BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RANDOLPH PETERSON,
 
        
 
            Claimant,                   File Nos. 741640/763174
 
                                                   795338
 
        vs.
 
        
 
        WILSON FOODS CORPORATION,               A P P E A L
 
        
 
            Employer,                        D E C I S I O N
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration and review-reopening 
 
        decision awarding permanent partial disability benefits as the 
 
        result of an alleged injury on April 23, 1984. The record on 
 
        appeal consists of the transcript of the arbitration and 
 
        review-reopening hearing; and joint exhibits 1 through 13, A 
 
        through E, and G through L. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant has failed to set forth the issues on appeal, as 
 
        required by Division of Industrial Services Rule 4.28(b). Thus, 
 
        the appeal will be considered generally and without regard to 
 
        specific issues.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
                                                
 
        The arbitration and review-reopening decision adequately and 
 
        accurately reflects the pertinent evidence and it will not be set 
 
        forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration and review-reopening 
 
        decision are appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant did not introduce evidence that would prove either a 
 
        medical or a nonmedical change of condition due to the stomach 
 
        injury of September 22, 1980. The claimant's complaints
 
        
 
        PETERSON V. WILSON FOODS CORPORATION
 
        Page 2
 
        
 
        
 
        of pain due to the abdominal scar and adhesions have been 
 
        generally the same since shortly after his return to work on 
 
        February 1, 1981, until the time of this hearing.
 
        
 
        2. Claimant did not present evidence from which it could be 
 

 
        
 
 
 
 
 
        determined that claimant sustained a new injury on December 6, 
 
        1983, which arose out of and in the course of his employment with 
 
        employer. Claimant described a muscle strain for which he did not 
 
        seek immediate medical attention and from which he lost no time 
 
        from work.
 
        
 
        3. Claimant did introduce evidence from Keith 0. Garner, M.D., 
 
        and Mark E. Wheeler, M.D., that his employment injury was the 
 
        cause of both temporary and permanent disability. Claimant gave a 
 
        history of employment injury and the doctors provided claimant 
 
        with treatment based on this history.
 
        
 
        4. Claimant was off work pursuant to the orders of either Dr. 
 
        Garner or Dr. Wheeler during the following periods of time:
 
        
 
        (1) 4-24-84  to  5- 6-84     1.857 weeks
 
        (2) 5- 9-84  to  6-17-84     5.714 weeks
 
        (3) 10- 9-84  to 12- 2-84     7.857 weeks
 
        (4) 4-18-85  to  5-20-85     4.714 weeks
 
                               TOTAL  20.142 weeks
 
        
 
        5. That claimant sustained an injury to his right elbow and his 
 
        right shoulder on April 23, 1984.
 
        
 
        6. That Dr. Wheeler awarded a five percent permanent functional 
 
        impairment rating and Dr. Blume awarded a seven percent permanent 
 
        functional impairment rating.
 
        
 
        7. That claimant is foreclosed from performing jobs which he 
 
        previously performed in the packing house.
 
        
 
        8. That claimant has pursued vocational rehabilitation without 
 
        any assistance from employer and has completed two years out of a 
 
        four year college course to become an elementary teacher and 
 
        coach.
 
        
 
        9. That claimant has sustained an industrial disability of 20 
 
        percent of the body as a whole.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that he sustained either a medical or a 
 
        nonmedical change of condition with respect to the injury that 
 
        occurred on September 22, 1980.
 
        
 
        PETERSON V. WILSON FOODS CORPORATION
 
        Page 3
 
        
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that he sustained a new injury on December 6, 
 
        1983, which arose out of and in the course of his employment with 
 
        employer.
 
        
 
        Claimant did sustain the burden of proof by a preponderance of 
 
        the evidence that he sustained both temporary and permanent 
 
        disability from the injury to his right elbow and right shoulder 
 
        beginning on April 23, 1984.
 
        
 
        Claimant is entitled to 20.142 weeks of healing period benefits 
 
        for the periods designated in the findings of fact as the times 
 
        that claimant was off work.
 
        
 
        Claimant sustained the burden of proof by a preponderance of the 
 
        evidence that the injury of April 23, 1983, was an injury to the 
 

 
        
 
 
 
 
 
        body as whole.
 
        
 
        Claimant sustained an industrial disability of 20 percent of the 
 
        body as a whole and is entitled to 100 weeks of permanent partial 
 
        disability benefits.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay to claimant twenty point one four two (20.142) 
 
        weeks of healing period benefits at the stipulated rate of one 
 
        hundred ninety-eight and 84/100 dollars ($198.84) per week in the 
 
        total amount of four thousand five and 04/100 dollars ($4,005.04) 
 
        for the periods shown in the findings of fact which commence on 
 
        April 24, 1984.
 
        
 
        That defendant pay to claimant one hundred (100) weeks of 
 
        permanent partial disability benefits at the rate of one hundred 
 
        ninety-eight and 84/100 dollars ($198.84) per week in the total 
 
        amount of nineteen thousand eight hundred eighty-four dollars 
 
        ($19,884) commencing on May 6, 1984, intermittently and as 
 
        interrupted by the succeeding periods of healing period benefits 
 
        shown in the findings of fact.
 
        
 
        That defendant is entitled to a credit for fifteen point four two 
 
        nine (15.429) weeks of workers' compensation benefits paid prior 
 
        to hearing at the rate of one hundred ninety-nine and 88/100 
 
        ($199.88) per week in the total amount of three thousand 
 
        eighty-three and 95/100 dollars ($3,083.95); another eleven point 
 
        four two nine (11.429) weeks of benefits at the rate of one 
 
        hundred ninety-eight and 84/100 ($198.84) per week in the total 
 
        amount of two thousand two hundred seventy-two and 54/100 dollars 
 
        ($2,272.54); and twelve point seven one
 
        
 
        PETERSON V. WILSON FOODS CORPORATION
 
        Page 4
 
        
 
        
 
        four (12.714) weeks of benefits at the rate of one hundred 
 
        ninety-eight and 84/100 dollars ($198.84) in the total amount of 
 
        two thousand five hundred twenty-eight and 05/100 dollars 
 
        ($2,528.05) for a total credit in the amount of ($3,083.95 + 
 
        $2,272.54 + $2528.05) seven thousand eight hundred eighty-four 
 
        and 54/100 dollars ($7,884.54).
 
        
 
        That interest will accrue pursuant to Iowa Code section 85.30.
 
        
 
        That defendant pay all accrued amounts in a lump sum.
 
        
 
        That defendant pay the costs of this action pursuant to Division 
 
        of Industrial Services Rule 343-4.33.
 
        
 
        That defendant file claim activity reports as required by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 28th day of April, 1989.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDOLPH PETERSON,
 
         
 
              Claimant,                        File Nos. 741640/763174
 
         
 
         vs.                                                795338
 
         
 
         WILSON FOODS CORPORATION,                   A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.                              F I L E D
 
         
 
                                                     APR 28 1989
 
         
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration and review-reopening 
 
         decision awarding permanent partial disability benefits as the 
 
         result of an alleged injury on April 23, 1984.  The record on 
 
         appeal consists of the transcript of the arbitration and 
 
         review-reopening hearing; and joint exhibits 1 through 13, A 
 
         through E, and G through L.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                     ISSUES
 
         
 
              Defendant has failed to set forth the issues on appeal, as 
 
         required by Division of Industrial Services Rule 4.28(b).  Thus, 
 
         the appeal will be considered generally and without regard to 
 
         specific issues.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration and review-reopening decision adequately and 
 
         accurately reflects the pertinent evidence and it will not be set 
 
         forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration and review-reopening 
 
         decision are appropriate to the issues and the evidence.
 
         
 
                                   ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                               FINDINGS OF FACT
 
         
 
                                                
 
                                                         
 
              1.  Claimant did not introduce evidence that would prove 
 
         either a medical or a nonmedical change of condition due to the 
 
         stomach injury of September 22, 1980.  The claimant's complaints 
 
         of pain due to the abdominal scar and adhesions have been 
 
         generally the same since shortly after his return to work on 
 
         February 1, 1981, until the time of this hearing.
 
         
 
              2.  Claimant did not present evidence from which it could be 
 
         determined that claimant sustained a new injury on December 6, 
 
         1983, which arose out of and in the course of his employment with 
 
         employer.  Claimant described a muscle strain for which he did 
 
         not seek immediate medical attention and from which he lost no 
 
         time from work.
 
         
 
              3.  Claimant did introduce evidence from Keith O. Garner, 
 
         M.D., and Mark E. Wheeler, M.D., that his employment injury was 
 
         the cause of both temporary and permanent disability.  Claimant 
 
         gave a history of employment injury and the doctors provided 
 
         claimant with treatment based on this history.
 
         
 
              4.  Claimant was off work pursuant to the orders of either 
 
         Dr. Garner or Dr. Wheeler during the following periods of time:
 
         
 
                    (1)   4-24-84 to  5- 6-84   1.857 weeks
 
                    (2)   5- 9-84 to  6-17-84   5.714 weeks
 
                    (3)  10- 9-84 to 12- 2-84   7.857 weeks
 
                    (4)   4-18-85 to  5-20-85   4.714 weeks
 
                                   TOTAL        20.142 weeks
 
          
 
              5.  That claimant sustained an injury to his right elbow and 
 
         his right shoulder on April 23, 1984.
 
         
 
              6.  That Dr. Wheeler awarded a five percent permanent 
 
         functional impairment rating and Dr. Blume awarded a seven 
 
         percent permanent functional impairment rating.
 
         
 
              7.  That claimant is foreclosed from performing jobs which 
 
         he previously performed in the packing house.
 
         
 
              8.  That claimant has pursued vocational rehabilitation 
 
         without any assistance from employer and has completed two years 
 
         out of a four year college course to become an elementary teacher 
 
         and coach.
 
         
 
              9.  That claimant has sustained an industrial disability of 
 
         20 percent of the body as a whole.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained either a medical 
 
         or a nonmedical change of condition with respect to the injury 
 
         that occurred on September 22, 1980.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
                                                
 
                                                         
 
         preponderance of the evidence that he sustained a new injury on 
 
         December 6, 1983, which arose out of and in the course of his 
 
         employment with employer.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained both temporary and permanent 
 
         disability from the injury to his right elbow and right shoulder 
 
         beginning on April 23, 1984.
 
         
 
              Claimant is entitled to 20.142 weeks of healing period 
 
         benefits for the periods designated in the findings of fact as 
 
         the times that claimant was off work.
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that the injury of April 23, 1983, was an injury to 
 
         the body as whole.
 
         
 
              Claimant sustained an industrial disability of 20 percent of 
 
         the body as a whole and is entitled to 100 weeks of permanent 
 
         partial disability benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay to claimant twenty point one four two 
 
         (20.142) weeks of healing period benefits at the stipulated rate 
 
         of one hundred ninety-eight and 84/100 dollars ($198.84) per week 
 
         in the total amount of four thousand five and 04/100 dollars 
 
         ($4,005.04) for the periods shown in the findings of fact which 
 
         commence on April 24, 1984.
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         ninety-eight and 84/100 dollars ($198.84) per week in the total 
 
         amount of nineteen thousand eight hundred eighty-four dollars 
 
         ($19,884) commencing on May 6, 1984, intermittently and as 
 
         interrupted by the succeeding periods of healing period benefits 
 
         shown in the findings of fact.
 
         
 
              That defendant is entitled to a credit for fifteen point 
 
         four two nine (15.429) weeks of workers' compensation benefits 
 
         paid prior to hearing at the rate of one hundred ninety-nine and 
 
         88/100 ($199.88) per week in the total amount of three thousand 
 
         eighty-three and 95/100 dollars ($3,083.95); another eleven point 
 
         four two nine (11.429) weeks of benefits at the rate of one 
 
         hundred ninety-eight and 84/100 ($198.84) per week in the total 
 
         amount of two thousand two hundred seventy-two and 54/100 dollars 
 
         ($2,272.54); and twelve point seven one four (12.714) weeks of 
 
         benefits at the rate of one hundred ninety-eight and 84/100 
 
         dollars ($198.84) in the total amount of two thousand five 
 
         hundred twenty-eight and 05/100 dollars ($2,528.05) for a total 
 
         credit in the amount of ($3,083.95 + $2,272.54 + $2528.05) seven 
 
                                                
 
                                                         
 
         thousand eight hundred eighty-four and 54/100 dollars 
 
         ($7,884.54).
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay all accrued amounts in a lump sum.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as required by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and file this 28th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
                           
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         P.O. Box 535
 
         Cherokee, Iowa  51012
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            52900
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDOLPH PETERSON,
 
         
 
              Claimant,                           File Nos. 741640/763174
 
         
 
         vs.                                                   795338
 
         
 
         WILSON FOODS CORPORATION,                      A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         52900
 
         
 
              Defendant failed to state appeal issues in its appeal brief. 
 
         Deputy's decision reviewed generally without regard to specific 
 
         issues and affirmed.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         RANDOLPH PETERSON,
 
         
 
              Claimant,                          File Nos. 741640
 
                                                           763174
 
         vs.                                               795338
 
         
 
         WILSON FOODS,                         A R B I T R A T I O N
 
                                                      A N D
 
              Employer,                            R E V I E W -
 
              Self-Insured                      R E O P E N I N G
 
              Defendant.                         D E C I S I O N
 
         
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration and review-reopening 
 
         brought by Randolph Peterson, claimant, against Wilson Foods 
 
         Corporation, employer and self-insured defendant for benefits as 
 
         a result of alleged injuries which occurred to his feet on 
 
         September 6, 1983 (file no. 741640); to his stomach on January 
 
         15, 1984 (file no. 795338) and to his right arm on June 15, 1984 
 
         (file no. 763174).  A hearing was held in Storm Lake, Iowa on 
 
         September 3, 1987 and the case was fully submitted at the close 
 
         of the hearing.  The record consists of the testimony of Randolph 
 
         Peterson (claimant), Diane Peterson (claimant's wife) and Joint 
 
         Exhibits 1 through 13, A through E and G through L.  Both 
 
         attorneys submitted excellent briefs.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              At the beginning of the hearing, claimant moved to dismiss 
 
         fits petition for the alleged injuries to the feet of September 
 
         6, 1983 (file no. 741640).  There was no objection to the motion 
 
         by defendant.  The motion was granted and claimant's petition for 
 
         the alleged injury of September 6, 1983, was dismissed without 
 
         prejudice.
 
         
 
              Claimant then moved to amend the other two petitions to 
 
         correct the alleged injury date in each case.  Claimant moved to 
 
         change the injury date of the alleged stomach injury from January 
 
         15, 1984 to December 6, 1983, on file no. 795338.  Claimant moved 
 
         to change the injury date of the alleged right arm injury from 
 
         June 15, 1984 to April 23, 1984, on file no. 763174.  There was 
 
         no objection by defendant to either of these motions.  These 
 
         motions were granted and the amended alleged injury dates then 
 
         for the alleged injury to the stomach is December 6, 1983 (file 
 
         no. 795338) and the injury date for the right arm injury is April 
 
         23, 1984 (file no. 763174).
 
         
 
              Claimant then moved to plead in the alternative on the 
 
         alleged stomach injury of December 6, 1983, as to whether it was 
 
         an arbitration proceeding or a review-reopening proceeding.  
 
         defendant did not object to this motion.  The motion was granted 
 
         and claimant was allowed to plead in the alternative and receive 
 
         a decision based on either theory, provided there was sufficient 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   2
 
         
 
         
 
         evidence to support either theory.
 
         
 
              Although the hearing assignment order specified that the 
 
         hearing was to determine issues under Iowa Code section 85.23, 
 
         85.27 and 85.39, the parties agreed at the time of the hearing 
 
         that these issues were no longer in contention.  Therefore, these 
 
         issues were removed by the parties from consideration in this 
 
         case.  Accordingly, no determination will be made on these issues 
 
         in this decision.
 
         
 
                                   STIPULATIONS
 
         
 
                                        A
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing as to both the alleged injury of December 6, 1983, 
 
         and the injury of April 23, 1984.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both incidents.
 
         
 
              That claimant's entitlement to medical benefits from either 
 
         of these alleged injuries is no longer in dispute.
 
         
 
              That defendant claims no credit for payment of employee 
 
         nonoccupational group health plan benefits prior to the hearing 
 
         for either one of these injuries.
 
         
 
              That there are no bifurcated claims as to either of these 
 
         injuries.
 
         
 
                                        B
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing with respect to the alleged stomach injury of 
 
         December 6, 1983.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits for the alleged stomach injury, is $251.42 per week, if 
 
         an award is made as the result of a review-reopening decision.  
 
         That the rate of compensation is $198.84 per week in the event of 
 
         an award as the result of an arbitration decision on a new 
 
         injury.
 
         
 
              That defendant is entitled to a credit for 16 5/7 weeks of 
 
         healing period benefits and 20 weeks of permanent partial 
 
         disability benefits paid to claimant prior to hearing at the rate 
 
         of $251.42 per week.
 
         
 
              The parties stipulated to the following matters at the time 
 
         of hearing as to the right arm injury of April 23, 1984:
 
         
 
              That claimant sustained an injury on April 23, 1984, to his 
 
         right arm that arose of and in the course of employment with 
 
         employer.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits for the right arm injury, is $198.84 per week.
 
         
 
              That defendant is entitled to a credit for 15 3/7 weeks of 
 
         healing period benefits paid at the rate of $199.88 per week, 11 
 
         3/7 weeks of healing period benefits paid at the rate of $198.84 
 
         per week and 12 1/2 weeks of permanent partial disability 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   3
 
         
 
         
 
         benefits paid at the rate of $198.84 per week for workers' 
 
         compensation benefits paid prior to hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
                                        A
 
         
 
              As to the alleged stomach injury of December 6, 1983:
 
         
 
              Whether claimant sustained a change of condition on December 
 
         6, 1983, with respect to the earlier injury to his stomach which 
 
         occurred on September 22, 1980, or
 
         
 
              Whether claimant sustained a new injury on December 6, 1983, 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
                                        B
 
         
 
              As to the alleged injury of December 6, 1983, and the injury 
 
         of April 23, 1984:
 
         
 
              Whether either injury is the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits, and in 
 
         particular, whether claimant is entitled to scheduled member 
 
         benefits or industrial disability benefits for an injury to the 
 
         body as a whole for the right arm injury of April 23, 1984.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant testified that he is 33 years old, married and has 
 
         two daughters.  He is a high school graduate.  He started to work 
 
         for employer on January 28, 1974.  He worked for employer for 
 
         approximately 11 years and terminated his employment with 
 
         employer on April 20, 1985.  Prior to this employment, claimant 
 
         worked for Hy Vee as a box boy and as an aisle man.  Claimant 
 
         performed several physical labor and knife jobs for this 
 
         employer--snatching guts, turning hogs, dropping bungs, hooking 
 
         sides and pulling leaf lard.
 
         
 
              Claimant was injured on September 22, 1980, while dropping 
 
         bungs.  At that time, he accidently put a long sharp knife into 
 
         his own stomach.  At the hearing, claimant showed his abdomen and 
 
         exhibited a long vertical and slightly diagonal surgical incision 
 
         scar approximately seven inches long in the center portion of his 
 
         abdomen.  There was a small scar on either side of the surgical 
 
         scar which claimant testified marked the place where the knife 
 
         went in his abdomen and where it came back out again.  This stab 
 
         wound missed vital organs but damaged the rectus muscle.  
 
         Claimant testified that the injury resulted in massive scarring 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   4
 
         
 
         
 
         and adhesions in his stomach.  Claimant was off work for four 
 
         months and returned to work after the injury around February 1, 
 
         1981.  Shortly after his return to work, he again performed the 
 
         difficult physical tasks to which he was assigned.  An 
 
         arbitration hearing was held on March 14, 1983.  A decision was 
 
         issued on April 22, 1983, which awarded claimant 20 weeks of 
 
         permanent partial disability benefits bused upon an industrial 
 
         disability of four percent of the body as a whole.  The deputy in 
 
         that decision found that claimant's duodenitis, 
 
         hypercholesterolemia, diaphragmatic hernia and peptic symptoms 
 
         were not related to the knife injury of September 22, 1980.
 
         
 
              Claimant testified that he pulled a muscle in his stomach 
 
         and felt pain which almost took him to his knees on December 6, 
 
         1983, while snatching guts.  He stated that he did not see a 
 
         doctor for it until a couple of weeks later.  Claimant said that 
 
         he returned to work the next day and lost no time from work due 
 
         to this incident.
 
         
 
              The medical notes of Keith O. Garner, M.D., show that 
 
         claimant complained of discomfort of the abdominal incision on 
 
         December 20, 1983, and that claimant received an injection of 
 
         Xylocaine and Celistone on that date.  On December 21, 1983, 
 
         claimant reported that his abdomen hurt from the injection and 
 
         that it felt like his incision was on fire.  Claimant felt more 
 
         comfortable on December 22, 1983 (Exhibit 5).  Dr. Garner does 
 
         not record the alleged pulled muscle on December 6, 1983 (Ex. 5).  
 
         Employer's work record does not show a plant accident for 
 
         claimant on December 6, 1983 (Ex. J).
 
         
 
              Claimant testified that after he returned to work from the 
 
         knife injury of September 22, 1980, that he was off work as much 
 
         as he worked.  However, any time that claimant was off work prior 
 
         to the first hearing on March 14, 1983, would be primarily the 
 
         subject matter of that hearing and not this one.
 
         
 
             The employer's work record shows that after the first hearing 
 
         on March 14, 1983, until the alleged pulled muscle on December 6, 
 
         1983, claimant had only lost three days of work in May of 1983 
 
         and three days of work in July of 1983, due to plant injuries.  
 
         Why this time was lost was not explained as to whether it was due 
 
         to the stomach or for some other reason.  Claimant did lose 
 
         several days in November of 1983 but this plant injury was due to 
 
         a separate injury for a laceration of his finger.  This injury 
 
         was the subject of a separate workers' compensation claim and is 
 
         not involved in this decision.
 
         
 
              After the alleged pulled muscle on December 6, 1983, until 
 
         the right arm injury on April 23, 1984, employer's work record 
 
         shows that claimant only lost two days for a plant injury in the 
 
         week of December 25, 1983.  The work record also shows one day of 
 
         sickness in January, February and March of 1984.  There was no 
 
         evidence to explain whether the two days lost for plant injury or 
 
         the three days lost for sickness were casually connected to the 
 
         alleged pulled stomach muscle on December 6, 1983, or not.
 
         
 
              Claimant testified that bending, lifting and pulling at work 
 
         irritated his abdominal scar tissue and hurt him very much every 
 
         day.  Claimant said that he reported this often to Mary 
 
         Kitterman, another nurse and his foreman.  Claimant said that his 
 
         foreman told him that the door opens both ways.
 
         
 
              Claimant said that because of his abdominal pain from 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   5
 
         
 
         
 
         bending, lifting and pulling that he began shifting more of the 
 
         work to his arms.  Then he began to develop problems with his 
 
         right arm.  Claimant stated that he felt a "pop" in his right 
 
         elbow on April 23, 1984, while trimming Canadian sow briskets.
 
         
 
              Dr. Garner's medical notes show claimant first complained of 
 
         a sore right elbow on April 19, 1983, but that claimant "denies 
 
         injury".  The doctor diagnosed tendinitis, prescribed medication 
 
         and directed claimant to continue to work (Ex. 5, page 1).  On 
 
         April 23, 1984, an x-ray of the right elbow was negative.  On 
 
         April 30, 1984, the medial epicondyle was still sore but better. 
 
          On May 8, 1984, claimant requested that he be referred to a 
 
         specialist.  Claimant was referred to Mark E. Wheeler, M.D., an 
 
         orthopedic surgeon (Ex. 5, p. 2).
 
         
 
              Dr. Wheeler saw claimant on May 16, 1984, for pain in the 
 
         right elbow, both knees, both arches and both feet.  Dr. Wheeler 
 
         concluded as follows:
 
         
 
              Impression:   Medial epicondylitis right elbow. (2) 
 
              Bilateral Chondromalasia [sic]. (3) Foot pain of 
 
              uncertain etiology.
 
         
 
              Have advised injection of the elbow with 2 c.c. of 1% 
 
              Xylocaine, 20 mgms. of Depo Medrol.  This was done.  
 
              Will also keep him in a cock up wrist splint.  
 
              Regarding the knees he was advised straight leg raising 
 
              program with progressive weights and will fit him with 
 
              a patellar tendon brace on the right.  Will keep him 
 
              off work for three weeks and then re-evaluate him.  I 
 
              am not optimistic about his return to work. (6/6/84)
 
         (Ex. 13)
 
         
 
              On June 6, 1984, Dr. Wheeler found that claimant was doing 
 
         better and released him to return to work on June 18, 1984 (Ex. 
 
         12).
 
         
 
              On October 15, 1984, claimant returned to Dr. Wheeler with 
 
         tendinitis in the medial epicondyle for which ultrasound and 
 
         cortisone ointment were prescribed (Exs. 11 & 12).  On October 
 
         29, 1984, claimant continued to have right elbow symptoms and he 
 
         was placed on a long arm splint for three weeks (Ex. 12).  On 
 
         November 14, 1984, Dr. Wheeler made the following notation:
 
         
 
              11/14/84 OV **** Mr. Peterson was removed from his 
 
              long-arm cast today.  He is less tender over the medial 
 
              epicondyle.  Have advised him on a range of motion 
 
              program.  He will continue off work for 2 wks. and have 
 
              then given him a work release.  He will have to 
 
              determine at that time whether he will be able to 
 
              continue to work.  He was given a work release stating: 
 
              may return to work as of Monday, 12/03/84." Return 
 
              PRN.
 
         (Ex. 12)
 
         
 
              Claimant testified that the pain in his right elbow caused 
 
         him to shift the work effort of his right arm to his right 
 
         shoulder.  He testified that on one occasion he heard a "pop" in 
 
         his right shoulder, his right arm went numb and his hand sprang 
 
         open and stayed that way for a short time.  Dr. Wheeler's notes 
 
         show that claimant saw him on April 22, 1985, with pain in both 
 
         shoulders.  Claimant told Dr. Wheeler that his right shoulder 
 
         pain had been present since February of 1985.  His left shoulder 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   6
 
         
 
         
 
         pain had been present since March of 1985 (Exs. 9 & 12).  Dr. 
 
         Wheeler concluded as follows:
 
         
 
              X-rays of the shoulder show no abnormality.
 
         
 
              Impression:  Tendinitis  [sic] about right shoulder.
 
         
 
              Disposition: We'll try the  patient with ultrasound and 
 
              5% hydrocortisone ointment locally for six treatments.  
 
              He will be off work and was given a no work slip 
 
              stating: may not return to work for 2 wks."  Have 
 
              advised him that it would be his decision after this 
 
              whether or not he wants to work.  I have little to 
 
              offer him.  I feel he has had multiple tendinitis [sic] 
 
              episodes in both extremities, and whether he will be 
 
              able to continue work at Wilson's, I feel is very 
 
              unlikely.  I would give him a 5% permanent partial 
 
              physical impairment rating of the upper extremity 
 
              because of the multiple tendinitis [sic] episodes. (not 
 
              working)
 
         
 
         (Ex. 9)
 
         
 
              On May 14, 1985, Dr. Wheeler reported as follows:  "Randall 
 
         Peterson did not keep his appointment on 05/13/85.  Because of 
 
         this, I would release him to work on 05/25/85.  If there are any 
 
         questions, I would be glad to talk with you about them." (Ex. 7).  
 
         Claimant last saw Dr. Wheeler on May 15, 1985, at which time the 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   7
 
         
 
         
 
         doctor made the following entry in his notes:
 
         
 
              05/15/85 OV **** Mr. Peterson essentially is  doing 
 
              somewhat better.  Has some aching pains in the shoulder 
 
              but the therapy did help.  He has decided not to return 
 
              to work and will be speaking with Wilson Foods 
 
              regarding this.  I would give him a 5% permanent 
 
              partial physical. impairment rating of the right upper 
 
              extremity.
 
         
 
         (Ex. 10)
 
         
 
              On May 28, 1985, Dr. Wheeler reported one more time in these 
 
         words:  "In regards to our previous conversation on Randy 
 
         Peterson, he has reached the end of his healing period.  He has a 
 
         5% permanent partial physical impairment rating of the upper 
 
         extremity." (Exs. 6 & E).
 
         
 
              Claimant was examined at the Mayo Clinic on May 10, 1985, 
 
         complaining of right arm, abdominal pain and heartburn.  A report 
 
         was prepared for the Mayo Clinic on June 13, 1985, by Paul A. 
 
         Green, M.D. (Ex. 3).  Dr. Green remarked that claimant had been 
 
         examined there earlier in December of 1982, by Gene D. LaSage, 
 
         M.D. (Ex. 4) (prior to the first hearing).
 
         
 
              As to his right arm, claimant described complaints in his 
 
         fingers, hands, elbow and shoulder.  X-rays of both shoulders, 
 
         the right elbow and cervical spine were negative.  An 
 
         electromyogram revealed a mild median neuropathy of the right 
 
         wrist and an equivocal one on the left; however, they did not 
 
         believe that this accounted for the claimant's right arm pain and 
 
         weakness of which he complained.  The neurologist, Shelley A. 
 
         Cross, M.D., concluded that there was no neurological evidence to 
 
         explain claimant's symptoms.  Claimant was seen in the Department 
 
         of Orthopedic Surgery by L.F.A. Peterson, M.D.  He found 
 
         tenderness over the right acromioclavicular joint. and right 
 
         medial epicondyle.  The right elbow had a full range of motion.  
 
         Dr. Peterson administered an injection of Marcaine and Hydeltra 
 
         TBA into the right acromioclavicular joint.  This resulted in a 
 
         full range of pain free right shoulder motion in both the supine 
 
         and erect position.  Dr. Peterson expressed the opinion that this 
 
         confirms the location of the discomfort is coming from the right 
 
         acromioclavicular joint.  The click which the patient recognizes 
 
         is from this area as well.  There was no evidence of rotator cuff 
 
         impingement or tendinitis of the rotator cuff or bicipital 
 
         tendon.  There was no arthritis of the shoulder joint itself.
 
         
 
              All of this information was reviewed by H.N. Hoffman, M.D., 
 
         who stated that claimant wanted to go home and try to have his 
 
         employer train him for another job or else seek employment 
 
         elsewhere.  Paul A. Green, M.D., the author of the report 
 
         commented that the abdominal pain was similar to that described 
 
         by Dr. LaSage in December of 1982.  He added that claimant 
 
         continued to have constant dull discomfort in the area of the 
 
         abdominal scar which is increased by rising from a recumbent 
 
         position.  He remarked that despite the pain, claimant continued 
 
         to do his job until he began to have arm trouble.  Dr. Green said 
 
         that it was his impression that the stomach symptoms represented 
 
         abdominal wall pain and he had no further recommendations to 
 
         make.  Claimant told them that he also continued to have 
 
         heartburn.  This had been diagnosed earlier and explained by Dr. 
 
         LaSage in his letter of December 22, 1982.  Claimants final 
 
         diagnosis was as follows: "Our final diagnoses were 1) early 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   8
 
         
 
         
 
         degenerative arthritis, right acromioclavicular joint; 2) medial 
 
         epicondylitis right elbow; 3) gastroesophageal reflux with distal 
 
         benign esophagitis and sliding-type diaphragmatic hernia; 4) 
 
         overweight; 5) chronic abdominal wall pain; and 6) plantar wart." 
 
         (Ex. 3).
 
         
 
              The report from Dr. LaSage dated December 22, 1982, gives a 
 
         detailed description of claimant's abdominal problems prior to 
 
         the first hearing (Ex. 4).
 
         
 
              A report from LeeRoy E. Meyer, M.D., of the University of 
 
         Nebraska, dated December 14, 1983, stated that claimant's 
 
         abdominal pain is caused by the abdominal wall scar.  He 
 
         recommended several courses of action that claimant could take.  
 
         One of the possible considerations was changing jobs (Ex. 2).  
 
         Claimant complained of his abdominal scar being sore to Dr. 
 
         Garner several times after the first hearing.  On June 29, 1984, 
 
         Dr. Garner said that claimant's pants were too tight and rubbed 
 
         on the scar.  Dr. Garner recommended larger jeans.  On July 2, 
 
         1984, when claimant asked for a lighter job because his scar 
 
         hurt, Dr. Garner noted that claimant lifted 100 pound weights at 
 
         home and also played basketball.  Claimant testified that doctors 
 
         had recommended to him that he lift weights and play basketball 
 
         as an exercise and physical conditioning method after the knife 
 
         wound on June 22, 1980.  Dr. Garner also noted abdominal 
 
         complaints on July 17, 1984.  On February 6, 1985, Dr. Garner 
 
         recommended that claimant lose weight to alleviate his stomach 
 
         pain (Ex. 5, pp. 2, 3 & 4).
 
         
 
              Dr. Garner's notes are generally in agreement with Dr. 
 
         Wheeler's records concerning claimant's complaints about his 
 
         right upper extremity.  Dr. Garner noted on October 8, 1984, that 
 
         claimant's right medial epicondyle was sore.  On January 14, 
 
         1985, claimant's right arm was sore from his shoulder to his 
 
         wrist.  On April 18, 1985, claimant's right arm, and also his 
 
         left arm and elbow hurt.  On May 22, 1985, Dr. Garner made the 
 
         following note "Randy says he won't work for Wilson's anymore." 
 
         (Ex. 5, pp. 2 & 3).
 
         
 
              Claimant was examined by Horst G. Blume, M.D., on September 
 
         30, 1985.  Dr. Blume did not write a report however, until 
 
         October 28, 1986.  At that time Dr. Blume said:
 
         
 
              It is my opinion, within reasonable medical 
 
              probability, that the incident in April of 1984 was an 
 
              aggravation of a pre-existing condition, such as 
 
              recurrent epicondylitis at the medial epicondyle in the 
 
              right elbow.  Then, the third injury in December of 
 
              1984 involved the right shoulder girdle.  The 5% 
 
              disability to the right arm, given by Dr. Wheeler, was 
 
              directed to the epicondylitis and recurrent 
 
              epicondylitis of the right elbow.  The pain condition 
 
              in the right shoulder was not taken into consideration 
 
              at that particular time.  So, it is my opinion, within 
 
              reasonable medical probability, that the patient has 
 
              sustained an injury also to the right shoulder girdle 
 
              with myofascial pain syndrome of the shoulder girdle 
 
              muscles, particularly the trapezius muscle on the right 
 
              side, and this entailed approximately 2% permanent 
 
              partial disability to the right arm, over and above the 
 
              5% disability already awarded the patient, for a total 
 
              of 7% permanent partial disability to the right arm.
 
         
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE   9
 
         
 
         
 
              We do have to take into consideration that at one time, 
 
              at the Mayo Clinic Orthopedic Department, a diagnosis 
 
              of early degenerative arthritis in the right 
 
              acromioclavicular joint was made, and it is difficult 
 
              to connect the findings of the acromioclavicular joint 
 
              with this particular accident.
 
         
 
         (Ex. 1)
 
         
 
              Claimant introduced the following note from Dr. Wheeler's 
 
         file to show a telephone conversation from Dr. Garner to MEW 
 
         (Mark E. Wheeler):
 
         
 
              5/9/85 PHONE CALL - Dr. Garner called down to talk to 
 
              me about this pt and wanted MEW to know:  states in 
 
              MEW's dictation it says he is going to leave it up to 
 
              pt as to when should go back to work; also his return 
 
              ov is 5/22.  States there are a few things about pt 
 
              that MEW doesn't know.  States pt has had psych care in 
 
              the past and it not to stable; has a variety of 
 
              lawsuits that he is involved in; is thinking about 
 
              leaving for Calif; if it was left up to him to return 
 
              to work at his will he will never go back.  Is afraid 
 
              if the patient leaves for Calif he will never come 
 
              back.  We moved up the ov to 5/13/85 and MEW really 
 
              should give him something definite in the way of work 
 
              orders since it is comp.  Garner would like MEW to call 
 
              him re; pt, I advised I would put a note on pts chart 
 
              and MEW could call him if questions.
 
         
 
         (Ex. 8)
 
         
 
              Defendants introduced the results of a Minnesota Multiphasic 
 
         Personality Inventory (MMPI) performed on January 7, 1986.  It 
 
         states that claimant presented with right shoulder, arm and wrist 
 
         complaints.  Thomas L. Jackson, Ph.D., reported as follows:
 
         
 
              This is a valid profile.  It appears Mr. Peterson 
 
              complied with instructions, read the test items 
 
              carefully, and has given a vlid (sic] representation of 
 
              his present status.
 
         
 
              Individuals who obtain similar profiles often present 
 
              themselves as being physically ill.  Pain is a frequent 
 
              complaint, and is often localized in the extremities.  
 
              Headache, neck discomfort and back pain are common 
 
              symptoms.  These individuals characteristically develop 
 
              physical symptoms as reactions to mental stress.  Such 
 
              individuals may emphasize, but fail to show any real 
 
              concern about their somatic symptoms.
 
         
 
              This profile appears to suggest a personality attribute 
 
              that would foster an overemphasis of physical problems.  
 
              Thus Functional contribution to Mr. Peterson's 
 
              presenting symptomatology appears to be possible.
 
         
 
         (Ex. G)
 
         
 
              Claimant testified that Dr. Wheeler told him that if he 
 
         returned to work after his injury of April 23, 1984, that he 
 
         would continue to have more problems.  Claimant testified that he 
 
         did not return to work because his right arm, shoulder and neck 
 
         hurt.  The right side of his face got numb.  The back side of his 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  10
 
         
 
         
 
         right shoulder ached.
 
         
 
              Claimant testified that when Dr. Wheeler changed his 
 
         appointment from May 20, 1985 to May 13, 1985, as requested by 
 
         Dr. Garner, that he tried to keep the appointment even though it 
 
         was inconvenient for him to do so.  Claimant denied that he had 
 
         any other lawsuits of any kind other than this one.  Claimant 
 
         denied that he had ever had any psychiatric or psychological 
 
         problems.
 
         
 
              Claimant related that after he ceased to work for employer 
 
         in the spring of 1985, that he enrolled in Buena Vista College at 
 
         Storm Lake, Iowa, on September 3, 1985.  Claimant testified that 
 
         he had completed two years of college.  He is majoring in 
 
         elementary education and physical education.  He plans to 
 
         graduate with a BA degree in two or three years.  At that time he 
 
         hopes to find a job as a teacher.  He stated that in time he may 
 
         be able to acquire a master's degree and become a school 
 
         principle.  Claimant testified that he has had no income from 
 
         employer since he ceased to work there in the spring of 1985.  
 
         Claimant stated that he had to finance his own education on 
 
         borrowed money.  He has not received any help from employer.
 
         
 
              Claimant testified that he has applied for jobs but the 
 
         applications ask about his injuries.  He has never been called 
 
         for an interview.  Claimant testified that he asked Mr. Hubner 
 
         (full name unknown) for employment at Wilson's.  Claimant 
 
         testified that he was told that you don't have a doctors release 
 
         and furthermore there is nothing for you here anyway.  Claimant 
 
         conceded that he had not previously filed for the vocational 
 
         rehabilitation benefits that are provided for in Iowa Code 
 
         section 85.70.
 
         
 
              Claimant summarized his current health situation as follows. 
 
          His stomach hurts all of the time.  He has no strength in his 
 
         right arm.  His right arm hurts all of the time.  He has to drop 
 
         his right arm periodically in order to rest it.  He has had 
 
         headaches.  He only sleeps two or three hours per night.  His 
 
         right neck, shoulder and elbow hurt and three fingers on his 
 
         right hand go numb.  He is not taking any medication and has not 
 
         seen a doctor since he last saw Dr. Wheeler.
 
         
 
              Diane Peterson, claimant's wife, testified that they have 
 
         been married for 11 years.  Claimant used to raise hogs at nome, 
 
         but he has had to give that up.  Claimant can no longer play with 
 
         his girls, lift anything heavy or do much of anything athletic.  
 
         He does work around the house and yard.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 6, 1983, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury of April 23, 1984, is established by stipulation 
 
         and the September 22, 1980, injury is established by an award.
 
         
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  11
 
         
 
         
 
              Iowa Code section 86.14(2) provides for a review-reopening 
 
         when the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation subsequent to a 
 
         prior award or settlement.
 
         
 
              The operative phrase in review-reopening is change of 
 
         condition.  Lawyer and Higgs, Iowa Workers' Compensation-Law & 
 
         Practice, section 20.2.
 
         
 
              The proponent must sustain the burden of proof by a 
 
         preponderance of the evidence of a charge condition as a result 
 
         of the original injury.  Stice v. Consolidated Independent Coal 
 
         Co., 228 Iowa 1031, 291 N.W. 452 (1940); Henderson v. Iles, 250 
 
         Iowa 787, 96 N.W.2d 321 (1959).
 
         
 
              The employee must prove by a preponderance of the evidence 
 
         that the increase in incapacity on which he bases his claim is 
 
         the result of the original injury.  Wagner v. Otis Radio & Elec. 
 
         Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963); 
 
         Henderson,.250 Iowa 787, 793-794, 96 N.W.2d 321, 324.
 
         
 
              If there is substantial evidence of a worsening of condition 
 
         not contemplated at the first award, then a review-reopening is 
 
         justified.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
         109 (1957).
 
         
 
              A change of condition may be something other than a physical 
 
         one or a medical one.  A change in earning capacity, subsequent 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  12
 
         
 
         
 
         to the initial award caused by the original injury can also 
 
         constitute a change of condition.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              A redetermination of the condition of the claimant as it was 
 
         adjudicated by a prior award is inappropriate.  Stice, 228 Iowa 
 
         1031, 1038, 291 N.W. 452, 456; Sheriff v. Intercity Express, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner, 302 
 
         (Appeal Decision 1978) (District Court Affirmed).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         stomach on December 6, 1983, which arose out of and in the course 
 
         of his employment with employer.  Claimant testified that he 
 
         pulled a muscle in his stomach on that date which took him to his 
 
         knees while snatching guts.  However, claimant admits that he did 
 
         not seek immediate medical attention for it.. He did not report 
 
         it to his foreman, the plant nurse or to anyone else.  Claimant 
 
         lost no time from work on account of it.  Claimant's petition 
 
         apparently is the first evidence of a claim for benefits.  
 
         Claimant returned to work the following and continued to work 
 
         after that.  Claimant's testimony and the medical records show 
 
         that claimant has frequently complained of his abdominal scar and 
 
         his adhesions since the first hearing.  At the most, claimant has 
 
         testified to a possible temporary aggravation of a preexisting 
 
         condition for which he incurred no medical expense and lost no 
 
         time from work.  It is determined that claimant did not sustain a 
 
         compensable injury on December 6, 1983, which arose out of and in 
 
         the course of his employment with employer.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained either a medical 
 
         or a nonmedical change in condition subsequent to the first 
 
         hearing that was caused by the original injury.  Claimant and the 
 
         doctors' notes show continuing complaints about his stomach.  
 
         However, there is no medical evidence of a change of physical 
 
         condition and claimant's own testimony does not support a change 
 
         of physical condition in his abdominal scar and adhesions.  
 
         Claimant also has a number of other stomach problems which were 
 
         determined at the first hearing not to be work related.
 
         
 
              Claimant's position on what constituted the change of 
 
         condition was not crystal clear.  The main contention seems to be 
 
         that the first deputy only awarded four percent industrial 
 
         disability because claimant was working at his old job and had 
 
         not sustained any actual loss of earnings at that time; whereas, 
 
         as of now, claimant is no longer able to work in the packing 
 
         house.
 
         
 
              It is true that claimant is no longer working in the packing 
 
         house, but this is because of his own conscious voluntary choice. 
 
          It is true that Dr. Wheeler indicated that as long as claimant 
 
         continued to work at the jobs he had been doing, that claimant 
 
         would continue to have trouble.  However, Dr. Wheeler made his 
 
         statement after the injury to claimant's right arm on April 23, 
 
         1984, and the doctor's statement concerned that injury rather 
 
         than the stomach injury which occurred on September 22, 1980.
 
         
 
              Claimant also advanced the proposition that because of his 
 
         stomach pain that he shifted the work effort of his job to his 
 
         arms.  This in turn caused the right arm injury of April 23, 
 
         1984.  If this is a basis for his claim that he sustained a 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  13
 
         
 
         
 
         change in condition, then this claim is not supported by any 
 
         medical evidence.  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).  
 
         Therefore, the shifting of the work effort from the stomach to 
 
         his arm cannot be determined to be the basis of a change of 
 
         condition.
 
         
 
              Therefore, it is determined that claimant has not sustained 
 
         the burden of proof by a preponderance of the evidence of either 
 
         a medical or a nonmedical change of condition since the hearing 
 
         on March 14, 1983.  A redetermination of the condition of the 
 
         claimant as it was adjudicated by the prior award is 
 
         inappropriate.  Stice, 228 Iowa 1031, 1038, 291 N.W.2d 452, 456; 
 
         Sheriff, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner, 302 (Appeal Decision 1978) (District Court 
 
         affirmed).
 
         
 
              The parties stipulated that claimant did sustain an injury 
 
         on April 23, 1984, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of December 3, 1983 and April 23, 
 
         1984, are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw, 251 Iowa 375, 101 N.W.2d 167.
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Section 85.34(l), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or, (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or be intermittent.  A healing period 
 
         may terminate and then later begin again.  Riesselman v. Carroll 
 
         Health Center, III Iowa Industrial Report 209, 210 (Appeal 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  14
 
         
 
         
 
         Decision 1982); Teel v. McCord, 394 N.W.2d 405, 406 (Iowa 1986).
 
         
 
              The healing period generally terminates at the time the 
 
         attending physician determines that the employee has recovered as 
 
         far as possible from the effects of the injury.  Armstrong Tire 
 
         and Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (Iowa 
 
         1981).  Stated another way, it is only at the point of which a 
 
         disability can be determined that the disability award can be 
 
         made.  Until such time, healing benefits are awarded the injured 
 
         worker.  Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 
 
         126 (Iowa App. 1984).  Defendant asserts in its brief that 
 
         claimant has been paid healing period benefits for three separate 
 
         periods of time.
 
              (1)   4-24-84 to  5-06-84
 
              (2)   5-09-84 to  6-17-84
 
              (3)  10-09-84 to 12-01-84
 
         
 
              These dates are confirmed by the form 2a in the industrial 
 
         commissioner's file.  Claimant has not asserted any dispute with 
 
         these dates.  The precise dates cannot be confirmed from 
 
         claimant's evidence, but these dates are generally confirmed by 
 
         the evidence.  Since there appears to be no dispute as to these 
 
         dates, they are then accepted as the correct dates for which 
 
         claimant is entitled to healing period benefits.
 
         
 
              Claimant further asserts that he is entitled to 
 
         approximately 30 days of additional healing period benefits.  
 
         Claimant is correct in this contention.  Dr. Garner took claimant 
 
         off work on April 18, 1985, when his elbow and left arm began to 
 
         hurt worse (Ex. 5, p. 3).  Dr. Wheeler continued claimant's 
 
         release from work for his shoulder tendinitis on April 22, 1984 
 
         (Ex. 9).  Dr. Wheeler then released claimant to return to work as 
 
         of May 20, 1985 (Ex. 7).  There is evidence that Dr. Garner tried 
 
         to influence Dr. Wheeler's opinion on determination of healing 
 
         period benefits by his telephone call of May 9, 1984 (Ex. 8).  
 
         Nevertheless, Dr. Wheeler's opinion appears to be his own 
 
         independent medical determination even though Dr. Garner 
 
         attempted to exert a certain amount of influence on Dr. Wheeler 
 
         (Exs. 6, 7 & E).  Therefore it is determined that claimant is 
 
         entitled to additional healing period benefits from April 18, 
 
         1985 to May 20, 1985.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              From April of 1984 to December of 1984, claimant suffered a 
 
         problem with his right medical epicondyle of his right upper 
 
         extremity (Ex. 5, pp. 1 & 2; Exs. 11-13).  The right elbow 
 
         problem is clearly a scheduled member injury [Iowa Code section 
 
         85.34(2)(m)]. Subsequently, claimant suffered another problem 
 
         with his right shoulder and reported it to Dr. Garner (Ex. 5, pp. 
 
         2 & 3).  Dr. Wheeler diagnosed that claimant had tendinitis about 
 
         the right shoulder (Ex. 9).  Dr. Wheeler further stated that 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  15
 
         
 
         
 
         claimant still had aching pain in the right shoulder on May 15, 
 
         1985 (Ex. 10).  Claimant testified that he heard a pop in his 
 
         right shoulder, his hand sprang open and his arm was numb for a 
 
         short period of time.  Dr. Blume said that claimant had a right 
 
         shoulder girdle injury with myofascial pain syndrome of the right 
 
         shoulder girdle muscles, particularly the trapezius muscle on the 
 
         right side and this entailed approximately two percent permanent 
 
         partial disability to the right arm (Ex. 1).  Dr. Green at the 
 
         Mayo Clinic determined that claimant's shoulder problem was 
 
         primarily located in the acromioclavicular joint (Ex. 3, p. 3).  
 
         The shoulder, shoulder girdle, trapezius muscle and 
 
         acromioclavicular joint are parts of the body that normally 
 
         extend beyond the junction of the greater tuberosity of the 
 
         humerus of the arm and the glenoid of the scapula of the 
 
         shoulder.  The shoulder, shoulder girdle muscles, trapezius 
 
         muscle, and acromioclavicular joint are considered to be parts of 
 
         the body as a whole.  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
         1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer Co., II Iowa 
 
         Industrial Commissioner Reports 281 (1982); Godwin v. Hicklin GM 
 
         Power, II Iowa Industrial Commissioner Reports, 170 (1981).
 
         
 
              The Iowa Supreme Court provided guidance in these matters in 
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 Iowa (1986).  At page 
 
         838 the court stated:
 
         
 
                 Courts in several other jurisdictions have addressed 
 
              the question of whether injuries to hips and shoulders 
 
              are to be compensated solely as injuries to the leg or 
 
              arm or as disabilities to the body as a whole.  Most 
 
              cases have resolved the question in favor of the 
 
              whole-body compensation under statutes which are very 
 
              similar to oars. (Citations omitted)
 
         
 
              Therefore based upon the location of claimant's injury as 
 
         described by four different doctors--Dr.  Garner, Dr. Wheeler, 
 
         Dr. Blume and Dr. Green--coupled with the testimony of the 
 
         claimant that he felt a pop in his shoulder, his hand sprang open 
 
         and his arm went numb and that he has had trouble with his 
 
         shoulder and the back of his shoulder ever since, establishes 
 
         that claimant did sustain an injury to the body as a whole.
 
         
 
              Defendant paid claimant 12 1/2 weeks of permanent partial 
 
         disability based upon a five percent permanent functional 
 
         impairment of the right elbow.  However, defendant's own doctor, 
 
         Dr. Garner, noted an arm and shoulder injury and referred 
 
         claimant to Dr. Wheeler.  Dr. Wheeler, who was also defendant's 
 
         choice of doctor, described the injury as tendinitis of the 
 
         shoulder and awarded a five percent permanent functional 
 
         impairment rating of the right upper extremity.  Dr. Wheeler did 
 
         not limit, restrict or specify that his rating was confined to 
 
         the right elbow.  Dr. Wheeler had treated both the right elbow 
 
         and the right shoulder for inflammation.  The mere fact that the 
 
         rating was stated in terms of the right upper extremity does not 
 
         mean that the disability is restricted to the schedule.  Pullen 
 
         v. Brown & Lambrecht, Earthmoving, Inc., II Industrial 
 
         Commissioner Reports, 308, 309, 310 (Appeal Decision 1982).  Dr. 
 
         Wheeler further stated that his physical impairment rating was 
 
         for the upper extremity because of multiple tendinitis episodes.  
 
         This would imply that he is speaking about both the right elbow 
 
         and the right shoulder.  It is common for physicians to include 
 
         the shoulder girdle, as well as the arm, when using the term 
 
         upper extremity"
 
         
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  16
 
         
 
         
 
              Defendant contends that Dr. Blume's remarks in the final 
 
         paragraph of his report cancel out or void his earlier remarks 
 
         about an additional two percent for claimant's right shoulder 
 
         girdle muscle and trapezius muscle injury.  However, it is not 
 
         likely that Dr. Blume would specify a two percent permanent 
 
         functional impairment rating for the shoulder components and then 
 
         render this opinion useless by saying there was no causal 
 
         connection between the injury and the disability.  On the 
 
         contrary, it would appear that Dr. Blume was trying to insure 
 
         that claimant did receive credit for a two percent impairment of 
 
         the right shoulder.  In this final remark, he appears to be 
 
         pointing out that the doctor at the Mayo Clinic characterized 
 
         claimant's acromioclavicular joint problem as degenerative and 
 
         that degenerative conditions are not normally considered to be 
 
         accidental injuries.  Dr. Blume's rating is not based upon the 
 
         acromioclavicular joint problem.  Dr. Blume's rating is based 
 
         upon shoulder girdle muscle and trapezius muscle impairment.  
 
         Common sense should be applied to what Dr. Blume meant by his 
 
         remark.  It would not make sense to make an award of two percent 
 
         for the shoulder and then make a remark that is inconsistent and 
 
         contradictory to the fact that claimant is entitled to a two 
 
         percent impairment rating for his right shoulder.
 
         
 
              In summary then, defendant's own doctor, Dr. Wheeler, 
 
         treated claimant's right elbow and right shoulder.  He gave a 
 
         five percent impairment rating for multiple tendinitis episodes 
 
         of the right upper extremity.  Defendant's chose to pay claimant 
 
         only on the basis of a scheduled member injury to the arm, in 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  17
 
         
 
         
 
         spite of the fact that Dr. Garner, Dr. Wheeler, Dr. Green and Dr. 
 
         Blume all found that claimant had an injury to his right 
 
         shoulder.  Therefore, the weight of the evidence supports an 
 
         injury to the shoulder which should be rated and compensated as 
 
         an injury to the body as a whole.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant is in his mid-thirties.  His loss of future 
 
         earnings from employment due to his disability is more serious 
 
         than would be the case for a younger or older individual.  Becke 
 
         v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II 
 
         Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              At the same time, claimant is young enough to be retrained. 
 
          The feasibility of retraining is one of the considerations 
 
         involved in determining industrial disability.  Conrad v. 
 
         Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).  Claimant should be approaching the peak of his 
 
         earnings career but instead is faced with limitations on what he 
 
         can and cannot do in the unskilled manual labor area of 
 
         employment.
 
         
 
              Claimant has spent the first 11 years of his working 
 
         lifetime in the meat packing industry.  This has been his only 
 
         employment since high school.  Until he resigned and enrolled in 
 
         college he did not have any additional education or training.  
 
         Claimant sought out this vocational rehabilitation on his own 
 
         initiative.  He received no vocational rehabilitation assistance 
 
         from employer.  Claimant testified that he has financed this 
 
         education on borrowed money.  The cost of such a vocational 
 
         rehabilitation effort for a man in his mid-thirties with a wife 
 
         and two children is substantial.  Claimant's jobs in the meat 
 
         packing industry provided few, if any, transferable skills.
 
         
 
              The employer selected physician did not flatly state that 
 
         claimant should not return to his work in the packing house.  He 
 
         appears to have delegated this decision to claimant.  Employer's 
 
         treating physician did make these statements.
 
         
 
              On May 16, 1984, Dr. Wheeler said, "I am not optimistic 
 
         about his return to work." (Ex. 13).
 
         
 
              On November 14, 1984 Dr. Wheeler said, "He will continue off 
 
         work for 2 wks. and have then given him a work release.  He will 
 
         have to determine at that time whether he will be able to 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  18
 
         
 
         
 
         continue to work." (Ex. 12).
 
         
 
              On April 22, 1985, Dr. Wheeler said, "Have advised him that 
 
         it would be his decision after this whether or not he wants to 
 
         work.  I have little to offer him.  I feel he has multiple 
 
         tendinitis [sic] episodes in both extremities, and whether he 
 
         will be able to continue work at Wilson's, I feel is very 
 
         unlikely." (Ex. 9).
 
         
 
              On May 15, 1985, Dr. Wheeler said, "He has decided not to 
 
         return to work and will be speaking with Wilson Foods regarding 
 
         this." (Ex. 10).
 
         
 
              From the foregoing quotations made by employer's treating 
 
         physician, it is concluded that claimant's ability to work at his 
 
         former jobs in the meat packing industry, is seriously impaired. 
 
          Dr. Wheeler said that it is very unlikely that claimant would be 
 
         able to continue to work at Wilsons.  Therefore, the only 
 
         employment which claimant has known for the first 11 years of his 
 
         working career is foreclosed to him.  Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         219 (1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
         Industrial Commissioner Report 282 (1981).
 
         
 
              Claimant enrolled in college and was approximately half of 
 
         the way through his chosen program at the time of the hearing. He 
 
         hopes to become an elementary school teacher and a coach.  If he 
 
         can accomplish this, his income would be approximately the same 
 
         as it was while working for this employer.  However, without 
 
         using his own financial resources, claimant would probably be 
 
         restricted to earning much less in the competitive labor market 
 
         without an education and without the ability to do strenuous work 
 
         or heavy work.  Claimant testified that he has had no earned 
 
         income for the last two years and does not expect any for the 
 
         next two years.  He also testified that his packing house 
 
         injuries had adversely affected his employment endeavors after 
 
         leaving this employer.
 
         
 
              This disability is evaluated as the employer Leaves the 
 
         worker, not upon the speculated results of some retraining 
 
         program which the worker may or may not be able to complete.  
 
         Stewart v. Crouse Cartage Co., File no. 738644, Appeal Decision 
 
         February 20, 1987.
 
         
 
              Claimant and his wife testified that claimant is unable to 
 
         perform strenuous work and heavy work with his right arm.  This 
 
         testimony is corroborated by Dr. Wheeler's reports.  Claimant 
 
         testified that he applied for a number of jobs without success; 
 
         however, he did not give any specifics of these attempts.  
 
         Claimant also testified that he tried to find work which he could 
 
         do with this employer, but he was told that there were no jobs 
 
         which he could do.
 
         
 
              Therefore, based upon the foregoing information and all of 
 
         the factors that are involved in determining industrial 
 
         disability, it is determined that claimant has sustained a 20 
 
         percent industrial disability to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  19
 
         
 
         
 
              Claimant did not introduce evidence that would prove either 
 
         a medical or a nonmedical change of condition due to the stomach 
 
         injury of September 22, 1980.  The claimant's complaints of pain 
 
         due to the abdominal scar and adhesions have been generally the 
 
         same since shortly after his return to work on February 1, 1981, 
 
         until the time of this hearing.
 
         
 
              Claimant did not present evidence from which it could be 
 
         determined that claimant sustained a new injury on December 6, 
 
         1983, which arose out of and in the course of his employment with 
 
         employer.  Claimant described a muscle strain for which he did 
 
         not seek immediate medical attention and from which he lost no 
 
         time from work.
 
         
 
              Claimant did introduce evidence from Dr. Garner and Dr. 
 
         Wheeler that his employment injury was the cause of both 
 
         temporary and permanent disability.  Claimant gave a history of 
 
         employment injury and the doctors provided claimant with 
 
         treatment based on this history.
 
         
 
              Claimant  was off work pursuant to the orders of either Dr. 
 
         Garner or Dr. Wheeler during the following periods of time:
 
         
 
              (1)  4-24-84 to  5-06-84     1.857 weeks
 
              (2)  5-09-84 to  6-17-84     5.714 weeks
 
              (3) 10-09-84 to 12-02-84     7.857 weeks
 
              (4)  4-18-85 to  5-20-85     4.714 weeks
 
         
 
                                 TOTAL    20.142 weeks
 
         
 
              That claimant sustained an injury to his right elbow and his 
 
         right shoulder on April 23, 1984.
 
         
 
              That Dr. Wheeler awarded a five percent permanent functional 
 
         impairment rating and Dr. Blume awarded a seven percent permanent 
 
         functional impairment rating.
 
         
 
              That claimant is foreclosed from performing jobs which he 
 
         previously performed in the packing house.
 
         
 
              That claimant has pursued vocational rehabilitation without 
 
         any assistance from employer and has completed two years out of a 
 
         four year college course to become an elementary teacher and 
 
         coach.
 
         
 
              That claimant has sustained an industrial disability of 20 
 
         percent of the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained either a medical 
 
         or a nonmedical change of condition with respect to the injury 
 
         that occurred on September 22, 1980.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a new injury on 
 
         December 6, 1983, which arose out of and in the course of his 
 
         employment with employer.
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  20
 
         
 
         
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained both temporary 
 
         and permanent disability from the injury to his right elbow and 
 
         right shoulder beginning on April 23, 1984.
 
         
 
              That claimant is entitled to 20.142 weeks of healing period 
 
         benefits for the periods designated in the findings of fact as 
 
         the times that claimant was off work.
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that the injury of April 23, 1983, 
 
         was an injury to the body as whole.
 
         
 
              That claimant sustained an industrial disability of 20 
 
         percent of the body as a whole and is entitled to 100 weeks of 
 
         permanent partial disability benefits.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant twenty point one four two 
 
         (20.142) weeks of healing period benefits at the stipulated rate 
 
         of one hundred ninety-eight and 84/100 dollars ($198.84) per week 
 
         in the total amount of four thousand five and 04/100 dollars 
 
         ($4,005.04) for the periods shown in the findings of fact which 
 
         commence on April 24, 1984.
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         ninety-eight and 84/100 dollars ($198.84) per week in the total 
 
         amount of nineteen thousand eight hundred eighty-four dollars 
 
         ($19,884) commencing on May 6, 1984, intermittently and as 
 
         interrupted by the succeeding periods of healing period benefits 
 
         shown in the findings of fact.
 
         
 
              That defendant is entitled to a credit for fifteen point 
 
         four two nine (15.429) weeks of workers' compensation benefits 
 
         paid prior to hearing at the rate of one hundred ninety-nine and 
 
         88/100 dollars ($199.88) per week in the total amount of three 
 
         thousand eighty-three and 95/100 dollars ($3,083.95); another 
 
         eleven point four two nine (11.429) weeks of benefits at the rate 
 
         of one hundred ninety-eight and 84/100 ($198.84) per week in the 
 
         total amount of two thousand two hundred seventy-two and 54/100 
 
         dollars ($2,272.54); and twelve point seven one four (12.714) 
 
         weeks of benefits at the rate of one hundred ninety-eight and 
 
         84/100 dollars ($198.84) in the total amount of two thousand five 
 
         hundred twenty-eight and 05/100 dollars ($2,528.05) for a total 
 
         credit in the amount of ($3,083.95 + $2,272.54 + $2,528.05) seven 
 
         thousand eight hundred eighty-four and 54/100 dollars 
 
         ($7,884.54).
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay all accrued amounts in a lump sum.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as required by 
 

 
         
 
         
 
         
 
         PETERSON V. WILSON FOODS
 
         PAGE  21
 
         
 
         
 
         this agency pursuant to Division c)f Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 20th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney-at-Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney-at-Law
 
         223 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1106, 1108.50, 1402.20
 
                                             1402.30, 2901, 2905
 
                                             1402.40, 1802, 1803,
 
                                             1803.10
 
                                             Filed September 20, 1988
 
                                             WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDOLPH PETERSON,
 
         
 
              Claimant,                          File Nos.  741640
 
                                                            763174
 
         vs.                                                795338
 
         
 
         WILSON FOODS,                         A R B I T R A T I O N
 
                                                      A N D
 
              Employer,                            R E V I E W -
 
              Self-insured,                     R E O P E N I N G
 
              Defendant.                         D E C I S I O N
 
         
 
         
 
         
 
         11O6, 1108.50, 1402.20, 1402.30, 2901, 2905
 
         
 
              It was held that claimant did not prove either a new injury 
 
         or a change of condition of his stomach injury that originally 
 
         occurred on September 22, 1980, and which gave him trouble again 
 
         on December 6, 1983.
 
         
 
         1402.40, 1802, 1803, 1803.1
 
         
 
              It was held that claimant was entitled to healing period and 
 
         permanent partial disability benefits for a right shoulder and 
 
         right elbow injury that occurred on April 23, 1984.  Claimant was 
 
         awarded body as whole benefits rather than scheduled member 
 
         benefits of 100 weeks for a 20 percent industrial disability 
 
         based on permanent functional impairment ratings of five percent 
 
         and seven percent.  Claimant could no longer do heavy, strenuous 
 
         work.
 
         
 
 
 
 
 
 
 
 
                
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ______________________________________________________
 
		                         :
 
            LEONARD GRIES,               :
 
                         		 :
 
	              Claimant,          :       File No. 741646
 
        		                 :
 
	                vs.              :    A R B I T R A T I O N
 
              		                 :
 
            WILSON FOODS CORPORATION,    :       D E C I S I O N
 
                         		 :
 
      	        Employer,	         :
 
            	  Self-Insured,          :   
 
             	  Defendant.        	 :
 
            ______________________________________________________
 
            
 
            On June 30, 1988, Leonard Gries (claimant) filed a petition 
 
            for review-reopening from a decision filed on May 14, 1985.  
 
            The original injury in dispute was as a result of an injury 
 
            to claimant's back occurring on May 31, 1983.  Wilson Foods 
 
            Corporation (Wilson or defendant) was identified as 
 
            employer and self-insured.  On May 1, 1991, this matter 
 
            came on for hearing in Storm Lake, Iowa.  The parties 
 
            appeared as follows:  the claimant in person and by his 
 
            counsel Harry Smith of Sioux City, Iowa and Wilson by its 
 
            counsel David Sayre of Cherokee, Iowa.  
 
            
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant and Shirley Gries 
 
            2.  Claimant's exhibits 1-9.
 
            3.  Defendants' exhibit A.
 
            
 
            
 
                                 STIPULATIONS
 
            
 
            The parties stipulated to the following matters at the time 
 
            of the hearing:
 
            
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
            b.  The claimant sustained an injury on May 27, 1983, which 
 
            arose out of and in the course of employment.
 
            
 
            c.  The alleged injury caused a permanent disability.
 
            
 
            d.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
            e.  The commencement date for permanent partial disability, 
 
            is September 6, 1983.
 
            
 
            f.  The rate of compensation, in the event of an award, is 
 
            $261.01 per week. 
 
            
 
            g.  That there are no bifurcated claims.
 
            Issues
 
            
 
            The issue for resolution is whether a causal relationship 
 
            exists between claimant's claimed injuries and the claimed 
 
            disability and the nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
            
 
                        FINDINGS OF FACT
 
            
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
            1.  At the time of the hearing, claimant was 57 years old.  
 
            He has been employed by Wilson for the last 17 years.  
 
            Claimant is married.  Claimant's formal education ended at 
 
            the ninth grade.  He left school to start working.  
 
            Claimant first worked on the family farm.  Thereafter, 
 
            claimant worked at manual labor jobs for minimum wages.  
 
            Claimant started to work for Wilson in 1974.  Claimant's 
 
            jobs at Wilson included chiseling heads, sanitation, and 
 
            washing stomachs and pulling tongues.
 
            
 
            2.  Claimant injured his back on May 27, 1983.  He was 
 
            dumping loins when he slipped and his back popped.  After 
 
            the injury, claimant received conservative treatment from 
 
            D. G. Paulsrud, M.D., for his back.  He missed work 
 
            intermittently after his May 1983 injury.  Claimant fell 
 
            again at work in January of 1984.  Claimant was paid 
 
            temporary benefits for this injury.
 
            
 
            3.  At the time of the first award, Deputy Industrial 
 
            Commissioner Trier found that claimant had suffered an 
 
            aggravation of a preexisting condition in his low back and 
 
            that he had suffered a work-related injury.  However, 
 
            Deputy Trier found that:
 
            
 
              In view of the state of the record, it cannot be 
 
            found that the medical care and claimant's absence from 
 
            work which occurred in 1984, including that related to the 
 
            chemonucleolysis, was a result of the May 1983 injury.  
 
            Further, there is no medical evidence of a physical 
 
            impairment rating for the 1983 injury.  
 
            
 
            Claimant was awarded temporary total disability benefits 
 
            for the time he was off work in 1983.  The date of the 
 
            award was May 14, 1985.
 
            
 
            4.  Claimant continued to have complaints regarding his 
 
            back after the award was made.  Claimant was evaluated by 
 
            Horst G. Blume, M.D., on December 1, 1986.  Dr. Blume had 
 
            offered an opinion on August 28, 1984 that was considered 
 
            by Deputy Trier at the time of the first award.  In his 
 
            first evaluation, Dr. Blume indicated that claimant had a 
 
            potential functional impairment from between 5 and 20 
 
            percent.  In 1986 Dr. Blume concluded that claimant had a 
 
            10 percent functional impairment to his back. 
 
            
 
            5.  Claimant was next evaluated by Pat Luse, D.C., January 
 
            31, 1991.  Claimant omitted the injury that he suffered in 
 
            1984 when he gave his history to Dr. Luse.  Dr. Luse 
 
            concluded that claimant had substantial changes in his back 
 
            condition since March of 1985.  Dr. Luse attributes all of 
 
            the changes to claimant's to the injury suffered in 1983.  
 
            Dr. Luse did find that claimant had suffered a sixteen 
 
            percent (16%) impairment to the body as whole for the 
 
            effects of his 1983 back injury.  Dr. Luse imposed 
 
            restrictions on claimant which include a 20 pound lifting 
 
            restriction, and no frequent bending, lifting and twisting.
 
            
 
            6.  Claimant has had no further medical treatment for his 
 
            back since March of 1985.  Claimant has not been examined 
 
            by any of the previous treating physicians in this dispute 
 
            with Wilson.  Claimant indicated that as a result of his 
 
            back injury his legs are tired and his back is tired and 
 
            aches at the end of the day.  Claimant continues to work at 
 
            his regular job with increased wages and overtime work 
 
            available for him in his department.  Overtime work is also 
 
            available to claimant on Saturdays.  Claimant started 
 
            limiting his Saturday overtime work in 1985 and 1986.  
 
            Claimant now avoids Saturday overtime work.  Additionally, 
 
            claimant indicated that he cannot do a part-time job on a 
 
            farm where he was earning approximately $3.00 per hour.  
 
            Claimant also indicated that he cannot do regular household 
 
            maintenance tasks because he cannot lift and climb.  
 
            
 
            
 
                        CONCLUSIONS OF LAW
 
            
 
            The issue for resolution is whether a causal relationship 
 
            exists between claimant's claimed injuries and the claimed 
 
            disability and the nature and extent of any entitlement to 
 
            benefits, if any.
 
            As a threshold issue, Wilson contends that the principles 
 
            of res judicata apply to the claimant's petition to 
 
            review-reopen the award of May 14, 1985.  Wilson's reliance 
 
            on this position is misplaced.  While the normal rules of 
 
            res judicata and issue preclusion apply to administrative 
 
            proceedings.  Board of Supervisors, Carroll County v. 
 
            Chicago & Northwestern Transp. Co., 260 N.W.2d 813, 815 
 
            (Iowa 1977), the review-reopening procedure provided by 
 
            Iowa Code section 86.14(2) (1991) provides a statutory 
 
            exception to the normal rules.  This exception is only 
 
            available when the requisite change of condition or change 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            of circumstances is established.  
 
            
 
            The agency has held that while a review reopening is not an 
 
            appropriate mechanism to simply redetermine the disability 
 
            award granted during the arbitration, Stice v. Consolidated 
 
            Indiana Coal Co., 291 N.W. 452, 456 (Iowa 1940), it can be 
 
            used to judge whether claimant's disability has converted 
 
            itself into a permanent rather than a temporary disability.  
 
            Cerda v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
            Report 77, 81 (App. 1982).  Consequently, Wilson's position 
 
            that claimant is precluded from bringing this action 
 
            because of the conclusions of law made at the time of the 
 
            first arbitration is without merit.
 
            
 
            Claimant has the burden on review-reopening to establish by 
 
            a preponderance of the evidence that he has suffered a 
 
            change of condition as a proximate result of the original 
 
            injury subsequent the date of original award.  Blacksmith 
 
            v. All American Inc., 296 N.W.2d 348, 353 (Iowa 1980), 
 
            Deaver v. Armstrong Rubber Co., 170 N.W. 2d 455, 457 (Iowa 
 
            1969). A possibility is insufficient; a probability is 
 
            necessary.  Holmes v. Bruce Motor Freight, Inc., 215 N.W. 
 
            2d 296, 297 (Iowa 1974).  Pursuant to Iowa Code section 
 
            86.14(2), in a proceeding to reopen an award for payments, 
 
            inquiry is to be made into whether the condition of the 
 
            claimant warrants an end to, diminishment of, or increase 
 
            of compensation previously awarded.  A change in condition 
 
            must be shown to justify changing the original award.  
 
            Henderson v. Iles,  96 N.W.2d 321, (Iowa 1959).  
 
            
 
            A change of condition occurs when there is substantial 
 
            evidence of a worsening of the condition not contemplated 
 
            at the time of the first award.  Bousfield v. Sisters of 
 
            Mercy, 86 N.W.2d 109 (1957).  The Court of Appeals has held 
 
            that a change in condition may be found where claimant has 
 
            failed to improve to the extent initially anticipated, 
 
            Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 
 
            26 (Iowa Ct. App. 1978).  Additionally, in cases not 
 
            involving scheduled members, a change in earning capacity 
 
            subsequent to the original award which is proximately 
 
            caused by the original injury may constitute a change in 
 
            condition.  Blacksmith v. All-American, Inc., 290 N.W.2d at 
 
            350.  Where claimant merely showed that claimant had lost 
 
            earnings since the original award of benefits, claimant 
 
            will not be entitled to an increased award.  Claimant must 
 
            show that there has been a loss of earning capacity not 
 
            contemplated by the original award.  Huffman v. Keokuk 
 
            General Hospital, File Nos. 713207, 724360, Slip op. (Iowa 
 
            Ind. Comm'r App. August 22, 1988), aff'd File No. CL 
 
            1136(S)0988, Slip op. (Lee County District Court, December 
 
            14, 1988), Aff'd, File No. 88-1870, Slip op. (Iowa Ct. App. 
 
            October 24, 1989).
 
            
 
            In this instance, claimant has not established that he has 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            had a change of condition that was not contemplated by the 
 
            award of May 14, 1985.  Deputy Trier took into 
 
            consideration the opinion of Dr. Blume in his decision.  
 
            Dr. Blume's opinion did not increase claimant's impairment 
 
            rating.  He simply confirmed that it fell somewhere between 
 
            5 and 20 percent.  Moreover, Dr. Blume did not indicate 
 
            that claimant's condition had changed from the time he had 
 
            given the first rating.  Consequently, Dr. Blume's opinion 
 
            in 1986 does not establish that claimant's condition was 
 
            changed from the time of the hearing in 1985.  
 
            
 
            Dr. Luse's opinion in 1990 is flawed and can be given 
 
            little weight.  Initially, Dr. Luse's opinion does not 
 
            consider claimant's 1984 fall.  Dr. Luse was not aware that 
 
            claimant had a subsequent fall that had caused him to be 
 
            off work.  Additionally, Dr. Luse had one opportunity to 
 
            see claimant.  He did not treat claimant or examine 
 
            claimant at the time of the injury or after the injury.  
 
            The incomplete history is fatal to Dr. Luse's opinion since 
 
            he did not know about the subsequent fall after the initial 
 
            injury.  There is no other evidence in the record that 
 
            would support claimant's contention that he has had a 
 
            change of condition in his back.  Consequently, claimant 
 
            has failed to carry his burden.
 
            
 
            When claimant's subjective complaints of increased pain and 
 
            achiness in his back are considered, there is still 
 
            insufficient evidence available to support an increased 
 
            award.  While pain and suffering is, of course, an 
 
            appropriate element of damages in personal injury 
 
            litigation, it does not operate to increase industrial 
 
            disability unless there is some impact on earning capacity.  
 
            Benton v. Hyman Freightways, File Nos. 721933, 754493, Slip 
 
            op. (Iowa Ind. Comm'r Rev-Reopen. Final Agency Action, 
 
            January 7, 1991).  In this instance, claimant has made no 
 
            such showing.  Claimant has had no medical care for his 
 
            back since 1985.  He went back to work without restriction 
 
            from this injury.  He continues to work at the same job 
 
            with intermittant wage increases.  
 
            
 
            Claimant does overtime work in his department.  He has 
 
            voluntarily excluded himself from Saturday overtime and his 
 
            part time job.  Claimant complains of tiredness and 
 
            achiness but he has shown that this circumstance has had no 
 
            effect on his earning capacity.  For all of these reasons, 
 
            claimant's petition must fail.  
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            1.  That claimant shall take nothing from this proceeding.
 
            2.  The costs of this action shall be assessed claimant 
 
            pursuant to rule 343 IAC 4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
            
 
            
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                              ELIZABETH A. NELSON
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City Iowa 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            PO Box 535
 
            Cherokee Iowa 51012
 
            GRIES V. WILSON FOODS CORP.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-2905
 
                                              Filed November 6, 1991
 
                                              ELIZABETH A. NELSON
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LEONARD GRIES, 
 
                      
 
                 Claimant,                        File No. 741646
 
                      
 
            vs.                                A R B I T R A T I O N
 
                      
 
            WILSON FOODS CORPORATION,           D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-2905
 
            Claimant failed to show that he had a change of condition.  
 
            Claimant's expert testimony failed to support this 
 
            contention.  Claimant was working at same job earning more 
 
            money, performing overtime work in his department.  
 
            Claimant's subjective complaints of pain had increased, but 
 
            these complaints had not affected his earning capacity.