BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JAMES GLENN,
 
         
 
              Claimant,
 
         VS.
 
                                                        File No.  715176
 
         GEORGE A. HORMEL & COMPANY,
 
                                                          A P P E A L
 
              Employer,
 
                                                        D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding him 
 
         benefits for permanent partial disability of 20 percent of the 
 
         body as a whole.  Defendants cross-appeal.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 42, 44 and 45; 
 
         and defendants' exhibits A through Z and AA through HH together 
 
         with the briefs and filings of all parties on appeal.
 
         
 
                                      ISSUES
 
         
 
              The claimant states the following issues on appeal:
 
         
 
              1.  Did the trial Court err in ruling that Dr. Walker's 
 
              testimony would have to be confined to matters prior to 
 
              October 2, 1984 even though Dr. Walker's name appeared on a 
 
              witness list that was filed prior to the deadline given in 
 
              the Pretrial Order of October 9, 1984.
 
         
 
              2.  The trial Court did err in its findings when it 
 
              concluded that a CT scan given in September, 1982 showed no 
 
              disc problem at the L-3 level; Claimant contends that the 
 
              record shows no CT scan was given in September of 1982.
 
         
 
              3.  The trial Court did err in ruling that the operation of 
 
              February 3, 1984 was not causally
 
         
 
         
 
         
 
              connected to the December 16, 1981 work related injury.
 
         
 
              4.  The trial Court did err in failing to award medical 
 
              benefits, healing period benefits, and permanent partial 
 
              disability benefits as a result of the second back 
 
     
 
         
 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   2
 
         
 
         
 
              operation.
 
         
 
              5.  The trial Court did err in failing to consider the 
 
              second back operation and subsequent disability in arriving 
 
              at its permanent partial impairment disability rating and in 
 
              arriving at its industrial disability rating.
 
         
 
              Defendants state the following issues on cross-appeal:
 
         
 
              I   Whether the deputy erred in holding that claimant had 
 
              carried his burden of proving a causal connection between 
 
              his injury of December 16, 1981 and the herniated disc at L5 
 
              and resulting surgery of September 1982.
 
         
 
              II   Whether the deputy erred in including "fringe gain pay" 
 
              in the gross weekly wage of claimant in determining his 
 
              weekly compensation rate.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant injured his back when he slipped 
 
         and fell on some ice at work on December 16, 1981.  This injury 
 
         was diagnosed as a mild lumbosacral strain by John D. Birkett, 
 
         M.D. Claimant continued to work until September 28, 1982 when he 
 
         was admitted to the hospital by Robert A. Hayne, M.D., to undergo 
 
         a lumbar myelogram.  The myelogram revealed a herniated disc at 
 
         the L-5 level and subsequently a laminectomy was performed at the 
 
         L-5 level.  Claimant returned to work on January 3, 1983 with a 
 
         40 pound lifting restriction.  Claimant continued to experience 
 
         some pain in the left sacroiliac area and some numbness along the 
 
         outer aspect of the right thigh and leg.
 
         
 
              Claimant became dissatisfied with Dr. Haynes treatment of 
 
         his continued pain and sought the treatment of John R. Walker, 
 
         M.D., on December 10, 1983.  Dr. Walker ordered that claimant 
 
         undergo a CT scan and another lumbar myelogram on February 1, 
 
         1984.  The CT scan suggested a herniated disc at L-3 on the right 
 
         side.  The lumbar myelogram revealed a moderate extradural 
 
         deformity in the L-3 space laterally on the right and indentation 
 
         anteriorly at the narrowed L-3 space as well as moderate 
 
         spondylotic ridging anteriorly at the L-2 space.
 
         
 
              Dr. Walker then performed a total laminectomy from L-3 down 
 
         to L-5 with removal of the facets on either side and a placement 
 
         of bone was carried out along the transverse processes from L-2 
 
         down to and including Sl.  Following this extensive surgery Dr. 
 
         Walker opines that claimant recovered well and is able to walk 
 
         longer distances without pain; however, he adds that claimant 
 
         continues to have pain in the left sacroiliac joint.
 
         
 
              Dr. Hayne opines that claimant's condition is unchanged 
 
         since the February 3, 1984 surgery.  Dr. Hayne opines that 
 
         claimant had a nine percent permanent impairment of the body as a 
 
         whole following-the September 30, 1982 laminectomy and that 
 
         claimant now has a 30 percent permanent impairment to the body as 
 
         a whole following the February 3, 1984 surgery based upon his 
 

 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   3
 
         
 
         
 
         examination of claimant on September 26, 1984.
 
         
 
              Dr. Hayne stated in a letter dated October 14, 1982 that the 
 
         "symptoms which required the laminectomy date back to a fall at 
 
         work in the spring of 1982."  However, at his first deposition on 
 
         August 27, 1983 Dr. Hayne stated that he was not aware of the 
 
         report of Dr. Birkett or the subsequent physical therapy and on 
 
         page 40 of that deposition he states over the objection of 
 
         defendants:
 
         
 
              A.  Well, I would say that on the basis of testimony that we 
 
              have had here this morning about an injury which presumably 
 
              took place in December of 1981 that this letter would have 
 
              to be modified and the date that he related slipping on the 
 
              ice in the fall would be not in the spring of '82 but in 
 
              December of O81.
 
         
 
              Dr. Walker opines the following in a letter dated December 
 
         16, 1983: "To repeat, however, the episode of falling on his 
 
         buttocks on the ice on December 16, 1981 is the causal action and 
 
         factor which eventuated this man's final problems extending even 
 
         up through today." (Claimant's Exhibit 19)
 
         
 
              Bruce L. Miller, M.D., who treated claimant for a hiatal 
 
         hernia in the interim between December 16, 1981 and September 28, 
 
         1982 states in a letter dated November 26, 1982:
 
         
 
              Mr. Glenn tells me today that he did have a fall in December 
 
         at work striking his right hip area ....
 
         
 
              ....
 
         
 
              Mr. Glenn has no other history of injury or sudden onset of 
 
              pain with bending over, lifting, etc., so as far as I can 
 
              tell, his herniated disc was indeed related to his fall at 
 
              work.
 
         (Cl. Ex. 5)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Division of Industrial Services Rule 343-4.36, formerly, 
 
         Industrial Commissioner Rule 500-4.36 states:
 
         
 
                 If any party to a contested case or an attorney 
 
              representing such party shall fail to comply with these 
 
              rules or any order of a deputy commissioner or the 
 
              industrial commissioner, the deputy commissioner or 
 
              industrial commissioner may dismiss the action.  Such 
 
              dismissal shall be without prejudice.  The deputy 
 
              commissioner or industrial commissioner may enter an order 
 
              closing the record to further activity or evidence by any 
 
              party for failure to comply with these rules or an order of 
 
              a deputy commissioner or the industrial commissioner.
 
         
 
                 This rule is intended to implement the provisions of 
 
              section 86.8, Iowa Code.
 
         
 
              In all other respects the citations of law of the 
 
         arbitration decision are appropriate to the issues and evidence.
 

 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   4
 
         
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The first issue claimant raises on appeal concerns an order 
 
         filed on December 27, 1984 which states on page 2: "WHEREFORE, 
 
         defendants' motion for continuance is denied.  Any reports from 
 
         Dr. Walker dated after October 2, 1984 will not be allowed to be 
 
         presented into evidence and no testimony of Dr. Walker related to 
 
         matters after October 2, 1984 will be allowed into evidence."
 
         
 
              Claimant argues that Dr. Walker was listed on a witness list 
 
         which was timely filed, thus the deputy had no grounds for 
 
         denying claimant the opportunity to enter a report dated December 
 
         7, 1984 into evidence.  Claimant made an offer of proof of this 
 
         report which states on page 2 in relevant part: "To repeat, the 
 
         total laminectomy at L-3 was necessary to relieve scar and new 
 
         bone formation which basically was a part of the patient's low 
 
         back and leg problems.O (Offer of proof, Cl. Ex. 43)
 
         
 
              The order of December 27, 1984 is affirmed for the reasons 
 
         stated therein-specifically, to allow this report into evidence 
 
         would deny the defendants the opportunity to cross-examine 
 
         claimant's witness.
 
         
 
              The rest of the issues claimant raises on appeal are 
 
         interrelated and will be considered together.  Claimant argues 
 
         that the second surgery he underwent is causally related to his 
 
         injury of December 16, 1981.  Notwithstanding claimant's conten-
 
         
 
         
 
         
 
         tion that the deputy erred in stating that a CT scan in September 
 
         1982 showed no disc problem at the L-3 level, claimant fails to 
 
         preponderate on this issue.  Therefore, claimant's other 
 
         arguments need no further consideration.
 
         
 
              The first issue defendants raise on cross-appeal concerns 
 
         whether claimant's first surgery is causally connected to his 
 
         December 16, 1981 injury.  Drs.  Hayne and Miller relate the 
 
         surgery claimant underwent in September 1982 to the injury on 
 
         December 16, 1981.  Although Dr. Hayne originally stated that the 
 
         September 1982 laminectomy was related to a spring 1982 slip and 
 
         fall, he indicated at his first deposition that he would change 
 
         that letter to state December 16, 1981.  Defendants failed to 
 
         preserve their objection to that statement on appeal.  Therefore, 
 
         the claimant has established that the surgery of September 30, 
 
         1982 is causally related to the injury he sustained on December 
 
         16, 1981.
 
         
 
              The second issue defendants raise concerns whether the 
 
         "fringe gain pay" that claimant received should be included in 
 
         determining the appropriate rate of compensation.  Defendants 
 
         argue that "fringe gain pay" is paid to equalize claimant's wage 
 
         with those workers who are on an incentive system.  The record 
 
         shows that claimant received the same rate of "fringe gain pay" 
 
         every week and received this pay while he was on vacation.  
 
         Claimant did not work overtime or nights to receive this pay.  It 
 
         is concluded that the "fringe gain pay" was a part of claimant's 
 
         regular compensation.
 

 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   5
 
         
 
         
 
         
 
              The analysis of the deputy with regard to claimant's 
 
         industrial disability and termination of healing period is 
 
         adequate and accurate and adopted herein.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         arbitration decision are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 51 years old and is a high school graduate.
 
         
 
              2.  Claimant worked for George A. Hormel & Co. for about 30 
 
         years and his final day of work for the company was on or about 
 
         January 30, 1984.
 
         
 
              3.  Claimant worked as an electrician for Hormel at its Fort 
 
         Dodge plant for four and one-half years and was working in that 
 
         capacity on December 16, 1981.
 
         
 
              4.  Claimant fell on some ice at work on December 16, 1981 
 
         and injured his low back.
 
         
 
         
 
              5.  On September 30, 1982, Robert A. Hayne, M.D., surgically 
 
         removed a bulging disc at the fifth lumbar interspace on the 
 
         right side and this herniated disc resulted from claimant's fall 
 
         on December 16, 1981.
 
         
 
              6.  Claimant reached his maximum healing from the December 
 
         16, 1981 injury on January 3, 1983 when he returned to work.
 
         
 
              7.  On February 3, 1984, John R. Walker, M.D., performed a 
 
         very extensive surgery on claimant's back that was not causally 
 
         connected to claimant's injury on December 16, 1981 and, in any 
 
         event, was not reasonably necessary for treatment of,the December 
 
         16, 1981 injury.
 
         
 
              8.  Claimant receives a pension from Hormel in the amount of 
 
         $1,000 per month that reduces somewhat his incentive to return to 
 
         work.
 
         
 
              9.  Claimant is a poor candidate for a career change.
 
         
 
             10.  Dr. Hayne imposed a 40 pound weight restriction on 
 
         claimant which was subsequently reduced to a 35 pound weight 
 
         restriction, and told claimant not to engage in strenuous 
 
         physical exertion.
 
         
 
             11.  Claimant is currently able to do some electrical work 
 
         with small engines or components.
 
         
 
             12.  Claimant's industrial disability is 20 percent as it 
 
         related to the body as a whole.
 
         
 
             13.  Claimant's weekly rate of compensation is $370.78.
 
         
 
             14.  Claimant was off work from September 13, 1982 through 
 
         January 2, 1983; he has not worked since January 30, 1984.
 

 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   6
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant established by a preponderance of the evidence that 
 
         there is a causal connection between his injury of December 16, 
 
         1981 and permanent partial impairment of about 10 percent of the 
 
         body as a whole, and that there is a causal connection between 
 
         his injury and the surgery of September 30, 1982.
 
         
 
              Claimant is entitled to medical benefits in accordance with 
 
         the provisions of this decision.
 
         
 
              The weekly compensation rate in this case is $370.78.
 
         
 
              Claimant is entitled to healing period benefits for 16 weeks 
 
         at a rate of $370.78 for the period commencing on September 13, 
 
         1982 and ending on January 2, 1983.
 
         
 
              Claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits at a rate of $370.78 commencing on January 3, 
 
         1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 

 
         
 
         
 
         
 
         GLENN V. GEORGE A. HORMEL & COMPANY
 
         Page   7
 
         
 
         
 
              That defendants pay unto claimant healing period and 
 
         permanent partial disability benefits in the amount stated 
 
         above.
 
         
 
              That defendants be given credit for benefits already paid.
 
         
 
              That defendants pay medical benefits in accordance with the 
 
         provisions of this decision.
 
         
 
              That defendants pay the costs of arbitration proceeding and 
 
         the costs of the appeal including the transcription of the 
 
         hearing proceedings are to be shared equally.
 
         
 
              That defendants file claim activity reports, pursuant to 
 
         Division of Industrial Services Rule 343-3.1, formerly, 
 
         Industrial Commissioner Rule 500-3.1, as requested by the 
 
         agency.
 
         
 
         
 
              Signed and filed this 2nd day of April, 1987.
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200, Snell Bldg.
 
         P.O. Box 1560
 
         Fort Dodge, Iowa 50101
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50101
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         JAMES GLENN,   :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 715176
 
         GEORGE A. HORMEL & COMPANY,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         LIBERTY MUTUAL INSURANCE :
 
         COMPANY,  :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
          The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 16, 1989 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.  All other costs are 
 
         assessed against defendants pursuant to rule 343 IAC 4.33.
 
         Signed and filed this ____ day of July, 1991.
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         P.O. Box 1560
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                             
 
                                             1402.40-1402.60-3001-3700
 
                                             Filed April 2, 1987
 
                                             ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JAMES GLENN,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 715176
 
         
 
         GEORGE A. HORMEL & COMPANY,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40 - 1402.60 - 3001 - 3700
 
         
 
              Claimant injured his back when he slipped and fell on some 
 
         ice at work on December 16, 1981.  He subsequently underwent 
 
         surgery on September 30, 1982 and on February 3, 1984.  Medical 
 
         testimony established a causal connection between the, l982 
 
         surgery and the December 1981 injury; however, no causal 
 
         relationship was shown between the 1984 surgery and the December 
 
         1981 injury.
 
         
 
              Deputy's order filed December 27, 1984 which prohibited 
 
         claimant from introducing any medical reports from John R. 
 
         Walker, M.D., after October 2, 1984 into evidence is affirmed.  
 
         If these reports were allowed into evidence defendants would be 
 
         denied their right to cross-examine.
 
         
 
              The "fringe gain pay" claimant received was found to be a 
 
         regular part of his compensation where claimant received the same 
 
         rate of "fringe gain pay" each week and was not required to work 
 
         over-time or nights.
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed July 16, 1991
 
            Clair R. Cramer
 
            DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES GLENN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 715176
 
            GEORGE A. HORMEL & COMPANY,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            16, 1989.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES GLENN,
 
         
 
              Claimant,
 
                                                  File No. 715176
 
         vs.
 
                                                   R E V I E W -
 
         GEORGE A. HORMEL & COMPANY
 
                                                 R E O P E N I N G
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
                                                     F I L E D
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,                                   AUG 16 1989
 
         
 
              Insurance Carrier,           IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by James 
 
         Glenn, claimant, against George A. Hormel & Company, employer, 
 
         and Liberty Mutual Insurance Company, insurance carrier, to 
 
         recover additional benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury which arose out of and in the course 
 
         of claimant's employment on December 16, 1981.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner February 1, 1988, and was considered fully submitted 
 
         when the petition for judicial review to the Iowa Supreme Court 
 
         was dismissed on August 17, 1988.  The record in this case 
 
         consists of the testimony of claimant, claimant's exhibits 1 
 
         through 13, inclusive, and defendants' exhibits A through II, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 1, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether the surgery which claimant underwent on October 
 
         15, 1985, was causally connected to claimant's injury of December 
 
         16, 1981; and
 
         
 
              2.  Whether claimant has experienced a change of condition 
 
         warranting an award of additional medical and weekly benefits 
 
         and, if so, the extent of claimant's entitlement thereto.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant filed an original notice and petition on November 
 
         30, 1982, alleging an injury date of December 16, 1981.  The 
 
         matter of this petition came on for hearing July 31, 1985, at 
 
         which time the parties stipulated, among other things, that 
 
         claimant sustained an injury arising out of and in the course of 
 
         his employment on the date of injury alleged.  In an arbitration 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         decision the hearing deputy found that on September 30, 1982, 
 
         Robert A. Hayne, M.D., surgically removed a bulging disc at the 
 
         fifth lumbar interspace on the right side and that that this 
 
         herniated disc resulted from claimant's fall on December 16, 
 
         1981, and that on February 3, 1984, John R. Walker, M.D., 
 
         performed a very extensive surgery on claimant's back that was 
 
         not causally connected to claimant's injury on December 16, 1981, 
 
         and was not reasonably necessary for the treatment of the 
 
         December 16, 1981 injury.  Claimant was awarded benefits based on 
 
         a 20 percent industrial disability to the body as a whole.  This 
 
         decision was affirmed by the industrial commissioner and the 
 
         district court for Webster County.  An appeal to the Iowa Supreme 
 
         Court was dismissed on August 17,, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The record establishes claimant has undergone three separate 
 
         surgical procedures on his low back since 1981. on September 30, 
 
         1982, Robert A. Hayne, M.D., performed a lumbar laminectomy at L5 
 
         on the right side.  On February 3, 1984, John R. Walker, M.D., 
 
         performed a fusion from L3 to the sacrum.  This second surgery 
 
         was not found to be causally connected to the injury or 
 
         reasonably necessary to treat claimant's injury of December 16, 
 
         1981, because a myelogram and CT scan done in 1982 showed only a 
 
         deformity at L5 and no evidence of the disc problem at,the L3 
 
         level at the time of the September 1982 surgery.
 
         
 
              On October 15, 1985, claimant underwent a third surgical 
 
         procedure consisting of a fusion of the left sacroiliac joint by 
 
         Dr. Walker.  It is this surgery for which claimant now seeks 
 
         coverage and an award of additional permanent partial disability 
 
         benefits.  Of this surgery, Dr. Walker stated:
 
         
 
              Q.  Doctor, do you have an opinion within a reasonable 
 
              degree of medical certainty as to the reasons for the 
 
              necessity of the operation of October 15th, 1985?
 
         
 
              A.  Yes.
 
         
 
              Q.  What is that opinion?
 
              
 
              A.  My opinion is,that he originally injured the right 
 
              sacroiliac -- the left sacroiliac joint and also the right 
 
              sacroiliac joint in the original fall; that due to all the 
 
              stress he had in working on and on and on after Dr. Haynes 
 
              first semi-successful operation that he irritated this joint 
 
              more and more and more until the point where it became 
 
              extremely painful, to the point where it became so 
 
              chronically painful and unendurable that it brought him to 
 
              the surgery.  But it all started from the first fall we're 
 
              talking about which occurred December 16th, 1981.
 
         
 
         (John R. Walker Deposition, Claimant's Exhibit 1, pages 15-16)
 
         
 
              Dr. Hayne summarized his treatment of claimant as:
 
         
 
              Q.  Doctor, what do your office notes reflect with regard to 
 
              pain on the lower left back and the lower--and into the left 
 
              leg and the left sacroiliac?  I'm talking about going clear 
 
              back to the first time that you saw him.  That was -- I 
 
              guess my question really is, the complaints on the left side 
 
              were really nothing new, were they?
 
         
 
              A.  Well, in reviewing my office notes, when I first saw Mr. 
 
              Glenn on 6-4-82, he was complaining of pain in and about his 
 
              lower dorsal area with some pain radiation around the right 
 
              upper abdomen.  He did not at that time describe or complain 
 
              of pain in his lower extremities on either the right or left 
 
              side; and on 24 September of '82, he stated that his low 
 
              back was painful, and at this date his back--he said in the 
 
              spring of 1982 he slipped on some ice and sprained his back, 
 
              and he stated at that time that the pain would go into the 
 
              back and the right thigh; that this had been present for 
 
              some six weeks.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   And as we have mentioned here this morning, surgery was 
 
              carried out on September 30th, '82, for removal of a 
 
              herniated disc at the lumbar interspace on the right side, 
 
              and when seen on 11-17-82, he was much improved, no 
 
              significant pain.  He anticipated a return to work on or 
 
              about January 1, of '83.  Then on February 14th, '83, he 
 
              stated that he was having some recurrent back pain, that he 
 
              was doing heavy work unloading trucks, usually with weights 
 
              of 50 to 60 pounds, and at times up to 100 pounds.  And then 
 
              on April 7th, '83, he was seen again.  He stated there was 
 
              no improvement, and on this occasion for the first time he 
 
              mentioned pain in the left sacroiliac area.
 
              
 
              Q.  And that date was what, Doctor?
 
         
 
              A.  April 7th, 1983.  And then on June 10th, 1983, he stated 
 
              that he was not too good, as he put it; that he had twisted 
 
              his back incident to work in the first month after going to 
 
              work, and that it felt at that time, like he described, a 
 
              boil just to the right of the operative scar with numbness 
 
              along the lateral aspect of the right thigh and leg.  He was 
 
              working.
 
         
 
                   Then on 8-24-83 he said he was experiencing some 
 
              numbness of the back of the right thigh, working steadily 
 
              despite the pain, and then on 11-21-83 he stated there was 
 
              not an appreciable change.  He was working on an easy job at 
 
              Algona.  At that time he again stated that he was having 
 
              pain just to the left of the operative site with pain in the 
 
              back of the left lower extremity.  So that in answer to your 
 
              question, I think the first time that he mentioned pain on 
 
              the left side was in April of '83.
 
         
 
              Q.  Other than the twisting incident that he mentioned to 
 
              you in your notes there, was there any other recitation or 
 
              history of any other trauma or accident to the back in that 
 
              area?
 
         
 
              A.  Nothing other than that incident to the other heavy 
 
              lifting that he was doing, which he was not able to pinpoint 
 
              as far as any specific injury.
 
         
 
              Q.  Right.  And he had been released under your supervision 
 
              to try to go back to work at that juncture too, had he not?
 
         
 
              A.   Yes, but we had recommended that he not lift such 
 
              weights.
 
         
 
         (Hayne Deposition, Defendants' Exhibit II, pages 34-37)
 
         
 
              Dr. Hayne opined:
 
         
 
              Q.  Would there be  any reason to believe that, based on 
 
              what you treated in 1982, Mr. Glenn sustained an injury to 
 
              the sacroiliac joint in his fall of December 1981?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  I didn't think that he had sustained such an injury.
 
         
 
              Q.  Doctor, based on your review of Dr. Walker's deposition, 
 
              the various medical records from the surgeries that have 
 
              been performed on Mr. Glenn's lumbar spine, do you have an 
 
              opinion to a reasonable degree of medical certainty as to 
 
              whether the procedure performed by Dr. Walker in October of 
 
              1985 was reasonably necessary for the treatment of any 
 
              defect or condition that resulted from Mr. Glenn's fall at 
 
              the George A. Hormel plant in Fort Dodge in December of 
 
              1981?
 
         
 
              A.  I can't answer that definitely.  I don't, in my opinion, 
 
              think that it would have been necessary to carry out such an 
 
              extensive fusion.  In other words, I would be of the opinion 
 
              that a fusion between the fifth lumbar segment of the sacrum 
 
              would have sufficed here because of his pathology being at 
 
              the fifth lumbar level, and I would also be of the opinion 
 
              that a complete laminectomy as was carried out here and as 
 
              we have previously stated here this morning would be a 
 
              procedure that I would not know the reason for.
 
         
 
              Q.  As well as the removal of the facets at those levels?
 
         
 
              A.  yes.
 
         
 
              Q.  And the insertion of a bone plug in the sacroiliac 
 
              joint--I believe it was on the left side?
 
         
 
              A.  I believe it was on the right side.
 
         
 
              Q.  --on the right side in 1985, would your feeling be the 
 
         same in that regard?
 
         
 
              A.  I would, from my last examination of Mr. Glenn on 
 
              September 26th, 1984, not feel that he would be a candidate 
 
              for such a procedure.
 
         
 
         (Hayne Dep., Def. Ex. II, pp. 27-28)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 16, 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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 circumstance@.  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).
 
         
 
              The case law relating to review-reopening proceedings is 
 
         rather extensive.
 
         
 
              The opinion of the Iowa Supreme Court in Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940) stated "that the modification of...[an] award would depend 
 
         upon a change in the condition of the employee since the award 
 
         was made."  The court cited the law applicable at that time which 
 
         was "if on such review the commissioner finds the condition of 
 
         the employee warrants such action, he may end, diminish, or 
 
         increase the compensation so awarded" and stated at 1038:
 
         
 
              That the decision on review depends upon the condition of 
 
              the employee, which is found to exist subsequent to the date 
 
              of the award being reviewed.  We can find no basis for 
 
              interpreting this language as meaning that the commissioner 
 
              is to re-determine the condition of the employee which was 
 
              adjudicated by the former award.
 
         
 
              The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957) cited prior decisions and added a new facet to 
 
         the review-reopening law by stating at page 69:
 
         
 
         
 
              But it is also true that unless there is more than a 
 
              scintilla of evidence of the increase, a mere difference of 
 
              opinion of experts or competent observers as to the 
 
              percentage of disability arising from the original injury 
 
              would not be sufficient to justify a different determination 
 
              by another commissioner on a petition for review-reopening. 
 
              Such is not.the case before us, for here there was 
 
              substantial evidence of a worsening of her condition not 
 
              contemplated at the time of the first award.
 
         
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa App. 1978) that a review-reopening petition may allow a 
 
         change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
         
 
              A major pronouncement came in the case of Gosek v. Garmer 
 
         and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The opinion there, 
 
         at 732, stated that "[o]n a review-reopening hearing claimant has 
 
         the burden of showing by a preponderance of the evidence his 
 
         right to compensation in addition to that accorded by a prior 
 
         agreement or adjudication." The opinion went on to discuss the 
 
         common understanding that "if a claimant sustained compensable 
 
         injuries of which he was fully aware at time of prior settlement 
 
         or award, but for some unexplainable reason failed to assert it, 
 
         he cannot, for the first time on subsequent review proceedings, 
 
         claim additional benefits."  The opinion continued at 733 "[b]ut 
 
         according to the apparent majority view, if a claimant does not 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         know of other employment connected injuries or disability at time 
 
         of any prior agreement or adjudication, he is not ordinarily 
 
         barred from later asserting it as a basis for additional 
 
         benefits."  The court went on to hold at 735 that "cause for 
 
         allowance of additional compensation exists on proper showing 
 
         that facts relative to an employment connected injury existed but 
 
         were unknown and could not have been discovered by the exercise 
 
         of reasonable diligence, sometimes referred to as a substantive 
 
         omission due to mistake, at time of any prior settlement or  
 
         award."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Each of these cases rest upon some disparity between 
 
         claimant's actual or anticipated physical condition at the time 
 
         of the previous assessment and the physical condition which 
 
         exists at the time of the review-reopening proceeding.  Thus, the 
 
         question initially becomes has claimant established a change in 
 
         his physical condition since the time of the arbitration 
 
         proceeding.
 
         
 
              Our supreme court has stated.many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek, 158 N.W.2d 731; Barz v. Oler, 
 
         257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service 
 
         Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone 
 
         Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler 
 
         v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The matter of the first and second surgeries and their 
 
         causal connection to the injury of December 16, 1981, as well as 
 
         the issue of whether or not claimant's injury involved a disc 
 
         problem at the L3 level, have been litigated and may not be 
 
         relitigated by this proceeding.  See, e.g., Bascom v. Jos. 
 
         Schlitz Brewing Co., 395 N.W. 2nd 87@(Iowa-1986) and Toomer V. 
 
         Iowa Depart. of Job Service, 340 N.W.2d 594, 598, citing United 
 
         States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 
 
         S.Ct. 1545, 1560, 16 L.Ed.2d 642, 661 (1966).
 
         
 
              The crux of the issue presented herein for resolution 
 
         centers on whether or not claimant's surgery of October 15, 1985 
 
         was a result of the injury of December 16, 1981.  Dr. Walker, who 
 
         performed the surgery, opined, in response to an inquiry:
 
         
 
              ...concerning the necessity for his last operation, namely 
 
              the left sacroiliac arthrodesis.  This patient has suffered 
 
              a chronic sprain and a post-traumatic, early, left 
 
              sacroiliac, arthritis due to the fall that he incurred in 
 
              1981 while working for the George A. Hormel Meat Packing 
 
              Company.  This incident is the cause of all of this man's 
 
              troubles.  He has never had any problem before the fall and 
 
              relates all pain and symptomatology to this injury.
 
         
 
         (Cl.  Ex. 3)
 
         
 
              Dr. Hayne testified that there was no reason to believe that 
 
         claimant sustained an injury to the sacroiliac joint in his fall 
 
         of December 1981, that it would not have been necessary to carry 
 
         out "such an extensive fusion" as was done in October 1985 and 
 
         that based on his last examination of claimant on September 24, 
 
         1985, that claimant would not have been a candidate for such a 
 
         procedure.  In light of the conclusions that were made in the 
 
         previous arbitration decision (and upheld on appeal) and the fact 
 
         that the undersigned cannot alter such conclusions, it is 
 
         concluded that the opinion of Dr. Walker is entitled to less 
 
         weight than that given to the opinion of Dr. Hayne.  Dr. Walker 
 
         has found that all the surgical procedures performed on claimant 
 
         were as a result of his fall of December 1981.  Yet, precedent 
 
         dictates that such is not the case.  Therefore, it is concluded 
 
         that the greater weight of medical evidence shows the surgery of 
 
         October 15, 1985 was not causally connected to the injury of 
 
         December 16, 1981 nor reasonably necessary for the treatment 
 
         thereof and accordingly claimant is not entitled to benefits for 
 
         the surgery under Iowa Code section 85.27.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              What remains to be decided then is whether claimant has 
 
         shown a change of condition which would entitle him to additional 
 
         permanent partial disability benefits pursuant to Iowa Code 
 
         section 85.34(2)(u). Claimant has reported he is significantly 
 
         improved as a result of the October 1985 surgery.  Although he 
 
         has not returned to work, claimant was not working at the time of 
 
         the prior award.  Reviewing the evidence as a whole, and keeping 
 
         in mind the undersigned cannot merely redetermine what was 
 
         presented at the time of the last hearing, claimant has failed to 
 
         show a change of condition proximately caused by the injury of 
 
         December 16, 1981, which would entitle claimant to additional 
 
         benefits and therefore shall take nothing further as a result of 
 
         these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
              
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
              
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on December 16, 1981.
 
         
 
              2.  Pursuant to the previous arbitration decision which has 
 
         been affirmed on appeal, claimant underwent surgery to remove a 
 
         bulging disc at the fifth lumbar interspace on the right side as 
 
         a result of the injury on December 16, 1981.
 
         
 
              3.  On February 3, 1984, John R. Walker, M.D., performed an 
 
         extensive surgery on claimant's back which was not causally 
 
         connected to claimant's injury of December 16, 1981, and was not 
 
         reasonably necessary for the treatment of that injury.
 
         
 
              4.  On October 15, 1985, John R. Walker, M.D., performed 
 
         extensive surgery again on claimant's back which was not causally 
 
         connected to the injury of December 16, 1981, and was not 
 
         reasonably necessary for the treatment of that injury.
 
         
 
              5.  Claimant has not shown a change of condition which will 
 
         entitle him to further permanent partial disability benefits.
 
         
 
                                CONCLUSIONS OF LAW
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of.law are made:
 
              
 
              1.  Claimant has failed to show a change of condition which 
 
         is proximately caused by the injury of December 16, 1981, which 
 
         would entitled him to further permanent partial disability 
 
         benefits.
 
         
 
              2.  The surgery performed on October 15, 1985 was not 
 
         causally connected to the injury of December 16, 1981 and was not 
 
         reasonably necessary for the treatment therefor.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing as a result of these 
 
              proceedings.
 
         e 10
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.36.
 
         
 
              Signed and filed this 16th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Snell Bldg Ste 200
 
         P.O. Box 1560
 
         Fort Dodge, IA  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg
 
         P.O. Box 1680
 
         Fort Dodge, IA  50501
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1402; 5-2905
 
                                            Filed August 16, 1989
 
                                           Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES GLENN,
 
         
 
              Claimant,
 
                                                  File No. 715176
 
         vs.
 
         
 
         GEORGE A. HORMEL & COMPANY,               R E V I E W -
 
         
 
              Employer,                          R E 0 P E N I N G
 
         
 
         and                                      D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1402; 5-2905
 
         
 
              Claimant denied additional permanent partial disability 
 
         benefits as he failed to establish a causal connection between 
 
         surgery undergone subsequent to the prior award and the injury 
 
         which arose out of and in the course of his employment in 
 
         December 1981.  The prior decision held that surgery in the form 
 
         of a fusion from L3 to the sacrum was not proximately caused by 
 
         the injury as tests conducted immediately after the injury did 
 
         not show any deformity other than at L5.  Claimant's subsequent 
 
         surgery was again at L3 to the sacrum and was found not causally 
 
         connected nor reasonably necessary for the treatment of the 
 
         injury.  No award made.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARGARET ANN COOK,
 
        
 
            Claimant,
 
                                                           File Nos 
 
        716535
 
        vs.                                                741602
 
        
 
        PAMIDA, INC.,
 
                                                           R E V I E W -
 
            Employer,
 
                                             R E O P E N I N G
 
        and
 
                                              D E C I S I O N
 
        
 
        TRAVELERS INSURANCE COMPANY,             F I L E D
 
        
 
             Insurance Carrier,                 MAR 31 1989
 
             Defendants.
 
                                       IOWA INDUSTRIAL COMMISSIONER
 
             
 
             
 
                             STATEMENT OF THE CASE
 
        
 
             These are proceedings in review-reopening brought by 
 
             Margaret Ann Cook, claimant, against Pamida, Inc., employer, and 
 
             Travelers Insurance Company, insurance carrier, to recover 
 
             additional benefits under the Iowa Workers' Compensation Act, as 
 
             a result of injuries sustained on September 22, 1982 and January 
 
             3, 1983. These matters came on for hearing before the undersigned 
 
             deputy industrial commissioner June 7, 1988. The record was 
 
             considered fully submitted at the close of the hearing. The 
 
             record in this case consists of the testimony of claimant, 
 
             Lynette Wee, and Merritt Cook; claimant's exhibits 1 through 8, 
 
             inclusive, and defendants' exhibits A and F, inclusive.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report and order submitted and 
 
             approved June 7, 1988, the issues presented for determination 
 
             are:
 
        
 
            1. Whether claimant had a change of condition which is 
 
        causally connected to the work injuries;
 
        
 
            2. Claimant's entitlement to additional weekly benefits; 
 
        and
 
        
 
            3. The applicability of the odd-lot doctrine.
 
        
 
            Also disputed are certain medical expenses under Iowa Code 
 
        section 85.27 and more particularly whether those medical 
 
        expenses are causally connected to the work injury. This issue, 
 
        however, was not listed as an issue on the hearing assignment 
 
        order and, accordingly, the undersigned is without jurisdiction 
 
        to consider it. See Joseph Presswood v. Iowa Beef Processors, 
 
        (Appeal Decision filed November 14, 1986) holding an issue not 
 
        noted on the hearing assignment order is an issue that is waived.
 
        
 

 
        
 
 
 
 
 
                                 FACTS PRESENTED
 
        
 
             Claimant sustained an injury which arose out of and in the 
 
             course of her employment on September 22, 1982 when she tripped 
 
             while helping to unload a semi. Claimant injured her left knee 
 
             and on November 13, 1984, an agreement for settlement was 
 
             approved whereby claimant was found to have a 20 percent 
 
             impairment of the lower left extremity as a result of this injury 
 
             entitling her to 44 weeks of permanent partial disability 
 
             benefits.
 
        
 
            Claimant sustained an injury which arose out of and in the 
 
        course of her employment on January 3, 1983 when, in the course 
 
        of her treatment for the injury of September 22, 1982, she was 
 
        involved in a car accident. An agreement for settlement with 
 
        regard to this injury was approved on November 13, 1984 whereby 
 
        it was found claimant had sustained an industrial disability of 
 
        40 percent entitling her to 200 weeks of permanent partial 
 
        disability benefits.
 
        
 
            Claimant testified that she had surgery in November 1984 on 
 
        her left knee after which she "was not allowed to do anything" 
 
        since she had a cast on "from hip to toes" and could not get 
 
        around. Claimant stated she had further surgery in May 1985 
 
        because her knee "did not heal after the first surgery" and that 
 
        she still experiences pain. Claimant testified that since 1985, 
 
        she had not been able to do any work, in or outside the home, 
 
        that she cannot stand for any length of time, cannot climb steps, 
 
        cannot "complete a meal," cannot iron, and that when she tried to 
 
        use a typewriter she experienced muscle spasms in her neck. 
 
        Claimant explained that before 1982 and 1983 she had no 
 
        limitations on her activities and that in 1984, although she was 
 
        somewhat limited in what she could do, she was still capable of 
 
        maintaining at least part-time employment. Claimant acknowledged 
 
        she has not worked outside the home since November 1984 and has 
 
        not found any employment she is capable of doing.
 
        
 
            On cross-examination, claimant acknowledged she did not fill 
 
        out any formal applications for employment between June 1984 and 
 
        December 1984 and that she left the jobs she held in November 
 
        1984 because of surgery on her left knee and because of pain she 
 
        was experiencing in her back, leg, neck and lower back.
 
        
 
            Lynette Wee testified she has known claimant in excess of 
 
        six years and was trained by claimant when she began working for 
 
        defendant employer. Ms. Wee stated that claimant had no knee, 
 
        neck or back problems and was "physically very active" prior to 
 
        her injuries but that when claimant attempted to return to work 
 
        in January 1983 for a week or two claimant was not able to "lift 
 
        a lot" and had trouble walking. On cross-examination, Ms. Wee 
 
        acknowledged that claimant was her supervisor at Pamida from May 
 
        through September 1982 and that she did not see very much of 
 
        claimant after that, that she left her employment with defendant 
 
        employer in May 1987 and that she has seen claimant only a couple 
 
        of times since then.
 
        
 
             Merritt Cook, claimant's husband, testified that before 
 
             February 1983 claimant bowled, fished, boated, traveled, and did 
 
             yard and household work, but that since 1984 claimant has done no 
 
             housework, does not do much walking and must use a cane for 
 
             support.
 
        
 
            Mark E. Wheeler, M.D., orthopedic surgeon, testified he 
 
        scheduled claimant for arthroscopic surgery on January 20, 1983 
 
        after first seeing claimant January 3, 1983 on referral from 
 
        another physician in the clinic. Dr. Wheeler stated that at the 
 

 
        
 
 
 
 
 
        arthroscopic evaluation he found no signs of acute fracture or 
 
        meniscus injury but did find arthritis in the knee. Dr. Wheeler 
 
        opined that the injury of September 22, 1982 aggravated 
 
        claimant's preexisting arthritic condition and on July 12, 1984 
 
        indicated that claimant had a 20 percent permanent partial 
 
        impairment of the lower left extremity, primarily relating to the 
 
        arthritis in the knee. Dr. Wheeler saw claimant throughout the 
 
        year 1983, the last time being on December 19, 1983 when he noted 
 
        claimant continued to have difficulty with her knee and then did 
 
        not see her again until November 14, 1984 to:
 
        
 
             basically schedule her to go ahead with further surgery on 
 
             the knee. We discussed previously from her arthroscopy with 
 
             the changes that she had in the knee that future surgery 
 
             would be indicated. I don't have it clearly in my office 
 
             records whether I had her come in on the 14th specifically 
 
             with the idea of going ahead with the surgery that day or 
 
             the following day, but usually that's the way that I do it.
 
             
 
        (Defendants' Exhibit F, pages 11-12)
 
        
 
             Dr. Cook testified:
 
             
 
             Q. And would you describe to the industrial commissioner 
 
             what the surgical procedure and care was for Mrs. Cook at 
 
             that time?
 
             
 
             A. Mrs. Cook had continued to collapse down the inner 
 
             aspect of her knee. An osteotomy was done of the tibia just 
 
             below the knee to try and correct the bow legged deformity 
 
             she was developing, to try and relieve pressure on the area 
 
             that was wearing out. It was a [sic] called a 
 
             tibialosteotomy, and that was done in November of 1984.
 
             
 
        (Claimant's Exhibit 5, page 8)
 
        
 
             Claimant developed a "non-union" meaning the bone did not 
 
             heal and further surgical care took place June 18, 1985 which Dr. 
 
             Wheeler described as: "Some bone graft was taken from her pelvis 
 
             and applied to the non-union site of her tibia. Also metal plate 
 
             and screws to fix the osteotomy more securely." (Cl. Ex. 5, p. 
 
             9) Dr. Wheeler testified that following the surgery on November 
 
             15, 1984 it was necessary for claimant to discontinue work 
 
             activity and that she continued to be unable to return to work 
 
             after the compression plating on June 18, 1985 until claimant 
 
             reached a "plateau" in her condition "sometime around June of 
 
             1986." Dr. Wheeler testified:
 
        
 
             Q. Yes. And, Doctor, would you have an opinion, based on 
 
             reasonable medical certainty, as to the extent or change of 
 
             her functional impairment that you found at this time as a 
 
             result of the aggravation of the injury she sustained at 
 
             Pamida on 9-22-84?
 
             
 
             A. Yes. I think her impairment has increased from 1984. 
 
             According to AMA guidelines she has a 23 percent impairment 
 
             due to loss of motion alone, and because of the degenerative 
 
             arthritic changes in the knee I would add an additional ten 
 
             percent to that. That is of the lower extremity.
 
             
 
             Q. Okay. And, Doctor, this is the extent of the functional 
 
             impairment which is permanent as far as this patient is 
 
             concerned, Doctor?
 
             
 
             A. Yes.
 
             
 

 
        
 
 
 
 
 
             Q. And, Doctor, would you relate to the industrial 
 
             commissioner when this patient reached a plateau as far as 
 
             her healing is concerned following the injury and medical 
 
             care she required as a result of the aggravation of her 
 
             pre-existing condition on 9-22-84?
 
             
 
             A. In reviewing my records for the deposition it appears at 
 
             least from them that I think the plateau would have occurred 
 
             sometime around June of 1986.
 
             
 
        (Cl. Ex. 5, pp. 11-12)
 
        
 
             Dr. Wheeler opined that claimant could return to employment 
 
             that "would basically be a sit down type of work" and 
 
             acknowledged that "[o]bviously if someone had significant neck 
 
             problems it would exert more occupation's difficulty in terms of 
 
             leaning over" but that he had not evaluated claimant fully for 
 
             any problems outside of her knee difficulties.
 
             
 
             C. B. Carignan, Jr., M.D., testified he saw claimant a 
 
             number of times before January 1983 principally for blood 
 
             pressure checks and that he began treating claimant on January 4, 
 
             1983 following the automobile accident which had occurred the day 
 
             before. Dr. Carignan explained his diagnosis at the time was 
 
             that claimant was suffering from severe torticollis produced by a 
 
             flexion-extension injury or a lateral extension injury to the 
 
             neck as a result of impact in the car accident. Dr. Carignan 
 
             stated he continued to treat claimant through 1983 and 1984 
 
             (claimant was not seen for her injuries arising from the car 
 
             accident from September 20, 1983 through August 29, 1984) for 
 
             complaints of neck, back and arm pain and headaches. On November 
 
             3, 1984, Dr. Carignan opined claimant had a permanent whole body 
 
             functional impairment of 30 percent due to the neck and back 
 
             problems resulting from the accident she suffered on January 3, 
 
             1983. Claimant continued to complain of similar symptoms when 
 
             seen by Dr. Carignan in 1985 and 1986 and, during the course of 
 
             his deposition taken on August 25, 1986, Dr. Carignan testified 
 
             he had not changed his opinion with regard to claimant's 
 
             condition. (See, e.g., Defendants' Exhibit A, page 73, lines 11 
 
             through 22.)
 
             
 
             Dr. Carignan gave another deposition on December 29, 1987 
 
             and stated that claimant has difficulties with gazing downward, 
 
             climbing stairs (mainly due to a problem with flexion of the 
 
             knee), that claimant has some changes in the character of pain 
 
             she experiences all of which are the "natural consequence of her 
 
             injuries in the accident in 1982 at Pamida and also the auto 
 
             accident in January 1983." Dr. Carignan stated:
 
             
 
             Q . And if you were asked to make an impairment rating 
 
             today, Doctor, as to the amount of impairment that she has 
 
             to the body as a whole including her neck, low back, spine, 
 
             and leg, hip, and knee condition, would you be able to give 
 
             a percentage of impairment at this time, Doctor?
 
             
 
             A. Yes.
 
             
 
             Q. And what would you find the impairment to be in this 
 
             patient?
 
             
 
             A. Well, I checked in June of last year and again just this 
 
             morning and it has remained unchanged at about 37 percent or 
 
             at 37 percent according to the tables.
 
             
 
             Q. And would this be an increase in the impairment as you 
 
             visualized it in 1984 when I think you indicated generally 
 

 
        
 
 
 
 
 
             speaking 30 percent?
 
             
 
             A. Yes. It was a slight increase.
 
             
 
             Q. And in 1984 when you gave a 30 percent impairment rating 
 
             you rated that 30 percent. And I show you a letter of 11-84 
 
             as relating to the auto accident; is that correct?
 
             
 
             A. That's correct.
 
             
 
             Q. And you did not attempt at that point then to 
 
             incorporate the lower extremity?
 
             
 
             A . No.
 
             
 
             Q. And today as far as the back and neck is it fair to say 
 
             that she has shown additional limitations in the back and 
 
             neck region as far as her use of her body is concerned?
 
             
 
             A. Well, in some ways there's been a little improvement. 
 
             Certain changes of motion have altered to the better. And 
 
             others have altered to the worse. There's been possibly a 
 
             slight improvement in overall motion. However, there's been 
 
             some decrease as far as pain. Her pain seems to be worse 
 
             than it was at that time. In addition there's been 
 
             considerable deterioration of the knee.
 
             
 
        (Cl. Ex. 3, pp. 14-16)
 
        
 
             Dr. Carignan went on to explain that the 37 percent 
 
             impairment rating includes claimant's knee as well as all other 
 
             complaints.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Iowa Code section 86.14(2) provides:
 
        
 
                  In a proceeding to reopen an award for payments or 
 
                      agreement for settlement as provided by section 86.13, 
 
                      inquiry shall be into whether or not the condition of the 
 
                      employee warrants an end to, diminishment of, or increase of 
 
                      compensation so awarded or agreed upon.
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injuries of September 22, 1982 and January 
 
             3, 1983 are causally related to the disability on which she now 
 
             bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
             N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
             N.W.2d 607 (1945). A possibility is insufficient; a probability 
 
             is necessary. Burt v. John Deere Waterloo Tractor Works, 247 
 
             Iowa 691, 73 N.W.2d 732 (1955). The question of causal 
 
             connection is essentially within the domain of expert testimony. 
 
             Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
             (1960).
 
        
 
             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).
 
        
 
            In support of her petitions, claimant argues:
 
        
 
                  Claimant received a compromise agreement for settlement 
 
                      which allocated 20 percent of the lower extremity or 44 
 
                      weeks on file No. 716535, which has an accident date of 
 
                      September 22, 1982, which settlement was approves [sic] 
 
                      November 13, 1984. Thereafter, Claimant was allocated 40 
 
                      percent of the body as a whole for injuries sustained in 
 
                      file No. 741602, accident date, January 3, 1983 involving 
 
                      the automobile accident and workers' compensation benefits 
 
                      based on 30 percent functional disability as determined by 
 
                      Dr. Carignan in his letter of November 3, 1984.
 
             
 
             The payments of compensation were lumped together and 
 
             included the temporary healing period owed to the claimant. 
 
             Both company doctors, Dr. Wheeler and Dr. Carignan, have 
 
             testified to additional healing period as the result of 
 
             additional surgeries following the settlement by agreement 
 
             and a change of condition as to functional bodily 
 
             impairment. Their depositions are made a part of this 
 
             record. Dr. Wheeler attributes temporary healing period 
 
             from November 15, 1984 to June of 1986, which computes to 78 
 
             weeks additional healing period. Dr. Carignan computes 
 
             additional healing period from November 15, 1984 to June 
 
             1987, which computes out to 126 weeks of additional healing 
 
             period. Both Dr. Wheeler and Dr. Carignan, treating and 
 
             company physician, find additional impairment and change of 
 
             condition following the condition that existed as of 
 
             November 13, 1984 when the Industrial Commissioner approved 
 
             the previous two settlements.
 
             
 
        (Attachment to Prehearing Report and Order)
 
        
 
             Defendants contend there have been no change of condition 
 
             and, in the alternative, if there has been a change of condition 
 
             it was not proximately caused by the original injuries but rather 
 
             caused by degenerative changes and claimant's obesity.
 
        
 
            The case law relating to review-reopening proceedings is 
 
        rather extensive.
 
        
 
            The opinion of the Iowa Supreme Court in Stice v. 
 
        Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
        (1940) stated "that the modification of...[an] award would depend 
 
        upon a change in the condition of the employee since the award 
 
        was made." The court cited the law applicable at that time which 
 
        was "if on such review the commissioner finds the condition of 
 
        the employee warrants such action, he may end, diminish, or 
 
        increase the compensation so awarded" and stated at 1038:
 
        
 
             That the decision on review depends upon the condition of 
 
             the employee, which is found to exist subsequent to the date 
 
             of the award being reviewed. We can find no basis for 
 
             interpreting this language as meaning that the commissioner 
 
             is to re-determine the condition of the employee which was 
 
             adjudicated by the former award.
 
             
 
             The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
             N.W.2d 109 (1957) cited prior decisions and added a new facet to 
 
             the review-reopening law by stating at page 69:
 
        
 
        
 
             But it is also true that unless there is more than a 
 
             scintilla of evidence of the increase, a mere difference of 
 

 
        
 
 
 
 
 
             opinion of experts or competent observers as to the 
 
             percentage of disability arising from the original injury 
 
             would not be sufficient to justify a different determination 
 
             by another commissioner on a petition for review-reopening. 
 
             Such is not the case before us, for here there was 
 
             substantial evidence of a worsening of her condition not 
 
             contemplated at the time of the first award.
 
        
 
             In a somewhat analogous vein, the Iowa Court of Appeals held 
 
             in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
             (Iowa App. 1978) that a review-reopening petition may allow a 
 
             change in compensation when a claimant has failed to improve to 
 
             the extent initially anticipated.
 
        
 
            A major pronouncement came in the case of Gosek v. Garmer 
 
        and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, 
 
        at 732, stated that "[o]n a review-reopening hearing claimant has 
 
        the burden of showing by a preponderance of the evidence his 
 
        right to compensation in addition to that accorded by a prior 
 
        agreement or adjudication." The opinion went on to discuss the 
 
        common understanding that "if a claimant sustained compensable 
 
        injuries of which he was fully aware at time of prior settlement 
 
        or award, but for some unexplainable reason failed to assert it, 
 
        he cannot, for the first time on subsequent review proceedings, 
 
        claim additional benefits." The opinion continued at 733 "[b]ut 
 
        according to the apparent majority view, if a claimant does not 
 
        know of other employment connected injuries or disability at time 
 
        of any prior agreement or adjudication, he is not ordinarily 
 
        barred from later asserting it as a basis for additional 
 
        benefits." The court went on to hold at 735 that "cause for 
 
        allowance of additional compensation exists on proper showing 
 
        that facts relative to an employment connected injury existed but 
 
        were unknown and could not have been discovered by the exercise 
 
        of reasonable diligence, sometimes referred to as a substantive 
 
        omission due to mistake, at time of any prior settlement or 
 
        award."
 
        
 
             Each of these cases rest upon some disparity between 
 
             claimant's actual or anticipated physical condition at the time 
 
             of the previous assessment and the physical condition which 
 
             exists at the time of the review-reopening proceeding. Thus, the 
 
             question initially becomes has claimant established a change in 
 
             his physical condition since the time of the approval of the 
 
             agreement for settlement.
 
        
 
            The required change of condition to satisfy the requirements 
 
        of review-reopening need not rest solely upon a change of 
 
        physical condition if economic hardships causally related to a 
 
        compensable injury but not contemplated within the initial award 
 
        or agreement are demonstrated. An increase in industrial 
 
        disability may occur without a change in physical condition. A 
 
        change in earning capacity subsequent to the original award which 
 
        is proximately caused by the original injury also constitutes a 
 
        change in condition. Blacksmith v. All-American, Inc., 290 
 
        N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
        (Iowa 1980). The question thus secondarily becomes whether or not 
 
        claimant's industrial disability has changed.
 
        
 
            It is clear to the undersigned claimant has met her burden 
 
        of establishing a change of condition with regard to the knee 
 
        injury originally sustained on September 22, 1982. The parties 
 
        entered into an agreement for settlement with regard to this 
 
        injury which was approved on November 13, 1984 based on Dr. 
 
        Wheeler's impairment rating of 20 percent to the lower left 
 
        extremity. Since that agreement for settlement claimant has 
 
        undergone two more surgical procedures with the last surgery 
 

 
        
 
 
 
 
 
        necessitated as a result of the failure of the procedure done on 
 
        November 15, 1984. Although Dr. Wheeler testified at length on 
 
        the degenerative nature of claimant's knee problems, the 
 
        undersigned would conclude that the greater weight of medical 
 
        evidence shows that the precipitating factor in claimant's 
 
        condition was the original work injury. There is no dispute in 
 
        the record that claimant was essentially asymptomatic of any left 
 
        lower extremity problems prior to the original injury and that 
 
        all of claimant's problems including the surgical procedures done 
 
        in November 1984 and June 1985 arose out of the treatment for the 
 
        original injury. It cannot be said with any confidence that 
 
        claimant could have or should have anticipated the additional 
 
        surgeries at the time the agreement for settlement was approved. 
 
        It is recognized that Dr. Wheeler testified that at the time of 
 
        the arthroscopy additional surgery would be indicated. However, 
 
        Dr. Wheeler did not see claimant from December 1983 until 
 
        November 1984.
 
        
 
             Dr. Carignan relates claimant's lower back problems to the 
 
             difficulties claimant has experienced with her knee. However, 
 
             the undersigned cannot agree with Dr. Carignan's opinion and 
 
             therefore must conclude that claimant's disability does not 
 
             extend beyond the schedule with regard to this particular injury. 
 
             Accordingly, claimant's entitlement to benefits is limited to the 
 
             amount of compensation allowed by the schedule.
 
        
 
            The right of a worker to receive compensation for injuries 
 
        sustained which arose out of and in the course of employment is 
 
        statutory. The statute conferring this right can also fix the 
 
        amount of compensation to be paid for different specific 
 
        injuries, and the employee is not entitled to compensation except 
 
        as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 
 
        268 N.W. 598 (1936).
 
        
 
            Iowa Code subsection 85.34(2)(o) provides;
 
        
 
                  The loss of two-thirds of that part of a leg between the 
 
                      hip joint and the knee joint shall equal the loss of a leg, 
 
                      and the compensation therefor shall be weekly compensation 
 
                      during two hundred twenty weeks.
 
             
 
             Permanent partial disabilities are classified as either 
 
             scheduled or unscheduled. A specific scheduled disability is 
 
             evaluated by the functional method; the industrial method is used 
 
             to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 
 
             252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
             Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
             332 N.W.2d 886, 887 (Iowa 1983).
 
        
 
            Claimant has established a permanent partial impairment of 
 
        33 percent to the lower left extremity entitling her to 72.6 
 
        weeks of benefits or an additional 28.6 weeks as she has already 
 
        been compensated for 44 weeks or a 20 percent impairment.
 
        
 
            Iowa Code section 85.34(1) provides that if an employee has 
 
        suffered a personal injury causing permanent partial disability, 
 
        the employer shall pay compensation for a healing period from the 
 
        day of the injury until (l) the employee returns to work; or (2) 
 
        it is medically indicated that significant improvement from the 
 
        injury is not anticipated; or (3) until the employee is medically 
 
        capable of returning to substantially similar employment.
 
        
 
             As a consequence of establishing a change of condition, 
 
             claimant has also established an entitlement to additional 
 
             healing period benefits for the period of time between the 
 
             surgery on November 15, 1984 and the time she reached her maximum 
 

 
        
 
 
 
 
 
             medical recovery. The greater weight of medical evidence 
 
             establishes claimant reached her maximum medical recovery 
 
             following the surgeries in June of 1986. Nothing in the record 
 
             leads the undersigned to conclude claimant's condition changed by 
 
             improvement or deterioration following June of 1986. Therefore, 
 
             claimant is entitled to an additional 80.429 weeks of healing 
 
             period benefits covering the period from November 15, 1984 up to 
 
             and including May 31, 1986.
 
        
 
            The undersigned cannot conclude, however, that claimant has 
 
        established any change of condition as a result of the injury of 
 
        January 3, 1983 which could not have been contemplated at the 
 
        time the agreement for settlement was approved on November 13, 
 
        1984. Although Dr. Carignan has testified claimant currently has 
 
        a functional impairment greater than she had in 1984, this rating 
 
        includes claimant's knee problems which were not proximately 
 
        caused nor aggravated by this injury. Dr. Carignan's opinions 
 
        that the automobile accident aggravated claimant's knee are 
 
        wrought with assumptions which are not supported by the greater 
 
        weight of evidence. As set forth above, claimant has been 
 
        compensated for the effects of the knee injury according to the 
 
        scheduled loss. The record establishes that claimant was already 
 
        not employed at the time she entered into the agreement for 
 
        settlement and was already almost two years postinjury. 
 
        Claimant's complaints were the same after November 1984 as they 
 
        were before. The major differences in claimant's condition are, 
 
        in the opinion of the undersigned, her age and her weight. Such 
 
        elements were considered, or should have been, by the parties at 
 
        the time the agreement for settlement was reached. Claimant 
 
        acknowledged that she did not seek employment between June of 
 
        1984 and November of 1984 because of knee, back, neck and leg 
 
        pain. These conditions have not changed except with regard to 
 
        the fact that claimant is now older than she was at the time of 
 
        the injury. As the court stated in Stice, supra, there is no 
 
        basis in the statute to redetermine claimant's condition which 
 
        was adjudicated at the time of the prior award. Therefore, 
 
        claimant is entitled to nothing further with regard to this 
 
        injury as a result of this proceeding and the other issues 
 
        presented for resolution need not be addressed.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on all of the evidence presented, the 
 
             following findings of fact are made:
 
        
 
            1. Claimant sustained an injury to her left knee which 
 
        arose out of and in the course of her employment on September 22, 
 
        1982 when she tripped while helping to unload a semi.
 
        
 
            2. Claimant entered into an agreement for settlement which 
 
        was approved on November 13, 1984 whereby claimant was found to 
 
        have a 20 percent impairment of the lower left extremity 
 
        entitling her to 44 weeks of permanent partial disability 
 
        benefits.
 
        
 
            3. Subsequent to the approval of the agreement for 
 
        settlement claimant underwent two additional surgeries which were 
 
        proximately caused by the injury of September 22, 1982.
 
        
 
            4. Claimant currently has a permanent partial impairment of 
 
        33 percent of the lower left extremity.
 
        
 
            5. Claimant has had a change of condition since the 
 
        agreement for settlement was approved.
 
        
 
            6. Claimant reached maximum medical recovery May 31, 1986 
 

 
        
 
 
 
 
 
        after the two surgical procedures.
 
        
 
            7. Claimant sustained an injury which arose out of and in 
 
        the course of her employment on January 3, 1983, when, in the 
 
        course of her treatment for the injury of September 22, 1982, she 
 
        was involved in a car accident.
 
        
 
            8. Claimant entered into an agreement for settlement which 
 
        was approved on November 13, 1984, whereby claimant was found to 
 
        have sustained an industrial disability of 40 percent as a result 
 
        of this injury.
 
        
 
            9. Claimant has not had a change of condition with regard 
 
        to this injury which could not have been contemplated at the time 
 
        she entered into the agreement for settlement.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Therefore, based on the principles of law previously stated, 
 
             the following conclusions of law are made:
 
        
 
            1. Claimant has established that since the approval of the 
 
        agreement for settlement on November 13, 1984 she had a change of 
 
        condition to her lower left extremity.
 
        
 
            2. Claimant has a permanent partial impairment of 33 
 
        percent to the lower left extremity entitling her to 72.6 weeks 
 
        of permanent partial disability benefits or an additional 28.6 
 
        weeks.
 
        
 
             3. Claimant has established an entitlement to eighty point 
 
             four two nine (80.429) weeks of healing period benefits.
 
        
 
            4. Claimant has failed to establish a change of condition 
 
        that was proximately caused by the injury of January 3, 1983.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            Defendants shall pay unto claimant an additional eighty 
 
        point four two nine (80.429) weeks of healing period benefits for 
 
        the period from November 15, 1984 up to and including May 31, 
 
        1986 at the stipulated rate of ninety-one and 52/100 dollars 
 
        ($91.52) per week.
 
        
 
            Defendants shall pay unto claimant an additional 
 
        twenty-eight point six (28.6) weeks of permanent partial 
 
        disability benefits at the stipulated rate of ninety-one and 
 
        52/100 dollars ($91.52) per week commencing June 1, 1986.
 
        
 
            Defendants shall receive full credit for all disability 
 
        benefits paid subsequent to the approval of the agreement for 
 
        settlement.
 
        
 
            Payments which have accrued shall be paid in a lump sum 
 
        together with statutory interest thereon pursuant to Iowa Code 
 
        section 85.30.
 
        
 
            A claim activity report shall be filed upon payment of this 
 
        award.
 
        
 
            Costs of this action are assessed against defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        Signed and filed this 31st day of March, 1989.
 

 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. E. W. Wilcke
 
        Attorney at Law
 
        826 1/2 Lake St
 
        P.O. Box 455
 
        Spirit Lake, IA 51360
 
        
 
        Mr. M. Gene Blackburn
 
        Attorney at Law
 
        142 N. 9th St
 
        P.O. Box 817
 
        Fort Dodge, IA 50501
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                           2905; 1803
 
                                           Filed March 31, 1989
 
                                           Deborah A. Dubik
 
                                           
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                           
 
                                           
 
        MARGARET ANN COOK,
 
        
 
             Claimant,
 
                                                       File Nos. 716535
 
        vs.                                                      741602
 
        
 
        PAMIDA, INC.,
 
                                                       R E V I E W -
 
            Employer,
 
                                                       R E O P E N I N G
 
        and
 
                                                       D E C I S I O N
 
        TRAVELERS INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        2905; 1803
 
        
 
             In this proceeding in review-reopening, claimant awarded 
 
             additional benefits to the lower left extremity on a change of 
 
             condition, but no benefits awarded on an industrial disability as 
 
             no change of condition had been demonstrated.
 
        
 
            Claimant previously settled an injury to her lower left 
 
        extremity on the basis of a 20 percent impairment rating. 
 
        Subsequent to the approval of the agreement for settlement, 
 
        claimant had two more surgical procedures and the impairment to 
 
        her lower left extremity increased. Held that claimant showed a 
 
        change of condition and an entitlement to additional healing 
 
        period and permanent partial disability benefits.
 
        
 
            Claimant was involved in a car accident while in the course 
 
        of her treatment for the injury to her lower left extremity and 
 
        settled the matter on the basis of a 40 percent industrial 
 
        disability. It was found that claimant failed to demonstrate any 
 
        unanticipated change of condition and therefore no additional 
 
        permanency benefits were awarded.
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VASILIOS KARRAS/KARYDAKIS,
 
         
 
              Claimant,
 
         
 
         vs.                                     File  Nos.  717004
 
                                                             753628
 
         ITT CONTINENTAL BAKING                              753629
 
         CO., INC.,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by Vasilios 
 
         Karras/Karydakis to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of injuries arising out of and in 
 
         the course of his employment on August 19, 1981 and October 8, 
 
         1982 and an alleged injury of March 15, 1983.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner June 28, 1988.  The record was considered fully 
 
         submitted at the close of the hearing.  The record in this case 
 
         consists of the testimony of claimant and joint exhibits 1 
 
         through 96, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing reports filed in all three 
 
         matters on June 28, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  With regard to the stipulated injuries of August 19, 
 
         1981 and October 8, 1982:
 
         
 
              a.  Whether the injury is the cause of permanent 
 
              disability;
 
         
 
              b.  The extent of claimants entitlement to permanent partial 
 
              disability benefits, if any; and,
 
         
 
              c.  The applicability of the odd-lot doctrine.
 
         
 
              2.  With regard to the alleged injury of March 15, 1983:
 
         
 
              a.  Whether claimant sustained an injury which arose out of 
 
              and in the course of his employment;
 
         
 
              b.  Whether the alleged injury is the cause of the 
 
              disability on which claimant now bases his claim.
 
         
 
              c.  The extent of claimant's entitlement to weekly benefits; 
 

 
              
 
             KARRAS V. ITT CONTINENTAL BAKING CO., INC. 
 
             PAGE 2
 
 
 
              
 
              
 
              and
 
         
 
              d.  Claimant's entitlement to benefits provided by Iowa Code 
 
              section 85.27.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant testified to a lengthy list of work-related and 
 
         nonwork-related accidents and injuries beginning in 1969 when he 
 
         fell while opening a door leading into defendant employer's 
 
         plant, a workers' compensation claim which was settled with the 
 
         industrial commissioner's approval based on a 9 percent permanent 
 
         partial disability to the body as a whole after claimant 
 
         underwent a hemilaminectomy in 1970.  Claimant stated that in 
 
         1975, he was involved in an automobile accident wherein he 
 
         injured his "upper neck" and that he eventually underwent surgery 
 
         at the Mayo Clinic in March 1976 for hematoma on the side of his 
 
         neck.  Claimant stated that in September 1977, he fell but did 
 
         not report the incident to the employer and did not request 
 
         medical attention asserting it was because he did not want to 
 
         lose the job he was currently doing.  Claimant testified that on 
 
         February 1, 1979, he jumped out of a freight elevator injuring 
 
         his shoulder, neck and back and sought medical attention but did 
 
         not receive any award of workers' compensation benefits as a 
 
         result of this injury.  However, exhibit 18 establishes claimant 
 
         was found to have a permanent partial disability of 20 percent of 
 
         the body as a whole for industrial purposes as a result of the 
 
         injury of February 1, 1979.  Claimant said that in 1980 he had 
 
         surgery as a result of "blowing up" and that after this he was 
 
         discharged by defendant employer.  Claimant explained he was 
 
         subsequently reinstated to his job through an arbitration 
 
         proceeding and that he returned to work in October 1980 at his 
 
         regular job in the mixing room.  Claimant offered that in October 
 
         or November 1980, he injured his left knee while cleaning a light 
 
         fixture but that he continued doing his regular job and that his 
 
         knee did not get any better as he felt pain and discomfort to 
 
         bend it and to walk stairs.  Claimant denied any knee problems 
 
         prior to this incident.
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on August 19, 1981 when he twisted his 
 
         back while pulling out a metal shelf.  Claimant stated he 
 
         notified his foreman and thought he sought medical treatment with 
 
         Milton D. Grossman, M.D., with whom he had treated for previous 
 
         injuries.  Claimant recalled he returned to work on August 30, 
 
         1981 although his back was still painful and he continued to see 
 
         Dr. Grossman who eventually referred him to Alan Pechacek, M.D.  
 
         Claimant stated Dr. Pechacek took him off work, treated him with 
 
         medications and a corset and released him to return to work 
 
         January 18, 1982 after he had a hernia repaired at the Mayo 
 
         Clinic in late 1981.  Claimant offered he returned to work at his 
 
         regular job in the mixing room and that in September 1982 while 
 
         using an air hose, he fell backwards but he did not report this 
 
         incident as he wanted to avoid any more "complications."
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on October 8, 1982 when he fell onto a 
 
         steel floor injuring his "upper shoulder and hand."  Claimant 
 
         recalled he returned to see Dr. Grossman who took x-rays, treated 
 
         him with heat and medications and that he was off work until 
 
         November 4, 1982 when he returned to his regular job.  Claimant 
 
         stated he continued to experience pain and that he "had pain 
 
         killers."
 
         
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   3
 
         
 
         
 
              Claimant testified that on November 29, 1982, he was "almost 
 
         electrocuted" and that during this same month had been assigned 
 
         to cleaning offices and garages after returning from his last 
 
         injury.  Claimant explained that he was suspended from his 
 
         employment from December 7, 1982 through January 23, 1983 and 
 
         that when he returned to work following his suspension, he 
 
         returned to the job of cleaning offices as he was still treating 
 
         with Dr. Pechacek for his neck, shoulders and back.  Claimant 
 
         alleged that on March 15, 1983, he was assigned the job of 
 
         cleaning the oven and that as he was entering the oven he twisted 
 
         his left leg.  Claimant recalled that after he was cleaning for a 
 
         few minutes his foreman came in and told him he was discharged 
 
         because he did not use the "lock out procedure" of which he was 
 
         aware but which he maintained he did not understand.  Claimant 
 
         stated that his knee was sore and that he returned to the plant 
 
         but no one was there to whom he could report his sore knee, that 
 
         he attempted to see Dr. Grossman but he, too, was gone and that 
 
         he eventually saw Dr. Pechacek who later did an arthroscopy.  
 
         Claimant offered that the next morning he returned to see Dr. 
 
         Grossman concerning his knee and back but that Dr. Grossman 
 
         needed authorization to see claimant so claimant returned to the 
 
         employer's plant manager who would not indicate whether or not 
 
         claimant could see Dr. Grossman.  Claimant could not recall if he 
 
         advised the plant manager he had seen Dr. Pechacek.  Claimant 
 
         testified he has not returned to work since March 15, 1983 and 
 
         that defendant employer had failed to indicate to him who might 
 
         be authorized to treat his knee.
 
         
 
              Claimant stated that following his discharge he applied for 
 
         unemployment insurance benefits and that he looked for work with 
 
         "too many employers" to fulfill job service requirements but that 
 
         he had not had any offers of employment.  Claimant describes his 
 
         current symptoms as low back pain and pressure which is mostly 
 
         dull although sometimes sharp, worse with prolonged sitting and 
 
         pain down his legs.  Claimant stated he still uses a back brace 
 
         and explained that although his knee is not as bad as when it was 
 
         injured, it is still not as good as it was prior to the injury.  
 
         Claimant testified that his neck and left shoulder have never 
 
         gotten any better since October 1982, that he feels "bad," has 
 
         pain and weakness in his neck muscles, pressure, pain and 
 
         soreness from his shoulders into his neck, a numbness in his left 
 
         arm, and an inability to lift.  Claimant testified he applied for 
 
         and has received social security disability benefits since 1984.  
 
         Finally, claimant reported that in 1987 he was hospitalized for 
 
         chest pain which he stated was related to blood pressure 
 
         readings.
 
         
 
              On cross-examination, claimant revealed that he was also 
 
         involved in an automobile accident January 23, 1983 wherein he 
 
         was "rear ended" and had "possibly" complained of neck and back 
 
         problems as a result of the accident.  Claimant also revealed he 
 
         was involved in another automobile accident May 26, 1987 which 
 
         resulted in neck and back problems.  Claimant testified he did 
 
         not "know what happened" or how the accident occurred only that 
 
         he was struck in the right front of his car.  Claimant admitted 
 
         that since 1983 he has not tried to secure any employment and 
 
         that he is not in a position to work as he is in need of more 
 
         medical examinations.
 
         
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   4
 
         
 
         
 
              The medical records submitted revealed that since 1969 
 
         claimant has been seen by a myriad of physicians with a multitude 
 
         of complaints and symptoms.
 
         
 
              Claimant's primary treating physician appear to have been 
 
         Drs. Kivlighn, Pechacek and Grossman.  The medical records of Dr. 
 
         Grossman from October 9, 1982 through March 16, 1983 show 
 
         claimant was seen on October 9, 1982 with complaints of pain in 
 
         the cervical, dorsal and left shoulder.  Dr. Grossman noted there 
 
         was no radiological evidence of disease or injury of the bones of 
 
         the shoulder girdle including the proximal humerus, the clavicle 
 
         and the scapula.  Dr. Grossman also reported that the cervical 
 
         spine showed a scoliosis with no radiological evidence of recent 
 
         disease or injury but that the changes in the neck were advanced 
 
         and of long standing.  Office notes taken throughout the months 
 
         of October, November and December 1982 and into January and 
 
         February 1983 reveal claimant was continuing to complain of 
 
         shoulder, neck and back aching, and on March 16, 1983, Dr. 
 
         Grossman recorded that "claimant stated he twisted his back and 
 
         left knee yesterday."
 
         
 
              On January l2, 1984, Donald D. Kivlighn, M.D., reported:
 
         
 
                 Mr. Karras has been a patient of mine since the 7 
 
              March 1975 at which time he was treated for an injury 
 
              sustained in an auto accident.  X-ray examination 
 
              showed fractures of cervical vertebra 4, 5, and 6 with 
 
              marked compression of the 5th cervical vertebra.
 
         
 
              Patient was also complaining of low back pain and had a 
 
              herniated disc by history in 1970.  Had a 
 
              hemilaminectomy by Doctor Mumford at that time.  
 
              Subsequent x-rays show degenerative changes at this 
 
              level in the lower back.
 
         
 
                 Patient was treated with cervical collar, traction.  
 
              He did fairly well following this for a period of time.  
 
              However, he has continued to have cervical pain, 
 
              frequent headaches; difficulty when working with his 
 
              arms with intractable pain radiating the neck into the 
 
              occipital area of the head, however, restriction of 
 
              motion because of tightness of the muscles particularly 
 
              on the right.
 
         
 
                 X-rays taken of the lumbosacral spine on the 31 
 
              March 1975 revealed loss of the normal lumbar 
 
              curvature; early degenerative changes in the mid lumbar 
 
              region with moderate narrowing of the lumbosacral joint 
 
              space.  Appeared to be a spina bifida of L-5.  The 
 
              dorsal spine showed a very early S-type scoliosis with 
 
              minimal degenerative changes on the dorsal vertebra.  
 
              Cervical spine showed the loss of normal cervical 
 
              curvature with degenerative changes particularly in the 
 
              mid and lower cervical areas with narrowing of the 4th 
 
              through the 7th cervical interspaces with probable 
 
              encroachment into the intervertebral foramen at these 
 
              levels.
 
         
 
                 Patient was treated conservative with analgesic, 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   5
 
         
 
         
 
              skeletal muscle relaxants, cervical collar, diathermy 
 
              and physiotherapy with intermittent [sic] episodes of 
 
              traction, however continued to have trouble and on the 
 
              20 February 1976 was seen by Doctor John Dougherty, 
 
              M.D., Orthopedist for evaluation and consultation .... 
 
              Because patient did not show improvement he was 
 
              referred to the Mayo Clinic where he was seen in March 
 
              and April of 1976 .... While there an inflammatory mass 
 
              was found in the left upper neck.  This was removed on 
 
              the 23 March 1976 by Dr. O.H. Beahrs.  Findings at the 
 
              Mayo Clinic with regard to his neck and back problems 
 
              were similar to those previously mentioned....
 
         
 
                 Patient continued to have difficulty through the 
 
              remainder of 1976 and 1977 and he was seen by Doctor 
 
              Charles Golden, Neuropsychologist, for Doctor Horst 
 
              Blume, M.D., Neurosurgeon ....
 
         
 
                 Patient has been maintained on mild analgesics, 
 
              skeletal muscle relaxants but has not been pain free 
 
              since that time.
 
         
 
                 He has been seen by multiple physicians but with no 
 
              apparent relief and continues to [be] restricted in 
 
              physical activity and has continuous,.[sic] neck and 
 
              back pain and intermittent [sic] headaches ....
 
         
 
                 ....
 
         
 
                 Because of the long duration of symptoms and 
 
              difficulty, patient has developed a psychological 
 
              fixation with reference to his illness and is not 
 
              capable physically or psychologically of working at 
 
              this time.
 
         
 
         (Joint Exhibit 31)
 
         
 
              On January 9, 1986, Alan Pechacek, M.D, who began seeing 
 
         claimant on referral from Dr. Grossman in October 1981, 
 
         reported:
 
         
 
              I first saw him for his back problems in October, 1981.  
 
              At that time he indicated that he had injured his back 
 
              in August of 1981 while working.  After my evaluation 
 
              of him, I did take him off work until January, 1982, at 
 
              which time he seemed to be sufficiently recovered to be 
 
              released back to his job.  Therefore, he had a 
 
              temporary period of total disability of about three 
 
              months .... He reinjured his neck and back in October 
 
              of 1982.  He was treated for that injury by Dr. 
 
              Grossman, who did take him off work temporarily .... 
 
              Subsequent to that I did continue to see him on 
 
              follow-up, and although he was working, he continued to 
 
              be quite symptomatic in his neck and back area due to 
 
              aggravation of these areas by his work activities.
 
         
 
                 I've also evaluated and treated Mr. Karras for 
 
              problems related to his left knee.  My records 
 
              indicated that he injured the knee in November of 1980.  
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   6
 
         
 
         
 
              However, I did not see him for this until April of 
 
              1981.  He did not return regarding his knee until March 
 
              of 1983.  Because of his ongoing knee problems, he was 
 
              taken off work and underwent arthroscopic evaluation of 
 
              his joint and some surgical treatment on March 21st, 
 
              1983.  He gradually recovered to the point where he was 
 
              released back to work on May 20th, 1983.  However, as I 
 
              understand it, he was unable to find work.
 
         
 
                 ....
 
         
 
                 Although I don't think that I can say that Mr. 
 
              Karras was totally disability prior to March of 1983, I 
 
              do believe that he did have period of temporary total 
 
              disability due to his neck and back and knee problems.  
 
              Although I do not know exactly what his job was, I do 
 
              believe that it was in the nature of a physical labor 
 
              type job activity.  Although he was able to carry out 
 
              his job, his work activities did aggravate his neck and 
 
              back.
 
         
 
         (Jt. Ex. 55)
 
         
 
              On May 1, 1986, Dr. Pechacek further opined:
 
         
 
                 As it regards impairment ratings for areas other 
 
              than his knee, I determined that the impairment rating 
 
              for his Cervical Spine is 17% impairment of the Whole 
 
              Man.  The impairments for his right and left shoulders 
 
              are 18% of the Upper Extremity, or 11% impairment of 
 
              the whole Man, for each shoulder.  As for his 
 
              Thoraco-Lumbar Spine, he has a 27% impairment of the 
 
              whole Man.  The total, combined Whole Man impairment, 
 
              including everything and the left knee, is 56%.  These 
 
              determinations are based on his examination of March 
 
              31, 1986, and the AMA Guides to the Evaluation of 
 
              Permanent Impairment.
 
         
 
                 ....
 
         
 
                 You asked whether or not the injury of August, 1981, 
 
              was the sole cause of his problems at the time of his 
 
              initial evaluation by me for his back in October, 1981.  
 
              I really do not know because I had never seen, 
 
              evaluated, nor treated Mr. Karras for any low back 
 
              problems prior to his injury of August, 1981.  
 
              Therefore, I do not know what problems he had with his 
 
              back following his surgical procedure of 1969, 
 
              particularly up to and just prior to his injury of 
 
              August, 1981.  By having had disc surgery, he has, by 
 
              definition, lower spine disease, and any reinjury of 
 
              his lower back would have to be considered an 
 
              aggravation of a pre-existing condition, regardless of 
 
              how well or how poorly he had recovered from that 
 
              surgery.  Some, maybe most, of his symptoms and 
 
              findings of his examination in October, 1981, were 
 
              related to the reinjury of August, 1981.
 
         
 
                 As it relates to his injury of August, 1981, and his 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   7
 
         
 
         
 
              current, ongoing back problems, my response is 
 
              basically the same.  His current back complaints are 
 
              the result of both the pre-reinjury and post-reinjury, 
 
              as long as there has been no other back injury since 
 
              the one in August, 1981.
 
         
 
                 ....
 
         
 
                 Prior to the fall or injury of October 8, 1982, Mr. 
 
              Karras had not complained to me, nor had I examined him 
 
              specificly [sic] for, any problems in the area of his 
 
              neck, shoulders, and upper back.  Therefore, I assume 
 
              he had no pre-existing problems in these areas.  The 
 
              fall of October 8, 1982, so far as I know, started 
 
              these complaints and/or problems.  However I did not 
 
              see him initially for evaluation or treatment of that 
 
              injury, and as I previously stated, I did not actively 
 
              involve myself in his care for that problem.  Barring 
 
              any other injury to this area since the fall of October 
 
              8, 1982, then I would feel that his ongoing and current 
 
              complaints and problems, and impairment, would relate 
 
              back to the injury of October 8, 1982.
 
         
 
                 In response to your questions regarding Mr. Karras's 
 
              [sic] left knee, the intra-articular problem, the 
 
              tearing of the medial meniscus (knee cartilage), was 
 
              degenerative in character, indicating a chronic 
 
              problem.  This damage could have occurred as a result 
 
     
 
         
 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   8
 
         
 
         
 
              of normal wear-and-tear on the joint, with or without a 
 
              contributing injury.  I am unable to say in retrospect 
 
              how much the two injuries to his knee, November of 1980 
 
              and March of 1983, contributed to this problem.  I do 
 
              believe that the torn knee cartilage was responsible 
 
              for his medial (inside) knee joint line pain and 
 
              symptoms, and I feel that the two injuries probably 
 
              contributed some to the knee cartilage damage. 
 
              (Emphasis original)
 
         
 
         
 
         (Jt. Ex. 58)
 
         
 
              A. J. Callaghan, M.D., surgeon, evaluated claimant in 
 
         approximately May 1983 and reported claimant to be a "well 
 
         traveled individual who complains of numerous aches and pains and 
 
         has hypertension."  Dr. Callaghan reported the results of his 
 
         examination as:
 
         
 
              EXTREMITIES:  UPPER:  Bilaterally, there's complete 
 
              range of motion of the shoulder, elbow and wrist 
 
              joints, and the phalanges.  There are no Heberden's 
 
              nodes.  Radial pulse is of good volume and contour.
 
         
 
                           LOWER:  Bilaterally, there's complete 
 
              range of motion of the hip, knee and ankle joints .... 
 
              There's no evidence of arterio sclerosis, and no 
 
              atrophy of the musculature.  Reflexes, of the knee 
 
              jerks and tendo achilles, are present and normal.. 
 
              There's no paresthesia or anesthesia.  There are no 
 
              ulcerations present.
 
         
 
              SPINE:  There's a well healed scar of 7" in length, in 
 
              the low back.  There's a complete range of motion of 
 
              the spine.  Patient can squat and flex to touch his 
 
              toes.  There are no trigger areas.  Patient repeatedly 
 
              calls attention to the neck area.  He states the pain 
 
              is not in the cervical area, but is in the upper 
 
              thoracic and area and radiates into his neck and 
 
              shoulders, and all over his upper body.  He says it is 
 
              present most of the time.  However, on a physical 
 
              examination of the spine, I can find nothing wrong 
 
              except for the scar.
 
         
 
         (Jt. Ex. 64)
 
         
 
              Claimant was seen by Michael T. O'Neil, M.D., on May 25, 
 
         1984 "for evaluation of low back pain since 1969."  Dr. O'Neil 
 
         commented on claimant's 1969 injury and a 1980 injury and 
 
         reported:
 
         
 
                 Since that time, he has continued to experience 
 
              dull, aching low back pain and bilateral leg pain.  He 
 
              attempted to return to work approximately three months 
 
              after he reinjured his back in 1981 and was able to 
 
              work for about 18 months before he finally had to quit.  
 
              He was taking pain medication throughout this period of 
 
              time.  He has continued to see a physician in Sioux 
 
              City, and has received physical therapy, with slight 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE   9
 
         
 
         
 
              improvement.
 
         
 
                 ....
 
         
 
              ... Examination of the cervical spine shows no 
 
              asymmetry.  He has about 30 percent of normal range of 
 
              motion of the cervical spine, and will allow flexion of 
 
              approximately 20 degrees and extension of 10 degrees.  
 
              He has 15,degrees of right and 15 degrees of left 
 
              rotation, and about 10 degrees of right and left 
 
              lateral bending, with pain.  There is tenderness to 
 
              palpation along the base of the neck posteriorly and 
 
              along both lateral sides.  There is no muscle spasm.  
 
              He has a good range of motion of both shoulders.  
 
              Neurological examination of the upper extremities shows 
 
              no motor weakness of reflex asymmetry.  Sensation is 
 
              intact.
 
         
 
                 Examination of the lumbosacral spine allows the 
 
              pelvis to be level.  Range of motion of the lumbosacral 
 
              spine is 50 percent of normal, with forward flexion 
 
              allowing the fingertips 20 inches from the floor, with 
 
              pain.  He has extension to 15 degrees and right and 
 
              left lateral bending of about 15 to 20 degrees, with 
 
              discomfort.  There is generalized first percussion 
 
              tenderness about the midline low back area, with , no 
 
              muscle spasm.  Straight leg raising is positive at 75 
 
              to 80 degrees bilaterally, causing low back and buttock 
 
              pain.  Neurological examination of the lower 
 
              extremities shows no motor weakness or reflex 
 
              asymmetry.  Sensation is intact.
 
         
 
                 Examination of the left knee shows no effusion.  
 
              There is tenderness over the medial joint line.  The 
 
              collateral and cruciate ligaments are stable.  He has a 
 
              normal range of motion of the left knee.
 
         
 
                 Anteroposterior and lateral x-rays of the cervical 
 
              spine show severe degenerative changes at all. levels 
 
              except for Cl-C2 .... Anteroposterior and lateral views 
 
              of the lumbosacral spine show severe narrowing of L4-L5 
 
              and L5-Sl, with slight narrowing of L3-L4.  The 
 
              zygo-apophyseal joints are sclerotic ....
 
         
 
                 ....
 
         
 
                Mr. Karydakis has severe degenerative cervical and 
 
              lumbar disc disease, with multiple level involvement.  
 
              He also has degenerative arthritic changes of the left 
 
              knee, with medial compartment narrowing, and a history 
 
              of a meniscectomy an this side.  I do not believe that 
 
              this it man is capable of any employment, despite his 
 
              early age of 5O years.  He certainly will not tolerate 
 
              any work that requires standing, walking, or climbing, 
 
              or stooping, lifting, and bending.  Because of his 
 
              neck, he will not tolerate activities which require 
 
              repeated turning or upward motions of the cervical 
 
              spine.
 
         
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  10
 
         
 
         
 
         (Jt. Ex. 64)
 
         
 
              Claimant returned to see Dr. O'Neil on September 10, 1985 
 
         for evaluation of his left great toe MP joint.  Dr. O'Neil stated 
 
         he questioned claimant further about previous back and left knee 
 
         problems and concluded on September 12, 1985 that:
 
         
 
              I do not feel that I can with any medical certainty, 
 
              sort out any percentage of disability for the back 
 
              injuries which he sustained on August 19, 1981, and 
 
              again on October 8, 1982.  As you know, he has had a 
 
              history of back problems dating back to 1969 and has 
 
              had surgery on his back as a result of the initial 
 
              injury.
 
         
 
                 He advised me that he had had recurrent problems 
 
              with his back since that time prior to the injuries of 
 
              1981 and 1982.  I do not believe that I can give a 
 
              percentage of disability of his neck or body as a whole 
 
              as a result of the neck injury on October 8, 1982, 
 
              particularly in light of his severe degenerative 
 
              changes at all levels. I believe that he had a 
 
              preexisting severe degenerative cervical disc disease 
 
              at all levels with aggravation perhaps from the fall in 
 
              October of 1982, but I could not sort out what 
 
              percentage is due to the accident and what percentage 
 
              was preexisting.
 
         
 
         (Jt. Ex. 65)
 
         
 
              Claimant underwent an independent medical examination 
 
         conducted by Michael J. Morrison, M.D., of Orthopedic Clinic, 
 
         P.D., in Omaha, Nebraska.  On February 8, 1988, Dr. Morrison 
 
         opined:
 
         
 
              Impression:
 
         
 
              (1)  Status post-op lumbar laminectomy (1969).
 
              (2)  Severe cervical spondylosis
 
              (3)  Mild lumbar spondylosis
 
              (4)  Mild disc space narrowing L5-Sl
 
         
 
              Plan:
 
         
 
              (1)  In the office I've informed Mr. Karydakis that 
 
              from his examination there is no evidence of any muscle 
 
              atrophy in either upper or lower extremities, but 
 
              muscle testing was difficult to interpret because of 
 
              his giving way .... In 1969 there was evidence of an 
 
              apparent lifting injury which required a lumbar 
 
              laminectomy but it continues to be rather unclear 
 
              regarding the injuries of 1981 and the Fall of 1982 how 
 
              these specifically contributed to his present 
 
              condition.
 
         
 
                 It is my feeling that ms neck condition has been 
 
              present for several years and progressively been 
 
              getting worse.  If the fal [sic] in 1982 injured his 
 
              neck, further clarification of the type of injury would 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  11
 
         
 
         
 
              have to be obtained before attributing any on the job 
 
              injury to his present neck conditions.  At the best all 
 
              we could say was that if the injury on the job did 
 
              injure his neck that it caused some aggravation to a 
 
              pre-existing condition which at the present time 
 
              consists of a rather severe cervical spondylosis 
 
              condition ....
 
         
 
         (Jt. Ex. 88)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 19, 1981, October 8, 
 
         1982 and March 15, 1983 are 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)
 
         
 
              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).
 
         
 
              The parties have stipulated that claimant sustained injuries 
 
         on August 19, 1981 and October 8, 1982 which arose out of and in 
 
         the course of his employment.  The crux of the question for 
 
         resolution with regard to these two injuries is whether either or 
 
         both are the cause of the disability on which claimant now bases 
 
         his claim.   Since the question of causal connection is 
 
         essentially within the domain of expert testimony, review is 
 
         first given to those expert opinions.
 
         
 
              It must be noted that claimant has had a long history of 
 
         back and neck problems beginning with a hemilaminectomy in 1970. 
 
          Medical records establish that claimant has never been truly 
 
         pain free since that time.  Dr. Kivlighn, who began treating 
 
         claimant in 1975 following an automobile accident, makes no 
 
         mention in his January 12, 1984 opinion of claimant's injuries in 
 
         August 1981 or October 1982 as contributing in any way to 
 
         claimant's asserted disability.  As early as 1975 Dr. Kivlighn 
 
         found "degenerative changes," "spina bifida," "scoliosis," with 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  12
 
         
 
         
 
         "degenerative changes."  The undersigned agrees with Dr. 
 
         Kivlighn, based on her observation of claimant and the content of 
 
         claimant's testimony, that claimant has developed a psychological 
 
         fixation with reference to his symptoms.
 
         
 
              Dr. Pechacek, with regard to the injury of August 1981, 
 
         could not determine what part of claimant's symptoms were 
 
         attributable to the August 1981 injury.  Dr. Pechacek 
 
         acknowledged that claimant, by having disc surgery, has lower 
 
         spine disease which would have been aggravated by any reinjury of 
 
         his lower back.  The most Dr. Pechacek could say with regard to 
 
         the injury of August 1981 was that "some, maybe most" of the 
 
         symptoms were related to the reinjury of August 1981.  As 
 
         indicated above, a probability is necessary as a possibility 
 
         alone of causal connection is insufficient.
 
         
 
              Dr. Pechacek also notes that claimant's current back 
 
         complaints were the result of both the pre-injury and post-injury 
 
         so long as there has been no other back injury since August 1981.  
 
         However, both the medical records and claimant's testimony would 
 
         verify that claimant has had other incidents since August 1981 
 
         which involved complaints concerning his back.  One must question 
 
         at this point the accuracy of the medical history under which Dr. 
 
         Pechacek was operating.  With regard to the injury of October 8, 
 
         1982, Dr. Pechacek indicates that he assumed claimant had no 
 
         preexisting problems in his neck, shoulders and upper back.  
 
         However, medical records establish that claimant underwent a 
 
         neurological examination on July 9, 1981 from Keith McLarnan, 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  13
 
         
 
         
 
         M.D., who noted that "For more than two years Mr. Karras has been 
 
         troubled by recurring catches or stiffness or aching pain in the 
 
         neck and interscapular areas - right more so than left."  This 
 
         would lead the undersigned to conclude that at least since 1979 
 
         claimant was having neck, upper back and shoulder problems.  
 
         However, Dr. Pechacek has operated on the assumption that the 
 
         incident of October 8, 1982 started the complaints and/or 
 
         problems.  Again, one questions the accuracy of the medical 
 
         history given to Dr. Pechacek by claimant.  Since Dr. Pechacek 
 
         related all current complaints, problems and impairment to the 
 
         injury of October 8, 1982 barring any other injury to the area, 
 
         the undersigned cannot conclude that Dr. Pechacek's opinion is 
 
         entitled to great weight.
 
         
 
              Dr. O'Neil found severe degenerative cervical and lumbar 
 
         disc disease with multiple level involvement.  Dr. O'Neil does 
 
         not relate any of the disability which claimant asserts as being 
 
         related to the injuries of August 1981 or October 1982.  
 
         Furthermore, it would appear from Dr. O'Neil's summary of 
 
         claimant's work history that claimant was forced to quit work 
 
         eighteen months following his return to work after the 1981 
 
         injury.  However, claimant's own testimony establishes such an 
 
         assertion to be untrue.  Clearly, claimant was discharged from 
 
         his employment.  Over a year later, Dr. O'Neil rendered another 
 
         opinion in which he clarified his inability to "sort out" what 
 
         percentage of disability might be due to claimant's injuries and 
 
         what percentage was preexisting.  It would appear from Dr. 
 
         O'Neil's letter that claimant made him aware of things during the 
 
         1985 appointment that he was not aware of during the 1984 
 
         appointment.
 
         
 
              Finally, Dr. Morrison, who saw claimant for an independent 
 
         medical examination, indicated that he could not state with any 
 
         specificity how claimant's injuries of 1981 and 1982 contributed 
 
         to claimant's present condition.
 
         
 
              The undersigned concludes that the greater weight of 
 
         evidence would establish claimant clearly suffered from 
 
         preexisting degenerative disease in his lumbar and cervical areas 
 
         which were temporarily aggravated by the injuries he sustained in 
 
         August 1981 and October 1982.
 
         
 
              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, 
 
         _____(1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  14
 
         
 
         
 
         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.
 
         
 
              Claimant has failed to establish that those injuries have 
 
         materially contributed to the disability on which he now bases 
 
         his claim.  As claimant has been compensated for the periods of 
 
         time he was off work due to the temporary aggravation of the 
 
         preexisting condition, he is entitled to nothing further from 
 
         these proceedings as a result of these two injuries and the issue 
 
         of odd-lot need not be addressed.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The final question for resolution is whether or not claimant 
 
         has sustained an injury which arose out of and in the course of 
 
         his employment on March 15, 1983.  Claimant has asserted that 
 
         while cleaning the oven on the last day he worked for defendant 
 
         employer, he injured his left knee when he twisted his left leg. 
 
          The undersigned doubts claimant's credibility both based on her 
 
         observation and on the medical records.  It is clear that 
 
         claimant injured his knee in November 1980.  Although he did not 
 
         return to have surgery on his knee until 1983, the undersigned 
 
         cannot conclude that there was any relationship between 
 
         claimant's employment and the resulting surgery.  Dr. Pechacek, 
 
         who treated claimant for this knee problem, indicated in his 
 
         opinion on May 1, 1986 that the intra articular problem was 
 
         degenerative in nature, indicating a chronic problem.  Dr. 
 
         Pechacek could not say how much the alleged injuries of November 
 
         1980 and March 1983 contributed to claimant's problem although he 
 
         did indicate that the two injuries probably contributed some to 
 
         the knee cartilage damage.  An alleged injury of November 1980 is 
 
         not within the jurisdiction of the undersigned to determine.  
 
         Claimant has asserted an injury of March 15, 1983 and the 
 
         undersigned is unable to conclude that claimant has established a 
 
         relationship between his knee problem and his employment.  
 
         Therefore, claimant shall take nothing further from these 
 
         proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant has had a number of work-related and 
 
         nonwork-related accidents and injuries beginning in 1969 when he 
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  15
 
         
 
         
 
         underwent a hemilaminectomy as a result of a work injury.
 
         
 
              2.  As early as 1975, treating physicians found degenerative 
 
         changes in claimant's cervical and lumbar spine.
 
         
 
              3.  Since his 1969 injury claimant has never been pain free 
 
         and has seen a myriad of doctors complaining of multiple symptoms 
 
         from head to toe.
 
         
 
              4.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on August 19, 1981, when he twisted his 
 
         back while pulling out a metal shelf.
 
         
 
              5.  Claimant sought medical treatment as a result of the 
 
         injury.
 
         
 
              6.  Claimant suffers extensively from degenerative disc 
 
         disease and physicians could not, with any degree of medical 
 
         certainty, specify how claimant's injury of August 19, 1981 
 
         contributed to his present condition.
 
         
 
              7.  Claimant sustained a temporary aggravation of a 
 
         preexisting condition as a result of the injury of August 19, 
 
         1981.
 
         
 
              8.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on October 8, 1982, when he fell.
 
         
 
              9.  Claimant sought medical treatment as a result of the 
 
         injury.
 
         
 
             10.  Claimant suffers extensively from degenerative disc 
 
         disease and physicians could not, with any degree of medical 
 
         certainty, specify how claimant's injury of October 8, 1982 
 
         contributed to his present condition.
 
         
 
             11.  Claimant sustained a temporary aggravation of a 
 
         preexisting condition as a result of the injury of October 8, 
 
         1982.
 
         
 
             12.  Claimant injured his knee in November 1980 and sought 
 
         medical treatment therefor.
 
         
 
             13.  Claimant was diagnosed as having a tearing of the medial 
 
         meniscus which was found to be degenerative in character.
 
         
 
             14.  Claimant alleged he injured his knee on the last day he 
 
         worked for defendant employer.
 
         
 
             15.  The damage to claimant's knee could have occurred as a 
 
         result of normal wear and tear on the joint, with or without a 
 
         contributing injury.
 
         
 
             16.  Claimant's credibility is suspect.
 
         
 
             17.  Claimant has developed a fixation on his symptoms.
 
         
 
             18.  No causal connection exists between claimant's 
 
         employment and his knee problems.
 

 
         
 
         
 
         
 
         KARRAS V. ITT CONTINENTAL BAKING CO., INC.
 
         PAGE  16
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish he sustained any 
 
         permanent partial disability as a result of the injury of August 
 
         19, 1981.
 
         
 
              2.  Claimant has failed to establish he sustained any 
 
         permanent partial disability as a result of the injury of October 
 
         8, 1982.
 
         
 
              3.  Claimant has established he sustained a temporary 
 
         aggravation of a preexisting condition as a result of the 
 
         injuries of August 19, 1981 and October 8, 1982 for which he has 
 
         been compensated.
 
         
 
              4.  Claimant has failed to establish he sustained an injury 
 
         which arose out of and in the course of his employment on March 
 
         15, 1983.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing further from these proceedings.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 30th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. David L. Gill
 
         Attorney at Law
 
         300 Badgerow Bldg
 
         P.O. Box 328
 
         Sioux City, IA 51102
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg
 
         P.O. Box 1828
 
         Sioux City, IA 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1800; 1402.30
 
                                              Filed December 30, 1988
 
                                              Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VASILIOS KARRAS/KARYDAKIS,
 
         
 
              Claimant,
 
         
 
         vs.                                     File  Nos.  717004
 
                                                             753628
 
         ITT CONTINENTAL BAKING                              753629
 
         CO., INC.,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1800
 
         
 
              Claimant sustained injuries which arose out of and in the 
 
         course of his employment.  Claimant had, what physicians termed, 
 
         severe degenerative cervical and lumbar disc disease.  Claimant 
 
         established only that as a result of the work injuries he 
 
         suffered a temporary aggravation of a preexisting condition.  
 
         Claimant failed to show either or both injury materially 
 
         aggravated his condition.
 
         
 
         1402.30
 
         
 
              Claimant alleged that on his last day of employment he 
 
         injured his knee.  Claimant's credibility was suspect.  Medical 
 
         records showed claimant originally injured his knee in 1980 and 
 
         the treatment which was recommended and rejected by claimant was 
 
         eventually done in 1983 after claimant was discharged from 
 
         employment.  Claimant failed to establish he sustained an injury 
 
         on March 15, 1983 which arose out of and in the course of his 
 
         employment.