BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GERALD F. PORTER,
 
        
 
            Claimant,                   File Nos. 741973/750408
 
                                                   833246/833247
 
        vs.                                           833248
 
        
 
        CROUSE CARTAGE COMPANY,
 
        
 
            Employer,                       A P P E A L
 
        
 
        and                                D E C I S I O N
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants 
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration and review_reopening 
 
        decision denying permanent partial disability benefits as the 
 
        result of an alleged injury on September 23, 1986; October 10, 
 
        1986; October 30, 1986; June 14, 1983; and July 14, 1983.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration and review-reopening hearing; claimant's exhibits 1 
 
        through 25, and 34; and defendants' exhibits A, B and C. 
 
        Claimant's exhibits 26 through 30 and 32 were offers of proof 
 
        only.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal:
 
        
 
        1. The deputy industrial commissioner erred when he found that 
 
        there was no change of circumstances such as to justify a 
 
        reopening of the earlier award based on the injury of July 14, 
 
        1983.
 
        
 
        2. The deputy erred when he found that the three incidents at 
 
        work did not aggravate his preexisting condition and did not 
 
        cause any additional disability.
 
        
 
        3. The deputy erred in failing to find additional industrial 
 
        disability and in failing to award healing period benefits.
 
        
 
        4. The deputy erred in finding that the claimant lacked 
 
        credibility as a witness.
 
        
 
        PORTER V. CROUSE CARTAGE COMPANY
 
        Page 2
 
        
 
        
 
                                 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 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 suffered back injuries of June 14, 1983 and July 14, 
 
        1983; it has been established by an earlier decision of the 
 
        industrial commissioner that the second injury resulted in a 
 
        permanent industrial disability of ten percent.
 
        
 
        2. The July 14, 1983, injury was to claimant's lumbar disc at the 
 
        L4-5 level; the disc was surgically removed.
 
        
 
        3. Claimant suffered exacerbations of his preexisting back injury 
 
        on September 23, October 10 and October 29, 1986.
 
        
 
        4. Claimant suffers from prominent narrowing of the neural 
 
        foramen on the left between L5 and Sl and some narrowing on the 
 
        right at L3-4; these areas of narrowing are caused by 
 
        hypertrophied facets.
 
        
 
        5. Claimant's hypertrophied facets are themselves osteoarthritic 
 
        changes resulting from the aging process.
 
        
 
        6. Claimant has failed to established any unanticipated worsening 
 
        of his condition since the earlier decision of the industrial 
 
        commissioner.
 
        
 
        7. Claimant has failed to establish that his three exacerbations 
 
        of 1986 aggravated his preexisting condition or caused any 
 
        additional disability.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has failed to establish a change of circumstances such 
 
        as to justify a reopening of his earlier award based on the 
 
        injury of July 14, 1983.
 
        
 
        PORTER V. CROUSE CARTAGE COMPANY
 
        Page 3
 
        
 
        
 
        Claimant has failed to establish that his exacerbations of 
 
        September 23, October 10, and October 29, 1986, are causally 
 
        connected to permanent disability beyond his disability 
 
        pre-dating those incidents.
 
        
 
        Claimant has failed to establish temporary total disability 
 
        resulting from the exacerbations of his 1983 injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That the claimant shall take nothing from this proceeding.
 
        
 
        That the claimant shall pay the costs of the appeal.
 

 
        
 
 
 
 
 
        
 
        Signed and filed this 10th day of May, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD F. PORTER,
 
                                                File Nos. 741973/750408
 
              Claimant,                                   833246/833247
 
                                                             833248
 
         vs.
 
                                                      A P P E A L
 
         CROUSE CARTAGE COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,                MAY 10 1989
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration and review-reopening 
 
         decision denying permanent partial disability benefits as the 
 
         result of an alleged injury on September 23, 1986; October 10, 
 
         1986; October 30, 1986; June 14, 1983; and July 14, 1983.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration and review-reopening hearing; claimant's exhibits 1 
 
         through 25, and 34; and defendants' exhibits A, B and C. 
 
         Claimant's exhibits 26 through 30 and 32 were offers of proof 
 
         only.
 
         
 
                                     ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  The deputy industrial commissioner erred when he found 
 
         that there was no change of circumstances such as to justify a 
 
         reopening of the earlier award based on the injury of July 14, 
 
         1983.
 
         
 
              2.  The deputy erred when he found that the three incidents 
 
         at work did not aggravate his preexisting condition and did not 
 
         cause any additional disability.
 
         
 
              3.  The deputy erred in failing to find additional 
 
         industrial disability and in failing to award healing period 
 
         benefits.
 
         
 
              4.  The deputy erred in finding that the claimant lacked 
 
         credibility as a witness.
 
         
 
                              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 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 suffered back injuries of June 14, 1983 and 
 
         July 14, 1983; it has been established by an earlier decision of 
 
         the industrial commissioner that the second injury resulted in a 
 
         permanent industrial disability of ten percent.
 
         
 
              2.  The July 14, 1983, injury was to claimant's lumbar disc 
 
         at the L4-5 level; the disc was surgically removed.
 
         
 
              3.  Claimant suffered exacerbations of his preexisting back 
 
         injury on September 23, October 10 and October 29, 1986.
 
         
 
              4.  Claimant suffers from prominent narrowing of the neural 
 
         foramen on the left between L5 and S1 and some narrowing on the 
 
         right at L3-4; these areas of narrowing are caused by 
 
         hypertrophied facets.
 
         
 
              5.  Claimant's hypertrophied facets are themselves 
 
         osteo-arthritic changes resulting from the aging process.
 
         
 
              6.  Claimant has failed to established any unanticipated 
 
         worsening of his condition since the earlier decision of the 
 
         industrial commissioner.
 
         
 
              7.  Claimant has failed to establish that his three 
 
         exacerbations of 1986 aggravated his preexisting condition or 
 
         caused any additional disability.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish a change of circumstances 
 
         such as to justify a reopening of his earlier award based on the 
 
         injury of July 14, 1983.
 
         
 
              Claimant has failed to establish that his exacerbations of 
 
         September 23, October 10, and October 29, 1986, are causally 
 
         connected to permanent disability beyond his disability 
 
         pre-dating those incidents.
 
         
 
                                                
 
                                                         
 
              Claimant has failed to establish temporary total disability 
 
         resulting from the exacerbations of his 1983 injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the claimant shall take nothing from this proceeding.
 
         
 
              That the claimant shall pay the costs of the appeal.
 
         
 
         
 
              Signed and filed this 10th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200, Snell Building
 
         P.O. Box 1560
 
         Ft. Dodge, Iowa  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         Suite 503, Snell Building
 
         P.O. Box 1680
 
         Ft. Dodge, Iowa  50501
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51404 - 51402.20
 
                                            Filed May 10, 1989
 
                                            DAVID E. LINQUIST
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD F. PORTER,
 
         
 
              Claimant,
 
                                                  File Nos. 741973/750408
 
         vs.                                                833246/833247
 
                                                               833248
 
         CROUSE CARTAGE COMPANY,
 
         
 
              Employer,                                 A P P E A L
 
         
 
         and                                          D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51404, 51402.20
 
         
 
              Affirmed deputy's determination that claimant failed to 
 
         prove a change of circumstances or an injury aggravating a 
 
         preexisting condition.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GERALD F. PORTER,
 
                                            File Nos.  741973, 750408
 
              Claimant,                                833246, 833247
 
                                                           833248
 
         vs.
 
                                             A R B I T R A T I O N
 
         CROUSE CARTAGE COMPANY,
 
                                                     A N D
 
              Employer,
 
                                                  R E V I E W -
 
         and
 
                                               R E O P E N I N G
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                D E C I S I O N
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding both in arbitration and in 
 
         review-reopening brought by claimant, Gerald F. Porter, against 
 
         defendant employer, Crouse Cartage Company, and defendant 
 
         insurance carrier, Liberty Mutual Insurance Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act.  Claimant 
 
         alleges an injury to his back which is either a change in 
 
         condition from injuries of June 14 and July 14, 1983 
 
         (review-reopening file numbers 741973 and 750408) and/or related 
 
         to alleged further injuries of September 23, October 10.and 
 
         October 30, 1986 (arbitration file numbers 833246, 833247 and 
 
         833248).  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Fort Dodge, Iowa, on August 25, 
 
         1988.  The matter was considered fully submitted at the close of 
 
         hearing.  The record in this proceeding consists of the testimony 
 
         of claimant, Grace Porter, Elmer Bartson, Arnold Smith and George 
 
         Savery, claimant's exhibits 1 through 8 and defendants' exhibits 
 
         A through C.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted and approved on 
 
         August 25, 1988, the issues that remain to be determined include: 
 
          Whether claimant sustained any 1986 injuries arising out of and 
 
         in the course of his employment; whether the alleged injuries 
 
         caused temporary or total disability; the extent of healing 
 
         period or temporary total disability, if liability be found (but 
 
         it is stipulated that claimant seeks healing period or temporary 
 
         total disability from October 29, 1986); the extent of permanent 
 
         disability, if defendants are liable (although it is disputed 
 
         that, if injury be found, the type of injury is industrial 
 
         disability to the body as a whole); the commencement date for 
 
         permanent partial disability, if liability be found; whether a 
 
         defense of res judicata exists as to the review-reopening issues; 
 
         taxation of costs.
 
                                        
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Deputy Industrial Commissioner Michael G. Trier issued an 
 
         arbitration decision in file numbers 741973 and 750408 on 
 
         September 23, 1985.  That decision has become final.  Deputy 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   2
 
         
 
         
 
         Trier found that claimant was injured on June 14 and July 14, 
 
         1983 while employed by defendant Crouse Cartage Company.  It was 
 
         found that the June 14 injury produced no permanent disability, 
 
         but that the July 14, 1983 injury resulted in temporary total 
 
         disability and a permanent industrial disability of ten percent.  
 
         Both injuries were to claimant's lumbar disc at the L4-5 level.  
 
         That disc was surgically removed.
 
         
 
              Claimant testified that he returned to work with defendant 
 
         Crouse Cartage Company following recovery from his 1983 injuries. 
 
          He was employed as a dock worker, which involved heavy work 
 
         loading, unloading and lifting.  He performed the same work after 
 
         his 1983 injuries as was the case before those injuries.  
 
         However, he testified that his back continued to bother him after 
 
         surgery and return to work and that the problem continued to 
 
         worsen throughout the balance of his employment.
 
         
 
              Claimant states that he injured himself again on September 
 
         23, 1986 when helping to load a heavy container of bearings with 
 
         another worker.  He stated that he suffered sharp knife-like pain 
 
         at the same location as his earlier surgery.  However, he 
 
         continued to work.
 
         
 
              Claimant further testified that he again injured himself on 
 
         October 10, 1986 when picking up 60-pound cartons of jugs.  He 
 
         left for a scheduled two-week vacation on October 13, and, 
 
         although he continued to suffer some pain, the problem 
 
         ameliorated to some degree while he rested up during the 
 
         vacation.
 
         
 
              Claimant further testified that he returned to work, on 
 
         October 29, 1986 and again injured his back.  He had already 
 
         submitted papers to retire on October 31, 1986 (and had made 
 
         application on May 2, 1986), but then retired immediately after 
 
         his most recent injury.  He has not worked since his retirement.
 
         
 
              Claimant is a member of the Teamsters Union.  That labor 
 
         organization maintains a "30 years and out" policy that allows 
 
         for retirement at the end of 30 years of service, even if an 
 
         individual has not reached normal retirement age.  Claimant was 
 
         60 years old at the time of hearing.  Although claimant submitted 
 
         application for his retirement in May, 1986, he testified that he 
 
         really did not intend to retire and that he applied for his 
 
         pension "just in case" something else happened to his back.  
 
         Claimant had earlier filed an application for retirement 
 
         effective December 28, 1984, but changed his mind and did not 
 
         retire.  His revocation of that application was dated October 6, 
 
         1984.  Claimant indicated that his early retirement operates as a 
 
         financial hardship.
 
         
 
              Claimant testified that he is now unable to perform such 
 
         normal activities as lawn mowing, snow shoveling and housework.  
 
         He agrees that he has not looked for work since his retirement 
 
         because he does not believe that any employer will have him.  He 
 
         states that he can stand only some 20-30 minutes, that he cannot 
 
         walk far and that prolonged sitting is difficult.  He indicated 
 
         that his back has been getting steadily worse for some five 
 
         years, particularly after his return to work in March, 1984.  He 
 
         testified that his back is now much worse than when he returned 
 
         to work, and that in particular he suffers from sharp pains, 
 
         including pains radiating to his left leg.
 
         
 
              Claimant indicated that he has suffered pain on every day in 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   3
 
         
 
         
 
         1985 and 1986 up through his three claimed injuries.  When 
 
         specifically asked on cross-examination how his condition 
 
         differed from his condition in calendar year 1985, claimant 
 
         stated only that he still had pain that had not gone away.  He 
 
         agreed that while John R. Walker, M.D., an orthopaedic 
 
         specialist, had recommended fusion surgery, he had so far opted 
 
         against the surgery.
 
         
 
              Grace Porter testified that she is claimant's wife.  She 
 
         stated that on September 23 and October 10, 1986, claimant came 
 
         home from work in a doubled-up and painful position.  She further 
 
         testified that claimant was unable even to extricate himself 
 
         front his car when he returned to work on October 29, 1986.
 
         
 
              Ms. Porter indicated that claimant continually complained of 
 
         pain and that claimant's activities have changed since the 
 
         October 29.incident in that he is no longer able to mow grass, 
 
         take out garbage, shovel snow, move furniture or sit through 
 
         Mass.  However, she conceded on cross-examination that claimant 
 
         could not mow or perform such duties well even before October, 
 
         1986, that he has not shoveled snow "to a great extent" since his 
 
         earlier back surgery, and that he has used devices such as Ben 
 
         Gay, heating pads and the like since his return to work in 1984.
 
         
 
              Ms. Porter also agreed that claimant's early retirement has 
 
         been a financial hardship for the family.
 
         
 
              Elmer Bartson testified that he himself retired from 
 
         defendant Crouse in June, 1988, that he had been a union steward 
 
         for some six to seven years, and that he has known claimant since 
 
         1963.  Even that early, claimant was wearing a supportive belt or 
 
         corset for his back.  Bartson agreed that claimant has suffered 
 
         and complained of back pain for at least his last five years of 
 
         employment and that he saw claimant on a daily basis in 1986.
 
         
 
              Mr. Bartson indicated in his testimony that he had long been 
 
         aware that claimant planned to retire. he testified that claimant 
 
         advised him in the spring of 1986 that he would retire in the 
 
         fall with his brother.  On cross-examination, he quoted or 
 
         paraphrased claimant as stating that "as soon as I get my 30 in, 
 
         I'll retire so I don't risk more injury to my back."
 
         
 
              Fellow worker Arnold Smith testified that he had known for 
 
         months that claimant intended to retire at the end of October, 
 
         1986 and that this was generally known on and about the loading 
 
         dock.
 
         
 
              George Savery testified that he has been terminal manager 
 
         and has known claimant for many years.  He testified that 
 
         claimant was limping (the same as at the time of hearing) as 
 
         early as 1958, and that claimant, like most other employees of 
 
         the loading dock, has had backache problems for years.  He knew 
 
         that claimant wore a supporting corset and further testified that 
 
         he knew as early as May, 1988 that claimant was leaving work to 
 
         retire on or about October 31, 1988.
 
         
 
              John R. Walker, M.D., testified through deposition and 
 
         medical reports that he is an orthopaedic surgeon and is 
 
         board-certified.  He first saw claimant on October 17, 1984, 
 
         following his 1983 injuries.  He saw claimant some 16 months 
 
         later after surgery was performed by orthopaedic surgeon Thomas 
 
         R. Lehmann, M.D.  Dr. Walker believed at that time that further 
 
         follow-up surgery and fusion to the L4-5 and L5-Sl vertebrae 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   4
 
         
 
         
 
         should be performed, although claimant did not elect that 
 
         surgery.  In a letter to claimant's present attorney of October 
 
         17, 1984, Dr. Walker stated:
 
         
 
              OPINION:  This patient has had satisfactory treatment 
 
              so far but I don't think that this is the end of his 
 
              problem.  He has marked instability with degenerative 
 
              changes in the low back region particularly at L-4, L-5 
 
              of course.  L-4 seems to be the worst area and I 
 
              believe that he still has some nerve root irritation.  
 
              All-in-all this man is going to continue to have pain 
 
              and discomfort until something further is done.  I 
 
              would advocate that this man undergo spinal fusion, the 
 
              bilateral, lateral fusion of Mc Elroy type and at this 
 
              point I don't think that any of the nerve roots or the 
 
              cauda equina area would have to be disturbed.  In other 
 
              words we would do a simple fusion of the Mc Elroy type 
 
              from L-4 through the sacrum.  I believe that this would 
 
              put this man back on his feet and stop the progression 
 
              of what appears to be some recurrence of his sciatica, 
 
              particularly on the left leg and at the same time put 
 
              stabilize his back to the point where it was painless.  
 
              I believe he can continue to work if this were 
 
              successfully carried out, although of course no 
 
              guarantee could be made.  At the present time I would 
 
              state that his permanent, partial disability is rather 
 
              high and I would estimate it to be approximately 30% of 
 
              the body as a whole.  I believe that this could be 
 
              reduced to at least 20% by a proper fusion.  However, I 
 
              should point out that this man's working status is 
 
              going to end abruptly if something isn't done fairly 
 
              soon.  If he re-injures this back rather severely 
 
              again, at this point the spinal surgery is going to 
 
              have to be done and if there is a severe recurrence of 
 
              sciatica then perhaps some invasion of the boney caudal 
 
              canal would have to be done at surgery at that time.
 
         
 
              Dr. Walker again saw claimant on October 27, 1986 for 
 
         diagnosis, evaluation and suggestions for treatment.  Claimant 
 
         gave him a history of continued pain while he continued working, 
 
         including intervals of low back pain where the severity depended 
 
         upon what kind of work claimant did or how much activity he 
 
         underwent.  Dr. Walker noted that claimant indicated that, at the 
 
         end of an eight-hour shift, he would be bent over with back pain 
 
         which became worse and worse.  Claimant gave Dr. Walker history 
 
         of the September 23 and October 10 incidents.  Claimant advised 
 
         Dr. Walker that his pain had been getting worse for the last year 
 
         or so and had basically the same complaints of low back pain and 
 
         left leg, ankle and thigh pain.
 
         
 
              Dr. Walker took a complete new set of x-rays, but felt that 
 
         claimant "had just about the same findings, except the 
 
         instability sign was negative this time.  In other words, that he 
 
         didn't complain of the pain when he was relaxed.  That was the 
 
         only thing different that I remember.  Dr. Walker further stated 
 
         that the x-rays showed some increase in claimant's narrowing of 
 
         the fourth disc and some arthritic changes that were increased.  
 
         Dr. Walker further indicated that claimant's subjective 
 
         complaints were about the same as had been the case in 1984.
 
         
 
              Dr. Walker believed that claimant had increased his 
 
         permanent partial disability by reason of the September 23 and 
 
         October 10, 1986 injuries.  He believed that claimant had an 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   5
 
         
 
         
 
         additional 12% impairment to the body as a whole.  He also agreed 
 
         that the impairment could be reduced by surgical fusion.  He 
 
         testified that claimant was given the same recommendations as had 
 
         been the case earlier:
 
         
 
              Q.  What recommendations did you make to Mr. Porter 
 
              when he left your office back in October of 86?
 
         
 
              A.  Well, I made the same recommendations this time.  
 
              Before I felt that I would not have to do anything with 
 
              nerve root problems because he wasn't having leg pain 
 
              the first time particularly.  The second time he seemed 
 
              to be having more and more trouble with the left leg.  
 
              And I thought if he wanted to so-called get well, as I 
 
              would put it in the vernacular, that he should have the 
 
              same surgery, only this time I would be looking at the 
 
              nerve roots being sure they weren't tied down with 
 
              adhesions or any further disc problem or any new bone 
 
              formation.
 
         
 
              Because he was having -- he seemed to be having more 
 
              leg pain this time, which makes one think more of a 
 
              nerve problem.  So I made the same recommendations, 
 
              almost exactly, and also completely in agreement if he 
 
              wants to retire and get out of this heavy work, that if 
 
              he doesn't want surgery, fine, he shouldn't have it.
 
         
 
         (Claimant's exhibit 2, page 21, line 12 through page 22, line 7)
 
         
 
              Dr. Walker did advise claimant to retire from his heavy job, 
 
         but felt that he could do such sedentary work as taking tickets 
 
         at a theater or the like.
 
         
 
              Dr.Walker did not see claimant following his October 29, 
 
         1986 injury.  However, he reviewed office notes and CT scan 
 
         results prepared by Roger Vogt, M.D., of the Fort Dodge Medical 
 
         Center (Dr. Vogt is apparently a radiologist).  When asked 
 
         whether those records would cause him to alter or modify his 
 
         opinion as to claimant's condition, Dr. Walker testified:
 
         
 
              A.  Well, they would make me want to be sure that I 
 
              examined the neural canal foramina if I did surgery, 
 
              and decompress and be sure the nerve root wasn't 
 
              trapped.  Because the neural foramina was severely 
 
              narrowed due to the hypertrophy of the facets.  And I 
 
              would want to do a facetectomy in the foramina with the 
 
              fusion.  So it would add -- this would help me if I 
 
              were to do surgery.  And so it just adds to my previous 
 
              philosophy.
 
         
 
              Q.  Doctor, if you could convert the CAT scan results 
 
              which were prepared, I believe, by a Dr. Vogt, to 
 
              laymen's terms, what does that CAT scan result really 
 
              mean to Jerry Porter as far as his prognosis for the 
 
              future, if you are able to make one?
 
         
 
              A.  Well, it just means that the man has his spinal 
 
              cord cramped in with new bone and probably scar 
 
              formation.  And also, the spinal nerves are cramped in, 
 
              particularly the -- he says the left at L5-Sl is nerve 
 
              root L5.  He's wrong here.  At L5-Sl is the 1st sacral, 
 
              Sl nerve root.  But that's all right.  It's the Sl 
 
              nerve root, not the L5 nerve root.
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   6
 
         
 
         
 
         
 
              These little joints, the facet articulations, are 
 
              large, and they tend to be intruded medially and they 
 
              cramp up the spinal cord, or the cauda equina, in that 
 
              area, and the nerve roots as they come into the 
 
              foramina.  So what you are dealing with here is a nerve 
 
              root and a spinal cord that's being maybe not squeezed, 
 
              but has no room to move around or manipulate.  And with 
 
              a little swelling or a little undue motion it causes 
 
              pain, and leg pain on the left.
 
         
 
         (Claimant's exhibit 2, page 26, line 11 through page 27, line 
 
         17)
 
         
 
              Asked further about claimant's limitations, Dr. Walker 
 
         testified:
 
         
 
              Q.  Doctor, as you are aware, Mr. Porter has 
 
              discontinued his employment at Crouse Cartage.  
 
              However, if Mr. Porter was to attempt to go back out on 
 
              the job market and try to make a living, and I know you 
 
              previously had alluded to taking tickets at a movie 
 
              theater, what limitations or restrictions would you 
 
              recommend for him to follow, if any, if he was going to 
 
              go out and compete for a job?
 
         
 
              A.  Well, he's a very highly motivated person I would 
 
              think from what I read here.  He should avoid the main 
 
     
 
         
 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   7
 
         
 
         
 
              things he should avoid would be like shoveling sand, 
 
              shoveling anything, pitching hay, anything with a 
 
              twisting, lifting motion, picking anything up from the 
 
              ground, floor level and putting it up repetitively on a 
 
              tabletop.
 
         
 
              He could do some carrying, you know, from tabletop, 
 
              perhaps 25, 30 pounds, not frequently, but some.  And I 
 
              say this basically because I think he's very well 
 
              motivated.  I think a lot of people might not even try 
 
              it.  But at any rate, heavy lifting and carrying, and 
 
              as I understand with Crouse Cartage being a transfer 
 
              company, I'm sure he just doesn't qualify for anything 
 
              like that at all, or any other company like it.  And 
 
              the job market would be difficult if he gave them the 
 
              honest history.  In my town they wouldn't hire him at 
 
              John Deere or Rath Packing or any of those places.  But 
 
              basically a sedentary job in which maybe he can do 
 
              something easy, and I wouldn't -- I'm sure he could do 
 
              that.
 
         
 
         (Claimant's exhibit 2, page 28, line 13 through page 29, line 
 
         17)
 
         
 
              In comparing x-rays taken on October 17, 1984 with some 
 
         taken October 27, 1986, Dr. Walker stated:
 
         
 
              A.  Taken on October 17th, 1984.  And then the last one 
 
              I can -- I didn't put a lead marker, it's the same 
 
              lateral view, but this was taken October 27th, 1986, 
 
              two years later.  And what it really shows is a little 
 
              more narrowing of this 4th disc compared to the first 
 
              time.  And it also shows a little more spurring.  These 
 
              little spurs are a little larger, and you can see that.  
 
              It's just a little further degenerative change that I 
 
              guess you can sort of see if you compare the size of 
 
              the spurs in this narrowing.  A little wider "4" here, 
 
              a little narrower here (indicating).  This is what one 
 
              would expect as a couple years go by.
 
         
 
              Q.  And as the spaces become narrower, will those 
 
              continue to cause him pain and aggravation?
 
         
 
              A.  Yeah.  He will continue to have this same thing.  
 
              And if he's inactive he will probably live with it.
 
         
 
         (Claimant's exhibit 2, page 32, line 2 through line 19)
 
         
 
              Dr. Vogt did not testify, but the roentgenological report he 
 
         prepared on November 6, 1986 was submitted into evidence.  It 
 
         noted:
 
         
 
              CT SCAN OF THE LUMBOSACRAL SPINE:
 
              4 mm thick sections were taken at 4 mm intervals from 
 
              the midportion of the L-3 vertebral body to below the 
 
              disc space between L-5 and S-1.  The sections showed 
 
              that the neural foramina between L-3 and 4 was clear.  
 
              Between L-4 and 5 the canal was slightly narrowed on 
 
              the right by hypertrophied posterior facets on the left 
 
              at L5-Sl (nerve root L-5).  The neural foramen is 
 
              severely narrowed due to hypertrophy of the posterior 
 
              facets. only a very narrow canal was seen to remain.  
 
              The origin of S-1 was seen at the end of the scan and 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   8
 
         
 
         
 
              the parathecal fat appeared normal with no evidence of 
 
              impingement as far as the scan was continued.
 
         
 
              IMPRESSION:
 
         
 
              1.  Prominent narrowing of the neural foramen on the 
 
              left between L-5 and S-1 (nerve root L-5).  Some 
 
              narrowing was present on the right at L3-4.  These 
 
              areas of narrowing were caused by hypertrophied 
 
              facets.
 
         
 
              ADDENDUM:  I see that the patient had a previous scan 
 
              taken here in 1983.  Comparison shows that that facet 
 
              was hypertrophied in the past at L5-Sl on the left.  
 
              There appears to have been very little change in the 
 
              interval of time.
 
         
 
         (Claimant's exhibit 4)
 
         
 
              Claimant. saw David J. Boarini, M.D., also a board-certified 
 
         orthopaedic surgeon, for evaluation on April 13, 1987.  Dr. 
 
         Boarini took a history from claimant in which he was advised that 
 
         claimant's leg pain improved, but there was still considerable 
 
         back pain following the surgery performed by Dr. Lehmann.  He 
 
         noted:.
 
         
 
              Q.  Okay.  Based on the examination that you performed 
 
              and the history that you obtained, were you able to 
 
              determine to a reasonable degree of medical certainty 
 
              as to whether these exacerbations that we've discussed 
 
              in the fall of 1986 contributed to any permanent 
 
              impairment that he presently has?
 
         
 
              A.  I thought from his history that both his history of 
 
              the back difficulties and the laminectomy and the 
 
              difficulties he had afterward were essentially the same 
 
              as after 86.  He said that he felt worse, so if pinned 
 
              down, maybe a small part of the impairment rating 1 
 
              gave him would be related to that.  I gave him a seven 
 
              to eight percent, I think, impairment rating.  I would 
 
              say I based five percent of that on his having had a 
 
              back surgery, and I based the other two to three 
 
              percent on his having residual complaints of pain and 
 
              some limited range of motion.  Going just by his 
 
              history, it's difficult to sort out.  There was 
 
              certainly some of that pain and range of motion 
 
              difficulties present before the 86 accident.  If he 
 
              says it's worse, then I would ascribe part of that 
 
              to--his three percent to that, based on his statement.
 
         
 
              A.  And "to that," referring to the episodes in the 
 
              fall of 86?
 
         
 
              A.  Correct.
 
         
 
              Q.  Doctor, in your report as well you indicate that 
 
              "In terms of restrictions from his job, I would not 
 
              give him any specific restrictions."  Would you explain 
 
              what your policy is, your thinking is in this regard?
 
         
 
              A.  This is the kind of a case where if a man came in 
 
              and said, "Is there some work I cannot do because it's 
 
              dangerous?"  I would say, "No, there's no restrictions 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE   9
 
         
 
         
 
              to what you can do," but it is also true that he has 
 
              had a back surgery and he's had back difficulty, and it 
 
              is very likely that he would not tolerate very heavy 
 
              lifting or repetitive bending.  So a job moving 
 
              concrete sacks or at a work station where he had to 
 
              repeatedly bend over and pick things up, he very likely 
 
              would not tolerate.  So I would support him in that.  
 
              If he said he didn't tolerate it, that sort of heavy 
 
              back work he might not be able to do.
 
         
 
              Q.  Okay.  And is there any reason from a physiological 
 
              point of view why he would not--given this condition 
 
              that you found in April, not have been able to use 
 
              appliances such as dollies or carts with which to carry 
 
              heavier objects so long as he did not have to lift them 
 
              himself, such as pushing carts or maneuvering a dolly?
 
         
 
              A.  You mean would I allow him to do that?
 
         
 
              Q.  Yes, sir.
 
         
 
              A.  Yes, I would.
 
         
 
              Q.  And you used the term "dangerous" at the beginning 
 
              of your last answer.  Did you mean dangerous in the 
 
              since [sic) that it would subject him to further risk 
 
              of additional injury to the back?
 
         
 
              A.  That's right.  Once he's healed from a surgery like 
 
              that, if he's completely healed, I would not restrict 
 
              him any more than I would restrict you or me or anybody 
 
              else from doing that kind of work if it didn't bother 
 
              him symptomatically.
 
         
 
         (Claimant's exhibit 5, page 8, line 22 through page 11, line 9)
 
         
 
              * * *
 
         
 
              Q.  Okay.  Was there any reason to believe, following 
 
              your examination, that he had any radiculopathy to the 
 
              extremities as a result of the exacerbations that 
 
              occurred in the fall of 86 that had not already been 
 
              present?
 
         
 
              A.  He complains of some residual leg pain, which, by 
 
              definition, you could call a radiculopathy.  It's the 
 
              same kind of thing he had before.  It's the same 
 
              problem.
 
         
 
              Q.  Okay. "Before" meaning--
 
         
 
              A.  Before this fall of 86 stuff and also before the 
 
              surgery.  It's the same sciatic pain.
 
         
 
              Q.  Okay.  That would have been what he described to 
 
              you as the left upper leg pain?
 
         
 
              A.  Yes.
 
         
 
         (Claimant's exhibit 5, page 12, line 13 through page 13, line 2)
 
         
 
              As did Dr. Walker, Dr. Boarini found claimant had no ankle 
 
         reflex on the left side.  He felt that was a residual from 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  10
 
         
 
         
 
         claimant's original surgery and was not indicative of anything 
 
         further.
 
         
 
              Although claimant testified that Dr. Boarini did not examine 
 
         him, the doctor testified to the contrary:
 
         
 
              Q.  Okay. What did your examination of Mr. Porter 
 
              actually consist of when he came to your office?
 
         
 
              A.  I would have watched him walk.  I checked his 
 
              incision and felt the muscles in his back.  I had him 
 
              move and checked his range of motion in all directions, 
 
              and then I did a neurological exam on the lower 
 
              extremities.
 
         
 
              Q.  And that neurological exam would consist of what?
 
         
 
              A.  Testing the muscle strength in each group, seeing 
 
              how the muscles--how the legs move, checking the 
 
              reflexes and checking the sensation.
 
         
 
              Q.  Typically, and specifically in Mr. Porter's case, 
 
              approximately how long does it take to administer an 
 
              examination such as that to a patient?
 
         
 
              A.  Oh, the examination itself will take ten minutes, 
 
              five to ten minutes for just the examination part.
 
         
 
              Q.  Is the history part what took more time or--
 
         
 
              A.  In a case like this, it probably took longer to 
 
              take the history.  I don't remember exactly, but, yes, 
 
              it was probably longer to go over the history.
 
         
 
         (Claimant's exhibit 5, page 20, line 18 through page 21, line 
 
         15)
 
         
 
              Related to the history, and particularly the 1986 injuries, 
 
         Dr. Boarini testified:
 
         
 
              Q.  Okay.  Did Mr. Porter relate to you any or what 
 
              specific pain he felt after each of the two incidents 
 
              in the fall of 86 that were in any way different from 
 
              the pain he was experiencing prior to those two 
 
              incidents?
 
         
 
              A.  He told me that--in the September lifting thing, he 
 
              said that, again, it was his back and his left leg, 
 
              same type of pain, but it was exacerbated; and again 
 
              then in October it happened, and he was off for a few 
 
              weeks, went back for two days and retired and that he 
 
              has continued to have a similar type of pain.  So I 
 
              didn't get the impression it was a different type of 
 
              pain, just that it was worse after these incidents.
 
         
 
         (Claimant's exhibit 5, page 20, line 2 through line 15)
 
         
 
              Dr. Boarini generally testified that he failed to find any 
 
         objective indications that claimant had suffered a change for the 
 
         worse by reason of his 1986 incidents, but agreed that, if 
 
         claimant said his condition was worse, some of the range of 
 
         motion limitations could be attributable to the 1986 injuries.
 
         
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  11
 
         
 
         
 
              With regard to the hypertrophied facets found by Dr. Vogt, 
 
         Dr. Boarini noted that these findings can themselves generate 
 
         symptoms in an individual and that these were osteoarthritic 
 
         changes, known as degenerative arthritis, which is a chronic 
 
         situation and develops over a period of years.  Dr. Boarini 
 
         believed that claimant's condition of degenerative arthritis 
 
         ("which is just the arthritis from aging") was probably 
 
         contributing to his back pain.  Dr. Boarini indicated in a June 
 
         19, 1987 letter to claimant's attorney that claimant needed no 
 
         further treatment except during exacerbations and needed no 
 
         specific restrictions, although it would be prudent for claimant 
 
         to seek a job which did not require repetitive heavy lifting or 
 
         bending.
 
         
 
                           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).
 
         
 
              Of course claimant has the burden of proving by a 
 
         preponderance of the evidence that he received an injury arising 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976).  Claimant further bears 
 
         the burden of establishing, by a preponderance of the evidence, 
 
         that there is a causal connection between his injury and his 
 
         claimed disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 687 (1965).  A possibility is insufficient; a probability 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  12
 
         
 
         
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1976).
 
         
 
              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, 226 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Claimant may recover if he establishes additional industrial 
 
         disability arising from any of his claimed 1986 injuries, or if 
 
         he establishes a change in condition as to his 1983 injuries.
 
         
 
              With regard to an injury to the body as a whole, the 
 
         touchstone is not the showing of a physical impairment, but 
 
         establishment of industrial disability.
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              A final decision of this agency of September 23, 1985, 
 
         established that claimant's July 14, 1983 injury resulted in a 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  13
 
         
 
         
 
         permanent industrial disability of ten percent.  Defendants take 
 
         the position that this determination is res judicata.  Of course, 
 
         defendants are correct that the final decision is binding as to 
 
         the extent of claimant's industrial disability (and other issues 
 
         adjudicated in that decision) resulting from his 1983 injury.  
 
         Yet, the earlier decision by its very nature cannot be res 
 
         judicata as to a change in condition, which is of course the 
 
         essential determination in a review-reopening determination.  A 
 
         redetermination of the condition of claimant as it was previously 
 
         adjudicated is improper.  Sheriff v. Intercity Express, 34th 
 
         Biennial Report, Iowa Industrial Commissioner, 302 (1978).  
 
         Review-reopening is appropriate where there is substantial 
 
         evidence of a worsening of claimant's condition such as was not 
 
         contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
              Where claimant sustains an injury, later sustain another 
 
         injury, and subsequently seeks to open an award predicated on the 
 
         first injury, he must prove either that the disability for which 
 
         he seeks additional compensation was proximately caused by the 
 
         first injury or that the second injury was proximately caused by 
 
         the first injury.  DeShaw v. Energy Mfg. Co., 192 N.W.2d 777 
 
         (Iowa 1971).  However, it is not necessary that the first injury 
 
         be the "sole" proximate cause of disability.  Langford v. Kellar 
 
         Excavating & Grading, Inc., 191 N.W.2d 667 (Iowa 1971).
 
         
 
              Alternatively, claimant can recover upon a showing that one 
 
         or more of his claimed 1986 injuries materially aggravated his 
 
         preexisting condition so as to cause additional industrial 
 
         disability.
 
         
 
              The record in this case does not show either a material 
 
         change in claimant's condition since his 1983 injury or such a 
 
         new injury as to increase his industrial disability.
 
         
 
              Dr. Vogt prepared the CT scan following the three 1986 
 
         occurrences and specified that the narrowing caused by 
 
         hypertrophied facets appeared to have changed very little since 
 
         the earlier scan taken in 1983.  Dr. Walker compared October 17, 
 
         1984 and October 27, 1986 x-rays and found a little more 
 
         narrowing of the fourth disc and a little more spurring.  He went 
 
         on to note that this was "just a little further degenerative 
 
         change" and that it "is what one would expect as a couple years 
 
         go by."  This is not indicative of a new injury and degenerative 
 
         changes as a result of the continued aging process is hardly 
 
         unanticipated so as to show a change of condition since the 1983 
 
         injury.  Dr. Walker also reviewed the CT scan results prepared by 
 
         Dr. Vogt and commented on the narrowing due to hypertrophied 
 
         facets, yet there is no indication in his testimony of a 
 
         worsening or a new condition disclosed by the CT scan.  It is 
 
         true that Dr. Walker recommended that claimant avoid heavy 
 
         liftings and carryings such as would be the case with continued 
 
         employment as a dock worker, but this is not a change from his 
 
         view as expressed in the October 17, 1984 letter to claimant's 
 
         counsel.  In that letter Dr. Walker indicated his view at that 
 
         time that claimant could continue to work only if a fusion from 
 
         L4 through the sacrum were to be carried out.
 
         
 
              The other medical evidence was presented by Dr. Boarini.  
 
         Dr. Boraini's testimony indicates no change or additional injury, 
 
         but exacerbations following the 1986 incidents.  He found no 
 
         objective indications that claimant had suffered a change for the 
 
         worse by reason of those incidents and commented that the 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  14
 
         
 
         
 
         hypertrophied facets (apparently, the only objectively visible 
 
         problem since claimant's laminectomy) were in the nature of 
 
         degenerative arthritis, a chronic situation "which is just the 
 
         arthritis from aging."  Dr. Boarini imposed no restrictions in 
 
         specific, but noted that it would be prudent for claimant to seek 
 
         a job which did not require repetitive heavy lifting or bending.
 
         
 
              Based upon the foregoing, the deputy must conclude that 
 
         claimant has failed to meet his burden of proof in establishing 
 
         either a change of condition so as to justify a new award as a 
 
         review-reopening of the 1983 injury or any permanent disability 
 
         resulting from any of the 1986 occurrences, which are hereby 
 
         found to be mere exacerbations of claimant's preexisting 
 
         condition.
 
         
 
              Therefore, it is necessary to determine whether claimant is 
 
         entitled to an award of temporary total disability resulting from 
 
         his injury of October 29, 1986.  As noted above, the parties have 
 
         stipulated that claimant seeks temporary total disability only 
 
         from that date.
 
         
 
              The key fact in this determination is that claimant retired 
 
         from his work.  He gave notice of his intent to retire and 
 
         submitted application for that purpose in May, 1986.  While he 
 
         then testified that he really did not intend to retire and that 
 
         this application was made "just in case" something else happened 
 
         to his back, this deputy does not find claimant's testimony in 
 
         that regard to be credible.  While he did revoke an earlier 
 
         retirement application in 1984, his revocation of that 
 
         application came almost three months before the effective 
 
         retirement date.  In this case, claimant gave no indication of 
 
         any intent to revoke his retirement application up to and 
 
         including the incident of October 29, 1986, only two days before 
 
         the effective date.  Since claimant was effectively retired at 
 
         the time of his most recent exacerbation, he has failed to 
 
         establish entitlement to temporary total disability benefits 
 
         subsequent to October 29, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
              1.  Claimant suffered back injuries of June 14, 1983 and 
 
         July 14, 1983; it has been established by an earlier decision of 
 
         the industrial commissioner that the second injury resulted in a 
 
         permanent industrial disability of ten percent.
 
         
 
              2.  The July 14, 1983 injury was to claimant's lumbar disc 
 
         at the L4-5 level; the disc was surgically removed.
 
         
 
              3.  Claimant suffered exacerbations of his preexisting back 
 
         injury on September 23, October 10 and October 29, 1986.
 
         
 
              4.  Claimant suffers from prominent narrowing of the neural 
 
         foramen on the left between L5 and Sl and some narrowing on the 
 
         right at L3-4; these areas of narrowing are caused by 
 
         hypertrophied facets.
 
         
 
              5.  Claimant's hypertrophied facets are themselves 
 
         osteoarthritic changes resulting from the aging process.
 
         
 
              6.  Claimant has failed to establish any unanticipated 
 
         worsening of his condition since the earlier decision of the 
 

 
         
 
         
 
         
 
         PORTER V. CROUSE CARTAGE COMPANY
 
         PAGE  15
 
         
 
         
 
         industrial commissioner.
 
         
 
              7.  Claimant has failed to establish that his three 
 
         exacerbation of 1986 aggravated his preexisting condition or 
 
         Caused any additional disability.
 
         
 
              8.  Claimant lacked credibility as a witness.
 
         
 
              9.  Claimant intended to retire on October 31, 1986 and did 
 
         retire after his most recent exacerbation on October 29, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish a change of 
 
         circumstances such as to justify a reopening of his earlier award 
 
         based on the injury of July 14, 1983.
 
         
 
              2.  Claimant has failed to establish that his exacerbations 
 
         of September 23, October 10, and October 29, 1986 are causally 
 
         connected to permanent disability beyond his disability 
 
         pre-dating those incidents.
 
         
 
              3.  Claimant has failed to establish temporary total 
 
         disability resulting from the exacerbations of his 1983 injury 
 
         because of the coincidence that he retired effective October 29, 
 
         1986 and had intended to retire October 31, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 6th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           DAVID RASEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200, Snell Building
 
         P.O. Box 1560
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         Suite 503, Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1402.40
 
                                             Filed December 6, 1988
 
                                             DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD F. PORTER,
 
                                             File Nos. 741973, 750408
 
              Claimant,                                833246, 833247
 
                                                           833248
 
         vs.
 
                                              A R B I T R A T I O N
 
         CROUSE CARTAGE COMPANY,
 
                                                      A N D
 
              Employer,
 
                                                  R E V I E W -
 
         and
 
                                                R E O P E N I N G
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                 D E C I S I O N
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1502.40
 
         
 
              In review-reopening and arbitration proceeding, claimant 
 
         failed to establish any worsening in earlier condition by any of 
 
         three incidents which exacerbated earlier back disability.  No 
 
         benefits were awarded.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. BITTNER,
 
         
 
              Claimant,
 
                                                    File Nos. 742l80
 
         VS.                                                  757672
 
         
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,                         A R B I T R A T I 0 N
 
              Self-Insured,
 
         
 
         and
 
                                                   D E C I S I 0 N
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This proceeding involves two actions in arbitration brought 
 
         by Richard L. Bittner against Wilson Foods Corporation and the 
 
         Second Injury Fund of Iowa.  The injury dates in question are 
 
         August 19, 1983 and February 14, 1984.  The files were 
 
         consolidated for purposes of hearing and the hearing was 
 
         conducted on June 23, 1987.
 
         
 
              The record in the proceeding consists of testimony from 
 
         Richard L. Bittner and Gail Leonhardt.  The record also contains 
 
         claimant's exhibits 1 through 15 and exhibits from the Second 
 
         Injury Fund identified as exhibits A, B, C and D.
 
         
 
                                      ISSUES
 
         
 
              The issue presented by the parties at the time of bearing is 
 
         determination of claimant's entitlement to compensation for 
 
         permanent partial disability, including permanency from the 
 
         Second Injury Fund.
 
         
 
              It was stipulated by the parties that Bittner had sustained 
 
         injury which arose out of and in the course of his employment on 
 
         or about July 7, 1968 and on or about August 19, 1983.  The 
 
         claimed injury of February 14, 1984 was disputed.
 
         
 
              Claimant stipulated that section 85.26 barred any further 
 
         recovery from the employer based upon the 1968 injury.
 
         
 
              Claimant is making no further claim for additional temporary 
 
         total disability or healing period based upon either the 1983 or 
 
         the 1984 injuries.
 
         
 
              It was stipulated by the parties that, in the event of an 
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         award, the rate of compensation for the 1983 injury is $203.82 
 
         per week and for the 1984 injury, $212.38 per week.
 
         
 
              It was stipulated that the employer has not paid any 
 
         permanent partial disability compensation for any injury to 
 
         claimant's knees.
 
         
 
              It is claimant's claim that he injured his left knee in 
 
         1968 or 1970, the right knee in 1983 and the left knee amain in 
 
         1984.  The employer contends that all of the permanency in 
 
         claimant's left leg resulted from the 1968-1970 injury and that 
 
         the 1984 injury did not cause any permanent disability.  The 
 
         employer further contends that any permanent,disability in the 
 
         claimant's right knee is a result of degenerative arthritis and 
 
         did not result from the injury that occurred on August 19, 
 
         1983.  The Second Injury Fund contends that, where two injuries 
 
         occur, while the employee is in the employment of the same 
 
         employer, the Second Injury Fund has no liability as a matter 
 
         of law.  The Fund also disputes the nature and existence of 
 
         permanent disability affecting claimant's knees.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              The following is only a brief summary or pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              Richard L. Bittner is a 40-year-old married man who has been 
 
         employed by Wilson Foods Corporation since September 16, 1968.  
 
         Prior to commencing employment with Wilson Foods, he engaged in 
 
         construction work.  He was trained as a bricklayer.  Claimant 
 
         also has worked at an elevator where he drove a truck and mixed 
 
         feed.  Bittner has served in the army reserve since 1966. most 
 
         recently, he has worked in field artillery and in the military 
 
         police.
 
         
 
              Claimant testified that he had no health problems or serious 
 
         accidents while growing up.  He related that he was examined when 
 
         he commenced employment at Wilson Foods and that he has had 
 
         several physical examinations while in the army reserve.
 
         
 
              Claimant testified that he has held a number of different 
 
         positions at Wilson Foods, but that all of the jobs were 
 
         performed while standing on a concrete floor.
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         
 
              Claimant testified that in December, 1970, he slipped and 
 
         injured his left knee by striking it on the floor.  He related 
 
         that he was off work for a couple of months, had surgery that was 
 
         performed by D. G. Paulsrud, M.D., in which cartilage was 
 
         removed, and then returned to work.  Claimant related that he 
 
         received workers' compensation while he was off work from that 
 
         injury.
 
         
 
              Claimant testified that, after his return to work, he 
 
         continued to have problems with his left knee and that it has 
 
         worsened with the passage of each year bringing more pain and 
 
         aching.
 
         
 
              Bittner testified that he injured the left knee again on 
 
         February 14, 1984 when he jumped off a stool backwards.  He 
 
         testified that, the next day, be was treated by Keith Garner, 
 
         M.D., but was not taken off work due to that 1984 injury.  He 
 
         related that the knee remained sore and tender for at least two 
 
         weeks following the incident.
 
         
 
              Bittner testified that, on August 19, 1981, he was pulling a 
 
         conveyor that had stuck and that, in doing so, his foot slipped 
 
         and he hyperextended his right knee.  Claimant was treated 
 
         briefly by Dr. Garner and then referred to M. E. Wheeler, M.D., 
 
         an orthopaedic surgeon (exhibit 13, page 2).  Arthroscopic 
 
         surgery performed on September 6, 1983 revealed an acute fracture 
 
         of the lateral femoral condyle and also disclosed chronic, 
 
         degenerative changes in other parts of the knee.  A fragment of 
 
         articular cartilage was removed and the edges were trimmed 
 
         (exhibit 11, page 5).  After a period of recovery, claimant was 
 
         released to return to work on October 3, 1983 (exhibit 11, page 
 
         3).
 
         
 
              Bittner continued to complain of his knees and Dr. Wheeler 
 
         indicated that a valgus tibial osteotomy should be considered.  
 
         Claimant was scheduled for the procedure on July 23, 1985, but 
 
         was found to have advanced degenerative changes in the knee and 
 
         the osteotomy surgery was cancelled (exhibit 11., pages 3 and 
 
         6-9).  After a period of recovery, claimant was released to 
 
         return to work on December 2, 1985 (exhibit 11, page 10).
 
         
 
              Dr. Wheeler has indicated that claimant clearly has 
 
         degenerative arthritis that has impaired both claimant's knees.  
 
         In exhibit 2, a report dated December 2, 1985, Dr. Wheeler 
 
         states:
 
         
 
              In regards to my letter on Richard Bittner in October 
 
              of 1985, I am afraid I was not very clear.  As I stated 
 
              Mr. Bittner has degenerative arthritis in both of his 
 
              knees.  The left knee degenerative arthritis is due to 
 
              the meniscectomy he had in 1970 following a work 
 
              accident.  It has been well documented that total 
 
              meniscectomies lead to degenerative arthritis ten or 
 
              fifteen years later.  Regarding his right knee he has 
 
              had multiple smaller injuries while at work and he has 
 
              been working on concrete for fifteen years.  I feel 
 
              this does lead to degenerative arthritis in joint and 
 
              has probably lead [sic] to the degenerative arthritis 
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   4
 
         
 
         
 
              in his right knee.
 
         
 
              In the October letter, which was being clarified (exhibit 
 
         3), Dr. Wheeler had stated:
 
         
 
              In regards to your inquiries on Richard Bittner, he has 
 
              impairment rating on both knees.  At this time it is 
 
              due to the degenerative arthritis present in the knees.  
 
              The injuries he sustained aggravated this condition but 
 
              did not cause it.  The patient did relate to me that 
 
              his meniscectomy in 1971 was because of a work injury.  
 
              I believe the degenerative changes.in his left knee can 
 
              be related to that meniscectomy.
 
         
 
              The impairment rating arrived at by Dr. Wheeler was 30% of 
 
         each leg (exhibits 4 and 5).
 
         
 
              Dr. Wheeler recommended that claimant restrict his 
 
         activities according to the pain and discomfort he experienced.  
 
         He felt that claimant would not be able to tolerate working on 
 
         concrete or standing for an extended length of time (exhibits 4, 
 
         6 and 7).
 
         
 
              Bittner, as a member of the army reserve, has undergone 
 
         regular, periodic physical examinations.  In those examinations, 
 
         he has not disclosed any particular problems with his knees.  He 
 
         has, however, on occasion received medical restrictions which 
 
         have enabled him to avoid activities such as running, jumping, 
 
         military drills or other vigorous use of his knees (exhibits 1, 
 
         8, 9, 10, A and C).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties stipulated that too much time bad elapsed for 
 
         claimant to attempt to reopen based upon the 1963-1970 injury 
 
         even though it appears to have been a precipitating cause for the 
 
         degenerative arthritis in claimant's left knee which Dr. Wheeler 
 
         has rated as having a 30% impairment.
 
         
 
              Claimant testified to an acute incident occurring on 
 
         February 14, 1984.  The incident is corroborated by exhibit 13 
 
         which shows that claimant sought care for his left knee on 
 
         February 15, 1984.  Claimant has carried the burden of proving 
 
         that he sustained an injury to his left knee.,a which arose out 
 
         of and in the course of employment on February 14, 1984.  
 
         Claimant has not, however, introduced any evidence to show that 
 
         he is entitles to any benefits, other than payment of the 
 
         expenses of medical treatment.   Claimant testified that he 
 
         missed no work on account of that injury.  There is no evidence 
 
         from any source in the record to indicate that claimant sustained 
 
         any temporary or permanent disability to his left knee as a 
 
         result of the February 14, 1984 injury.  No further benefits can 
 
         be awarded based upon that injury.
 
         
 
              The injury of August 19, 1983 was clearly a substantial 
 
         injury.  Claimant was off work, underwent surgery and objective 
 
         evidence of recent injury was found in the course of that 
 
         surgery.  The employer has stipulated that claimant sustained 
 
         injury which arose out of and in the course of employment on 
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   5
 
         
 
         
 
         August 19, 1983.  The issue is whether or hot that injury 
 
         produced any permanent disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 19, 1981 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1969). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955). The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.   Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d.178 (1967).
 
         
 
              The only medical evidence regarding compensation comes from 
 
         Dr. Wheeler.  He indicated in exhibit 2 that degenerative 
 
         arthritis in the left knee is due to the 1970 meniscectomy.  He 
 
         indicated that multiple smaller injuries while at work and while 
 
         working on concrete for fifteen years have probably led to 
 
         degenerative arthritis in claimantOs right knee (exhibit 2).  In 
 
         exhibit 3, Dr. Wheeler indicates that the impairment in 
 
         claimant's knees is due to degenerative arthritis and that the 
 
         injuries he sustained aggravated the condition, but did not cause 
 
         it.  In exhibit 7, Dr. Wheeler indicated that arthritis in the 
 
         right knee was definitely aggravated by claimant's work in a 
 
         standing position.  At no point in the record does Dr. Wheeler 
 
         indicate why standing on concrete and multiple small injuries 
 
         would lead to degenerative arthritis in the right knee, but that 
 
         the same activities of standing on concrete for years would not 
 
         lead to degenerative arthritis in the left knee which was 
 
         apparently weakened by the 1970 meniscectomy.  In exhibit 2, Dr. 
 
         Wheeler refers to "...multiple smaller injuries while at work..."  
 
         The doctor does not specify the injuries to which he is 
 
         referring.  The doctor continues on from that statement "...and 
 
         he has been working on concrete for fifteen years.  I feel this 
 
         does lead to degenerative arthritis in joint and has probably 
 
         lead [sic] to the degenerative arthritis in his right knee."  The 
 
         only rational meaning which can be ascribed to that statement is 
 
         that the doctor feels that working on concrete led to the 
 
         degenerative arthritis in the right knee.  The doctor rates 
 
         claimant as having a 30% impairment of the right leg attributable 
 
         to degenerative arthritis.  He does not, however, provide any 
 
         separate or distinct impairment rating for the fractured femoral 
 
         condyle or for the cartilage removal that was performed in the 
 
         1983 surgery.  Normally, a surgery of that type, following an 
 
         acute injury, results in an impairment rating of approximately 
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   6
 
         
 
         
 
         10-15% of the leg, even in the absence of any degenerative 
 
         condition being observed.  No such rating was made, however, in 
 
         this case.  The record provides no basis for apportioning any of 
 
         the disability in the right leg between the August 19, 1983 
 
         injury and the degenerative condition.  Varied Enterprises, Inc. 
 
         v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
              While a claimant is not entitle(i to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              Since none of the current disability had been related to the 
 
         1983 injury, claimant has failed to establish that the acute 
 
         injury of August 19, 1983 was a proximate cause of any of the 
 
         permanent disability that currently exists in his right knee.
 
         
 
              Claimant's only remaining potential for a recovery in this 
 
         case is under a cumulative trauma doctrine as recognized by the 
 
         Iowa Supreme Court in McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).  One significant part of the McKeever 
 
         case is that it held the date oF injury to be the date at which 
 
         the effects of the cumulative trauma became disabling.  The court 
 
         seemed to adopt what could be characterized as an occupational 
 
         disease type of process for cumulative trauma injuries.  (See 
 
         sections 85A.4 and 85A.5).  In the case now under consideration, 
 
         
 
         
 
         the degenerative arthritis has apparently not yet resulted in 
 
         disablement in the sense of preventing Bittner from performing 
 
         his normal work.  All of the times for which claimant has sought 
 
         and received temporary total disability compensation were 
 
         initiated by an identifiable incident of acute trauma.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   7
 
         
 
         
 
              natural changes does not constitute a personal. injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal, injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, an(I thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              Injury from cumulative trauma is not easily distinguished 
 
         from changes in the human body incident to the general processes 
 
         of nature, even though such natural change may come about because 
 
         the life has been devoted to labor and hard work.  Dr. Wheeler 
 
         does not provide any guidance on whether the degenerative 
 
         condition is a personal injury rather than natural changes 
 
         resulting from a life of hard work.  Therefore, any attempt to 
 
         recover based upon a cumulative trauma theory must be denied.
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   8
 
         
 
         
 
         
 
              Since the evidence fails to show a second injury producing 
 
         permanent partial disability in one of the members designated in 
 
         
 
         
 
         section 85.64, the Second Injury Fund has no liability in this 
 
         case.
 
         
 
              Claimant's petition alleged an injury to the right elbow.  
 
         Exhibit 13 contains notes of claimant having problems with his 
 
         elbow commencing on June 11, 1984 and running through March 20, 
 
         1985.  The note indicates that claimant returned to work with 
 
         medication.  The record is otherwise silent, particularly with 
 
         regard to whether the elbow condition resulted in any temporary 
 
         or permanent disability or in any absence from work.  No award 
 
         for the right elbow can be made under the record.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On August 19, 1983, Richard L. Bittner was a resident of 
 
         the state of Iowa and was employed by Wilson Foods Corporation 
 
         within the state of Iowa.
 
         
 
              2.  Bittner sustained an injury to his right knee which 
 
         arose out of and in the course of his employment with Wilson 
 
         Foods Corporation on August 19, 1983.
 
         
 
              3.  The injury caused Bittner to be medically incapable of 
 
         performing work in employment substantially similar to that he 
 
         performed at the time of the injury and he has been paid weekly 
 
         compensation for temporary total disability for all of that 
 
         period of disability.
 
         
 
              4.  The injury of August 19, 1983 is not shown to have 
 
         produced any permanent disability.
 
         
 
              5.  The degenerative condition in claimant's right knee 
 
         resulted from years of working while standing on concrete.
 
         
 
              6.  Bittner has failed to introduce evidence which 
 
         establishes that the degenerative arthritis in his knees, or in 
 
         either of them, is a result of personal injury resulting from 
 
         cumulative trauma or that he has become disabled from performing 
 
         the normal duties of his employment due to the degenerative 
 
         condition.
 
         
 
              7.  Claimant's testimony regarding the occurrences of injury 
 
         and his symptoms is accepted as accurate and correct.  His 
 
         credibility is not impaired by his military medical records.
 
         
 
              8.  Claimant injured his left knee on February 14, 1984 in 
 
         an event which arose out of and in the course of his employment, 
 
         but that injury produced no incapacity from performing his normal 
 
         work and produced no identifiable permanent disability.
 
         
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page   9
 
         
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Wilson Foods Corporation is liable for payment of all 
 
         benefits available under Chapter 85 of The Code for the injuries 
 
         which occurred on August 19, 1983 and February 14, 1984.  The 
 
         employer has, to date, fulfilled its obligation and no further 
 
         amount is due claimant based upon either of those injuries.
 
         
 
              3.  Wilson Foods Corporation has no liability for payment of 
 
         benefits at this time based upon a cumulative trauma theory of 
 
         recovery.
 
         
 
              4.  Where an injury to a specified scheduled member fails to 
 
         produce any degree of permanent disability, such an injury does 
 
         not trigger any liability on the part of the Second Injury Fund.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the employer, Wilson Foods Corporation, pursuant 
 
         to Division of Industrial Services 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 25th day of 1987.
 
         
 
         
 
                                        
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
                      
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         SiOux City, Iowa 51102
 
         
 

 
         
 
         
 
         
 
         BITTNER V. WILSON FOODS CORPORATION
 
         Page  10
 
         
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa 51012
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.20, 2206, 2209
 
                                               Filed November 25, 1987
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD L. BITTNER,
 
         
 
               Claimant,
 
                                                   File Nos. 742180
 
         VS.                                                 757672
 
         
 
         WILSON FOODS CORPORATION,
 
         
 
                Employer,                       A R B I T R A T I 0 N
 
                Self-Insured,
 
         and
 
                                                   D E C I S I 0 N
 
         SECOND INJURY FUND OF IOWA,
 
         
 
                Defendants.
 
         
 
         
 
         1402.20, 2206, 2209
 
         
 
              Claimant, with a degenerative arthritic condition in his 
 
         knees, failed to prove permanent disability resulting either from 
 
         cumulative trauma or from acute injury.  He had been paid 
 
         temporary total disability benefits.  Where no permanency was 
 
         established, there was no liability on the part of the Second 
 
         Injury Fund.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAWN WENDLING,
 
                                           File  Nos. 742182
 
              Claimant,                               752592
 
                                                      783539
 
         VS.
 
                                         A R B I T R A T I 0 N 
 
         WILSON FOODS CORPORATION,
 
                                            D E C I S I 0 N
 
                Employer,
 
                Self-Insured,
 
          
 
          and
 
         
 
          SECOND INJURY FUND OF IOWA,
 
          
 
                Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Dawn M. 
 
         Wendling, claimant, against Wilson Foods, Inc., employer, and 
 
         Second Injury Fund of Iowa, defendants, for benefits as the 
 
         result of three alleged injuries which occurred on August 1, 1983 
 
         (file no. 742182), December 12, 1983 (file no. 752592) and 
 
         December 20, 1984 (file no. 783539).  A hearing was held in Storm 
 
         Lake, Iowa, on March 29, 1988, and the case was fully submitted 
 
         at the close of the hearing.  The record consists of the 
 
         testimony of Dawn M. Wendling, claimant, and joint exhibits 1 
 
         through 9, 9a, 10 and 13 through 16.  All three attorneys 
 
         submitted excellent briefs.  The deputy ordered a transcript of 
 
         the hearing.
 
         
 
                                   STIPULATIONS
 
                                        
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of all three alleged injuries.
 
         
 
              That all three of the injuries were the cause of some 
 
         temporary disability, that all temporary disability benefits have 
 
         been paid and that claimant's entitlement to temporary disability 
 
         benefits is not a disputed issue in this case at this time.
 
         
 
              That the injury of December 12, 1983, to the right arm, was 
 
         the cause of permanent disability.
 
         
 
              That the commencement date for permanent partial disability
 
         
 

 
 
 
 
 
         WENDLING VS. WILSON FOODS CORPORATION
 
         Page 2
 
         
 
         
 
         benefits, in the event such benefits are awarded, is April 8, 
 
         1985.
 
         
 
              That the rate of compensation for the alleged injury of 
 
         August 1, 1983, to the left upper extremity, is $126.73 per week 
 
         and that the rate of compensation for the injury of December 20, 
 
         1984, to the right upper extremity, is $201.04 per week.
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
              That defendant, employer, seeks no credit for benefits paid 
 
         under an employee nonoccupational group health plan prior to 
 
         hearing.
 
         
 
              That defendant, employer, is entitled to a credit for 12.5 
 
         weeks of permanent partial disability benefits at the rate of 
 
         $201.04 per week for workers' compensation permanent partial 
 
         disability benefits paid to claimant prior to hearing pursuant to 
 
         a settlement agreement.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained injuries on August 1, 1983, 
 
         December 12, 1983, and December 20, 1984, which arose out of and 
 
         in the course of employment with employer.
 
         
 
              Whether any of these injuries were the cause of permanent 
 
         disability to claimant's left upper extremity.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits for an injury to the left upper extremity, and if so, 
 
         the amount of benefits to which claimant is entitled.
 
         
 
              Whether the Second Injury of Iowa is liable for any benefits 
 
         to claimant.
 
         
 
                                 OFFICIAL NOTICE
 
         
 
              Claimant requested the deputy to take official notice of the 
 
         first reports of injury in all three claim files.  Employer and 
 
         second injury fund had no objection to this motion and official 
 
         notice was taken of all three first reports of injury (transcript 
 
         pages 7 & 8).
 
         
 
              Defendant, employer, requested the deputy to take official 
 
         notice of the form 2a's in all three claim files.  Claimant and 
 
         second injury fund had no objection to this request.  Official
 

 
         
 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION 
 
         Page 3
 
         
 
         
 
         notice was taken of the form 2a's, claim activity reports, as 
 
         they appear in the industrial commissioner's file. [Iowa 
 
         Administrative Procedure Act section,17A.14-(4)]
 
         
 
              The form 2a's, claim activity reports, show that defendants 
 
         paid temporary disability benefits as follows: (1) for the injury 
 
         of August 1, 1983, employer paid benefits from August 19, 1983 to 
 
         August 28, 1983, a period of 1 week and 3 days; (2) for the 
 
         injury of December 12, 1983, employer paid temporary disability 
 
         benefits from December 15, 1983 to January 22, 1984, a period of 
 
         5 weeks and 4 days; and (3) for the injury of December 20, 1984, 
 
         employer paid temporary disability benefits for three separate 
 
         periods of time (a) December 21, 1984 to December 25, 1984, (b) 
 
         March 1, 1985 to March 17, 1985, (c) March 19, 1985 to April 8, 
 
         1985, a total of 6 weeks and 1 day for these three periods of 
 
         time.  Employer also paid claimant 12.5 weeks of permanent 
 
         partial disability benefits based on a 5 percent permanent 
 
         impairment of the right arm at the rate of $201.04 per week in 
 
         the total amount of $2,513 (tr. pp. 15-20) pursuant to a 
 
         settlement agreement.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant testified that she was 23 years old and has lived 
 
         in Alameda, New Mexico, for the last two years.  She attended 
 
         eight years of school, quit school in the ninth grade due to 
 
         family problems and went to live with an aunt in South Dakota.  
 
         Claimant later acquired her G.E.D. in 1986 through the Joint 
 
         Training Partnership Act (JPTA) at Cherokee, Iowa, and was tested 
 
         at Western Iowa Tech (WIT).
 
         
 
              Claimant started to work for employer on May 12, 1983, at 
 
         the age of 18, after separating from her husband in California.  
 
         She passed a preemployment physical examination at that time.  
 
         Claimant denied any accidents or illnesses before or after this 
 
         employment that would affect these injuries.
 
         
 
              Initially claimant worked in the sausage room for a couple 
 
         of months.  After that, she stylexed hams and boned hams.  
 
         Stylexing occurs at the beginning of the line.  She pulled a ham 
 
         off the line with a hook with her left hand and flipped it over.  
 
         Then, holding a Whizard circular rotating and vibrating knife in 
 
         her right hand, she trimmed the fat from the ham.  These hams 
 
         weighed from 30 pounds to 55 pounds.  A Whizard knife is hard to 
 
         hang on to when it is turning.  Stylexing requires quite a bit of 
 
         cutting all the way around the ham.  When finished, claimant put 
 
         the ham back on the line to proceed on to the ham boners.  There 
 
         were four persons stylexing.  They each processed about 500 hams 
 
         per shift or approximately 2,000 hams were done by four of them 
 
         per shift.  After claimant
 

 
         
 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION
 
         Page 4
 
         
 
         
 
         injured her left hand and arm stylexing hams, she was assigned to 
 
         do the ham boning job to see if that would help.
 
         
 
              On August 1, 1983, claimant had.a problem with her left arm.  
 
         She had pains in her arm.  The arm had tingling, shooting pain 
 
         and it ached.  Claimant saw the nurse who sent her to see Keith 
 
         0. Garner, M.D., the company physician.  Dr. Garner treated her 
 
         with soaks and a splint.  She was off work a short time and then 
 
         Dr. Garner returned her to work and she could do her job pretty 
 
         well (tr. pp. 38-40; exhibit 10, p. 1).
 
         
 
              On December 12, 1983, claimant developed pain in her right 
 
         hand and she could not open her third and fourth fingers--they 
 
         would lock up automatically.  This time, Dr. Garner sent her to 
 
         see Mark E. Wheeler, M.D., an orthopedic surgeon in Sioux City, 
 
         Iowa, who performed surgery on her right hand to release her 
 
         fingers.  He cut the tendons underneath her two fingers so that 
 
         she could move her fingers freely.  When she returned to work 
 
         after the second injury, she was assigned to bone hams with a 
 
         regular straight edge knife.  To bone a ham, you have to take it 
 
         off the line and flip it over a lot.  Later, she performed the 
 
         Whizard knife job again (tr. pp. 40-45).  Claimant agreed that 
 
         after the surgery on her right hand she returned to work without 
 
         restrictions and boned hams without a period of light duty when 
 
         she returned to work (tr. p. 62).  This testimony of claimant is 
 
         verified by Dr. Garner's office notes (ex. 10, p. 2).  It is also 
 
         verified by Dr. Wheeler who saw claimant on December 22, 1983, 
 
         for right long and ring finger trigger fingers (ex. 2) and he 
 
         performed surgery to release both fingers that day (ex. 3) and 
 
         released claimant for postoperative care to Dr. Garner.
 
         
 
              On December 20, 1984, claimant developed swelling, soreness, 
 
         pains and aching in both her lower arms (forearms) during the 
 
         shift and at night her fingers would be asleep or ache constantly 
 
         (tr. pp. 45 & 63).  Employer sent claimant to see John Connolly, 
 
         M.D., an orthopedic surgeon in Omaha (ex. 10, p. 4).  Claimant 
 
         testified that Dr. Connolly gave her the option of having surgery 
 
         or quitting her job.  His report shows that Dr. Connolly also 
 
         gave her the option of wearing a hand splint.  Dr. Connolly did 
 
         not give an impairment rating and he did not impose any 
 
         restrictions on claimant (ex. 9).
 
         
 
              Claimant testified that her trouble continued in 1985 with 
 
         pains and clicking, and tingling in both of her hands up into 
 
         both of her arms.  On March 1, 1985, Dr. Garner advised claimant 
 
         to seek employment elsewhere (ex. 10, P. 3).  Claimant testified 
 
         that in her left hand her two outer fingers would fall asleep and 
 
         tingle.  Dr. Garner then sent claimant to see Dr. Wheeler again 
 
         on March 25, 1985, at which time he diagnosed flexor tendon 
 
         synovitis manifested by gradual swelling in both forearms since 
 
         September of 1984.  He advised her that this could be excised but 
 
         it would be likely to recur (ex. 3, p.
 

 
         
 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION 
 
         Page 5
 
         
 
         
 
         2).   Dr. Wheeler said that these symptoms were related to her 
 
         work (ex. 3, p. 2).  Dr. Wheeler said that the nodules on her 
 
         wrists were caused by her work (ex. 3, p.,l). He said these could 
 
         be excised but it may not aid her symptoms completely (ex. 3, p. 
 
         1). on June 7, 1985, Dr. Wheeler awarded a 5 percent permanent 
 
         partial impairment rating of the right upper extremity for the 
 
         flexor tendon synovitis which was aggravated by her work (exs. 
 
         4-6).  On September 23, 1985, he said that the left arm was much 
 
         less involved and he did not feel there was a permanent 
 
         impairment there (ex. 7).
 
         
 
              Claimant testified that in August of 1985, she finally quit 
 
         the job because she decided it wasn't worth going through all the 
 
         pain and she preferred finding another job to going through 
 
         surgery (tr. pp. 46-49).
 
         
 
              Claimant then obtained her G.E.D. in order to enter 
 
         cosmetology school.  She completed cosmetology basic training, 
 
         but did not complete the entire course.  Claimant testified that 
 
         she had trouble grasping hair and scissors and working with her 
 
         hands and arms.  Also, she testified that she ran out of funding 
 
         and found the course complicated.
 
         
 
              She then moved to Albuquerque, New  Mexico, and worked as a 
 
         bartender for three or four months at $3.35 per hour plus tips.  
 
         She had been making $9.50 per hour for employer plus insurance, 
 
         vacation pay and holiday pay which were employee benefits that 
 
         she did not have as a bartender.  Claimant related that she had 
 
         trouble holding onto pitchers of beer, carrying buckets of ice 
 
         and stocking coolers and so she quit that job and took a job for 
 
         an electronics firm assembling, wiring and soldering PC boards 
 
         for nine months at $4.65 per hour.  Tightening screws on 
 
         transducers bothered her hands, she really did not like that kind 
 
         of work, her boyfriend did not want her to work and he was 
 
         willing to support her so she quit (tr. p. 67).
 
         
 
              Claimant next worked in a truck stop as a waitress at $2.10 
 
         per hour plus tips, but again she had trouble carrying and 
 
         handling plates of food and her left wrist would bother her and 
 
         her arm would swell up.  She did this job for four months.   At 
 
         the time of the hearing, she did not have a job (tr. pp. 49-56).  
 
         Nor was she actively seeking employment at the time of the 
 
         hearing, but she said that she would be looking for work or going 
 
         back to school after the hearing (tr. pp. 67-68).
 
         
 
              Claimant testified that currently if she uses her hands they 
 
         pop and she gets a tingling feeling up into both of her arms and 
 
         she has trouble holding onto things (tr.  P. 57).  She said that 
 
         her hands are essentially the same as they were in August of 1985 
 
         when she resigned and signed a settlement agreement (tr. p. 60).  
 
         She conceded that she signed her termination interview on August 
 
         16, 1985, which stated that her sole and
 

 
         
 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION
 
         Page 6
 
         
 
         
 
         exclusive reason for leaving was to go to school (tr. p. 60 & 
 
         61).
 
         
 
              Claimant agreed that she told Dr. Wheeler in March of 1985 
 
         that she had problems in both arms beginning in September of 1984 
 
         (tr. p. 63).
 
         
 
              Claimant testified that Horst G. Blume, M.D., a 
 
         neurosurgeon, talked to her for seven minutes and examined her 
 
         for three minutes and "he didn't really do anything".  She 
 
         admitted that she only saw him on one occasion for an evaluation 
 
         and that she did not see him for treatment (tr. pp. 65 & 66).
 
         
 
              Dr. Blume saw claimant on April 2, 1986, and made a report 
 
         on June 9, 1986.  He noted the lumps on the flexor aspect of both 
 
         wrists.  He said that claimant did not know of any specific 
 
         precipitant to the aching in the left wrist.  The pain would just 
 
         come and go.  Dr. Blume recorded no history for the injury to the 
 
         left hand which claimant incurred on August 1, 1983.  His history 
 
         begins with the injury of December 12, 1983, to the right hand, 
 
         third and fourth fingers.  As to the left wrist he mentioned the 
 
         nodules and that claimant complained of pain, but that he found 
 
         no local tenderness.  Patient could squeeze 27 kilograms with the 
 
         right hand and 30 kilograms with the left hand and she is right 
 
         handed.  Dr. Blume concluded his report as follows:
 
         
 
              The patient has deep flexor digitorum longus tendonitis, 
 
              recurrent, left lower arm and beginning of the same 
 
              condition on the right lower arm near the wrist level.
 
              
 
              The patient should change jobs and be retrained which she 
 
              plans to do in the cosmetology school.  The degree of 
 
              partial temporary disability is 2% to the left arm and 1% to 
 
              the right arm, within reasonable medial probability.  The 
 
              patient should be treated and retrained.
 
         
 
         (ex. 1, P. 2)
 
         
 
              Claimant executed a settlement agreement with employer on 
 
         August 5, 1985, for the injury of December 20, 1984, for a 5 
 
         percent permanent impairment of the upper extremity for 12.5 
 
         weeks at $201.04 per week in the total amount,of $2,513 to 
 
         commence on August 17, 1985, based on the medical report of Dr. 
 
         Wheeler.  The agreement was approved by the industrial 
 
         commissioner on August 13, 1985 (ex. 16).
 
 
 

 
         WENDLING VS. WILSON FOODS CORPORATION         
 
         PAGE 7
 
 
 
                           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 she received injuries on August 1, 1983, December 
 
         12, 1983, and December 20, 1984, which arose out of and in the 
 
         course of her 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 must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W. 2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 1, 1983, December 12, 
 
         1983, and December 20, 1984, are casually related to the 
 
         disability on which she now bases her claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of casual connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the casual 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.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on August 1, 1983, 
 
         that arose out of and in the course of her employment with 
 
         employer.  She described an injury to her left arm.  This was 
 
         verified by Dr. Garner.  Claimant was paid temporary disability 
 
         benefits from August 19, 1983 to August 28, 1983.  Claimant 
 
         testified that she returned to work and could perform her 
 
         previous job pretty well.  Dr. Garner imposed no restrictions or 
 
         limitations.  Claimant did not perform light work, but returned 
 
         to her previous employment and was able to do it.  Dr. Garner did 
 
         not find any permanent impairment and did not award a permanent 
 
         impairment rating (tr. pp. 38-41; ex. 10, p. 1).  Even though 
 
         claimant did prove an injury, she did not prove that the injury 
 
         was the cause of permanent impairment to the left arm and 
 
         therefore,
 

 
         
 
         
 
         
 
         WENDLING V. WILSON FOODS CORPORATION
 
         Page 8
 
         
 
         
 
         she is not entitled to any permanent partial disability benefits 
 
         for the injury of August 1, 1983, to the left arm.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on December 12, 
 
         1983, which arose out of and in the course of employment with 
 
         employer, when she developed trigger finger in the third and 
 
         fourth finger of her right hand.  Claimant clearly described an 
 
         overuse type of injury to her right hand caused by her work (tr. 
 
         pp. 40-45).  Dr. Garner and Dr. Wheeler proceeded to treat 
 
         claimant on the basis that it was a work injury (ex. 10, p. 2; 
 
         ex. 2 & ex. 3).  Claimant received temporary disability benefits 
 
         from December 15, 1983 to January 22, 1984.  Neither Dr. Garner 
 
         nor Dr. Wheeler returned claimant to work light duty, or with any 
 
         restrictions or limitations.  Claimant testified that after this 
 
         surgery she returned to work boning hams with a regular straight 
 
         knife and later was able to perform work with the Whizard knife 
 
         again (tr. pp. 44 & 45).  Claimant admitted that she did not 
 
         perform light duty, but began boning hams right after she 
 
         returned to work (tr. p. 62).  Neither Dr. Garner nor Dr. Wheeler 
 
         mentioned permanent impairment or permanent disability and 
 
         neither doctor awarded a permanent impairment rating.  Therefore, 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that the injury of December 12, 1983, was the 
 
         cause of permanent impairment.  Therefore, claimant is not 
 
         entitled to permanent partial disability benefits for the injury 
 
         of December 12, 1983 to her right hand.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on December 20, 
 
         1984, which arose out of and in the course of her employment to 
 
         both lower arms.  She described the injury in detail (tr. pp. 
 
         45-47).  The injury is verified by Dr. Garner (ex. 10, p. 4). Dr. 
 
         Connolly said that her condition was aggravated by use of a knife 
 
         at work (ex. 9).  Dr. Wheeler said that her symptoms were related 
 
         to her work and caused by her work (ex. 3, pp. 1 & 2).  Claimant 
 
         was paid temporary disability benefits from December 21, 1984 to 
 
         December 25, 1984; March 1, 1985 to March 17, 1985, and March 19, 
 
         1985 to April 8, 1985.  Dr. Garner and Dr. Connolly did not 
 
         comment on whether claimant did or did not receive any impairment 
 
         from this injury (ex. 9 & 10).  Dr. Wheeler, the primary treating 
 
         physician, awarded a 5 percent permanent functional impairment of 
 
         the right upper extremity (exs. 3-7)' Dr. Wheeler clarified that 
 
         he did not think there was any impairment in the left upper 
 
         extremity (ex. 7).  Dr. Wheeler did not impose any permanent 
 
         restrictions or limitations.
 
         
 
              Claimant testified that when she returned to work she had 
 
         clicking, tingling and pain in both hands and up into the arms 
 
         (tr. pp. 47 & 48).  Claimant quit working for employer in August 
 
         of 1985 (tr. p. 49).
 

 
         
 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION
 
         Page 9
 
         
 
         
 
              Claimant was paid $2,513 for 12.5 weeks of permanent partial 
 
         disability to the upper extremity based on a 5 percent permanent 
 
         impairment rating based on the medical report of Dr. Wheeler (ex. 
 
         16).  A review of the evidence about the injury of December 20, 
 
         1984, does not disclose any permanent impairment or permanent 
 
         disability of the left hand, wrist or arm.  Therefore, claimant 
 
         did not prove a casual connection between the injury of December 
 
         20, 1984, and any permanent injury to the left arm.  Therefore, 
 
         claimant is not entitled to any permanent partial disability 
 
         benefits for the injury of December 20, 1984, to the left arm.
 
         
 
              Dr. Blume's report contains several deficiencies if it is to 
 
         be used to prove permanent impairment of the left hand, wrist or 
 
         arm.  First of all, Dr. Blume never mentioned the first injury 
 
         which claimant received on August 1, 1983, either in giving the 
 
         history of claimant or anywhere else in his report.  There is no 
 
         evidence that Dr. Blume knew that claimant sustained an injury of 
 
         August 1, 1983.  Secondly, with respect to the injury of December 
 
         20, 1984, Dr. Blume acknowledged that claimant noticed pain in 
 
         the right wrist as well as weakness of grip strength, tingling 
 
         and numbness of the fourth and fifth finger of the right hand.  
 
         As to the left upper extremity, he said that claimant did not 
 
         know of a specific precipitant to the aching in the left wrist.  
 
         The pain seemed to come and go.  He said that claimant complained 
 
         of pain, but he found no local tenderness.  Claimant had a better 
 
         grip with her left hand than with her right hand and she is right 
 
         handed.  The pain did not go into the hand.  She does have 
 
         tiredness in the left hand, for example, when she vacuums the 
 
         house.  The more she uses it the weaker it gets.
 
         
 
              Dr. Blume did not specifically state that the symptoms in 
 
         the left upper extremity were caused by claimant's employment.  
 
         On the contrary, he stated that claimant could not identify a 
 
         specific precipitant, that the pains would come and go, that her 
 
         left grip was stronger than her right grip, and that even though 
 
         she complained of pain, he found no local tenderness.  This 
 
         information calls into question whether the left arm complaints 
 
         were caused by a work injury of caused by something else.  These 
 
         basic symptoms or facts, to wit, aching pain that comes and goes, 
 
         pain that does not go into the hand and tiredness would not 
 
         normally support an impairment rating based on agency expertise 
 
         [Iowa Administrative Procedure Act 17A.14(5)].
 
         
 
              Dr. Blume characterized the 2 percent impairment rating 
 
         which he recorded to the left arm as "partial temporary 
 
         disability".  If claimant's impairment or disability is 
 
         temporary, it cannot be the subject of an award of permanent 
 
         partial disability benefits.
 

 
 
 
        WENDLING VS. WILSON FOODS CORPORATION
 
        PAGE 10
 
         
 
              Furthermore, when examined by the second injury fund, 
 
         claimant conceded that she only saw Dr. Blume on one occasion for 
 
         ten minutes.  He asked questions for seven minutes and
 
         examined her for three minutes.  Claimant told counsel for the 
 
         Fund that "he really didn't do anything" (tr. p. 65).
 
         
 
              In order to trigger liability of the Second Injury Fund of 
 
         Iowa, Iowa Code section 85.64 requires: (1) the loss or loss of 
 
         use of one hand, one arm, one foot, one leg or one eye, (2) the 
 
         loss or loss of use of another such member or organ, and (3) some 
 
         degree of permanent disability resulting from both the first and 
 
         second injury.  Anderson vs. Second Injury Fund, 262 N.W.2d 789, 
 
         791, 792 (Iowa 1978); Allen vs. Second Injury Fund, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 15 (1980); Ross 
 
         vs. Service Master-Story County, Inc., Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 273 (1979); Ross vs. Sioux 
 
         Quality Packers, Division of Armour & Company, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 276 (1978); and 
 
         Cooper vs. Iowa Meat Processing, file numbers 832043 & 832042 
 
         (filed May 19, 1988).  In summary, claimant has demonstrated a 
 
         permanent impairment to the right upper extremity, claimant has 
 
         not proven a permanent impairment to the left upper extremity 
 
         from any of the three injuries.  Consequently, claimant is not 
 
         entitled to any permanent partial disability benefits from 
 
         employer for permanent impairment or permanent disability to the 
 
         left upper extremity.  Claimant is not entitled to any benefits 
 
         from the Second Injury Fund of Iowa because she did not sustain 
 
         the burden of proof by a preponderance of the evidence that she 
 
         sustained a loss or loss of use of another such member or organ 
 
         which resulted in a permanent disability.  Moreover, as dicta, 
 
         even if claimant had demonstrated that the injury to the left 
 
         upper extremity resulted in a permanent impairment of the left 
 
         upper extremity from the injury of December 20, 1984, to both 
 
         extremities, second injury fund liability would not be triggered 
 
         because Iowa Code section 85.64 requires that claimant must have 
 
         a loss to another member or organ.  Loss to two members from a 
 
         single incident is compensated as a single injury [Iowa Code 
 
         section 85.34(2)(s)].
 
         
 
              Lawyer and Higgs, Iowa Workers' Compensation-Law and 
 
         Practice, section 17-4, pages 142 and 143, footnote one, points 
 
         out that an Iowa Code section 85.34(2)(s) injury is a single 
 
         incident and shall be compensated as such.  David E. Linquist, 
 
         Industrial Commissioner, held in Himschoot vs. Montezuma 
 
         Manufacturing, file number 672778 and 733325, appeal decision 
 
         April 15, 1988 (on judicial review) that bilateral carpal tunnel 
 
         syndrome that develops simultaneously in both hands and wrists 
 
         was a single injury.  This was also the holding in Kebernik vs. 
 
         Thatcher Plastic Packaging, file number 704973 (filed December 
 
         22, 1988).  In this case, flexor tendon synovitis developed 
 
         simultaneously in both arms in approximately September of 1984 
 
         (ex. 3, p. 2) and therefore, is considered as only one injury.  
 
         It is not necessary to address the second injury fund proposition 
 
         that they have no liability because overuse syndrome cases are 
 
         occupational diseases covered by Iowa Code section 85.A
 

 
         
 
         
 
         WENDLING VS. WILSON FOODS CORPORATION 
 
         Page 11
 
         
 
         
 
         and the second injury fund is only liable for injuries under Iowa 
 
         Code section 85.  There are cases where it has been determined 
 
         that overuse syndrome cases were occupational diseases and there 
 
         are other cases where it was determined that they were injuries.  
 
         In either event, the Iowa Supreme Court has never determined that 
 
         overuse syndrome cases are occupational diseases and that 
 
         therefore, there is no liability on the part of the Second Injury 
 
         Fund of Iowa.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant injured her left arm on August 1, 1983; that 
 
         claimant injured her right hand on December 12, 1983; that 
 
         claimant injured both lower arms on December 20, 1984.
 
         
 
              That claimant did not sustain a permanent impairment or 
 
         permanent disability to the left arm from any of these injuries.  
 
         That claimant did sustain a permanent injury and permanent 
 
         disability to her right upper extremity.
 
         
 
              That claimant executed a settlement agreement with employer 
 
         for the permanent injury to her right upper extremity.
 
         
 
                                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 sustain the burden of proof by a 
 
         preponderance of evidence that she sustained an injury on 
 
         December 1, 1983, December 12, 1983, and December 20, 1984.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that any of these three injuries 
 
         was the cause of permanent impairment or permanent disability to 
 
         the left arm or left upper extremity.
 
         
 
              That claimant is not entitled to permanent partial 
 
         disability benefits to the left arm or left upper extremity.
 
         
 
              That defendant, employer, has fully discharged its liability 
 
         to claimant for temporary disability benefits and for the 
 
         permanent partial disability to the right upper extremity.
 
         
 

 
         WENDLING VS. WILSON FOODS CORPORATION
 
         PAGE 12
 
 
 
 
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a permanent 
 
         injury to a second scheduled member and therefore, there is no 
 
         liability on the part of the Second Injury Fund of Iowa.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no further amounts are due to claimant from employer.
 
         
 
              That no amounts are due to claimant from the Second Injury 
 
         Fund of Iowa.
 
         
 
              That the costs of this action are charged to defendants, 
 
         equally, including the cost of the transcript of the hearing, 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 25th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         PO Box 1194
 
         Sioux City, IA  51102
 
         
 
         Mr. David Sayre 
 
         Attorney at Law 
 
         223 Pine St.
 
         Po Box 535
 
         Cherokee, IA  51012
 
         
 
         Mr. Charles Lavorato 
 
         Assistant Attorney General 
 
         Hoover State Office Bldg 
 
         Des Moines, IA 50319
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106, 51108.50, 51401, 
 
                                         51402.20, 
 
                                         51402.30, 52209, 51402.40, 
 
                                         51803, 
 
                                         52302, 53203
 
                                         Filed April 25, 1989
 
                                         WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAWN WENDLING,
 
                                         File Nos.  742182
 
                                                    752592
 
              Claimant,                             783539
 
         
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,
 
                                         D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         51106, 51108.50, 51401, 51402.20, 51402.30, 52209
 
         
 
              Claimant did prove three repetitive type of injuries on 
 
         three different dates to her upper extremities.
 
         
 
         51402.40, 51803
 
         
 
              Claimant did not prove any of these injuries caused any 
 
         impairment or disability to her left arm or left upper extremity.  
 
         No award made against employer.
 
         
 
         53202, 53203
 
         
 
              Claimant did not prove permanent loss to left upper 
 
         extremity and therefore, did not prove permanency to a second 
 
         member.  Therefore, no award made against Second Injury Fund of 
 
         Iowa.