BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        LARRY KNIGHT,
 
        
 
            Claimant,                    File No. 733994
 
        
 
        vs.                                  A P P E A L
 
        
 
        PRINCE MANUFACTURING COMPANY,     D E C I S I O N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        NORTHWESTERN NATIONAL INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        May 23, 1983. The record on appeal consists of the transcript of 
 
        the arbitration hearing and joint exhibits 1 through 37. Both 
 
        parties filed briefs on appeal. Defendants filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
        Defendants state the following issues on appeal:
 
        
 
        I. Did the deputy industrial commissioner err in finding that 
 
        claimant's May 23, 1983 injury caused his industrial disability?
 
        
 
        II. Did the deputy industrial commissioner err in finding that 
 
        claimant sustained a twenty-five percent (25%) loss of earning 
 
        capacity due to his May 23, 1983 injury?
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence. The following additional
 
        
 
        KNIGHT V. PRINCE MANUFACTURING COMPANY
 
        Page 2
 
        
 
        
 
        authority is noted: An award of industrial disability may not be 
 
        based on speculation on what may occur to claimant in the future, 
 
        as such is mere speculation. Rather, an award must be based on 
 
        claimant's present condition. Umphress v. Armstrong Rubber 
 
        Company, Appeal Decision, August 27, 1987.
 
        
 
                                      ANALYSIS
 
        
 
        On appeal, defendants urge that claimant has failed to show a 
 
        causal connection between his present back condition and his work 
 
        injury. Defendants point to the reports of Mark E. Wheeler, M.D., 
 

 
        
 
 
 
 
 
        which stated in 1985 that claimant's injury did not produce any 
 
        permanent impairment. This report is contradicted by the 
 
        testimony of claimant, who testified that Dr. Wheeler imposed a 
 
        lifting restriction of not over 25 pounds. The record is unclear 
 
        whether this restriction was temporary or permanent. Defendants 
 
        urge that no weight be given claimant's statement as to a 
 
        lifting restriction, as it is self-serving and not corroborated 
 
        by Dr. Wheeler's report. Defendants also urge that claimant's 
 
        statement be disregarded in that it is hearsay. This objection 
 
        is without merit in a workers' compensation proceeding. 
 
        Claimant's statement is not corroborated, but neither is it 
 
        controverted in the record.
 
        
 
        The deputy chose to give greater weight to John Walker, M.D. Dr. 
 
        Walker rated claimant's condition as eight percent permanent 
 
        partial impairment to the body as a whole. The testimony of Horst 
 
        G. Blume, M.D., tends to support Dr. Walker's conclusions. If 
 
        Dr. Wheeler did impose a lifting restriction for claimant, it is 
 
        inconsistent with a statement of no permanency. The nature of 
 
        the lifting restriction and the date it was imposed cannot be 
 
        reconciled in the record. The greater weight will be given to 
 
        the testimony of Dr. Walker.
 
        
 
        Claimant had incidents of back pain after his May 23, 1983 
 
        injury. Defendants characterized these as new and subsequent 
 
        injuries. Claimant characterized these as flareups of back pain 
 
        from the original injury. The medical reports corroborate 
 
        claimant's interpretation, and relate the incidents to claimant's 
 
        original injury on May 23, 1983. However, the September 1985 
 
        incident would appear to be an incident of new trauma. Dr. 
 
        Wheeler's reports indicate that this incident did not result in 
 
        permanency.
 
        
 
        It is concluded that claimant's present back condition is 
 
        causally related to his work injury of May 23, 1983.
 
        
 
        Defendants also urge that the proper date of injury is May 27, 
 
        1987, in that this is claimant's most recent absence from work 
 
        due to a cumulative injury. Defendants argue that claimant's 
 
        prior May 23, 1983 injury date and absence from work are 
 
        superseded by a later absence from work.
 
        
 
        KNIGHT V. PRINCE MANUFACTURING COMPANY
 
        Page 3
 
        
 
        
 
        The record indicates that claimant's May 27, 1987 absence from 
 
        work was due to a flare-up of his 1983 injury, and the need to be 
 
        off work for treatment of that condition with epidural floods. 
 
        Subsequent to his May 23, 1983 injury, claimant was removed from 
 
        the assembly line work, where the repetitive trauma occurred, and 
 
        returned to his forklift work. It does not appear, therefore, 
 
        that the May 27, 1987 absence from work was the result of a new 
 
        cumulative injury. Claimant's date of injury remains May 23, 
 
        1983. It is noted that even if the record showed a second 
 
        cumulative injury process resulting in an absence from work on 
 
        May 27, 1987, that date of injury would be a second cumulative 
 
        injury in addition to the May 23, 1983 injury rather than a 
 
        superseding injury date.
 
        
 
        As a second issue on appeal, defendants urge that claimant has 
 
        not shown entitlement to 25 percent industrial disability. 
 
        Defendants point out that claimant has not lost any earnings as a 
 
        result of his injury. The employer accommodated claimant by 
 
        returning him to the forklift job. It is uncertain whether 
 
        claimant actually has any permanent lifting restrictions.
 

 
        
 
 
 
 
 
        
 
        Claimant does have a permanent partial impairment rating of eight 
 
        percent of the body as a whole. The employer's action in putting 
 
        claimant back at his forklift job, if it was for accommodation 
 
        reasons, is commendable. Claimant appears motivated to work. 
 
        Claimant was 46 years old at the time of the hearing, and had a 
 
        ninth grade education. Although relied on by the deputy, the 
 
        relative stability or instability of the company claimant 
 
        presently works for is not a relevant factor in the determination 
 
        of industrial disability. It is apparent that many companies may 
 
        remain in business for years in an unstable condition, yet the 
 
        employees of the company continue to work and suffer no loss of 
 
        income as a result of that instability. Basing an award on such 
 
        future events would improperly rely on speculation. Claimant's 
 
        award must be based on his present condition.
 
        
 
        Based on these and all other appropriate factors in the 
 
        determination of industrial disability, claimant is determined to 
 
        have an industrial disability of 20 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was in the employ of Prince in May 1983 and remains 
 
        in the employ of Prince at the present time as a forklift 
 
        operator.
 
        
 
        2. On May 23, 1983, claimant suffered a gradual or cumulative 
 
        injury to the low back which arose out of and in the course of 
 
        his employment at Prince. Over a two week period while performing 
 
        a new assembly job requiring repetitive lifting and bending of 
 
        heavy objects, claimant developed chronic low back and leg pain 
 
        precipitated by nerve root irritations in
 
        
 
        KNIGHT V. PRINCE MANUFACTURING COMPANY
 
        Page 4
 
        
 
        
 
        the joints of the low back. On May 23, 1983, claimant was 
 
        compelled by his low back pain to leave work and seek medical 
 
        treatment. Claimant has not returned to that job since that time.
 
        
 
        3. The work injury of May 23, 1983, was a cause of a period of 
 
        temporary disability from work beginning on May 23, 1983 and 
 
        ending on July 25, 1983. Claimant returned to work on July 27, 
 
        1983 and reached maximum healing at that time. Claimant's 
 
        treatment after July 25, 1983, appears to be only maintenance in 
 
        nature to take care of occasional flare-ups.
 
        
 
        4. The work injury of May 23, 1983, was a cause of an eight 
 
        percent permanent partial impairment to the body as a whole.
 
        
 
        5. Claimant is 46 years of age and only has a ninth grade 
 
        education.
 
        
 
        6. Claimant is unable to return to heavy repetitive physical 
 
        labor work as a result of the work injury.
 
        
 
        7. Claimant's only significant past work history has been heavy 
 
        physical labor in a packing plant.
 
        
 
        8. Claimant has not suffered a loss of income as a result of the 
 
        work injury.
 
        
 
        9. The work injury of May 23, 1983, and the resulting permanent 
 
        partial impairment is a cause of a 20 percent loss of earning 
 
        capacity
 

 
        
 
 
 
 
 
        
 
        10. The medical expenses listed in the prehearing report 
 
        totalling $591.10 are causally connected to the work injury of 
 
        May 23, 1983 and were incurred by claimant for reasonable and 
 
        necessary treatment of a work injury. The epidural flood 
 
        treatments in 1987 appear to be treatments of aggravations of a 
 
        preexisting condition.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant's present back condition is causally connected to his 
 
        work injury of May 23, 1983.
 
        
 
        Claimant has an industrial disability of 20 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant one hundred (100)
 
        
 
        KNIGHT V. PRINCE MANUFACTURING COMPANY
 
        Page 5
 
        
 
        
 
        weeks of permanent partial disability benefits at the rate of two 
 
        hundred twenty-five and 50/100 dollars ($225.50) per week from 
 
        July 25, 1983 .
 
        
 
        That defendants shall pay to claimant healing period benefits 
 
        from May 23, 1983 through July 25, 1983, at the rate of two 
 
        hundred twenty-five and 50/100 dollars ($225.50) per week.
 
        
 
        That defendants shall pay claimant the sum of five hundred 
 
        ninety-one and 10/100 dollars ( $591.10 ) as reimbursement for 
 
        medical expenses.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum 
 
        and shall receive credit against this award for all benefits 
 
        previously paid.
 
        
 
        That defendants shall pay interest on benefits awarded herein as 
 
        set forth in Iowa Code section 85.30.
 
        
 
        That defendants shall pay costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 2nd day of June, 1989.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY KNIGHT,
 
         
 
              Claimant,
 
                                                     File No. 733994
 
         vs.
 
         
 
         PRINCE MANUFACTURING COMPANY,                 A P P E A L
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and                                           F I L E D
 
         
 
         NORTHWESTERN NATIONAL INSURANCE,             JUN 2 1989
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on May 23, 1983.  The record on appeal consists of the 
 
         transcript of the arbitration hearing and joint exhibits 1 
 
         through 37.  Both parties filed briefs on appeal.  Defendants 
 
         filed a reply brief.
 
         
 
                                     ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
               I.  Did the deputy industrial commissioner err in finding 
 
         that claimant's May 23, 1983 injury caused his industrial 
 
         disability?
 
         
 
              II.  Did the deputy industrial commissioner err in finding 
 
         that claimant sustained a twenty-five percent (25%) loss of 
 
         earning capacity due to his May 23, 1983 injury?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.  The following 
 
         additional authority is noted:  An award of industrial disability 
 
         may not be based on speculation on what may occur to claimant in 
 
                                                
 
                                                         
 
         the future, as such is mere speculation.  Rather, an award must 
 
         be based on claimant's present condition.  Umphress v. Armstrong 
 
         Rubber Company, Appeal Decision, August 27, 1987.
 
         
 
                                   ANALYSIS
 
         
 
              On appeal, defendants urge that claimant has failed to show 
 
         a causal connection between his present back condition and his 
 
         work injury.  Defendants point to the reports of Mark E. Wheeler, 
 
         M.D., which stated in 1985 that claimant's injury did not produce 
 
         any permanent impairment.  This report is contradicted by the 
 
         testimony of claimant, who testified that Dr. Wheeler imposed a 
 
         lifting restriction of not over 25 pounds.  The record is unclear 
 
         whether this restriction was temporary or permanent.  Defendants 
 
         urge that no weight be given claimant's statement as to a lifting 
 
         restriction, as it is self-serving and not corroborated by Dr. 
 
         Wheeler's report.  Defendants also urge that claimant's statement 
 
         be disregarded in that it is hearsay.  This objection is without 
 
         merit in a workers' compensation proceeding.  Claimant's 
 
         statement is not corroborated, but neither is it controverted in 
 
         the record.
 
         
 
              The deputy chose to give greater weight to John Walker, M.D. 
 
         Dr. Walker rated claimant's condition as eight percent permanent 
 
         partial impairment to the body as a whole.  The testimony of 
 
         Horst G. Blume, M.D., tends to support Dr. Walker's conclusions.  
 
         If Dr. Wheeler did impose a lifting restriction for claimant, it 
 
         is inconsistent with a statement of no permanency.  The nature of 
 
         the lifting restriction and the date it was imposed cannot be 
 
         reconciled in the record.  The greater weight will be given to 
 
         the testimony of Dr. Walker.
 
         
 
              Claimant had incidents of back pain after his May 23, 1983 
 
         injury.  Defendants characterized these as new and subsequent 
 
         injuries.  Claimant characterized these as flare-ups of back pain 
 
         from the original injury.  The medical reports corroborate 
 
         claimant's interpretation, and relate the incidents to claimant's 
 
         original injury on May 23, 1983.  However, the September 1985 
 
         incident would appear to be an incident of new trauma.  Dr. 
 
         Wheeler's reports indicate that this incident did not result in 
 
         permanency.
 
         
 
              It is concluded that claimant's present back condition is 
 
         causally related to his work injury of May 23, 1983.
 
         
 
              Defendants also urge that the proper date of injury is May 
 
         27, 1987, in that this is claimant's most recent absence from 
 
         work due to a cumulative injury.  Defendants argue that 
 
         claimant's prior May 23, 1983 injury date and absence from work 
 
         are superseded by a later absence from work.
 
         
 
              The record indicates that claimant's May 27, 1987 absence 
 
         from work was due to a flare-up of his 1983 injury, and the need 
 
         to be off work for treatment of that condition with epidural 
 
         floods.  Subsequent to his May 23, 1983 injury, claimant was 
 
                                                
 
                                                         
 
         removed from the assembly line work, where the repetitive trauma 
 
         occurred, and returned to his forklift work.  It does not appear, 
 
         therefore, that the May 27, 1987 absence from work was the result 
 
         of a new cumulative injury.  Claimant's date of injury remains 
 
         May 23, 1983.  It is noted that even if the record showed a 
 
         second cumulative injury process resulting in an absence from 
 
         work on May 27, 1987, that date of injury would be a second 
 
         cumulative injury in addition to the May 23, 1983 injury rather 
 
         than a superseding injury date.
 
         
 
              As a second issue on appeal, defendants urge that claimant 
 
         has not shown entitlement to 25 percent industrial disability. 
 
         Defendants point out that claimant has not lost any earnings as a 
 
         result of his injury.  The employer accommodated claimant by 
 
         returning him to the forklift job.  It is uncertain whether 
 
         claimant actually has any permanent lifting restrictions.
 
         
 
              Claimant does have a permanent partial impairment rating of 
 
         eight percent of the body as a whole.  The employer's action in 
 
         putting claimant back at his forklift job, if it was for 
 
         accommodation reasons, is commendable.  Claimant appears 
 
         motivated to work.  Claimant was 46 years old at the time of the 
 
         hearing, and had a ninth grade education.  Although relied on by 
 
         the deputy, the relative stability or instability of the company 
 
         claimant presently works for is not a relevant factor in the 
 
         determination of industrial disability.  It is apparent that many 
 
         companies may remain in business for years in an unstable 
 
         condition, yet the employees of the company continue to work and 
 
         suffer no loss of income as a result of that instability.  Basing 
 
         an award on such future events would improperly rely on 
 
         speculation.  Claimant's award must be based on his present 
 
         condition.
 
         
 
              Based on these and all other appropriate factors in the 
 
         determination of industrial disability, claimant is determined to 
 
         have an industrial disability of 20 percent.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was in the employ of Prince in May 1983 and 
 
         remains in the employ of Prince at the present time as a forklift 
 
         operator.
 
         
 
              2.  On May 23, 1983, claimant suffered a gradual or 
 
         cumulative injury to the low back which arose out of and in the 
 
         course of his employment at Prince.  Over a two week period while 
 
         performing a new assembly job requiring repetitive lifting and 
 
         bending of heavy objects, claimant developed chronic low back and 
 
         leg pain precipitated by nerve root irritations in the joints of 
 
         the low back.  On May 23, 1983, claimant was compelled by his low 
 
         back pain to leave work and seek medical treatment.  Claimant has 
 
         not returned to that job since that time.
 
         
 
              3.  The work injury of May 23, 1983, was a cause of a period 
 
         of temporary disability from work beginning on May 23, 1983 and 
 
                                                
 
                                                         
 
         ending on July 25, 1983.  Claimant returned to work on July 27, 
 
         1983 and reached maximum healing at that time.  Claimant's 
 
         treatment after July 25, 1983, appears to be only maintenance in 
 
         nature to take care of occasional flare-ups.
 
         
 
              4.  The work injury of May 23, 1983, was a cause of an eight 
 
         percent permanent partial impairment to the body as a whole.
 
         
 
              5.  Claimant is 46 years of age and only has a ninth grade 
 
         education.
 
         
 
              6.  Claimant is unable to return to heavy repetitive 
 
         physical labor work as a result of the work injury.
 
         
 
              7.  Claimant's only significant past work history has been 
 
         heavy physical labor in a packing plant.
 
         
 
              8.  Claimant has not suffered a loss of income as a result 
 
         of the work injury.
 
         
 
              9.  The work injury of May 23, 1983, and the resulting 
 
         permanent partial impairment is a cause of a 20 percent loss of 
 
         earning capacity
 
         
 
              10.  The medical expenses listed in the prehearing report 
 
                             
 
                                                
 
                                                         
 
         totalling $591.10 are causally connected to the work injury of 
 
         May 23, 1983 and were incurred by claimant for reasonable and 
 
         necessary treatment of a work injury.  The epidural flood 
 
         treatments in 1987 appear to be treatments of aggravations of a 
 
         preexisting condition.
 
         
 
         CONCLUSIONS OF LAW
 
         
 
              Claimant's present back condition is causally connected to 
 
         his work injury of May 23, 1983.
 
         
 
              Claimant has an industrial  disability of 20 percent.
 
         
 
              WHEREFORE, the decision of the deputy is  affirmed.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred twenty-five and 50/100 dollars ($225.50) per week from 
 
         July 25, 1983.
 
         
 
              That defendants shall pay to claimant healing period 
 
         benefits from May 23, 1983 through July 25, 1983, at the rate of 
 
         two hundred twenty-five and 50/100 dollars ($225.50) per week.
 
         
 
              That defendants shall pay claimant the sum of five hundred 
 
         ninety-one and 10/100 dollars ($591.10) as reimbursement for 
 
         medical expenses.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 2nd day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg.
 
         P.O. Box 1828
 
         Sioux City, Iowa  51102
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803 - 1803
 
                                            Filed June 2, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY KNIGHT,
 
         
 
              Claimant,
 
                                                       File No. 733994
 
         vs.
 
         
 
         PRINCE MANUFACTURING COMPANY,                   A P P E A L
 
         
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
         
 
              Claimant with 8 percent body of the whole impairment, 46 
 
         years old, motivated to work, and with a ninth grade education 
 
         was awarded 20 percent industrial disability.
 
         
 
         
 
         1803
 
         
 
              It was held that utilizing the relative stability or 
 
         instability of claimant's employing company was not relevant to 
 
         the determination of industrial disability, and that basing an 
 
         award on this factor would improperly engage in speculation.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY KNIGHT,
 
         
 
              Claimant,
 
                                                   FILE  NO.  733994
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         PRINCE MANUFACTURING COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry Knight, 
 
         claimant, against Prince Manufacturing Company, employer 
 
         (hereinafter referred to as Prince), and Northwestern National 
 
         Insurance, insurance carrier, for workers compensation benefits 
 
         as a result of an alleged injury on May 23, 1983.  On February 9, 
 
         1988, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  On May 23, 1983, claimant received an injury which 
 
         arose out of and in the course of his employment at Prince.
 
         
 
              2.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $225.50 
 
         per week.
 
         
 
              3.  Claimant is only seeking temporary total disability or 
 
         healing period benefits from May 24, 1983 through July 25, 1983 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   2
 
         
 
         
 
         and from June 9, 1987 through June 26, 1987.  Defendants agree 
 
         that claimant was not working during these times.  Claimant has 
 
         been paid a total of nine weeks of weekly benefits at the 
 
         stipulated rate before the hearing.
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  If permanent disability benefits are awarded, they 
 
         shall begin as of July 25, 1983.
 
         
 
              6.  With reference to the requested medical expenses, it 
 
         was agreed that the provider of the services would testify that 
 
         the charges were reasonable and defendants were not offering 
 
         contrary evidence.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             II.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
            III.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary shall be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Prince since 1973 
 
         and continues to work for Prince at the present time.  Between 
 
         1973 and 1983, claimant worked in material transfer as a forklift 
 
         operator moving materials both inside and outside of the plant.  
 
         Claimant currently works in this job.  During his deposition, 
 
         claimant said that the work is "pretty light duty.O  Claimant 
 
         also stated that on occasion he is required to physically handle 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   3
 
         
 
         
 
         some materials to accomplish his job.  Claimant currently earns 
 
         $9.12 per hour over a 40 hour work week and receives incentive 
 
         pay.  The evidence does not show that claimant is earning less on 
 
         a weekly basis than he would have had the injury not occurred.
 
         
 
              After a 10 month layoff period in 1983, claimant was 
 
         returned to work by Prince to a job different than the forklift 
 
         operation.  Claimant testified this new job involved assembly 
 
         work in which he was located at a work station and worked in 
 
         assembly line fashion on "piston rods" utilized to manufacture 
 
         hydraulic cylinders.  This work involved repetitive lifting and 
 
         bending while reaching and placing rods weighing from 10 to 50 
 
         pounds in position so they may be worked upon with an air powered 
 
         impact wrench.  It was while performing this job that claimant 
 
         suffered his alleged work injury herein.
 
         
 
              Claimant testified that after two weeks on his assembly job, 
 
         he began to gradually experience low back pain radiating into his 
 
         right leg.  Claimant initially felt that he was just not in good 
 
         physical shape and that the pain would eventually subside.  
 
         However, the pain steadily grew worse until on May 23, 1983, 
 
         while working at the wash tank performing the same type of 
 
         repetitive heavy lifting, claimant could no longer tolerate the 
 
         pain and was sent by his supervisors to the company doctor, R. L. 
 
         Morgan, M.D. Dr. Morgan diagnosed acute myofascial strain of the 
 
         lumbosacral spine and prescribed rest and muscle relaxant 
 
         medication.  Claimant was sent home but upon awakening the next 
 
         morning he could not get out of bed.  With the help of his family 
 
         he went to a hospital emergency room.  Claimant was then 
 
         hospitalized by Dr. Morgan and treated with bedrest, traction, 
 
         physical therapy and whirlpool baths.  While in the hospital, Dr. 
 
         Morgan consulted with an orthopedic surgeon, M. E. Wheeler, M.D.  
 
         Claimant was discharged after five days in an improved condition 
 
         but claimant said that his back still hurt.  He continued to 
 
         receive treatment from Dr. Morgan for a short period of time and 
 
         then he was exclusively treated by Dr. Wheeler until he was 
 
         returned to work by Dr. Wheeler on July 25, 1983.
 
         
 
              At hearing and in his deposition, claimant denied any prior 
 
         chronic back problems and any prior low back or leg difficulties. 
 
          Claimant said that three or four years after he was first hired 
 
         at Prince, he hurt his neck while pulling on "bar stock."  
 
         Claimant said that he was hospitalized for five days at that time 
 
         and was placed under the care of Drs.  Paulsrud and Ashmore, 
 
         first names unknown.  No reports or records from these doctors 
 
         were offered into the evidence in this case.
 
         
 
              The evidence does not reflect any restrictions imposed by 
 
         Dr. Wheeler on claimant when he returned to work in July, 1983.  
 
         However, claimant testified that he experienced difficulty when 
 
         he returned to the same assembly job that he had in May, 1983.  
 
         He stated that fellow employees helped him perform the heavier 
 
         work.  Despite this assistance from fellow employees, claimant 
 
         testified that he continued to experience chronic back and leg 
 
         pain.  Claimant was then returned by Prince to his former 
 
         forklift operator job, a job he continues to perform at the 
 
         present time.
 
         
 
              Claimant did not seek further treatment from Dr. Wheeler 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   4
 
         
 
         
 
         until August 7, 1985, when he returned complaining of increased 
 
         pain.  He told Dr. Wheeler that he had never been pain free since 
 
         July, 1983, and that his current forklift work is now causing him 
 
         problems at the end of the day.  Claimant returned again to Dr. 
 
         Wheeler in October, 1985, with continued complaints of back 
 
         difficulty.  At that time Dr. Wheeler attempted to use a TENS 
 
         unit, an electrical nerve stimulation device to relieve 
 
         claimant's pain.  Claimant testified that Dr. Wheeler offered no 
 
         further solutions to his pain and he then sought out treatment 
 
         from D. F. Sievert, D.C., in the form of chiropractic adjustments 
 
         beginning in March, 1986.  Claimant said that he only received 
 
         temporary relief from Dr. Sievert's treatment.
 
         
 
              In July, 1986, claimant was examined by John Walker, M.D., 
 
         another orthopedic surgeon.  Claimant at that time complained of 
 
         pain and stiffness in his low back but not in the right leg.  He 
 
         also complained of pain in the neck and down his left arm.  This 
 
         pain he stated at that time occurred two or three times a week 
 
         and lasted one to two days.  After his examination and tests, 
 
         including a CT scan and a myelogram of the upper and lower back, 
 
         Dr. Walker opined that claimant was suffering from irritation of 
 
         the rami dorsalis of the posterior nerve roots of the 
 
         intervertebral joints on the right side at L4/5 and L5/Sl levels 
 
         of the spine.  Dr. Walker states that this condition is related 
 
         to the work activity leading up to the episode of May 23, 1983.  
 
         In June, 1987, Dr. Walker stated as follows with reference to the 
 
         permanency of claimant's low back problems: "[I]t is my opinion 
 
         within reasonable medical probability that the patient has a 
 
         permanent partial impairment to the body as a whole of 
 
         approximately 8% as a result of the work related incident June 
 
         22, 1983, while working at Prince Manufacturing.O
 
         
 
              With reference to claimant's neck problems, Dr. Walker 
 
         stated that claimant has cervical ruptured discs at C5/6 and C6/7 
 
         of the upper spine with encroachment of the cervical nerve root 
 
         canals at these levels with degenerative disc disease and 
 
         cervical spondylosis and spondylarthrosis.  He stated as follows 
 
         with reference to causation and extent of claimant's neck 
 
         impairment:
 
         
 
              ... There is no doubt that this kind of condition can 
 
              develop over a period of many years while he was working as 
 
              a fork lift [sic] operator, but I cannot relate this to any 
 
              particular one time accident.  But, from all of our 
 
              experience within reasonable medical probability, some of 
 
              these abnormal findings in the cervical spine can also be 
 
              related to his work activity which he had been involved in 
 
              over an eleven or twelve year period.  It is difficult to 
 
              put any percentage on this, but it has to be taken into 
 
              consideration.
 
         
 
              On June 9, 1987 and again on June 16, 1987, claimant 
 
         returned to Dr. Wheeler who, at that time, performed epidural 
 
         flood procedures in his low back as a result of a flare-up of low 
 
         back pain radiating into both legs at that time.  Claimant was 
 
         subsequently discharged by Dr. Wheeler in an improved condition 
 
         after the epidural floods but claimant testified that only the 
 
         leg pain tended to improve with this procedure.  Claimant was off 
 
         work from June 8 through June 26, 1987, as a result of this 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   5
 
         
 
         
 
         flare-up and treatment.  Claimant has not missed work or sought 
 
         further treatment since that time.
 
         
 
              After May, 1983, claimant has reported several incidences of 
 
         back injuries at work to Prince Management between August 24, 
 
         1984 through September 10, 1985 and again in May, 1987.  These 
 
         episodes all occurred while performing his forklift operator work 
 
         at Prince.  The September, 1985, injury occurred as a result of a 
 
         contusion to his back when a handle of a car "let go" while 
 
         claimant was pulling on it throwing claimant into a steel rack.  
 
         At that time claimant sought treatment again from Dr. Wheeler but 
 
         Dr. Wheeler reports that the problems subsided after two days.  
 
         Claimant denies telling Dr. Wheeler that the incident "almost 
 
         knocked him out" as reported by the doctor in his office notes.
 
         
 
              Claimant testified that he at some time (it is unclear in 
 
         the record) was placed by Dr. Wheeler on a 25 pound lifting 
 
         restriction.  The precise nature of any such restriction was not 
 
         contained in any of the records from Dr. Wheeler offered into the 
 
         evidence.  However, claimant's testimony in this regard is 
 
         uncontroverted.  Claimant testified that he is still bothered by 
 
         low back pain from the bouncing and jarring while operating his 
 
         lift truck.  Claimant said that only laying flat upon the floor 
 
         is of any help in relieving his low back pain.  Claimant said 
 
         that should he lose his job, he could not returned to any of the 
 
         other type of employment he has held in the past both at Prince 
 
         or in his employment before Prince.  Claimant stated that his 
 
         back problems developed primarily after activity.  Although he is 
 
         able to perform a limited amount of sporting activity such as 
 
         tennis and golf, too much of this activity bothers him a great 
 
         deal.
 
         
 
              Claimant testified that he is 46 years of age and only has a 
 
         ninth grade education.  Claimant attempted to complete his 
 
         requirements for a GED but was not able to do so.  Claimant's 
 
         work experience before his employment at Prince was mainly in 
 
         laboring occupations.  Claimant worked as a meat cutter 
 
         performing heavy work for several years and as a grounds keeper 
 
         for a short period of time for a parks department of a 
 
         municipality.  Claimant has no significant military training.  
 
         Claimant testified that he is very high on the Prince plant 
 
         seniority list.  The future, however, of Prince as a viable 
 
         business entity was not dealt with at the hearing.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   6
 
         
 
         
 
         to be a personal injury   Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court also held that the date of injury in such 
 
         cases is a time when pain prevents the employee from continuing 
 
         to work.  In McKeever the injury date coincided with the time 
 
         claimant was finally compelled to give up his job.  This date was 
 
         then utilized in determining rate and the timeliness of 
 
         claimant's claim.
 
         
 
              Although there was a stipulation that claimant had suffered 
 
         a work injury on May 23, 1983, the stipulation did not deal with 
 
         the nature of the injury.  Given the credible testimony of 
 
         claimant and the medical reports which demonstrate a gradual 
 
         onset of low back difficulties and a continuation of this injury 
 
         process at Prince, it will be found that claimant suffered a 
 
         gradual or cumulative trauma injury to the low back at Prince.  
 
         On May 23, 1983, claimant was compelled by his pain to leave his 
 
         regular work at Prince that he was performing at the time of the 
 
         injury and has never really fully returned to such work.
 
         
 
              The evidence indicates that there could be a second injury 
 
         date on June 9, 1987 relating to the absences from work for the 
 
         epidural floods.  Such an injury date was not pled nor was the 
 
         petition amended to include a request for disability benefits for 
 
         absences from work in 1987.  However, the claim for healing 
 
         period benefits for these absences was contained in the 
 
         prehearing report and there was no objection from defendants as 
 
         to lack of notice or surprise to this claim.  Also, the technical 
 
         rules of pleading do not apply in an administrative pleading.  
 
         Yeager v. Firestone Rubber Company, 253 Iowa 369, 373, 112 
 
         N.W.2d 299 (1961).   However, no such injury date can be  found.  
 
         Claimant's evidence is lacking as to what actually precipitated 
 
         this flare-up of back pain and whether this resulted in any way 
 
         from work activity.  Such a void in the evidence prohibits a 
 
         second finding as to the injury date, not the failure to plead 
 
         such an injury date.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   7
 
         
 
         
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   8
 
         
 
         
 
         
 
              In the case sub judice, claimant contends that he suffered 
 
         permanent disability as a result of the work injury due to 
 
         
 
         permanent impairment to the body as a whole.  With reference to 
 
         claimant's low back problems, the causal connection opinions and 
 
         the opinion as to permanency by Dr. Walker are uncontroverted.  
 
         Also, claimant credibly testified that he continues to have low 
 
         back problems.  Dr. Wheeler did not render an opinion on this 
 
         topic.  Claimant testified that he has a 25 pound lifting 
 
         restriction imposed by Dr. Wheeler and this testimony is 
 
         uncontroverted.  Therefore, claimant has established by the 
 
         greater weight of the credible evidence that the work injury was 
 
         a cause of an eight percent permanent partial impairment to the 
 
         body as a whole.
 
         
 
              The neck problems, however, could not be found to be work 
 
         related.  Claimant's only neck injury at work occurred many years 
 
         ago.  Claimant did not mention chronic neck or arm problems until 
 
         1986 well after the onset of his low back problems in 1983.  
 
         Given claimant's testimony, a finding of causal connection of the 
 
         neck problems could not be based upon the vague opinion of Dr. 
 
         Walker contained in the medical reports.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition have resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page   9
 
         
 
         
 
         involving repetitive heavy lifting.  Claimant is not able to do 
 
         so now and is unable to return to the type of work he was 
 
         performing at the time of the work injury or most other physical 
 
         labor type of work he had in the past.  Claimant's treating 
 
         physician, Dr. Wheeler, has imposed lifting restrictions upon 
 
         claimant's activity and claimant's credible testimony 
 
         demonstrates physical activity restrictions which prohibit his 
 
         return to heavy physical labor.  However, claimant's usual work 
 
         over the years at Prince was operating a forklift in the job he 
 
         is currently able to perform at the present time, albeit with 
 
         some continuing problems.  Given claimant's history of recurrent 
 
         problems, it is likely he will continue to experience 
 
         difficulties in the future.
 
         
 
              Apart from his lost earnings during his healing period which 
 
         will be compensated by healing period benefits, claimant has not 
 
         suffered a significant permanent loss in actual earnings as a 
 
         result of his disability.  However, a showing that claimant had 
 
         no loss of actual earnings does not preclude a finding of 
 
         industrial disability.  See Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Reports of the Iowa Industrial 
 
         Commissioner 218, 220 (1979).
 
         
 
              Claimant is 46 years of age and in the middle of his working 
 
         career.  His loss of future earnings from employment due to his 
 
         disability is more severe than would be the case for a younger or 
 
         older individual.  See Becke v. Turner-Busch, Inc., Thirty-Fourth 
 
         Biennial Reports of the Iowa Industrial Commissioner 34 (1979) 
 
         and Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Reports 426 (1981).
 
         
 
              Claimant has shown motivation to remain employed despite 
 
         physical pain on a regular basis.  He should not be penalized for 
 
         this remarkable effort by denying him adequate disability 
 
         benefits.
 
         
 
              Given claimant's education and past experience, he is not a 
 
         likely candidate for successful vocational rehabilitation.
 
         
 
              Claimant's current employment is suitable at the present 
 
         time, the future stability of which is unknown and is probably no 
 
         different then the future of any other manufacturing organization 
 
         in this state.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 25 percent loss of 
 
         his earning capacity as a result of his work injury to his low 
 
         back.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 125 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 25 percent 
 
         of 500 weeks, the maximum allowable for an injury to the body as 
 
         a whole in that subsection.  According to the stipulation, such 
 
         benefits shall be awarded from July 25, 1983.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant may be entitled to weekly benefits 
 
         for healing period under Iowa Code section 85.34 from the date of 
 
         injury until he returns to work; until he is medically capable of 
 
         returning to work; or, until he reaches maximum healing, 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page  10
 
         
 
         
 
         whichever occurs first.  Claimant has shown entitlement to 
 
         healing period benefits from May 24, 1983 until June 25, 1983.  
 
         Claimant's entitlement to healing period benefits for an injury 
 
         on May 23, 1983 ended when he returned to work on July 25, 1983.  
 
         Consequently, claimant is not entitled to additional benefits for 
 
         healing period for the 1987 absences from work.  Had the 1987 
 
         absences had been shown to be the result of additional work 
 
         injuries at Prince he would have been entitled to additional 
 
         temporary total disability benefits.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to reimbursement for reasonable medical expenses 
 
         incurred in treating a work injury.  Claimant's request for 
 
         medical expenses is listed in the prehearing report.  All of 
 
         these expenses relate to the 1987 absences from work as a result 
 
         of the epidural floods.  The greater weight of the evidence shows 
 
         that the epidural floods were a result of a flare-up of his back 
 
         condition which developed as a result of the 1983 injury and 
 
         therefore he is entitled to those benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Prince in May, 1983 and 
 
         remains in the employ of Prince at the present time as a forklift 
 
         operator.
 
         
 
              3.  On May 23, 1983, claimant suffered a gradual or 
 
         cumulative injury to the low back which arose out of and in the 
 
         course of his employment at Prince.  Over a two week period while 
 
         performing a new assembly job requiring repetitive lifting and 
 
         bending of heavy objects, claimant developed chronic low back and 
 
         leg pain precipitated by nerve root irritations in the joints of 
 
         the low back.  On May 23, 1983, claimant was compelled by his low 
 
         back pain to leave work and seek medical treatment.  Claimant has 
 
         not returned to that job since that time.
 
         
 
             4.  The work injury of May 23, 1983, was a cause of a period 
 
         of temporary disability from work beginning on May 23, 1983 and 
 
         ending on July 25, 1983.  Claimant returned to work on July 27, 
 
         1983 and reached maximum healing at that time.  Claimant's 
 
         treatment after July 25, 1983 appears to be only maintenance in 
 
         nature to take care of occasional flare-ups.
 
         
 
              5.  The work injury of May 23, 1983 was a cause of an eight 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's activity consisting of 
 
         no lifting over 25 pounds and no repetitive lifting of heavy 
 
         objects.  This impairment and the restrictions are the result of 
 
         claimant's low back difficulties.  Claimant has current neck 
 
         problems but claimant had an injury to his neck many years ago 
 
         two or three years after he first started at Prince.  The extent 
 
         of claimant's physical restrictions and impairment due to his 
 
         neck problems could not be determined from the record in this 
 
         case.
 
         
 
              6.  The work injury of May 23, 1983, and the resulting 
 
         permanent partial impairment is a cause of a 25 percent loss of 
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page  11
 
         
 
         
 
         earning capacity.  Claimant is 46 years of age and only has a 
 
         ninth grade education.  Claimant is unable to return to heavy 
 
         repetitive physical labor work as a result of the work injury.  
 
         Claimant's only significant past work history has been heavy 
 
         physical labor in a packing plant.  Claimant's primary work 
 
         activity over the years at Prince has been as a forklift operator 
 
         and claimant continues to work at this job which appears to be 
 
         suitable at the present time despite continuing complaints.  The 
 
         stability of Prince Manufacturing is unknown.  Claimant has 
 
         demonstrated a low potential for successful vocational 
 
         rehabilitation.  Claimant continues to experience pain in his job 
 
         and will likely continue to suffer pain in the future.  Claimant 
 
         has not suffered a loss of income as a result of the work 
 
         injury.
 
         
 
              7.  The medical expenses listed in the prehearing report 
 
         totalling $591.10 are causally connected to the work injury of 
 
         May 23, 1983 and were incurred by claimant for reasonable and 
 
         necessary treatment of a work injury.  The epidural flood 
 
         treatments in 1987 appear to be treatments of aggravations of a 
 
         preexisting condition.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits, healing 
 
         period benefits and medical benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant seventy-five (125) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred twenty-five and 50/100 dollars ($225.50) per week from 
 
         July 25, 1983.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from May 23, 1983 through July 25, 1983, at the rate of two 
 
         hundred twenty-five and 50/100 dollars $225.50) per week.
 
         
 
              3.  Defendants shall pay claimant the sum of five hundred 
 
         ninety-one and 10/100 dollars ($591.10) as reimbursement for 
 
         medical expenses.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of March, 1988.
 

 
         
 
         
 
         
 
         KNIGHT V. PRINCE MANUFACTURING COMPANY
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P. 0 . Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg.
 
         P. 0. Box 1828
 
         Sioux City, Iowa 51102
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803
 
                                                    Filed March 29, 1988
 
                                                    LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY KNIGHT,
 
         
 
              Claimant,
 
                                                    FILE NO. 733994
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         PRINCE MANUFACTURING COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant found to be entitled to only 25 percent permanent 
 
         partial disability benefits as a result of his inability to 
 
         return to heavy work.  He is currently employed in a light duty 
 
         job.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LARRY KNIGHT,
 
         
 
              Claimant,                             File No. 733994
 
         
 
         VS.                                           O R D E R 
 
         
 
         PRINCE MANUFACTURING COMPANY                   F O R
 
         
 
              Employer,                                N U N C
 
         
 
         and                                            P R O
 
         
 
         NORTHWESTERN NATIONAL INSURANCE               T U N C
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              The decision filed March 29, 1988 is amended to correct 
 
         clerical errors as set forth in claimant's application filed 
 
         April 5, 1988.
 
         
 
                             
 
              Signed and filed this 6th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Harry H. Smith                    James H. Cosgrove
 
         Attorney(s) at Law                Attorney(s) at Law
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVIS BUDDENBERG,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    FILE NO. 734858
 
         REILLY CONSTRUCTION COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Davis 
 
         Buddenberg, claimant, against Reilly Construction Company, 
 
         employer (hereinafter referred to as Reilly), and Iowa 
 
         Contractors Workers' Compensation Group, insurance carrier, 
 
         defendants, for benefits as a result of an alleged injury on June 
 
         6, 1983.  On May 18, 1987, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.  The 
 
         prehearing report contains the following stipulations:
 
         
 
              1.  On June 6, 1983, claimant received an injury which arose 
 
         out of and in the course of his employment with Reilly;
 
         
 
              2.  The injury of June 6, 1983 was a cause of both 
 
         temporary disability during a period of recovery and permanent 
 
         disability;
 
         
 
              3.  Claimant seeks healing period benefits for the period 
 
         from June 6, 1983 through March 4, 1983 and claimant was off 
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   2
 
         
 
         
 
         work for this period of time;
 
              
 
              4.  The type of permanent disability suffered by claimant 
 
         is a scheduled member disability to the right hand;
 
         
 
              5.  Claimant was married and entitled to four exemptions 
 
         at the time of his work injury herein; and,
 
         
 
              6.  All requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
             II.  The rate of weekly compensation to which claimant is 
 
         entitled.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness from his demeanor while 
 
         testifying.  Claimant appeared to be truthful.
 
         
 
              2.  Claimant has been employed by Reilly since 1977 as a 
 
         Ogreaser.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment.  Claimant testified that his duties 
 
         consist of general maintenance of road construction equipment and 
 
         machinery.  This involves such things as greasing parts and 
 
         changing oil and filters.  The job is seasonal and work normally 
 
         begins in the spring and rarely extends beyond Thanksgiving Day.
 
         
 
              3.  As stipulated, on June 6, 1983, claimant suffered an 
 
         injury to his right hand which arose out.of and in the course of 
 
         his employment with Reilly.
 
         
 
              The medical records indicate that claimant received 
 
         treatment of his right hand following an incident in which his 
 
         right hand became entangled in a pulley mechanism resulting in 
 
         multiple severe lacerations and loss of soft tissue of the long 
 
         and ring fingers.  Claimant received initial treatment from a Dr. 
 
         Kosinsky (first name unknown).  Claimant subsequently received 
 
         treatment from an orthopedic surgeon, Richard Marchiando, M.D.  
 
         Dr. Marchiando surgically performed skin grafts and repaired the 
 
         tendons in claimant's right hand on June 29, 1983.
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   3
 
         
 
         
 
         
 
              4.  The work injury of June 6, 1983 was a cause of a 
 
         temporary period of total disability while claimant was 
 
         recovering from the injury from June 6, 1983 through November 29, 
 
         1983, the time when claimant reached maximum healing.
 
              According to Dr. Marchiando's letter report of December 23, 
 
         1985, the doctor felt that claimant was able to perform light 
 
         duty work on October 11, 1983 but not his full mechanical duties. 
 
          Claimant did not return to work at that time.  Also, according 
 
         to this letter, Dr. Marchiando saw claimant on November 29, 1983 
 
         and gave claimant a permanent impairment rating.  Dr. Marchiando 
 
         felt that claimant was able to return to work duties at that 
 
         time.  Claimant did not actually return to work until after 
 
         March, 1984.  Claimant did not return to Dr. Marchiando after he 
 
         was discharged in November, 1983 until November, 1984.  No other 
 
         reports from Dr. Marchiando or another doctor were submitted to 
 
         contradict Dr. Marchiando's views contained in the December, 
 
         1985, letter report.  Claimant testified that he had returned to 
 
         Dr. Marchiando during the winter of 1983 and complained that he 
 
         could not return to work as the cold weather bothered his hands.  
 
         Claimant stated that Dr. Marchiando wrote a letter to Reilly 
 
         authorizing his continued absence from work.  No such letter was 
 
         produced into the evidence.
 
         
 
              Regardless of whether Dr. Marchiando authorized claimant's 
 
         absence from work during the winter of 1983, claimant reached 
 
         maximum healing in the opinion of Dr. Marchiando when he rated 
 
         his permanent impairment on November 29, 1983.  Claimant's 
 
         complaints of inability to tolerate cold weather is a part of his 
 
         permanent disability which essentially has not changed since 
 
         being released for work.  Although Dr. Marchiando did rate 
 
         claimant a second time in November, 1985, and provided claimant 
 
         with a higher impairment rating, his findings during this second 
 
         examination did not change as will be explained below.
 
         
 
              5.  The work injury of June 6, 1983 was a cause of a 44.5 
 
         percent permanent partial impairment to claimant's right hand.
 
         
 
              Claimant testified and demonstrated at the hearing that he 
 
         lost much of his grip as a result of the injury.  He can only 
 
         touch his first or index finger with his thumb.  Claimant 
 
         complains of general weakness and an inability to grab wrenches 
 
         and equipment.  Claimant testified that he has lost some feeling 
 
         in all of his fingers.  Claimant also states that he is very 
 
         susceptible to cold weather and is unable to work in cold 
 
         weather.  Claimant also said that he experiences pain in the palm 
 
         of his hand but there is no loss of feeling in the palm.
 
         
 
              In November, 1983, Dr. Marchiando opined that claimant 
 
         suffered a 40 percent permanent partial impairment to the right 
 
         hand as a result of the work injury.  In November, 1985, claimant 
 
         returned to Dr. Marchiando with additional complaints concerning 
 
         his ability to perform his work.  Although Dr. Marchiando's 
 
         findings did not change, he did increase the permanent partial 
 
         rating to 45 percent "in light of his occupation and how he has 
 
         to use his hands for his occupation."  Claimant received a second 
 
         evaluation of his impairment from Wayne Janda, M.D., another 
 
         orthopedic surgeon.  According to Dr. Janda, claimant suffers 
 
         from a 49 percent permanent partial impairment to the right hand 
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   4
 
         
 
         
 
         as a result of his work injury.
 
         
 
              The above finding of a 44.5 percent permanent partial 
 
         impairment was arrived at in the following manner.  First, for 
 
         the reasons that will be discussed in the conclusions of law 
 
         section, the second evaluation by Dr. Marchiando must be rejected 
 
         as the rating of functional loss must be based upon findings 
 
         independent of the occupation of the patient being rated.  
 
         Second, the finding of 44.5 percent is an average of Dr. 
 
         Marchiando's and Dr. Janda's ratings.  An average was used 
 
         because the two physicians appear in the record to possess equal 
 
         qualifications.
 
         
 
              6.  Claimant's gross rate of weekly compensation for 
 
         workers' compensation purposes at the time of the work injury 
 
         herein was $395.61 per week.
 
         
 
              The gross rate was found in the following manner.  Claimant 
 
         testified that he was receiving at the time of the injury $9.75 
 
         per hour plus an additional $1.10 per hour.  Unfortunately, 
 
         claimant was not very clear as to what the extra $1.10 per hour 
 
         represented.  Claimant testified that he thought it might be for 
 
         insurance because he received few if any fringe benefits.  
 
         Although there was a hint in the testimony that this figure might 
 
         represent extra pay for expenses for working at locations far 
 
         from his residence, claimant also testified that he received 
 
         reimbursement for meals when he was working away from home in 
 
         addition to his hourly rate of pay.  Also, claimant could not 
 
         remember if he received the $1.10 per hour when he worked closer 
 
         to his residence.
 
         
 
              Most telling on the issue of claimant's rate of compensation 
 
         was a letter dated March 18, 1986 from Reilly to its attorneys 
 
         describing claimant's actual earnings over the 13 weeks prior to 
 
         the accident (Joint Exhibit 3).  This letter calculated 
 
         claimant's weekly gross earnings for workers' compensation 
 
         purposes using a 11 regular ratel' of $10.85 per hour.  Although 
 
         there is a second letter in the evidence (Defendants' Exhibit A) 
 
         providing figures using gross earnings at the rate of $9.75 per 
 
         hour, the additional figures were added to the letter by 
 
         defendants' attorney.  The undersigned believes that the 
 
         preponderance of the evidence indicates that the $1.10 per hour 
 
         was considered by claimant and his employer to be his regular 
 
         wages and not premium pay or pay for reimbursement of travel 
 
         expenses.
 
         
 
              Therefore, using the "regular rate" of $10.85 per hour, as 
 
         will be explained in the conclusions of law section, we must 
 
         average earnings over a 13 week period prior to the accident 
 
         because claimant's hours each week varied greatly depending upon 
 
         weather conditions.  From the letter, exhibit 3 referred to 
 
         above, claimant's gross earnings for workers' compensation 
 
         purposes was a total of $5,142.88 (overtime was calculated at the 
 
         regular rate) during the 13 week period prior to the June 6, 1983 
 
         work injury.  This figure calculates to an average of $395.61 per 
 
         week.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   5
 
         
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  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, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co. 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of useO of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v.Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              In the case sub judice, Dr. Marchiando gave a higher rating 
 
         after taking into account claimant's occupation and the type of 
 
         use claimant was making of his hands.  This is not proper for a 
 
         functional impairment rating.  See Lawyer & Higgs, Iowa Workers' 
 
         Compensation Law and Practice, section 13-4 and cases cited 
 
         therein.  Only in industrial disability cases do we take into 
 
         account the effect a functional impairment may have upon a 
 
         claimant's ability to perform his work and his loss of earning 
 
         capacity.  Simbro, 332 N.W.2d 886 (Iowa 1983).
 
         
 
              Based upon a finding of a 44.5 percent loss of use to the 
 
         right hand claimant is entitled, as a matter of law, to 84.55 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(1) which is 44.5 percent of the 190 weeks 
 
         allowable for an injury to the hand in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant may be entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34(l) from the date of 
 
         injury until he returns to work; until he is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of the injury; or, until it is indicated
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.
 
         
 
              Given the findings pertaining to the time claimant reached 
 
         maximum healing, claimant is entitled under law to healing period 
 
         benefits from June 6, 1983, the time of the work injury, through 
 
         November 29, 1983, the time he reached maximum healing or a total 
 
         of 25 2/7 weeks.
 
         
 
              II.  Claimant has the burden to establish a rate of 
 
         compensation.  In Iowa, the basis of compensation is the weekly 
 
         earnings of the injured employee at the time of the injury.  Iowa 
 
         Code section 85.36.  Weekly earnings is defined as follows in 
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   6
 
         
 
         
 
         Chapter 85:
 
         
 
              ... Weekly earnings means gross salary, wages, or earnings 
 
              of an employee to which such employee would have been 
 
              entitled had he worked the customary hours for the full pay 
 
              period in which he was injured, as regularly required by his 
 
              employer for the work or employment for which he was 
 
              employed ... Iowa Code section 85.36.
 
         
 
              Section 85.36 provides various methods of computing weekly 
 
         earnings depending upon the type of earnings and employment. if 
 
         an employee is paid on a weekly basis, the weekly gross earnings 
 
         shall be the basis for compensation.  Iowa Code section 85.36(l). 
 
         If an employee is paid on a daily or hourly basis or the amount 
 
         of work each week varies, the weekly earnings are computed by 
 
         dividing by 13 the earnings over the 13 week period before the 
 
         work injury.  See Lawyer & Higgs, Iowa Workers' Compensation-Law 
 
         and Practice, section 124, pages 97-98.
 
         
 
              Finally, although claimant's employment was seasonal, his 
 
         occupation was not seasonal.  Claimant is a maintenance mechanic 
 
         and such occupation is not seasonal for all employers nation 
 
         wide.  Therefore, you do not annualize claimant's income to 
 
         arrive at a gross rate of compensation under 85.36(9).  See 
 
         Lawyer & Higgs, Iowa Workers' Compensation--Law and Practice, 
 
         section 126, page 99.
 
         
 
              Based upon a finding of a gross rate compensation for 
 
         workers' compensation purposes of $395.61 per week, and given his 
 
         marital status with entitlement to four exemptions as stipulated 
 
         by the parties, claimant is entitled under law pursuant to the 
 
         commissioner's benefit schedule published July 1, 1982 to a rate 
 
         of compensation in the amount of $249.37 per week.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant eighty-four point 
 
         fifty-five (84.55) weeks of permanent partial disability benefits 
 
         at the rate of two hundred forty-nine and 37/100 dollars 
 
         ($249.37) per week from November 30, 1983.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from June 6, 1983 through November 29, 1983 at the rate of two 
 
         hundred forty-nine and 37/100 dollars ($249.37) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 

 
         
 
         
 
         
 
         BUDDENBERG V. REILLY CONSTRUCTION COMPANY
 
         Page   7
 
         
 
         
 
              Signed and filed this 14th day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis G. Larson
 
         Attorney at Law
 
         312 West Main
 
         Decorah, Iowa 52101
 
         
 
         Mr. John M. Wharton
 
         Attorney at Law
 
         Suite 300, Fleming Bldg.
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803; 3001
 
                                                   Filed August 14, 1987
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVIS BUDDENBERG,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       FILE NO. 734858
 
         REILLY CONSTRUCTION COMPANY,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION  GROUP,
 
         
 
              Insurance  Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded permanent partial disability benefits for 
 
         an injury to the right hand.  An increase in the treating 
 
         physician's rating which took into account claimant's occupation 
 
         was rejected as not a proper method of measuring functional 
 
         loss.
 
         
 
         3001
 
         
 
              Gross rate of weekly compensation was calculated on a 13 
 
         week average basis before the work injury due to the fact that 
 
         claimant's hours varied greatly from week to week depending upon 
 
         the weather.  The fact that his employment was seasonable did not 
 
         invoke the seasonal provisions of 85.36 because he was a mechanic 
 
         and such an occupation is not seasonal in all areas of the 
 
         country.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VALDO GROVER,
 
         
 
              Claimant,                                 File No. 734934
 
         
 
         VS.
 
                                                          R E V I E W -
 
          PACEMAKER DRIVER SERVICE,
 
                                                       R E 0 P E N I N G
 
              Employer,
 
                                                        D E C I S I 0 N
 
          and
 
          
 
          FIREMEN'S FUND INSURANCE,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         claimant, Valdo Grover, against his employer, Pacemaker Driver 
 
         Service, and its insurance carrier, Firemen's Fund Insurance, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury allegedly sustained February 4, 1983.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Burlington, Iowa, on March 20, 1987.  
 
         A first report of injury was filed June 8, 1983.  The record was 
 
         considered fully submitted at close of hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, as well as of joint exhibits 1 through 18; claimant's 
 
         exhibits 19 through 30; and defendants' exhibits 1 through 6. All 
 
         objections to exhibits are overruled.  All exhibits are 
 
         identified on the exhibit list submitted by the parties at time 
 
         of hearing.  Said exhibit list is incorporated by reference in 
 
         this introduction.  Claimant's motion to amend is overruled.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation in the event of an 
 
         award is $406.88; that medical costs were fair and reasonable, 
 
         that claimant has a condition of the right hand which has 
 
         resulted in a five percent loss of use; and that defendants have 
 
         paid claimant 9.9 weeks of permanent partial disability as a 
 
         result of that condition.  The issues remaining to be decided
 
         are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   2
 
         
 
         
 
         
 
              2)   Whether a causal relationship exists between 
 
         claimant's claimed injury and claimed temporary total 
 
         disability;
 
         
 
              3)  Whether claimant is entitled to temporary total 
 
         disability benefits from June 21, 1985 through November 1, 
 
         1985; and
 
         
 
              4)   Whether claimant is entitled to payment of certain 
 
         medical expenses as causally related to his injury and as 
 
         authorized by defendants.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began working for Pacemaker in 
 
         1977.  Pacemaker leased drivers to Bandag Corporation.  Claimant 
 
         delivered freight for Bandag in equipment leased from the Ryder 
 
         Truck Rental Company.  He also drove under other lease 
 
         arrangements with Pacemaker.  Claimant reported that from 1979 or 
 
         1980 through February 1983 Bandag was using the same equipment.  
 
         Claimant reported that he injured his hand while closing the 
 
         latch door on Bandag's trailers.  A bar rod with a handle which 
 
         had to be pulled up and out closed the trailer.  Claimant 
 
         testified that at times the handle was bent and he had to force 
 
         it with his hand.     He pulled the rod across and then pushed it 
 
         in order to latch and unlatch the latch.  Claimant reported that 
 
         on a number of occasions a bent or crooked tongue piece would 
 
         cause resistance as he attempted to push in the rod handle and he 
 
         felt pain in his hand just prior to getting the rod into the 
 
         latch.  Claimant stated that he bruised his hands trying to beat 
 
         the latch in and had had pain, but had paid no attention to it 
 
         until that last time when he could not shake the pain from his 
 
         hand.  Claimant reported that in February 1983, he had pain in 
 
         his right arm and shoulder as well, and upon returning from a 
 
         trip from North Carolina saw Robert Ingalls Carleton, D.O.  He 
 
         indicated that his hands also were tingling and drawn up as well.  
 
         Claimant was hospitalized under the care of J. L. Jochims, M.D., 
 
         whom claimant testified concluded that rods in the trailer door 
 
         had produced his problem.
 
         
 
              Claimant testified that in his first year of driving for 
 
         Bandag, the rods made his hands sore, but it was hard to say how 
 
         often but felt perhaps once a month.  Claimant agreed that he 
 
         filled out vehicle condition reports for Ryder on a routine 
 
         basis, that is, after every trip or every time that he changed 
 
         trailers.  He reported that he filled out a vehicle condition 
 
         report in 1981 regarding the door latch and one in 1982 because 
 
         the bottom of a rod had dropped out.  Claimant agreed he had 
 
         never seen a doctor during the several years in which he 
 
         described his hand as hurting over time.  He agreed that he had 
 
         not had a problem with newer trailers, only with older trailers 
 
         and characterized the trailer used in the North Carolina trip as 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   3
 
         
 
         
 
         an older trailer.  Claimant agreed that he saw Terence 
 
         McCormally, M.D., on January 9, 1983 with complaints of pain and 
 
         stiffness in the right arm and shoulder during a trip to Canada 
 
         which claimant then characterized as not particularly strenuous.  
 
         He agreed that he had been in Dr. Carleton's office on January 
 
         12, 1983 reporting acute onset of right shoulder pain with 
 
         forehand weakness and numbness and tingling in the digits.  The 
 
         doctorOs medical note for that date reports no known trauma.  
 
         Claimant stated that while he vaguely recalled the visit, he had 
 
         made no reference to hitting his hand on a door latch at that 
 
         time.  Claimant agreed that he had seen Dr. Shivapour, 
 
         neurologist, at the Burlington Hospital for nerve conduction 
 
         studies.  Claimant could not remember if he had told Shivapour he 
 
         had had pain upon hitting his hand with a door latch.  Claimant 
 
         agreed that the February 12, 1983 history apparently given to Dr. 
 
         Shivapour describes an incident of a 180 pound box having fallen 
 
         very close to claimant, grazed his shoulder and arm, and part of 
 
         it having landed on his right hand.  Claimant described the 
 
         incident as a not unusual occurrence.  He agreed he had told Dr. 
 
         McCormally and Dr. Carleton about the boxes as well as Dr. 
 
         Shivapour and that he had not told Dr. Shivapour of the latches 
 
         causing pain.
 
         
 
              Claimant testified that he owns a number of firearms which 
 
         he uses for hunting small game.  He denies ever having used 
 
         firearms at a firing range.
 
         
 
              Claimant underwent exploration and decompression of the 
 
         ulnar nerve, decompression Guyon's canal with secondary carpal 
 
         tunnel release on February 28, 1983.  He was released for work on 
 
         April 11, 1983, but by June 1983 was reporting right handed pain 
 
         again and was referred to Thomas L. Von Gillern, M.D., an 
 
         orthopedic surgeon.  Claimant saw Dr. Von Gillern until early 
 
         1984 and apparently did not need medical assistance for his hand 
 
         condition again until June 1985.  He then again experienced pain 
 
         after shoveling at home.  Claimant stated that he was digging out 
 
         a sewer with the help of two young people.  Claimant reported 
 
         that he had only dug approximately one and one-half hours on the 
 
         first day and approximately four hours on the second day.  He was 
 
         digging from three to four feet down to the sewer pipe with a 
 
         straight hand shovel.  Claimant was subsequently again 
 
         hospitalized and received treatment including physical therapy 
 
         and a second surgery per Dr. Von Gillern.  He was off work to 
 
         November 1, 1985.
 
         
 
              Claimant reported that he has developed problems with his 
 
         left hand which he attributed to favoring that hand because of 
 
         his inability to use his right hand.  Claimant is not making a 
 
         claim for his left hand and agreed that he was not claiming a 
 
         $200 charge for an EMG on the left hand performed March 6, 1986 
 
         as a medical expense.
 
         
 
              Duane Carter, corporate traffic manager for Bandag 
 
         Corporation, testified by way of his deposition taken March 17, 
 
         1987.  Mr. Carter has had twenty-four years with Bandag and is 
 
         currently responsible for all freight movements in Bandag's five 
 
         plants.  In February 1983, Carter was Bandag's senior dispatcher 
 
         and as such was one of claimant's supervisors.  Carter stated 
 
         that from 1980 onward Bandag has used leased tractor-trailers to 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   4
 
         
 
         
 
         move freight with tractor-trailers leased predominantly from 
 
         Ryder Truck Rental.  Bandag has twenty tractors and sixty 
 
         trailers leased from Ryder on a regular basis.  Carter stated 
 
         that truck drivers are required to daily check their equipment 
 
         and make a vehicle condition report which is then turned into 
 
         Ryder for correction and repair.  He indicated that as senior 
 
         dispatcher in 1983, he would have received driver complaints of 
 
         faulty equipment and eventually would have heard of any problems 
 
         with doors latching or unlatching.  He stated that he could not 
 
         recall any driver stating he hurt himself while opening and 
 
         closing trailer gate latches.  Carter agreed that while he did 
 
         not routinely review the vehicle reports filed, he did oversee 
 
         them and was concerned with such reports as he needed to 
 
         ascertain whether Ryder properly performed maintenance on the 
 
         tractor-trailers leased.
 
         
 
              Robert S. Carleton, D.O., a board certified general 
 
         practitioner, treated claimant generally.  On January 12, 1983, 
 
         claimant was seen in his office reporting acute onset of right 
 
         shoulder pain and forearm and hand weakness and numbness and 
 
         tingling in the digit.  No new trauma was reported.  J. L. 
 
         Jochims, M.D., saw claimant on a consultation on February 18, 
 
         1983 with complaints of right arm pain.  Dr. Jochims reported a 
 
         history of claimant using his hand and palm to pound a gate 
 
         system into place.  Dr. Jochims' impression was of ulnar 
 
         neuritis.  Dr. Jochims performed a decompression of Guyon's canal 
 
         with secondary carpal tunnel [release] on February 28, 1983.  On 
 
         March 22, 1983, he diagnosed claimant's condition as contusion of 
 
         the ulnar nerve at Guyon's canal in the right wrist, and opined 
 
         that claimant should fully recover.  He released claimant to work 
 
         on April 11, 1983 after stating on April 8, 1983 that no 
 
         long-term impairment of claimant's hand was anticipated.  On June 
 
         2, 1983, Dr. Jochims reported that claimant had returned with 
 
         symptoms of right hand pain and little finger contracted.  He 
 
         indicated that the symptoms had increased after claimant had 
 
         returned to work.  Examination of June 6, 1983 showed no decrease 
 
         in sensation, but poor wrist strength and no dysesthesias in the 
 
         median nerve distribution.
 
         
 
              Duane K. Nelson, M.D., apparently an orthopedic surgeon, 
 
         examined claimant on June 16, 1983.  In a report of July 12, 
 
         1983, he stated that that examination revealed mild skin 
 
         discoloration indicative of vasomotor instability in the digits 
 
         and stated that no specific diagnosis was made, but that 
 
         claimant's symptoms were well localized anatomically in the 
 
         course of the ulnar innervation of the hand.  He advised that 
 
         claimant rest the hand and stated that claimant was unable to 
 
         return to truck driving.  He opined that as far as he knew the 
 
         symptoms were from his work injury.  On September 19, 1985, Dr. 
 
         Nelson opined that claimant's shoveling incident, apparently the 
 
         June 1985 incident, was an aggravation of his preexisting problem 
 
         which aggravation was due to the original injury.
 
         
 
              Bruce L. Sprague, M.D., of Surgery of The Hand and Upper 
 
         Extremity, examined claimant on June 20, 1983.  On testing around 
 
         the wrist, claimant was reported as feinting weakness of the 
 
         wrist extension secondary to pain and wrist function.  Claimant 
 
         had some mottling of the skin and some decreased sensibility 
 
         involving the ulna nerve distribution of the right hand as 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   5
 
         
 
         
 
         compared to the left.  He had a negative TinelOs sign,at the 
 
         elbow and positive TinelOs sign on the left.  He had no real 
 
         weakness of the intrinsic muscles involving the right hand.  
 
         X-rays of both hands did not reveal any osteoporosis.  Nerve 
 
         conduction studies and EMG's apparently of June 23, 1983, did not 
 
         reveal any decreased conductivity involving the median or ulna 
 
         nerves at the elbow or wrist.  No diagnosis was made.
 
         
 
              Thomas Von Gillern, M.D., a board certified orthopedic 
 
         surgeon, initially saw claimant August 3, 1983.  He reported that 
 
         claimant related a history that in January 1983, while on his 
 
         job, he jammed his hand on a truck gate pin and noted acute onset 
 
         of pain in his wrist and hand.  His impression was ulnar nerve 
 
         neuritis.  On examination, claimant had slightly increased 
 
         erythema on his right hand with the nail somewhat longer on the 
 
         right hand.  He had full range of motion actively and passively 
 
         with profundus, sublumus and extensor tendon function noted.  
 
         Some decreased strength in the function of the ring and little 
 
         finger was noted.  A tender hypothenar emminence and tenderness 
 
         in the region of the hamate were noted.  There was evidence of 
 
         tenderness distal to the common digital branch of the ulnar 
 
         nerve.  Dr. Van Gillern advised strengthening and range of motion 
 
         exercises and examined claimant periodically throughout Fall 1983 
 
         and early 1984.
 
         
 
              E. A. Ricuarte, M.D., saw claimant for psychiatric 
 
         consultation on September 5, 1983.  Following the administration 
 
         of a Minnesota Multiphasic Personality Inventory, he opined that 
 
         claimant had no gross signs of psychological pathology.
 
         
 
              William F. Blair, M.D., of the Department of Orthopaedic 
 
         Surgery, Division of Hand Surgery, University of Iowa, examined 
 
         claimant on March 6, 1984.  Among other things, he found a mild 
 
         suggestion of hypothenar atrophy on the right but no evidence of 
 
         intrinsic atrophy.  His diagnoses were 1)  Guyon's canal 
 
         syndrome, probably secondary to repetitive job-related trauma by 
 
         history; 2)  reflex sympathetic dystrophy by history; and 3)  
 
         neuritis ulnar nerve and palm with residuals of RSD and 
 
         interneural fibrosis.  He stated that the expected prognosis with 
 
         or without treatment would be very poor and that further 
 
         treatment was not recommended.
 
         
 
              Robert S. Carleton, D.O., again saw claimant on June 24, 
 
         1985 with pain complaints and numbness in the wrist and hands 
 
         following a shoveling incident.  Dr. Von Gillern again saw 
 
         claimant on August 14, 1985 following the shoveling incident.  On 
 
         August 19, 1985, Vijay Verma, M.D., reported that an EMG was 
 
         normal.  On August 23, 1985, Dr. Von Gillern opined that 
 
         claimant's current symptoms likely related to his previous injury 
 
         in that persistent pain was in the same distribution as claimant 
 
         had previously had such pain.  On September 6, 1985, Dr. Von 
 
         Gillern performed ulnar nerve neurolysis with interneural 
 
         neurolysis under magnification and flexor carpi ulnaris 
 
         tenolysis.  In an operative report of that date, he stated that 
 
         there was moderate constriction of the ulnar nerve with severe 
 
         scarring of both major tracts of the ulnar nerve.  On September 
 
         11, 1985, Dr. Von Gillern reported that claimant was slightly 
 
         improved following surgery and was able to fully extend his wrist 
 
         and fingers without pain which he had been unable to do 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   6
 
         
 
         
 
         preoperatively.  On September 25, 1985, Dr. Von Gillern opined 
 
         that claimant's current symptoms related to the original injury 
 
         of 1983 and was not a new injury.
 
         
 
              In his deposition of November 11, 1986, Dr. Carleton opined 
 
         that a fall such as the box fall claimant described could be a 
 
         possible cause of claimant's complaints in the right arm and in 
 
         wrist.  He stated that if weight of 180 pounds had come in 
 
         contact with claimant's hand, some evidence of trauma would be 
 
         expected.  None was found.
 
         
 
              Dr. Von Gillern opined in his deposition of August 26, 1986 
 
         that the shoveling incident of June 20, 1985 may have aggravated 
 
         claimant's condition as claimant had been symptom-free for more 
 
         than a year, a fact which would likely infer that claimant would 
 
         have remained symptom-free but for the aggravation.  He reported 
 
         that the nature of the aggravation was such that it may have 
 
         represented aggravation of the preexisting condition resolved to 
 
         a subclinical level only activity then brought the condition to a 
 
         clinical level.  The doctor was not able to distinguish whether 
 
         the shoveling or the preexisting condition was the specific cause 
 
         of claimant's need for further surgical treatment.  Dr. Von 
 
         Gillern opined that the scar tissue found during claimant's 1985 
 
         surgery could have been produced from postoperative changes 
 
         following claimant's earlier surgery, could have antedated the 
 
         first surgery, or could have been produced subsequent to the 
 
         first surgery.
 
         
 
              Dr. Von Gillern opined that problems with Guyon's canal 
 
         typically result either from trauma or from nonspecific flexor 
 
         tennosynovitis in the nerve region.  He reported that ulnar 
 
         neuritis can be caused by a variety of nonspecific things or by 
 
         trauma and that all the various histories claimant described were 
 
         of sufficient magnitude to have produced his condition.  The 
 
         doctor characterized Guyon's canal as an area in the hand used 
 
         frequently for shoveling and pushing, shifting gears, and for 
 
         other activities from which it receives Oa lot of pressure" in 
 
         day-to-day activities.  He opined that striking the hand with a 
 
         hard object in the affected area could produce pain in the area.
 
         
 
              Dr. Von Gillern stated that Dr. Blair felt claimant had 
 
         reflex sympathetic dystrophy on the basis of one examination and 
 
         that when that condition is present, the prognosis would be poor.  
 
         Dr. Von Gillern opined that upon a number of examinations and 
 
         treatment of claimant, he had come to believe that claimant did 
 
         not have reflex sympathetic dystrophy.
 
         
 
              The medical statements submitted were reviewed and will be 
 
         be discussed further in the applicable law and analysis.  The 
 
         balance of the evidence was reviewed and considered in the 
 
         disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the arising out of and in the course of 
 
         employment question.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 4, 1983 which 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   7
 
         
 
         
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words Oin the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O   Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   8
 
         
 
         
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The.result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              We have some difficulty understanding what exactly 
 
         defendants dispute as to this issue.  Do they dispute the 
 
         original injury as claimant described it or do they dispute a 
 
         workrelated aggravation in the June 1985 shoveling incident?  If 
 
         the dispute is to the initial injury, we find sufficient credible 
 
         evidence to support claimant's contention he received an injury 
 
         in early 1983 which resulted from his pounding the trailer 
 
         latches.  That finding is consistent with Dr. Von Gillern's 
 
         testimony that the Guyon's canal hand area is used frequently for 
 
         shoveling and pushing and that striking the hand with a hard 
 
         object in the affected area could produce pain.  We do not find 
 
         claimant's medical histories terribly troubling.  Claimant 
 
         appeared a credible witness overall.  Histories given appear to 
 
         be claimant's own attempts to find a source for his problems.  We 
 
         do not find it unusual for a workman to search out exceptional 
 
         circumstances to account for his difficulties rather than look 
 
         for their source in his daily work activities.  Claimant's 
 
         testimony that he only concluded his problems related to his 
 
         latch pounding after discussion with Dr. Jochims is credible.  It 
 
         is also consistent with Dr. Jochim's medical history.  Likewise, 
 
         it is not incredible that a treating physician medically familiar 
 
         with factors potentially producing conditions might make inquiry 
 
         ferreting out the source of those troubles more readily than a 
 
         layman attempting to explain the source of unexpected pain.  
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page   9
 
         
 
         
 
         Also, we do not find the absence of multiple vehicle condition 
 
         reports concerning the latches unduly disturbing.  Claimant 
 
         testified the latches were only a problem on older 
 
         tractor-trailers.  In the absence of an understanding that the 
 
         problem was producing injury to him, claimant might well have 
 
         felt the bend or crooked equipment was only a minor nuisance 
 
         related to his job and not of sufficient concern to warrant 
 
         continuing complaints.  Claimant prevails as to the existence of 
 
         an initial injury.  The question of a work-related June 1985 
 
         aggravation is best addressed under the causal relationship 
 
         analysis.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 4, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W 2d 607 (1945).  A 
 
         possibility is insufficient; a probability i; necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              When a worker sustains an injury, later sustains  another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 270 N.W.2d 348, 354 (Iowa 1980
 
         
 
              Dr. Von Gillern testified Guyon's canal problems can result 
 
         either from trauma or from nonspecific flexor tennosynovitis in 
 
         the nerve region.  He opined all claimant's various work-related 
 
         histories were of sufficient magnitude to have produced his 
 
         condition.  He stated Guyon's canal is frequently used for 
 
         pushing and that sticking the hand with a hard object in the 
 
         affected area could produce pain.  We find the doctor's testimony 
 
         taken as a whole supports a finding that claimant's condition had 
 
         its roots in his work activities.  We also find that Dr. Von 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page  10
 
         
 
         
 
         Gillern's testimony supports a finding that claimant's June 1985 
 
         injury and ensuing disability was proximately caused by the first 
 
         injury.  While it is true that claimant's condition remained 
 
         symptom-free for more than a year and that, but for the 
 
         aggravation in the June shoveling, claimant might well have 
 
         remained symptom-free.  The doctor also testified that the 
 
         underlying (work related) condition may have been resolved only 
 
         to a subclinical level and then again brought to a clinical level 
 
         by the activity.  Dr. Von Gillern also stated that the situs of 
 
         the aggravation along the same pattern as the original injury 
 
         indicated claimant's 1985 symptoms related to the original 1983 
 
         injury.  He opined on September 25, 1985 that claimant's current 
 
         symptoms related to his original injury.
 
         
 
              As claimant has shown the requisite causal relationship 
 
         between his original injury and his 1985 period of disability, 
 
         claimant is entitled to temporary total disability benefits 
 
         during the stipulated period, that is, from June 21, 1985 to 
 
         November 1, 1985.
 
         
 
              Medical charges submitted are generally consistent with the 
 
         record of treatment for claimant's right hand condition and 
 
         treatment, therefore, in 1985.  As defendants denied liability 
 
         for the 1985 condition, their argument that the treatment was 
 
         unauthorized fails.  Claimant is entitled to payment of his 
 
         medical expenses in evidence but for costs related to a left hand 
 
         EMG of March 6, 1986 and costs of telephonic communications.  
 
         Expenses for which payment is ordered are as follows:
 
         
 
              Burlington Medical Center                     $102.10
 
              Burlington Medical Center                      110.00
 
              Franciscan Medical Center                      338.00
 
                  O          O      O                        200.00
 
                  O          O      O                      1,523.56
 
                  O          O      O                        434.50
 
              Orthopaedic and Reconstructive Surgery
 
                  Associates, P.C.                            33.00
 
                      O         O                             33.00
 
              Rock Island Radiology Associates, Ltd.          60.00
 
              Gregory a. Love, M.D.                          330.00
 
              Moline Orthopedic                            1,301.00
 
              Carleton Clinic                                 16.00
 
                 O        O                                   17.00
 
                 O         O                                  16.00
 
                  O         O                                  1.20
 
              Carruthers Pharmacy                              9.60
 
                   O        O                                  9.60
 
                   O         O                                 9.60
 
                   O         O                                17.10
 
                   O         O                                 6.65
 
                   O         O                                 5.95
 
                   O         O                                 5.95
 
                   O         O                                17.70
 
                   O         O                                 5.95
 
                   O         O                                 5.95
 
                   O         O                                 5.95
 
              Franciscan Medical Center Pharmacy
 
               Services                                       6.25
 
         
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page  11
 
         
 
         
 
              Likewise, claimant is entitled to reimbursement of his 
 
         medical mileage expenses for 1985 totaling 2,355 at the then 
 
         applicable rate of $.24 per mile.  We regret that claimant failed 
 
         to itemize his medical expenses.  Submission of the statements 
 
         alone without accurate itemization leaves confusion as to the 
 
         costs actually outstanding and claimed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant worked for Pacemaker as a leased driver delivering 
 
         freight for Bandag Corporation in tractor-trailers leased from 
 
         Ryder Truck Rental Company from 1979 or 1980 to February 1983.
 
         
 
              A bar rod with a handle which had to be pulled up and out 
 
         closed the trailers.
 
         
 
              At times in older trailers, a bent or crooked tongue piece 
 
         would cause resistance and claimant would push in the rod handle 
 
         and attempt to beat in the latch.
 
         
 
         
 
              Claimant bruised his hands and hand pain following that 
 
         activity.
 
         
 
              In early 1983 claimant could not shake the pain from his 
 
         right hand and wrist and sought medical care.
 
         
 
              Claimant gave varying histories relating possible sources 
 
         for his right hand and wrist to his physicians.
 
         
 
              Claimant underwent exploration and decompression of the 
 
         ulnar nerve decompression Guyon's canal with secondary carpal 
 
         tunnel release on the right on February 28, 1983.
 
         
 
              J. L. Jochims, M.D., attributed claimant's ulnar nerve 
 
         problem to his pounding on the trailer doors.
 
         
 
              Claimant's condition resolved subsequent to early February 
 
         1984 and claimant remained symptom-free until he engaged in 
 
         minimal shoveling in June 1985.
 
         
 
              Claimant experienced a return of symptoms in June 1985 along 
 
         the same situs as his original injury.
 
         
 
              Claimant's condition had resolved to a subclinical level 
 
         prior to June 1985 but was brought to a clinical level as a 
 
         result of claimant's June 1985 activity.
 
         
 
              Subsequent to the June 1985 aggravation, claimant required 
 
         additional medical care and surgery and was off work on account 
 
         of the return of his symptoms.
 
         
 
              Claimant had to travel 2,355 miles in seeking medical care 
 
         related to his 1985 symptom return.
 
         
 
              Claimant is not claiming his left hand condition relates to 
 
         his original injury.
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page  12
 
         
 
         
 
         
 
              Claimant's EMG on the left hand of March 6, 1986 does not 
 
         relate to the original injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a February 1983 injury which arose 
 
         out of and in the course of his employment.
 
         
 
              Claimant has established a causal relationship between his 
 
         original February 1983 injury and his subsequent aggravation of 
 
         that injury in June 1985 and the resulting disability.
 
         
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         from June 21, 1985 through November 1, 1985.
 
         
 
              Claimant is entitled to payment of medical costs and medical 
 
         mileage expenses as set forth in the above law and analysis.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant additional temporary total 
 
         disability benefits at the rate of four hundred six and 88/100 
 

 
         
 
         
 
         
 
         GROVER V. PACEMAKER DRIVER SERVICE
 
         Page  13
 
         
 
         
 
         dollars ($406.88) from June 4, 1985 to November 1, 1985.
 
         
 
              Defendants pay claimant medical costs and medical,mileage 
 
         expenses as set forth in the above law and analysis.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30,
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the
 
         agency.
 
         
 
              Signed and filed this 22nd day of June, 1987.
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. D. Raymond Walton
 
         Attorney at Law
 
         P.O. Box 1046
 
         321 North Third Street
 
         Burlington, Iowa 52601
 
         
 
         Mr . James C. Huber
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50314
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1801
 
                                                    Filed 6-22-87
 
                                                    Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         VALDO GROVER,
 
         
 
             Claimant,                            File No. 734934
 
         
 
         VS.
 
                                                   R E V I E W -
 
         PACEMAKER DRIVER SERVICE,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         FIREMEN'S FUND INSURANCE,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1801
 
         
 
              Claimant awarded additional temporary total disability 
 
         benefits upon establishing that subsequent period of disability 
 
         was proximately caused by his original injury.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN TUSSING,
 
         
 
               Claimant,
 
         
 
         VS.                                      File Nos. 734985/750400
 
         
 
         GEO. A. HORMEL & CO.,                            R E M A N D
 
         
 
               Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This case has been remanded by an Iowa Supreme Court 
 
         decision filed January 20, 1988.  The supreme court remanded this 
 
         case: "...to the commissioner with instructions to reconsider the 
 
         evidence relating to a work-related injury or as an aggravation 
 
         of a previous one." Tussing v. George A. Hormel & Co., 417 N.W.2d 
 
         457, 458 (Iowa 1988).
 
         
 
              The record on remand consists of the transcript of the 
 
         arbitration proceeding, claimant's exhibits 1 through 10 and 
 
         defendants' exhibits A through J.
 
         
 
                                      ISSUE
 
         
 
              The issue on remand is whether claimant sustained an injury 
 
         arising out of and in the course of employment on May 9, 1983 
 
         resulting in a compensable disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he sustained an injury to his right 
 
         shoulder in early May 1983.  Claimant described how this injury 
 
         occurred as follows:
 
         
 
              Q.  All right.  Now then in May -- early May, '83, did 
 
              something happen involving your other arm, your right arm?
 
         
 
              A.  My right arm.  Well, I was still working in walliter, 
 
              taking care of the walliter and taking the loads
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 2
 
         
 
                                                
 
                                                         
 
         
 
              away.  And I was stacking and watching my walliter.  And 
 
              it's time-- You only have-- The walliter runs in about fifty 
 
              cycles a minute, fifty to sixty cycles a minute so you only 
 
              -- between your boxes that you're stacking and taking your 
 
              load away, you only got about three minutes to finish your 
 
              load and then pull it out and get another pallet down and 
 
              get your -- your other pallet ready to go so you won't hold 
 
              up the line.
 
         
 
                 Well, I started to -- got my load finished, and I started 
 
              to pull it out.  And I couldn't move it.  It got stuck.  We 
 
              use-- Maybe I should tell you what we use.  It's a hand 
 
              truck, but they got small wheels on them.  But they roll 
 
              fairly easy on the floor usually.
 
         
 
                 But this one got stuck, and I couldn't pull it.  And I 
 
              seen a jam coming on my line, and I was wanting to get my 
 
              load moved so I wouldn't get a jam and get things all jammed 
 
              up.  So I gave it a big jerk.  And when I done that, I felt 
 
              something in this arm and it hurt.  It felt like somebody 
 
              stuck me or bit me or something in there.  It really--
 
         
 
              Q.  Whereabouts now?
 
         
 
              A.  Well, it was right up in this shoulder area.
 
         
 
              Q.  Your right shoulder area?
 
         
 
              A.  And down into this bicep.
 
         
 
              Q.  Okay.
 
         
 
              A.  So I finally -- I got the load loose.  And the foreman 
 
              wasn't around right at the moment, and so I went ahead and 
 
              worked with my shoulder hurting and trying to calm down a 
 
              little bit.
 
         
 
                 So I finished the-- When the foreman came around, I told 
 
              him what happened.  And he said, "Well, there isn't anybody 
 
              right then to take my place.  If I could get by, why," he 
 
              said, "to try and do it until--"
 
         
 
              Q.  Who was the foreman?
 
         
 
              A.  This Bill Lenz.
 
         
 
         (Arbitration Hearing Transcript, pages 31-32)
 
         
 
         
 
         TUSSING V. GEO. A..HORMEL & CO.
 
         Page 3
 
         
 
         
 
              Claimant stated that he worked for two or three more days 
 
                                                
 
                                                         
 
         after the injury and then went on vacation for a week.  Claimant 
 
         indicated that after returning to work he began to experience 
 
         continued pain so he requested that an appointment be set up with 
 
         the company doctor.  Claimant believed that he went to see the 
 
         company doctor on June 14, 1983.  Claimant clarified that it was 
 
         Cheryl Busboom, a medical aide, who he went to see on June 14.  
 
         Claimant stated that Busboom gave him some pain pills and told 
 
         him to take some time off work.  He related that he returned to 
 
         work on June 20, 1983 at the same job he was doing at the time of 
 
         the injury which claimant described as a light duty job.  
 
         Claimant indicated that he continued in that position through the 
 
         balance of 1983 and into summer 1984.  During that time claimant 
 
         related that he saw several doctors including Robert Weatherwax, 
 
         M.D., for left and right shoulder pain.  Claimant revealed that 
 
         at that time he was debating on which shoulder to have Dr. 
 
         Weatherwax operate.  Claimant stated that Dr. Weatherwax operated 
 
         on the right shoulder in July 1984.  Claimant opined that 
 
         currently his right shoulder has an ache and a numb feeling in it 
 
         and that it is not strong as it should be.  Claimant also opined 
 
         that he cannot return to work because of his right arm and 
 
         shoulder.
 
         
 
              On cross-examination claimant denied having right shoulder 
 
         problems prior to the May 1983 injury but claimant admitted that 
 
         he had had a right biceps tear in 1970.  Claimant testified that 
 
         the biceps tear caused little subsequent difficulty for him.
 
         
 
              Defendants' exhibits C through G, I and J are copies of 
 
         employers' first reports of injury prepared by defendant employer 
 
         concerning claimant.  Defendants' exhibit C reveals that claimant 
 
         sustained a right shoulder muscle strain on November 16, 1959.  
 
         Defendants' exhibit D reveals that claimant suffered a right 
 
         shoulder muscle strain on July 12, 1961.  Defendants' exhibit E 
 
         discloses that claimant sustained a right upper arm and shoulder 
 
         sprain on November 1, 1968.  Defendants' exhibit F reveals 
 
         claimant sustained a right deltoid muscle sprain on September 15, 
 
         1969.  Defendants' exhibit G discloses the 1970 biceps tear of 
 
         the right muscle to which claimant referred.  Defendants' exhibit 
 
         I discloses that claimant suffered a biceps muscle strain-right 
 
         shoulder on January 30, 1975.  Defendants' exhibit J reveals that 
 
         claimant suffered right shoulder and arm stiffness on June 14, 
 
         1982.  These exhibits indicate that claimant lost no time at work 
 
         as a result of any of these injuries.
 
         
 
              Claimant's wife also testified.  She related that claimant 
 
         cannot do many household chores he was able to do before the 
 
         injury. on cross-examination she testified concerning the earlier 
 
         incidents of injury to claimant's right shoulder:
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 4
 
         
 
         
 
              Q.  We went through a whole list of first reports of injury.  
 
              Do you remember Mr.  ever coming home and saying gosh, I was 
 
              carrying 100-pound box of hearts and, gee, it hurt? Do you 
 
                                                
 
                                                         
 
                   remember any of those incidents we talked about?
 
         
 
              A.  Yeah. There's been a few times, like I said, he's always 
 
              -- since I've been married to him, his arm would bother 
 
              him.
 
         
 
              In a December 20, 1983 letter, Kenton K. Moss, M.D., reports 
 
         the course of his treatment of the May 9, 1983 injury:
 
         
 
                 Mr. Tussing has been followed here since 6-14-83 for 
 
              problem with his right arm.  He related the onset of his 
 
              injury to one month prior to that visit when he was pulling 
 
              a load of pepperoni weighing about 600# and having to strain 
 
              and pull as the load had suddenly stopped.  Since that time 
 
              he's had increasing discomfort of the right shoulder area.  
 
              When seen initially he was started on anti-inflammatory 
 
              medications.  He returned for f/u one week later.  He had 
 
              noted improvement and was placed on a 20# weight restriction 
 
              limit at that time.  He returned two months later with 
 
              continued pain in the right arm.  He was felt to have a 
 
              chronic strain of the right biceps.  He was told to continue 
 
              on his anti-inflammatory medications on a regular basis and 
 
              told to return in 10 days for f/u.  The patient was not seen 
 
              for f/u and did not return until 4 months later on 12-8-83 
 
              with the persistent complaints.  Physical findings have 
 
     
 
               
 
                                                         
 
              revealed tenderness at the insertion of the biceps with the 
 
              deltoid.  It was felt to be consistent with a chronic muscle 
 
              strain of the biceps on the right arm throughout this time.
 
         
 
                 It is difficult to comment on permanent disability at 
 
              this time since he's not received full medical therapy and 
 
              has been somewhat irregular in his f/u visits.  It was 
 
              recommended that he be evaluated by an orthopedist or 
 
              receive outpatient physical therapy.  He has elected for 
 
              orthopedic consultation and that has been arranged for 
 
              1-5-84 and 8:45 AM with Dr. Weatherwax in Fort Dodge.
 
         
 
         (Claimant's Exhibit 9)
 
         
 
              Claimant was also treated by Horst G. Blume, M.D., during 
 
         the period of Dr. Moss' treatment.  Dr. Blume opines in a May 29, 
 
         1984 letter:
 
         
 
              It is my opinion the patient's right biceps muscle has been 
 
              injured on several occasions and the recent injury on May 9, 
 
              1983, is an aggravation of a pre-existing
 
         
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 5
 
         
 
              condition.  The disability to the right arm is permanent and 
 
              is about 20-25% to the arm.  This is the result of a number 
 
              of accidents as I see the end result now.
 
         
 
         (Cl. Ex. 5)
 
         
 
              Dr. Weatherwax testified by deposition that he was aware of 
 
         claimant's prior history of injuries to the right shoulder and 
 
         biceps.  Concerning his diagnosis of claimants condition and the 
 
         onset of his shoulder problems Dr. Weatherwax opined:
 
         
 
              Q.  Is it fair to say, Doctor, without going through all the 
 
              reports and histories and so forth that there are basically 
 
              two conditions that you've treated in Mr.Tussing?
 
         
 
              A.  Well, it's fair to say that there are two diagnoses, but 
 
              the condition is essentially the same.  In other words, the 
 
              biceps tendon rupture, one has to realize that the rotator 
 
              cuff is directly on top of the biceps tendon and both of the 
 
              problems are an impingement or pinching process that occurs 
 
              in the shoulder.
 
         
 
                 Generally speaking if you rupture a biceps tendon, you 
 
              can almost be assured that the rotator cuff has had some 
 
              problem, either ruptured or is considerably degenerated.  
 
              And so if someone presented initially with a biceps tendon 
 
              rupture, I would strongly suspect that a rotator cuff has 
 
              been injured as well because in order for the tendon to wear 
 
              out-- The rotator cuff lies right on top of it and is the 
 
              first thing to be pinched or worn.
 
                                                
 
                                                         
 
         
 
         (Weatherwax Deposition, p. 5)
 
         
 
              Dr. Weatherwax opined further:
 
         
 
              Q.  Go ahead, Doctor.
 
         
 
              A.  Obviously he had a pre-existing condition that dates 
 
              back to 1970 as far as his biceps tendon.  And I again 
 
              emphasize no one cat tell you when his rotator cuff 
 
              ruptured.  Was that the rupture that he experienced pulling 
 
              a cart of pepperoni, I don't know, Dr. Blume doesn't know, 
 
              Dr. Fisher doesn't know.  It is a continuum of pathology 
 
              because they are so intimately related as far as I'm 
 
              concerned.
 
         
 
                 Once the biceps tendon rupture [sic], you don't get 
 
              re-rupture of the biceps tendon.  It's ruptured and it's 
 
              gone.  It doesn't keep rehealing itself and re-rupturing.  
 
              So in that regard no, I don't
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 6
 
         
 
         
 
              agree that this is a repetitive re-injury to the biceps 
 
              tendon.  It is a repetitive re-injury to a mechanism that is 
 
              so intimately related that is a continuum of rotator cuff, 
 
              acromion, coracoacromial ligament, clavicle joint, and 
 
              shoulder joint.  That is all in continuity.
 
         
 
                 But what and when each of these things has occurred, the 
 
              only thing I can tell you for sure is that at least in 1970 
 
              by evidence of the letter from Dr. Kersten, he had evidence 
 
              of a longhead tendon rupture of his biceps in his right 
 
              shoulder.
 
         
 
                 What further injuries, certainly he's had trouble in both 
 
              shoulders that have been work related throughout the 
 
              intervening time that are continuing to be aggravated by the 
 
              cold environment, by the working conditions of overhead 
 
              lifting, repetitive activities that continue to keep these 
 
              shoulders, both left and right, inflamed and irritated.  And 
 
              when the rotater [sic] cuff ruptured I think is medical moot 
 
              point that no one can tell you for sure.
 
         
 
         (Weatherwax Dep., pp. 42-43)
 
         
 
              Dr. Weatherwax agreed that the May 9, 1983 injury was an 
 
         aggravating factor to the right shoulder and arm condition. In a 
 
         September 20, 1984 letter Dr. Weatherwax opines concerning the 
 
         extent of permanent impairment in claimant's right shoulder:
 
         
 
                 In regards to your recent letter of September 20th, 1984, 
 
              regarding Mr. Tussing, I am unable to give you a full 
 
              impairment rating on this gentleman because I anticipate he 
 
                                                
 
                                                         
 
                   has continued improvement regards to his right shoulder in 
 
              particular which has been operated on as you know.  I will 
 
              say, though, that either criteria established by the 
 
              American Academy of Orthopaedic Surgery as well as those 
 
              established by the American Medical Association for 
 
              evaluating impairment, loss of the biceps tendon on one side 
 
              represents approximately 10% upper limb impairment and 
 
              resection of the distal clavicle part of the surgical 
 
              procedure carried out represents another 5%. Additional 
 
              impairment on the right shoulder would then be based on loss 
 
              of motion and strength that can only be determined at least 
 
              4 to 6 months in the future.  In regards to his left 
 
              shoulder, I fully expect that he has a full thickness 
 
              rotator cuff tear, but does not at this time clinically have 
 
              evidence of biceps tendon rupture and again I would be 
 
              unable to provide you any impairment rating on this shoulder 
 
              at this time.
 
         
 
         (Cl. Ex. 2)
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 7
 
         
 
         
 
              Dr. Weatherwax indicated that claimant will have to limit 
 
         his work to sedentary activities not involving lifting, pulling 
 
         or bringing the arm above the shoulder.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 9, 1983 is casually related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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 v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); 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).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              An employee is not entitled to recover for the  results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 8
 
         
 
         
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W.2d 
 
         299; Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz, 257 
 
         Iowa 508, 133 N.W.2d 704; Almquist, 218 Iowa 724, 254 N.W. 35.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (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 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595.
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager, 253 Iowa 369, 112 N.W.2d 299; 100 
 
         C.J.S. Workmen's Compensation section 555(17)a.
 
         
 
                                     ANALYSIS
 
         
 
              The Iowa Supreme Court in remanding this matter indicated 
 
         that the industrial commissioner should reconsider the evidence 
 
         relating to a work-related injury occurring on May 9, 1983 either 
 
         as a work-related injury or as an aggravation of a previous one 
 
         and state reasons for rejecting evidence.
 
         
 
              The starting point for this reconsideration must be that the 
 
         claimant was not a credible witness.  The previous appeal 
 
         decision determined that claimant's credibility as a witness was 
 
         questionable.  The supreme court determined that the question 
 
         whether the commissioner could overrule the deputy's findings on 
 
         witness credibility was not preserved on appeal.  Therefore, the 
 
         prior determination that claimant was not a credible witness is 
 
         final.  Even if the question were not final, the record in this 
 
         matter dictates a finding that claimant was not credible.  The 
 
         finding is based upon contradictions of claimant's testimony and 
 
         not claimant demeanor at the hearing.  Claimant denied having 
 
         right shoulder problems prior to the May 1983 injury.  His 
 
         testimony was directly contradicted by numerous first reports of 
 
         injury, one of which related to an injury less than one year 
 
         before the alleged injury in question, and testimony of 
 
         claimant's wife that his arm had bothered him for as long as they 
 
         had been TUSSING V. GEO. A. HORMEL & CO.
 
         Page 9
 
         
 
         
 
         married (23 years).  Claimant has been untruthful in a material 
 
         aspect of his testimony and therefore his testimony cannot be 
 
         relied upon.  On review by the industrial commissioner, the 
 
         commissioner may reverse the deputy industrial commissioner 
 
         whenever the preponderance of the evidence indicates the deputy's 
 
         decision is incorrect.  The industrial commissioner is not 
 
         limited to the same standards of review as a court on judicial 
 
         review.  See F.C.C. v. Allentown Broadcasting Corp., 349 U.S. 
 
         358, 99 L.Ed. 1147, 7 S.Ct. 855 (1955).  Also, Iowa Code 
 
         subsection 17A.15(3) clearly provides, "On appeal from or review 
 
         of the proposed decision, the agency has all the power which it 
 
         would have in initially making the final decision except as it 
 
         may limit the issues on notice to the parties or by rule." The 
 
         review by the industrial commissioner is de novo.  The 
 
                                                
 
                                                         
 
         commissioner is in no sense bound by a deputy's proposed 
 
         decision.  "An agency loses no power of decision by having an 
 
         administrative law judge preside at a hearing."  Bangor and 
 
         Aroostook Railroad Co. v. ICC, 574 F.2d 1096, 1110 (lst Cir.) 
 
         citing to Davis, Administrative Law of the Seventies (1976 Supp. 
 
         to Administrative Law Treatise) SS10.03 at 313.  "[S]lavish 
 
         deference by the agency to the examiner's decision is not 
 
         required." United States Retail Credit Association, Inc. v. 
 
         F.T.C., 300 F.2d 212, 216 (4th Cir.). A reviewing court is not 
 
         prevented from considering a proposed decision as it is part of 
 
         the record but the proposed decision is not sacrosanct.  See Id. 
 
         at 217.
 
         
 
              The question then is did the claimant prove by the 
 
         preponderance of the evidence that an incident occurred on May 9, 
 
         1983 which was a work-related injury.  Claimant's foreman did not 
 
         witness the incident (Tr., p. 32, line 17).  No other witnesses 
 
         testified that the incident occurred.  Claimant testified that he 
 
         went on a week's vacation two or three days afterwards.  He did 
 
         not seek medical treatment until five weeks after the alleged 
 
         incident.  However, claimant did report to the foreman that he 
 
         had been hurt and the information he gave to Dr. Moss was that 
 
         the incident occurred.  There is no independent corroboration of 
 
         the occurrence of the incident.  The only evidence of the 
 
         incident is the testimony of an unreliable claimant and medical 
 
         history based upon information supplied by that claimant.  
 
         Claimant has not proved by a preponderance of the evidence that 
 
         he suffered an injury on May 9, 1983 either as a work-related 
 
         injury or as an aggravation of a previous one.
 
         
 
              The medical evidence in this case indicates that claimant 
 
         ruptured the biceps tendon in 1970.  Dr. Weatherwax strongly 
 
         suspected that the rotator cuff injury occurred at the same time. 
 
          Claimant continued to work for over a year after May 9, 1983.  
 
         Assuming for the sake of argument that a work incident occurred 
 
         on May 9, 1983, the incident was not an injury that ruptured the 
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 10
 
         
 
         
 
         biceps tendon or the rotator cuff.  A work injury may also be an 
 
         aggravation of a preexisting condition.  That aggravation must be 
 
         material in order to be compensable.  While claimant's physicians 
 
         agreed that he suffered an aggravation of his shoulder condition 
 
         and these opinions are based on the history claimant provides his 
 
         doctors, it is unclear whether the aggravation was material.
 
         
 
              Even if claimant had proved he suffered an aggravation of 
 
         the preexisting condition he must also establish that the 
 
         disability he currently suffers is casually connected to that 
 
         injury.  As causal connection is essentially within the domain of 
 
         expert testimony, the opinions of claimant's primary treating 
 
         physician, Dr. Weatherwax, are particularly crucial to claimant's 
 
         case.
 
         
 
                                                
 
                                                         
 
              Dr. Weatherwax opined that claimant's present condition is 
 
         the result of a continuum of pathology which is intimately 
 
         related to the rupture of the biceps tendon in 1970.  Moreover, 
 
         Dr. Weatherwax testified that it is impossible to determine when 
 
         the rotator cuff was ruptured but strongly suspected that it 
 
         occurred when the biceps tendon ruptured in 1970.  It must be 
 
         remembered that claimant continued to work in the same job for 
 
         over a year after the alleged May 9, 1983 injury just as he did 
 
         after the previous shoulder injuries.  Although Dr. Blume opined 
 
         that the may 9, 1983 incident was an aggravation of a preexisting 
 
         condition and assigned an impairment rating he does not causally 
 
         connect the impairment to the May 9, 1983 work incident.  
 
         Instead, he related the impairment to a number of accidents.  The 
 
         greater weight of evidence establishes that if there were a work 
 
         injury on May 9, 1983, claimant suffered a slight temporary 
 
         aggravation of his right shoulder condition resulting in no 
 
         additional permanent disability.
 
         
 
              One final matter should be noted.  The Iowa Supreme Court 
 
         decision, Tussing, 417 N.W.2d 457, 458, might seem to indicate 
 
         that "the fact that Tussing was paid benefits for the resulting 
 
         time missed after May 9, 1983" supports his contention that he 
 
         suffered an injury that arose out of and in the course of his 
 
         employment.  The law changed for injuries occurring on or after 
 
         July 1, 1982 regarding payments concerning liability disputes.  
 
         See 1982 Iowa Acts, ch. 1161, sections 22 and 28.  For injuries 
 
         occurring after July 1, 1982, voluntary payment of benefits can 
 
         be made without the necessity of establishing that an injury 
 
         arose out of and in the course of employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant did not sustain an injury to his right shoulder 
 
         on May 9, 1983 at work.
 
         TUSSING V. GEO. A. HORMEL & CO.
 
         Page 11
 
         
 
         
 
              2. Claimant sustained a right biceps tendon rupture and a 
 
         rotator cuff injury in 1970.
 
         
 
              3. Claimant has sustained right arm and shoulder strain for 
 
         which first reports of injury were filed on at least six 
 
         occasions since 1959.
 
         
 
              4. Claimant returned to the same job after the May 9, 1983 
 
         injury and remained at that position until he underwent right 
 
         shoulder surgery in July 1984. costs of this remand decision
 
         
 
              5. Claimant sustained only a slight temporary aggravation of 
 
         his right shoulder condition on May 9, 1983.
 
         
 
              6. Claimant sustained no permanent disability as a result of 
 
         any work incident on May 9, 1983.
 
         
 
                                                
 
                                                         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did not sustain an injury arising out of and in the 
 
         course of his employment on May 9, 1983.
 
         
 
              Claimant has not established that he suffers any permanent 
 
         disability as a result of any event on May 9, 1983.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay all costs of this appeal including any
 
         
 
              Signed and filed this 21st day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E.LINOUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert L. Ulstad
 
         Attorney at Law
 
         1031 Central Ave.
 
         P.O. Box 1678
 
         Fort Dodge, Iowa 50501
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St.
 
         P.O. Box 455
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1100 - 1402.20
 
                                                     Filed June 21, 1989
 
                                                     DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN TUSSING,
 
         
 
              Claimant,
 
         
 
         VS.                                     File Nos. 734985/750400
 
         
 
         GEO. A. HORMEL & CO.,                         R E M A N D
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                        
 
         1100 - 1402.20
 
         
 
         
 
              On remand claimant, who was found not to be a reliable 
 
         witness, did not meet his burden of proving that an incident 
 
         occurred which was an injury that arose out of and in the course 
 
         of his employment.  There was no independent corroboration of the 
 
         incident all medical opinions were based on claimant's history.  
 
         Claimant did not prove that he suffered an injury either as a 
 
         work-related injury or as an aggravation of a previous one.