, 1981.  Dr. Riley's opinion will be given no weight because it 
 
         refers to a work injury in 1986 and claimant retired from 
 
         defendant employer in November 1985.  Claimant has not proved by 
 
         the greater weight of evidence that there is a causal 
 
         relationship between the work injury of August 24, 1981 and his 
 

 
         
 
         
 
         
 
         GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   6
 
         
 
         alleged permanent condition.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant began work for defendant employer in 1971 and 
 
         worked various jobs as a laborer and a machine operator in the 
 
         production of automobile and truck tires.
 
         
 
              2.  In July 1980, a hiatal herniorrhaphy was performed on 
 
         claimant.
 
         
 
              3.  The hiatal hernia was not the result of a work-related 
 
         injury on August 24, 1981.
 
         
 
              4.  In October 1980, exploratory surgery was performed on 
 
         claimant and a fatty tumor was removed.
 
         
 
              5.  The fatty tumor was not the result of a work-related 
 
         injury on August 24, 1981.
 
         
 
              6.  On August 24, 1981, claimant suffered an injury that 
 
         arose out of and in the course of his employment.
 
         
 
              7.  On November 5, 1981, surgery was performed on claimant 
 
         to repair weakness of the anterior rectus fascia.
 
         
 
              8.  The surgeries in July 1980, October 1980, and November 
 
         1981 were all in the left upper quadrant.
 
         
 
              9.  Claimant's current condition is not the result of a work 
 
         injury on August 24, 1981.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not proved by the greater weight of evidence 
 
         that there is a causal relationship between a work injury on 
 
         August 24, 1981 and his alleged permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That defendants pay all the costs of this action including 
 
         the costs of the transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 20th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 

 
         
 
         
 
         
 
         GRIFFIN V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   7
 
         
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St, Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA 50312
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50; 1402.40
 
                                            Filed December 20, 1988
 
                                            David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN D. GRIFFIN,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                File No. 699642
 
         
 
         FIRESTONE TIRE & RUBBER COMPANY,
 
                                                 A P P E A L
 
         
 
              Employer,
 
                                                D E C I S I O N
 
         
 
         and
 
         
 
         CIGNA/INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50; 1402.40
 
         
 
              On appeal it was determined that two of three surgeries on 
 
         claimant were not work related.  The first two surgeries were not 
 
         for work-related injuries and the last was after the work-related 
 
         injury.  None of the physicians who performed the surgeries gave 
 
         an opinion that there was a probability that claimant had a 
 
         permanent condition that was causally related to his work injury.  
 
         Claimant had not proved that there was a causal relationship 
 
         between a work injury and the alleged permanent disability.  The 
 
         deputy's determination was reversed.