BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER W. TRUE,
 
         
 
              Claimant,
 
         
 
                                         File No. 744226
 
         
 
         VS.
 
         
 
                                           A P P E A L
 
         
 
         CATERPILLAR TRACTOR CO.,
 
                                         D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying 
 
         benefits from an alleged work injury June 25, 1982.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and claimant's exhibits 1 through 21.  
 
         Neither party filed a brief on appeal.
 
         
 
                                      ISSUES
 
         
 
              Because neither party filed a brief on appeal this matter 
 
         will be considered generally without any specified errors.  The 
 
         issues considered by the deputy were:
 
         
 
              Whether claimant's work injury is causally connected to the 
 
         disability on which he now bases his claim;
 
         
 
              The nature and extent of claimant's permanent partial 
 
         disability, if any; and
 
         
 
              Claimant's entitlement to certain medical expenses pursuant 
 
         to Iowa Code section 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         .the pertinent evidence and it will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         TRUE v. CATERPILLAR TRACTOR CO.
 
         Page 2
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant sustained an injury which arose out of and in 
 
         the course of his employment on June 25, 1982, when a part flew 
 
         out of a machine he was operating and hit him on left side of the 
 
         face.
 
         
 
              2. Although claimant had been treating with the company 
 
         doctor, he decided to pursue care with his family doctor.
 
         
 
              3. Claimant was aware defendant would consider treatment 
 
         with his family doctor unauthorized.
 
         
 
              4. Notwithstanding such knowledge, claimant decided to 
 
         pursue the treatment.
 
         
 
              5. Claimant was eventually referred through defendant, to 
 
         the University of Iowa Hospitals and Clinics where he came under 
 
         the care of Deborah Zeitler, D.D.S.
 
         
 
              6. Radiographs showed meniscus perforation on the left and 
 
         bilateral degenerative joint disease of the temporomandibular 
 
         joints and on June 26, 1983, claimant underwent surgery for 
 
         meniscus repair of the left TMJ and a menisectomy of the right 
 
         TMJ.
 
         
 
              7. Following his surgery, claimant returned to work.
 
         
 
              8. On April 4, 1987, claimant underwent right TMJ 
 
         arthroplasty
 
         with implant removal and left TMJ arthroscopy.
 
         
 
              9. Claimant has a permanent impairment as a result of his 
 
         injury.
 
         
 
              10.Claimant returned to work following surgery and is 
 
         currently working under no medical restrictions or limitations.
 
         
 
              11.Claimant continues to perceive pain and soreness in his 
 
         facial muscles, follows a soft food diet, and is careful about 
 
         lifting.
 
         
 
              12.Claimant is currently employed in a position which does 
 
         not require lifting more than one time per day and which he is 
 
         able to perform.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              13.Claimant suffers from non-industrial related low back 
 
         pain which restricts his employability.
 
         
 
         
 
         
 
         TRUE v. CATERPILLAR TRACTOR CO.
 
         Page 3
 
         
 
         
 
              14.Claimant has not suffered any loss of earnings as a 
 
         result of the injury of June 25, 1982.
 
         
 
                               CONCLUSIONS OF LAW.
 
         
 
              Claimant has not established he is entitled to medical 
 
         expenses for the treatment provided by Dr. Sam Williams, Jackson 
 
         County Hospital, and P.E. DeLong, D.M.D., such treatment being 
 
         unauthorized.
 
         
 
              Claimant has failed to establish that the work injury of 
 
         June 25, 1982, is the cause of any permanent partial disability 
 
         or industrial disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That claimant pay the costs of the appeal including costs of 
 
         transcription of the arbitration hearing.
 
         
 
              That all other costs are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Kent A. Simmons
 
         Attorney at Law
 
         116 E. 6th St.
 
         P.O. Box 339
 
         Davenport, IA 52805
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Ste. 102, Executive Sq.
 
         400 Main St.
 
         Davenport, IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803 - 2500
 
                                         Filed April 26, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER W. TRUE,
 
         
 
              Claimant,
 
                                         File No. 744226
 
         VS.
 
                                            A P P E A L
 
         CATERPILLAR TRACTOR CO.,
 
                                         D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              As a result of a work injury, claimant sustained a permanent 
 
         impairment to his TM (temporomandibular) joints (jaw).  However, 
 
         he had no permanent work restrictions nor limitations on the type 
 
         of work he could perform, had suffered no loss of earnings and 
 
         his injury was not found to have impaired his earning capacity.  
 
         Claimant failed to establish that the work injury was the cause 
 
         of any permanent partial disability.  Deputy affirmed on appeal.
 
         
 
         2500
 
         
 
              Claimant was aware that care by his own personal physician 
 
         would be considered unauthorized by the employer.  Employer 
 
         advised claimant that he was to seek care with the company 
 
         doctor.  Claimant did not request alternate care as provided by 
 
         Iowa Code section 85.27. It was found that claimant was not 
 
         entitled to reimbursement for unauthorized medical expenses.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROGER W. TRUE,
 
         
 
              Claimant,                          File No. 744226
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         CATERPILLAR TRACTOR CO.,                D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Roger True, 
 
         claimant, against Caterpillar Tractor Co., self-insured employer, 
 
         to recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained June 25, 1982.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         April 27, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of the claimant; and claimant's exhibits 1 through 21.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved 
 
         April 27, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant's work injury is causally connected to 
 
         the disability on which he now bases his claim;
 
         
 
              2.  The nature and extent of claimants permanent partial 
 
         disability, if any; and
 
         
 
              3.  Claimant's entitlement to certain medical expenses 
 
         pursuant to Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on June 25, 1982, when a part flew out 
 
         of the machine he was operating and hit him on the left side of 
 
         the face.  After receiving some first aid at work, claimant 
 
         worked the remainder of the shift.  Claimant recalled he reported 
 
         to first aid each day for the two weeks following his accident 
 
         and after that period only on Mondays.  Claimant testified that 
 
         he continued to experience soreness and tenderness in his facial 
 
         joints and that when he went to the doctor he was advised the 
 
         injury was not healing properly.  Claimant saw his family doctor 
 
         (Williams) who sent him for an x-ray and referred him to P. E. 
 
         DeLong, D.M D.  Claimant did not tell either the employer or the 
 
         company doctor he was going to see his family doctor and did not 
 
         ask the employer at any time whom he should see if he was 
 
         dissatisfied with the care provided.  When asked whether he was 
 
         told such treatment would be considered unauthorized by the 
 
         employer, claimant stated "I guess I was aware of that but did 
 
         not completely understand."  Claimant went ahead with the 
 
         appointment notwithstanding the advice from the employer.  
 

 
         
 
         
 
         TRUE V.CATERPILLAR TRACTOR CO.
 
         PAGE 2
 
 
 
 
 
         
 
         Claimant acknowledged after conferring with the company 
 
         representative that if he went to his own doctor, the company 
 
         would not pay but had decided to keep the appointments.
 
         
 
              Claimant recalled he was told by the company doctor after 
 
         the appointment with his family doctor that he needed new 
 
         dentures.  He was referred to Dr. Oberturf who advised claimant 
 
         that he did not need new dentures but needed his "jaw fixed" and 
 
         thus referred claimant to Dr. Larry Huber who recommended disc 
 
         therapy for his jaw joints.  Claimant testified he had splints on 
 
         his dentures for six to eight weeks to make sure his jaw lined up 
 
         and when these splints were removed his condition improved but, 
 
         within a few weeks, the problem returned.  Claimant explained he 
 
         was then sent to the University of Iowa Hospital, where he came 
 
         under the care of Deborah L. Zeitler, D.D.S., who performed 
 
         surgery on both temporomandibular joints.  Claimant explained he 
 
         continued to periodically see Dr. Zeitler and after three years 
 
         he developed severe pain and stiffness in his jaw.  He testified 
 
         the discs, which were originally put in place by Dr. Zeitler, had 
 
         broken loose and therefore more surgery was done.  Claimant 
 
         testified he is a candidate for joint replacement and that he has 
 
         developed arthritis in both TM joints, right worse than left.
 
         
 
              Claimant explained a past medical history of a 1950 auto 
 
         accident which resulted in facial scars and lower back strain 
 
         with arthritis in his hips that is nonindustrially caused.  
 
         Claimant testified he is careful what he eats (i.e. no hard 
 
         foods) and particularly careful about lifting since such activity 
 
         causes his muscles to get sore and the pain from the TM joints 
 
         goes down into his neck and right arm.  Claimant acknowledged his 
 
         current position with defendant employer does not require much 
 
         lifting, perhaps only as frequently as one time per day, and his 
 
         current rate of pay of $14.50 per hour does not constitute any 
 
         loss of pay since his injury.  Claimant denied an ability to use 
 
         any type of vibrating tool for any length of time or to withstand 
 
         cold temperatures.
 
         
 
              The medical records of University of Iowa reveal claimant 
 
         began treating for temporomandibular joint problems in June 1983 
 
         with Dr. Deborah Zeitler.  TMJ arthrograms performed June 24, 
 
         1983 revealed a perforation of the meniscus on the left side and 
 
         evidence of degenerative joint disease on the right side.  A 
 
         menisectomy of the right TMJ and meniscus repair of the left TMJ 
 
         were done August 26, 1983.  Following these procedures, it was 
 
         noted claimant had significant improvement but still had some 
 
         minor complaints of discomfort especially after heavy jaw 
 
         function.
 
         
 
              In March 1987, claimant returned to the University of Iowa 
 
         Hospitals and Clinics with complaints of increased discomfort in 
 
         both TMJ regions.  A CT scan of the TMJ was performed which 
 
         showed marked erosive changes of the right TMJ.  On April 4, 
 
         1987, claimant underwent right TMJ arthroplasty with implant 
 
         removal and left TMJ arthroscopy.  Significant degenerative joint 
 
         disease on both sides was noted at that time.  On November 10, 
 
         1987, Dr. Zeitler concluded:
 
         
 
              Mr. True's condition has been a chronic one since his 
 
              industrial accident.  I believe that his joint findings 
 
              are consistent with the trauma that he has described.  
 
              His TMJ problems are moderately severe and certainly 
 
              has caused him a good deal of discomfort and limited 
 
              function in the past.  I believe that the prognosis for 
 
              a full recovery is bleak in his case.  I have indicated 
 
              to Mr. True that he will most likely continue to have 
 
              chronic arthritic pain and chronic limited mobility for 
 
              the rest of his life.  At this point in time I have 
 
              done the best that I can as far as surgical 
 
              reconstruction of his joints.  However, it may be 
 
     
 
         
 
         
 
         
 
         
 
         TRUE V. CATERPILLAR TRACTOR CO.
 
         PAGE   3
 
         
 
         
 
              necessary in the future to perform more surgery.  In 
 
              particular, should an adequate joint replacement joint 
 
              become available for the TMJ I believe that Mr. True 
 
              might be a candidate for total joint reconstruction.
 
         
 
                 You have requested that I utilize the "Guides to 
 
              Evaluation of Permanent Impairment" published by the 
 
              American Medical Association to report a percentage of 
 
              impairment to the whole person in Roger True's case.  I 
 
              have reviewed the sections of the guide, which you 
 
              provided for me, and I am trying to relate those to Mr. 
 
              True's situation.  Some of the values which I am taking 
 
              into account include impairment due to atypical 
 
              neuralgia which may range from 0 to 20%, impairment due 
 
              to swallowing problems and diet restricted to 
 
              semi-solids which ranged from 5 to 10% and impairment 
 
              of motor function unilaterally of the trigeminal nerve 
 
              which ranges from 3 to 5%.  Also it is important to 
 
              look at the degrees of impairment due to pain.  The 
 
              grade for pain which may prevent activity is 65 to 80%.  
 
              Loss of strength should also be taken into account and 
 
              I would like to place Mr. True into the range of 55 to 
 
              75% grading of the affected body part due to loss of 
 
              strength.  Taking all of these factors into account, it 
 
              seems that an overall value for permanent impairment to 
 
              the whole person would be approximately 10% in Roger 
 
              True's case.
 
         
 
                               APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 25, 1982 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 

 
         
 
         
 
         
 
         TRUE V. CATERPILLAR TRACTOR CO.
 
         PAGE   4
 
         
 
         
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, '58 N.W. 899,     (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
                                     ANALYSIS
 
         
 
              There is no question that claimants injury arose out of and 
 
         in the course of his employment with defendant Caterpillar 
 
         Tractor Company.  At no time has defendant denied the 
 
         compensability of claimant's industrial accident.  Concomitant 
 
         with the employer's admission of liability is the employer's 
 
         prerogative to choose the medical care.  Claimant requests the 
 
         employer pay the medical expenses incurred with Dr. Sam Williams 
 
         on August 16 and August 18, 1982, with the Jackson County 
 
         Hospital on August 16, 1982 and with Dr. P. E. DeLong on August 
 
         19, 1982.  However, the undersigned is unable to order defendant 
 
         to pay for such medical expenses as clearly the record 
 
         establishes such expenses do not constitute authorized medical 
 
         care.  Claimant candidly admitted during the course of his 
 
         testimony at hearing that he decided to go to his own doctor 
 
         without consulting the employer or the company doctor with whom 
 
         he had been treating for some period of time.  In addition, 
 
         claimant acknowledged that he had been advised by the employer 
 
         that if he chose to pursue medical care with his own family 
 
         physician such care would not be considered authorized by the 
 
         companys medical department and therefore would not be paid by 
 
         Caterpillar.  Claimant went so far as to admit that he had been 
 
         told defendant considered Dr. Williams' care to be unauthorized 
 
         and, notwithstanding that advice, proceeded to the medical 
 
         appointments as they had been scheduled.  Under such 
 
         circumstances, the medical care provided by Dr. Williams, the 
 
         Jackson County Hospital, and Dr. DeLong must be considered 
 
         unauthorized.
 
         
 
              The only medical expert to present any testimony in this 
 
         matter is Deborah Zeitler, D.D.S., who opined that claimant has a 
 
         permanent impairment as a result of his industrial accident of 10 
 
         percent to the whole person.  The undersigned does not dispute 
 
         that claimant's impairment, as rated by Dr. Zeitler, was caused 
 
         by the injury of June 25, 1982.  However, it is concluded that 
 
         claimant has failed to sustain his burden that he has any 
 
         permanent partial disability as a result of the work incident 
 
         although he may have been temporarily disabled and permanently 
 
         impaired.
 
         
 
              Claimant has not sustained a scheduled injury pursuant to 
 
         Iowa Code section 85.34(2)(a) through (t).  Rather, it is 
 
         determined that claimant has an impairment to the body as a whole 
 
         and therefore an industrial disability has been sustained.  As 
 
         cited above, the legislature intended the term disability to mean 
 
         industrial disability or loss of earning capacity and not mere 
 
         functional disability.  A finding of impairment to the body as a 
 
         whole provided by a medical evaluator does not equate to 
 
         industrial disability as impairment and disability are not 
 
         synonymous terms.  The resolution of this case centers around 
 
         whether or not claimant's problems with his TM joints translate 
 

 
         
 
         
 
         
 
         TRUE V. CATERPILLAR TRACTOR CO.
 
         PAGE   5
 
         
 
         
 
         into any loss of earning capacity.  Claimant asserts he has 
 
         trouble lifting and working with vibrating tools.  However, 
 
         claimant's health care providers place no restrictions on his 
 
         employability.  Claimant readily admits his current position with 
 
         defendant employer does not require much lifting and that he is 
 
         able to perform the job as assigned.  Claimant has not suffered 
 
         any loss of earnings.  The problems claimant experiences with 
 
         pain have not been shown to interfere with his capacity to earn. 
 
          It is claimant's condition at the time of hearing that must be 
 
         evaluated.  Claimant admitted he suffers from a non-industrial 
 
         low back condition which precludes him from working at some of 
 
         his former jobs.  If claimant's upward mobility is limited at his 
 
         current employment as he argues, it is likely so as a result of 
 
         his back condition and not as a result of the accident of June 
 
         25, 1982.  Claimant does have a facial scar as a result of the 
 
         injury.  However, even if his injury were evaluated as a 
 
         scheduled injury, the undersigned could not conclude that the 
 
         scar constitutes "disfigurement" which impairs the future 
 
         usefulness and earnings of claimant in his occupation at the time 
 
         of his injury.  This is particularly true in light of claimant's 
 
         own admission that his facial scars from other accidents are much 
 
         more severe than that received from the accident of June 25, 
 
         1982.
 
         
 
              Accordingly, it is found that claimant has failed to sustain 
 
         his burden that the injury of June 25, 1982 is the cause of any 
 
         permanent partial disability and therefore is not entitled to any 
 
         award under Iowa Code section 85.34.
 
         
 
                                 FINDINGS OP FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on June 25, 1982, when a part flew 
 
         out of a machine he was operating and hit him on left side of the 
 
         face.
 
         
 
              2.  Although claimant had been treating with the company 
 
         doctor, he decided to pursue care with his family doctor.
 
         
 
              3.  Claimant was aware defendant would consider treatment 
 
         with his family doctor unauthorized.
 
         
 
              4.  Notwithstanding such knowledge, claimant decided to 
 
         pursue the treatment.
 
         
 
              5.  Claimant was eventually referred, through defendant, to 
 
         the University of Iowa Hospitals and Clinics where he came under 
 
         the care of Deborah Zeitler, D.D.S.
 
         
 
              6.  Radiographs showed meniscus perforation on the left and 
 
         bilateral degenerative joint disease of the temporomandibular 
 
         joints and on June 26, 1983, claimant underwent surgery for 
 
         meniscus repair of the left TMJ and a menisectomy of the right 
 
         TMJ.
 
         
 
              7.  Following his surgery, claimant returned to work.
 
         
 
              8.  On April 4, 1987, claimant underwent right TMJ 
 
         arthroplasty with implant removal and left TMJ arthroscopy.
 
         
 

 
         
 
         
 
         
 
         TRUE V. CATERPILLAR TRACTOR CO.
 
         PAGE   6
 
         
 
         
 
              9.  Claimant has a permanent impairment as a result of his 
 
         injury.
 
         
 
             10.  Claimant returned to work following surgery and is 
 
         currently working under no medical restrictions or limitations.
 
         
 
             11.  Claimant continues to perceive pain and soreness in his 
 
         facial muscles, follows a soft food diet, and is careful about 
 
         lifting.
 
         
 
             12.  Claimant is currently employed in a position which does 
 
         not require lifting more than one time per day and which he is 
 
         able to perform.
 
         
 
             13.  Claimant suffers from non-industrial related low back 
 
         pain which restricts his employability.
 
         
 
             14.  Claimant has not suffered any loss of earnings as a 
 
         result of the injury of June 25, 1982.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has not established he is entitled to medical 
 
         expenses for the treatment provided by Dr. Sam Williams, Jackson 
 
         County Hospital, and P.E. DeLong, D.M.D., such treatment being 
 
         unauthorized.
 
         
 
              2.  Claimant has failed to establish that the work injury of 
 
         June 25, 1982 is the cause of any permanent partial disability or 
 
         industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That costs are assessed against defendant pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of July, 1988.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Kent A. Simmons
 
         Attorney at Law
 
         116 E 6th St
 
         P.O. Box 339
 
         Davenport, IA 52805
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         Davenport, IA 52801
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803; 2500
 
                                                    Filed July 21, 1988
 
                                                    DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER W. TRUE,
 
         
 
              Claimant,                               File No. 744226
 
         
 
         vs.
 
                                                   A R B I T R A T I O N
 
         CATERPILLAR TRACTOR CO.,
 
                                                      D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment when a part flew out of a machine he was 
 
         operating and hit him on the left side of his face.  As a result 
 
         of the injury, claimant sustained a permanent impairment to his 
 
         TM (temporomandibular) joints.  Although claimant had a permanent 
 
         impairment, he had no permanent work restrictions nor limitations 
 
         on the type of work he could perform, had suffered no loss of 
 
         earnings and his injury was not found to have impaired his 
 
         earning capacity.  Therefore, claimant failed to establish that 
 
         the work injury was the cause of any permanent partial 
 
         disability.
 
         
 
         2500
 
         
 
              Claimant was aware that if he sought treatment with his own 
 
         personal physician that such treatment would be considered 
 
         unauthorized by the employer who had provided adequate medical 
 
         treatment for claimant.  Notwithstanding the advice from the 
 
         employer that he was to seek care with the company doctor, 
 
         claimant sought care with his family physician on his own without 
 
         resorting to the request for alternate medical care as provided 
 
         by Iowa Code section 85.27.  Therefore, it was found claimant was 
 
         not entitled to reimbursement for the medical expenses.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LLOYD CHABAL,
 
         
 
              Claimant,
 
                                                      File No. 744909 
 
         vs.
 
         
 
         MCCOMAS LACINA CONSTRUCTION,
 
                                                    A R B I T R A T I 0 N 
 
              Employer,
 
         
 
         and
 
                                                     D E C I S I 0 N 
 
         BITUMINOUS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Lloyd Chabal 
 
         against McComas Lacina Construction, his former employer, and 
 
         Bituminous Insurance Company, the employer's insurance carrier.  
 
         The case was heard at Cedar Rapids, Iowa on April 16, 1987 and 
 
         the evidence was closed at the conclusion of the hearing.  The 
 
         record in the proceeding consists of claimant's exhibits 1 
 
         through 45.  The record also contains testimony from Lloyd 
 
         Chabal, David Lacina and Jack Reynolds.
 
         
 
                                      ISSUES
 
         
 
              It was stipulated that claimant sustained injury on 
 
         September 16, 1983 which arose out of and in the course of his 
 
         employment; that the injury required a period of recuperation for 
 
         healing; and, that the injury produced a 16% permanent partial 
 
         disability of claimant's left arm.  It was further stipulated 
 
         that the rate of compensation is $285.44 per week and that 173 
 
         3/7 weeks of compensation had been paid prior to hearing.  It was 
 
         further stipulated that claimant has been off work since April 9, 
 
         1984.
 
         
 
              The issues presented for determination include causal 
 
         connection between the fall and any permanent disability and 
 
         the nature and extent of permanent disability.  Claimant also 
 
         seeks payment of unpaid medical expenses and reimbursement for 
 
         travel expenses.
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   2
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at hearing was considered when deciding 
 
         the case even though it may not be specifically referred to in 
 
         this decision.
 
         
 
              Lloyd Chabal is a 50-year-old man who resides in Lone Tree, 
 
         Iowa.  His principle occupation during his adult life has been 
 
         carpentry.  He has been self-employed, operating his own 
 
         construction company, a lumber yard and a hardware store.  He 
 
         left self-employment in approximately 1980 due to lack of 
 
         profitability and returned to work as a union carpenter.  His 
 
         work history includes supervisory experience as a working 
 
         foreman.
 
         
 
              On September 16, 1983, Chabal was employed as a working 
 
         foreman for McComas Lacina Construction, assigned to a project in 
 
         Coralville, Iowa.  He was near the top of a ladder, approximately 
 
         12 feet from the ground, when the feet of the ladder slipped out 
 
         allowing the ladder to fall.  Claimant landed on his outstretched 
 
         arms and face.  He was taken by ambulance to the University of 
 
         Iowa Hospitals and Clinics where he has since received the 
 
         primary portion of his medical care.
 
         
 
              The injuries initially diagnosed included a fracture of the 
 
         left ulna styloid process; left colles fracture with a triangular 
 
         fracture of the distal left radius (exhibit 1, page 175); a 
 
         LeForte I fracture (separation of the upper teeth and dental arch 
 
         from the bone above it); fracture of the septum; nasal fracture 
 
         (exhibit 35, pages 8-11); maxillary fracture (exhibit 1,.pages 
 
         181 and 187); and other relatively less serious injuries which 
 
         produced no apparent long-term or continuing effect (exhibit 1, 
 
         pages 95-98).
 
         
 
              The left arm fractures were treated by closed reduction and 
 
         a cast.  The final result of healing left claimant with 
 
         irregularity of the distal surface of the radius, degenerative 
 
         changes, loss of grip strength and a restricted range of motion 
 
         (exhibit 1, page 163).  The parties have stipulated that a 16% 
 
         permanent partial disability of the left arm resulted based upon 
 
         evaluations by William Catalona, M.D., and William F. Blair, M.D. 
 
         (exhibits 15; 19; 33, pages 10-16; and 34, pages 40-43).  None of 
 
         the orthopaedic physicians has found any impairment in claimant's 
 
         right hand or arm (exhibits 11 and 15).
 
         
 
              Closed reduction, disimpaction and fixation of the maxillary 
 
         and LeForte I fractures was performed on September 17 and 23, 
 
         1983 (exhibit 1, pages 193 and 198).  The fixation hardware was 
 
         removed on November 21, 1983 (exhibit 1, page 191; exhibit 4).  
 
         Radiographic studies performed December 19, 1983 showed the 
 
         maxillary fracture to have healed in good anatomical position, 
 
         but the studies also showed thickening of the mucosal membrane 
 
         and a retention cyst in the left maxillary sinus (exhibit 1, page 
 
         162).
 
         
 
              During the initial period of recovery, claimant complained 
 
         of facial pain and problems with his teeth (exhibit 1, pages 211 
 
         and 212).  He also complained of tinnitus (exhibit 1, page 128).  
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   3
 
         
 
         
 
         An audiogram had previously shown a mild high-frequency hearing 
 
         loss which is one of a type commonly observed in persons who have 
 
         experienced long-term high noise level exposure and also 
 
         consistent with presbycusis (exhibit 1, page 61).  On October 5, 
 
         1983, claimant made complaint of experiencing blurred vision.  
 
         The ophthalmology department physicians found no evidence of 
 
         intraocular damage (exhibit 1, page 185).  A subsequent eye 
 
         examination on June 5, 1985 found no evidence of eye damage from 
 
         any accident (exhibit 18).
 
         
 
              Claimant was authorized to return to work on January 17, 
 
         1984.  A progress note dated February 27, 1984 indicates that 
 
         claimant actually returned on approximately January 30, 1984 
 
         (exhibit 1, page 124).
 
         
 
              David Lacina, one of the managers and owners of the business 
 
         entity which employed claimant, testified that, during the period 
 
         claimant returned to work, he made complaint of facial pain.  
 
         Claimant testified that he experienced facial pain, vision 
 
         problems, and blacking out while working.  He stated that he was 
 
         unable to make much use of his left hand.  Claimant related that 
 
         lifting, straining and using vibrating tools gave him headaches.  
 
         He testified that he was given pain medication by Dr. Blair which 
 
         made him walk around in a daze (exhibit 1, page 124).  Claimant 
 
         testified that he reported his problems to Lacina and requested a 
 
         job in the office.  He testified that, when he did so, the result 
 
         was that no work was available for him.  He enrolled in an 
 
         estimating course at Kirkwood Community College, but stated that 
 
         he discontinued the course due to pain which made him unable to 
 
         participate fully.
 
         
 
              During his return to work, claimant was assigned to a job at 
 
         Hawkeye Wholesale where he worked on scaffolding.  He testified 
 
         that, on one occasion, he dropped a ramset (impact nailer).  He 
 
         stated that, on the following day, he fell from a sawhorse while 
 
         using a cement saw to cut a window in a block wall.  He sustained 
 
         a puncture wound on his right elbow which developed a persistent 
 
         infection.  He apparently continued to work until April 8, 1984 
 
         when he sought treatment at the University of Iowa Hospitals and 
 
         Clinics (exhibit 1, pages 1 and 2).  The infection cleared, but 
 
         claimant has not since returned to work.
 
         
 
              Robert M. Bumstead, a board certified otolaryngologist, 
 
         began treating claimant in the summer of 1984.  Claimant voiced 
 
         complaints of facial pain, nasal obstruction and recurrent nose 
 
         bleeds.  He exhibited marked nasal deformity, a severely deviated 
 
         septum and dilated blood vessels in the area of the anterior 
 
         nasal septum (exhibit 35, pages 6-9).  Septorhinoplasty surgery 
 
         was performed on August 8, 1984 to correct the nasal deformity 
 
         (exhibit 1, page 63; exhibit 35, pages 10 and 11).  Following the 
 
         surgery, claimant continued to complain of facial pain and 
 
         headaches.  Dr. Bumstead has used a nerve block procedure to 
 
         conclude that claimant's complaints of pain are true (exhibit 35, 
 
         pages 28 and 29; exhibit 42, pages 14-16).  Dr. Bumstead felt 
 
         that claimant has developed a vasomotor reaction which was a 
 
         source of his pain (exhibit 35, pages 17 and 18).  Dr. Bumstead 
 
         initially indicated that claimant had a chance of improvement, 
 
         but that, if the pain had not resolved by August, 1986, it would 
 
         likely be permanent (exhibit 35, pages 14 and 15).  The doctor 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   4
 
         
 
         
 
         indicated that claimant could not return to construction work due 
 
         to the exposure to temperature changes and the exertion involved, 
 
         since both tend to cause claimant's pain to manifest itself 
 
         (exhibit 35, pages 14, 15, 29 and 30).
 
         
 
              Since the surgery, claimant has remained under the care of 
 
         Dr. Bumstead without any appreciable change in his complaints.  
 
         Claimant has continued to complain of spells where he experiences 
 
         a loss of vision.  He continues to complain of chronic headaches 
 
         which he can tolerate and frequent severe headaches which he 
 
         finds to be disabling.  His treatment has consisted of 
 
         medications, chemical cauterizations to temporarily block nerve 
 
         ends and cryotherapy to destroy the nasal mucosa responsible for 
 
         the vasomotor reaction (exhibit 35, pages 26-28; exhibit 36, 
 
         pages 5 and 6).  Dr. Bumstead felt that the cryotherapy treatment 
 
         was partially effective at resolving the sinus headaches (exhibit 
 
         36, pages 6-10 and 14-16).
 
         
 
              Dr. Bumstead characterized claimant's condition as 
 
         post-traumatic headache or post-traumatic neuropathic pain 
 
         (exhibit 36, pages 6, 24 and 25).  He stated that the etiology is 
 
         unknown, but it simply means that someone has smashed their brain 
 
         a little bit and is having pain even though the physiological 
 
         basis for the pain is unknown (exhibit 42, page 21).
 
         
 
              Dr. Bumstead referred claimant to the  neurology  department 
 
         where he was evaluated and treated by John Sand, M.D., a 
 
         neurologist.  Dr. Sand diagnosed claimant's condition as 
 
         post-traumatic headache syndrome and made changes in claimant's 
 
         medication (exhibit 22; exhibit 37, pages 13 and 27).  Dr. Sand 
 
         found slight blunting of the left nasolabial fold of claimant's 
 
         brain.  He could find no anatomical cause for claimant's 
 
         complaints of headache pain.  He found no definable neurologic 
 
         abnormality (exhibit 37, page 30; exhibit 38, page 14).
 
         
 
              When deposed in August, 1986, Dr. Bumstead indicated that 
 
         claimant was still totally disabled by chronic pain and unable to 
 
         return to full-time employment (exhibit 36, pages 11 and 141).  
 
         Dr. Bumstead indicated, however, that claimant could be employed 
 
         in a job which did not involve moving equipment, climbing or a 
 
         clear mind and one which permitted claimant to lie down when 
 
         severe headaches developed (exhibit 36, pages 27 and 28).  The 
 
         doctor felt that claimant's condition had plateaued (exhibit 36, 
 
         page 9).
 
         
 
              Due to the impairment of claimant's left hand grip, the 
 
         orthopaedic physicians, Drs. Catalona and Blair, have indicated 
 
         that claimant should not be required to climb ladders, work at 
 
         heights, work on roofs or use tools that require a hard, 
 
         sustained or repetitive grip with the left hand.  A 10-pound 
 
         lifting restriction for the left hand has been recommended 
 
         (exhibits 11; 15; 24; and 34, pages 44-46).
 
         
 
              Dr. Bumstead currently feels that claimant is unable to be 
 
         employed due to chronic headache pain and the narcotics used for 
 
         pain relief.  He indicated claimant could work at a job that 
 
         provided no risk from moving machinery, that required no regular 
 
         hours or routine and that would not require a clear mind when 
 
         pain medication was used.  He stated that the job should avoid 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   5
 
         
 
         
 
         exertion and temperature variation (exhibit 42, pages 11, 12 and 
 
         28).  He felt that an indoor, sedentary job such as construction 
 
         drafting might be suitable for claimant if he would be able to 
 
         lie down whenever a severe headache developed (exhibit 42, page 
 
         20).
 
         
 
              Dr. Sand has concluded that claimant is able to be gainfully 
 
         employed, but should not work at heights (exhibit 38, page 30).
 
         
 
              Claimant was evaluated by Eugene Collins, M.D., who 
 
         concluded that it would be difficult for claimant to engage in an 
 
         occupation that involved outdoor activity, lifting, pulling, 
 
         pushing and driving such as carpentry.  He indicated that, in the 
 
         future, claimant could possibly perform an indoor, sedentary 
 
         occupation, such as a manager, where he could set his own hours 
 
         and avoid the things that exacerbate his headaches.  Dr. Collins 
 
         felt that the problem in claimant's left wrist would restrict his 
 
         ability to perform a manual job, but would not restrict him from 
 
         performing a sedentary occupation (exhibit 24).
 
         
 
              Claimant testified that, when he returned to work in early 
 
         1984, he worked hanging doors, putting up an I-beam and from 
 
         scaffolding and stepladders.  He testified that he was unable to 
 
         use his left hand and that lifting, straining or use of vibrating 
 
         tools gave him headaches.  He stated that, on one job, he used a 
 
         jackhammer which bothered alot and which also bothered his 
 
         vision.
 
         
 
              Claimant testified that, after the 1984 injury to his elbow, 
 
         he was released from care in the month of June.  He stated that 
 
         he began receiving dental work in May, 1984.  He stated that he 
 
         commenced consulting with Orville Townsend in April, 1984 and
 
         commenced his coursework at Kirkwood in August, 1984.
 
         
 
              Claimant has completed courses at Kirkwood Community College 
 
         which are related to business management and construction.  He 
 
         has carried a "B" average (exhibit 30).  He is continuing to 
 
         further his formal education and has indicated that he may go 
 
         into civil engineering if he is unable to find employment with 
 
         the training he receives at Kirkwood.
 
         
 
              Claimant's current career plans are to get into supervision 
 
         or management.  He declined to apply for a job as-a city 
 
         inspector for Iowa City because he feels unable to deal with the 
 
         stress that accompanies such a position and because he 
 
         understands it to require climbing and outdoor work.
 
         
 
              Claimant testified that he obtained his degree in management 
 
         development in the fall of 1986.  He stated that he checked the 
 
         job market in the Iowa City area and found none.  Since claimant 
 
         was unable to find work, he decided to pursue a four-year degree 
 
         in construction technology.  He indicated that he feels there is 
 
         a market and a need for someone to work as a consultant and 
 
         manager for construction in the Iowa City area.  He indicated 
 
         that he would be able to work as a consultant out of his own home 
 
         using his own funds.  Claimant testified that, as long as he has 
 
         pain, he will continue with education.  He stated that, if he had 
 
         no pain, he would be working.
 
         
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   6
 
         
 
         
 
              Claimant described his current complaints as constant 
 
         headaches, breathing problems and vision interruptions.  He 
 
         stated that his pain is increased by any vibration, sharp 
 
         movement, high humidity, rain, cold weather, going from warm to 
 
         cold or riding in a vehicle.  He stated that, when riding in a 
 
         vehicle, he sometimes loses vision.  He stated that, in the 
 
         really severe headaches, he experiences a "shooting" pain and 
 
         feels as if he is going to black out.  He stated that, when he 
 
         has severe headaches, he has trouble with words and has trouble 
 
         concentrating.  He takes Tylenol with codeine.  He testified that 
 
         he is not restricted from driving, but that his wife does most of 
 
         it.  Claimant testified that he does not attend school every day 
 
         and has scheduled his classes so that he can rest between them.  
 
         He expressed difficulty driving to and from school and stated 
 
         that, on occasion, he needs to stop and rest while enroute.  
 
         Claimant stated that he attends Kirkwood four quarters per year 
 
         and carries 10-12 hours per quarter.
 
         
 
              Claimant testified that he does some chores, taking care of 
 
         animals at his home, but that it takes twice as long to do as it 
 
         did before he was injured.  He stated that he has tried to do 
 
         carpentry work in his shop at his home and found that it takes 
 
         several times as long to complete a project as it did before he 
 
         was injured.  He stated that it took him two days to rake a 
 
         20-foot by 40-foot front yard.  He stated that he is unable to 
 
         mow his one-acre lawn due to the noise and vibration.
 
         
 
              Jack Reynolds, a vocational consultant, evaluated claimant's 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   7
 
         
 
         
 
         employability.  He felt that, if claimant were to actually seek 
 
         employment with the services of a good vocational rehabilitation 
 
         counselor, claimant would be employable.  He also related, 
 
         however, that claimant needed to be able to manage his pain.  
 
         Reynolds relied upon Dr. Sands' recommendation in determining 
 
         claimant's ability to be employed.  Reynolds felt that claimant 
 
         was reluctant to enter any employment that did not pay as well as 
 
         his occupation as a carpenter.  Claimant described himself as a 
 
         true craftsman-carpenter.  He feels that he needs to maintain his 
 
         prior level of earnings.  He earned approximately $30,000 in the 
 
         nine months he worked during 1983.  Claimant indicated that he is 
 
         ambidextrous, although prior to the injury, he was primarily 
 
         left-handed.
 
         
 
              Claimant was referred to relaxation therapy where he was 
 
         taught various relaxation techniques, but he indicated that tho 
 
         treatment did not affect his headaches (exhibit 40, pages 8, 
 
         19-22).
 
         
 
              Orville Townsend, a senior consultant with the Iowa Division 
 
         of Vocational Rehabilitation Services, indicated that claimant's 
 
         best opportunity for employment is to be a construction 
 
         supervisor (exhibit 41, page 18).  Townsend stated:
 
         
 
              Lloyd does have a disability.  He does have vocational 
 
              limitations.  You know, my professional judgment is that if 
 
              we got Lloyd to a level where he could manipulate his 
 
              schedule and have control of his schedule and not have as 
 
              much physical activity that, you know, he would most likely 
 
              be employable.  But at the same time there is another factor 
 
              in here, and that factor is that Lloyd is still receiving 
 
              medical treatment.  And, you know, what would happen there 
 
              is--is, you know, that the end of our program if Lloyd's 
 
              medical situation has deteriorated and it is such that his 
 
              physician and he have concerns about his being employable, 
 
              then he still has the training.  It's just a matter of when 
 
              he's going to be ready for it. (Exhibit 41, page 22).
 
         
 
              Claimant has incurred certain medical expenses in treatment 
 
         of his injuries as follows:
 
         
 
              Accounts Receivable Management           $  11.90
 
              Travel to Dr. Bumstead                     192.00
 
              Stress Clinic                              540.00
 
              Mileage to Dr. Thayer                        9.66
 
              University of Iowa Hospitals/Clinics        48.50
 
         
 
                                        
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The facts and circumstances of the injury-producing events 
 
         are well established by claimant's testimony and corroborated by 
 
         the other evidence in the record.  The bulk of claimant's medical 
 
         expenses have been paid.  The employer has acknowledged liability 
 
         for the permanent disability in claimant's left arm.  In the 
 
         pre-hearing report, the employer acknowledged responsibility for 
 
         claimant's dental treatment under Dr. Thayer.  Exhibit 44 
 
         provides an estimate made by Dr. Thayer.  An ultimate decision on 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   8
 
         
 
         
 
         the cost cannot be made until Dr. Thayer has completed his 
 
         treatment.  Dr. Bumstead was initially authorized to treat 
 
         claimant and did so.  In view of the fact that claimant's current 
 
         contact with Dr. Bumstead is relatively infrequent, it is not 
 
         unreasonable for claimant to continue under treatment with Dr. 
 
         Bumstead and the employer is responsible for the expenses of 
 
         transportation incurred in obtaining that treatment.  An employer 
 
         may not summarily withdraw authorization from a physician where 
 
         the worker does not consent to the change.  Dye v. Safway Steel 
 
         Scaffolds Company, III Iowa Industrial Commissioner Report 75 
 
         (1983).  Smith v. Carnation Company, II Iowa Industrial 
 
         Commissioner Report 366 (1981). 2 Larson Workmen's Compensation 
 
         section 61.12a-e.
 
         
 
              With regard to the Stress Clinic, Dr. Williamson states:
 
         
 
              The presenting problem was a suicide gesture by Kim Chabal.  
 
              This effort brought the family, subsequent to Lloyd ChabalOs 
 
              construction accident, stress and therefore into treatment.
 
         
 
         From this statement, it appears that the stress for which therapy 
 
         was provided was the suicide gesture, not the construction 
 
         accident.  Therefore, the claim for $540 as shown in exhibit 27 
 
         is denied.  The remaining medical expenses sought by claimant are 
 
         found to be related to the injury and the employer is responsible 
 
         for them.
 
         
 
              The primary issue in this case is determining whether or not 
 
         the healing period has ended and, if it has, the extent of 
 
         permanent disability resulting from the injury.  As a practical 
 
         matter, the healing period ended on January 30, 1984 and then 
 
         recommenced on April 8, 1984.  Claimant should have commenced 
 
         receiving permanent partial disability upon his return to work on 
 
         February 1, 1984.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  
 
         That permanent partial disability compensation should have 
 
         continued until he reentered the healing period for the 1983 
 
         injury on April 8, 1984.  The fall from the sawhorse in April, 
 
         1984, and the injuries sustained are found to have been caused by 
 
         the original 1983 injury.  It is therefore a continuation of the 
 
         1983 injury.
 
         
 
         
 
         
 
              When deposed on August 19, 1986, Dr. Bumstead indicated that 
 
         claimant's condition had plateaued (exhibit 36, page 9).  This 
 
         marks the end of the healing period.  August 19, 1986 is the 
 
         first true indication from Dr. Bumstead that further significant 
 
         improvement from the injury was not anticipated.  It is 
 
         consistent with his earlier statements as found in exhibit 13.  
 
         Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 
 
         65 (Iowa 1981).  All of claimantOs subsequent medical treatment 
 
         has been maintenance in nature and does not appear to be 
 
         improving his condition.  Thomas v. William Knudson & Son, Inc., 
 
         349 N.W.2d 124 (Iowa App. 1984).  Claimant's entitlement to 
 
         compensation for permanency therefore recommences on August 20, 
 
         1986.  A worker cannot receive both healing period and permanency 
 
         benefits at the same time for the same injury.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page   9
 
         
 
         
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: OIt is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              As indicated by Dr. Bumstead, claimant's condition is one 
 
         which is not appropriately evaluated using the AMA guides.  
 
         Claimant certainly had a sufficiently severe trauma to his head 
 
         to substantiate complaints of continuing headaches and facial 
 
         pain.  His complaints of sensitivity to temperature changes and 
 
         vibration are not incredible.  Dr. Bumstead's testing 
 
         corroborates the credibility of claimant's complaints.  The fact 
 
         that medical science cannot pinpoint a physiological cause for 
 
         complaints of pain does not mean that the pain is nonexistent or 
 
         somehow conjured up for secondary gain purposes.  It is found 
 
         that claimant does experience pain in the areas of which he 
 
         testified.  It is also found, however, that claimant's motivation 
 
         to return to employment is severely limited by his feeling that 
 
         he should not have to accept employment that is less rewarding 
 
         financially or emotionally than his work as a carpenter.  This 
 
         does affect the credibility of claimant's complaints.  Claimant 
 
         did work for several weeks in early 1984.  He has attended 
 
         schooling.  These are all indications that he has the capacity to 
 
         do the things he desires to do.  Claimant has done well in his 
 
         academic pursuits.
 
         
 
         Such is a strong indication that he will be able to perform 
 
         sedentary employment I should he desire to pursue it.  While the 
 
         severity of claimant s complaints is not well established, they 
 
         are considered to be sufficient to render him incapable of 
 
         performing construction work as a carpenter, the trade in which 
 
         he has been engaged for his lifetime.  Upon successful completion 
 
         of the training in which he is currently enrolled, it is 
 
         anticipated that he will still suffer a severe reduction of 
 
         earnings in comParison to the earning level he enjoyed as a 
 
         carpenter.  When all the material factors of industrial 
 
         disability are considered, it is determined that claimant has 
 
         sustained a 65% permanent partial disability as a result of the 
 
         injury he sustained on September 16, 1983.
 
         
 
              The only provision in the workers' compensation law for 
 
         training or vocational rehabilitation is the benefit provided by 
 
         section 85.70, which has a maximum of $520.  Claimant is clearly 
 
         entitled to receive such a benefit and the evidence shows that it 
 
         has previously been paid.  The employer and insurance carrier are 
 
         not responsible for any further retraining or educational 
 
         expenses.
 
         
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page  10
 
         
 
         
 
              Claimant's exhibit 1 is 404 pages of randomly amassed 
 
         information.  It is not organized by author, in chronological 
 
         order or in any other rational manner as was ordered in paragraph 
 
         9 of the Hearing Assignment Order.  As a sanction for violation 
 
         of the order, the costs of this action are assessed against 
 
         claimant.  Since this results from counsel's actions, counsel 
 
         shall adjust his fees accordingly in order to insulate claimant 
 
         from the impact of this portion of this ruling.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Lloyd Chabal is a resident of the state of Iowa who was 
 
         employed by McComas Lacina Construction Company within the state 
 
         of Iowa.  On September 16, 1983 he was injured when a ladder 
 
         fell.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from September 16, 1983 until 
 
         February 1, 1984 when he returned to work.  Claimant was again 
 
         similarly disabled commencing on April 8, 1984 and continuing 
 
         until August 19, 1986 when claimant reached the point of recovery 
 
         that it was medically indicated that further significant 
 
         improvement from the injury was not anticipated.
 
         
 
              3.  As a result of the injury, claimant has a 16% permanent 
 
         partial disability of his left arm.  He also suffers headaches, 
 
         impaired vision and facial pain as a result of the facial 
 
         fractures and trauma.
 
         
 
              4.  Claimant has generally established his credibility, but 
 
         the credibility of the severity of his complaints is impaired by 
 
         his expressed reluctance to enter employment which is less 
 
         financially rewarding than his former occupation as a carpenter.
 
         
 
              5.  All the medical care which claimant has received, as 
 
         reflected by the evidence, and the anticipated further care from 
 
         Drs. Bumstead and Thayer is reasonable and necessary treatment 
 
         for the injury for which the employer and its insurance carrier 
 
         are financially responsible.
 
         
 
              6.  It is reasonable for claimant to continue treatment 
 
         under the direction of Dr. Bumstead even though he has left the 
 
         Iowa City, Iowa area, provided that the appointments with Dr. 
 
         Bumstead are not more frequent than once every six months.  In 
 
         the event that a greater frequency of treatment becomes 
 
         warranted, the employer should be permitted to require claimant 
 
         to obtain that treatment at the University of Iowa Hospitals and 
 
         Clinics.
 
         
 
              7.  The expenses incurred by claimant as previously set 
 
         forth in this decision were reasonable and necessary medical 
 
         treatment for the injury except for the charge of $540 from the 
 
         Stress Clinic.
 
         
 
              8.  Claimant's functional capabilities are such that any 
 
         employment in which he is to engage must be sedentary, indoor and 
 
         capable of allowing reasonable flexibility with regard to the 
 
         days and hours of work.  Claimant's stated plan for work as a 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page  11
 
         
 
         
 
         construction consultant or manager seems to be a reasonable 
 
         occupational goal.
 
         
 
              9.  Claimant has a 65% impairment of earning capacity as a 
 
         result of the injuries sustained on September 16, 1983.
 
         
 
             10.  Claimant has not made a prima facie showing of permanent 
 
         total disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant's healing period entitlement under the 
 
         provisions of section 85.34(l) are 19 4/7 weeks commencing 
 
         September 16, 1983 and 123 2/7 weeks commencing April 8, 1984 for 
 
         a total of 142 6/7 weeks.
 
         
 
              3.  Claimant's disability under section 85.34(2)(u) is 325 
 
         weeks representing a 65% permanent partial disability in 
 
         industrial terms.  Nine and four-sevenths weeks thereof is 
 
         payable commencing February 1, 1984 and the remaining 315 3/7 
 
         weeks thereof is payable commencing August 20, 1986.
 
         
 
              4.  Robert Bumstead may remain as claimant's authorized 
 
         treating otolaryngologist.
 
         
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page  12
 
         
 
         
 
              5.  Defendants have previously paid all vocational 
 
         rehabilitation benefits provided by section 85.70.
 
         
 
              6.  Defendants are responsible for payment of the following 
 
         medical expenses:
 
         
 
              Accounts Receivable Management             $   11.90
 
              University of Iowa Hospitals/Clinics           48.50
 
              Mileage for travel to Dr. Bumstead            192.00
 
              Mileage for travel to Dr. Thayer                9.66
 
         
 
              7.  The expenses in the Stress Clinic were not shown to have 
 
         been caused by the accident and the employer and insurance 
 
         carrier are not responsible for payment of the charges from that 
 
         facility.
 
         
 
              8.  Dr. Thayer is the authorized source of treatment for 
 
         claimant's dental care and the employer and insurance carrier are 
 
         responsible for payment of whatever portion thereof Dr. Thayer 
 
         deems related to the 1983 injury.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred forty-two and six-sevenths (142 6/7) weeks of 
 
         compensation for healing period at the stipulated rate of two 
 
         hundred eighty-five and 44/100 dollars ($285.44) per week with 
 
         nineteen and four-sevenths (19 4/7) weeks thereof payable 
 
         commencing September 16, 1983 and with one hundred twenty-three 
 
         and two-sevenths (123 2/7 weeks) thereof payable commencing April 
 
         8, 1984.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant three 
 
         hundred twenty-five (325) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         eighty-five and 44/100 dollars ($285.44) per week with nine and 
 
         four-sevenths (9 4/7) weeks thereof payable commencing February 
 
         1, 1984 and with the remaining three hundred fifteen and 
 
         three-sevenths (315 3/7) weeks thereof payable commencing August 
 
         20, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         amounts in a lump sum together with interest at the rate of ten 
 
         percent (10%) per annum pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred one and 66/100 dollars ($201.66) for transportation 
 
         expenses.
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         medical bills:
 
         
 
              Accounts Receivable Management             $11.90
 
              University of Iowa Hospitals/Clinics        48.50
 
         
 
              IT IS FURTHER ORDERED that Robert Bumstead, M.D., remain as 
 
         claimant's authorized treating physician and that Keith E. 
 
         Thayer, D.D.S., be authorized to provide treatment for claimant's 
 

 
         
 
         
 
         
 
         CHABAL V. MCCOMAS LACINA CONSTRUCTION
 
         Page  13
 
         
 
         
 
         dental injuries resulting from the September 16, 1983 injury.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services' Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED 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 15th day of October, 1987.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Bruce L. Walker
 
         Attorney at Law
 
         321 Market Street
 
         P. 0. Box 2150
 
         Iowa City, Iowa 52244
 
         
 
         Mr. C. Peter Hayek
 
         Attorney at Law
 
         120 1/2 East Washington
 
         Iowa City, Iowa 52240
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.40, 1802, 1803, 4100
 
                                                Filed October 15, 1987
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LLOYD CHABAL,
 
         
 
              Claimant,
 
                                                    File No. 744909
 
         VS.
 
         
 
         MCCOMAS LACINA CONSTRUCTION,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and
 
                                                     D E C I S I 0 N 
 
         BITUMINOUS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40, 1802, 1803, 4100
 
         
 
              Claimant, a 47-year-old carpenter at the time of injury, 
 
         fell and sustained serious injuries to his face and left arm 
 
         which made him unable to resume carpentry work.  He had a 
 
         permanent impairment of his left arm and complained of severe, 
 
         disabling headaches.  Claimant awarded 65% permanent partial 
 
         disability and an extended healing period.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS J. BLACKFORD,
 
         
 
              Claimant,                            File Nos. 744940
 
                                                             747501
 
         VS.
 
                                                     R E V I E W -
 
         SWIFT INDEPENDENT PACKING
 
         COMPANY, a/k/a SWIFT FRESH               R E 0 P E N I N G
 
         MEATS COMPANY,
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings styled in review-reopening brought by 
 
         the claimant, Dennis J. Blackford, against his self-insured 
 
         employer, Swift Independent Packing Company, a/k/a Swift Fresh 
 
         Meats Company, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of injuries sustained April 8, 1983 
 
         and August 9, 1983.  These matters came on for hearing before the 
 
         undersigned deputy industrial commissioner at the Division of 
 
         Industrial Services Office in Des Moines, Iowa, on November 6, 
 
         1986.  The record was considered fully submitted at close of 
 
         hearing.
 
         
 
              The record in these proceedings consist of claimant's 
 
         exhibits 41 through 70 as well as of claimant's exhibits 1, 3, 
 
         41, 26, 27, and 28, in the prior proceedings in these matters 
 
         held on July 31, 1984 as well as of defendant's exhibit C and of 
 
         claimant's and Harry Lake's testimony.  Pursuant to the requests 
 
         of the parties, official notice is taken of the contents of the 
 
         file and of prior proposed arbitration and appeal decisions of 
 
         December 27, 1984 and November 20, 1985, respectively.  
 
         Claimant's exhibit 41 is an August 22, 1986 deposition of John L. 
 
         Walker, M. D. Claimant's exhibits 42 through 45 are reports of 
 
         Dr. Walker of June 1, 1984, February 12, 1986, March 19, 1986, 
 
         and November 3, 1986, respectively.  Claimant's exhibit 46 is a 
 
         waiver of physical defect executed between claimant and the 
 
         Marshalltown Times Republican.  Claimant's exhibits 47 through 51 
 
         are claimant's W2 statements for the years 1979 through 1983 with 
 
         Swift.  Claimant's exhibits 52 and 53 are claimant's forms 1099R 
 
         for the year 1983 with Swift.  Claimant's exhibits 54 through 57 
 
         are claimant's W2 statements for the Times Republican and 
 
         Marshalltown Newspapers for the years 1983 through 1985.  
 
         Claimant's exhibit 58 is claimant's W2 statement for the year 
 
         1985 with Pioneer.  Claimant's exhibit 59 is a copy of claimant's 
 
         last prehearing pay stub.  Claimant's exhibit 60 is a copy of the 
 
         Iowa Newspaper Association Group Health Plan.  Claimant's exhibit 
 
         61 is the October 30, 1986 deposition of Bary Carl.  Claimant's 
 
         exhibit 62 is claimant's employee service record.  Claimant's 
 
         exhibit 63 is a blank application for employment with Swift 
 
         Independent Packing Company employment application.  Claimant's 
 
         exhibit 64 is a blank health inventory to be filed with said 
 
         employment application.  Claimant's exhibit 65 is a Marshalltown 
 

 
         addendum to Swift Independent Packing Company application.  
 
         Claimant's exhibit 66 is a record of work, earnings and tax.  
 
         Claimant's exhibit 67 is Swift Independent Packing Company 
 
         comprehensive medical plan for nonsalaried employees.  Claimant's 
 
         exhibit 68 is a Swift Independent Packing Company pension plan 
 
         for nonsalaried employees.  Claimant's exhibit 69 is a Swift 
 
         group insurance plan.  Claimant's exhibit 70 is Swift savings 
 
         plan.  Prior hearing exhibits 41, 26, 27, 28, 3, and 1 were 
 
         identified in the prior hearing decisions.  Defendant's exhibit C 
 
         is a compilation consisting of various medical records concerning 
 
         claimant as identified on the exhibit, as well as copies of the 
 
         depositions of Peter Wirtz, M.D., taken July 27, 1984, Lloyd 
 
         James Thurston, D.O., taken July 24, 1984, and Carl 0. Lester, M. 
 
         D., taken July 17, 1984, as well as a copy of the transcript of 
 
         the July 31, 1984 hearing in these matters.  Also included is 
 
         claimant's original employment application with Swift.  All 
 
         objections to exhibits are overruled.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report filed and approved prior 
 
         to these proceedings and pursuant to the appeal decision filed 
 
         November 20, 1984, the sole issue remaining is whether claimant 
 
         is entitled to permanent partial disability on account of the 
 
         August 9, 1983 injury.
 
         
 
              We note that an expressed conclusion of law in both the 
 
         original proposed decision and the appeal decision in the earlier 
 
         proceedings was that claimant was not entitled to temporary 
 
         total, healing period, permanent partial or permanent total 
 
         benefits on account of the April 8, 1983 injury.  Claimant's 
 
         stipulated rate is $234.23.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Considerable evidence was presented not relevant to the 
 
         issue before us.  This review of the evidence will be confined to 
 
         the evidence relevant to the issue of permanent partial benefit 
 
         entitlement as a result of August 9, 1983 injury.  All evidence 
 
         relevant to that issue was reviewed and considered in the 
 
         disposition of these matters even if such evidence is not 
 
         expressly set forth in the following review of the evidence.
 
              
 
              Claimant testified that he graduated from high school in 
 
         1973.  He subsequently worked as a laborer at Coca Cola and at 
 
         Royce Litho and Printing for approximately two and one-half 
 
         years.  At Coca Cola, claimant also worked as a minor mechanic 
 
         changing machine parts.  Each job entailed lifting from 40 to 80 
 
         pounds.  Claimant subsequently took a one year printing trades 
 
         course after which he became employed as the Marshalltown Times 
 
         Republican as an apprentice pressman.  As a pressman, claimant 
 
         made press plates and changed press plates for different size 
 
         papers.  He reported that the only physical labor involved was 
 
         changing and putting the roll shaft on the press.  He 
 
         characterized the roll shaft as being about four foot long and 
 
         two inches in diameter and weighing from 40 to 50 pounds.  The 
 
         press plates weigh more than one pound; ink buckets weigh 
 
         approximately 35 pounds.
 
         
 
              Claimant continued at the Times Republican for three years 
 
         before beginning work at Swift Independent Packing on November 
 
         13, 1979.  Claimant remained at Swift until November 17, 1983.  
 
         The base rate when claimant started was apparently $7.27 per 
 
         hour.  Workers apparently began at a wage below the base rate and 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   3
 
         
 
         
 
         reached base rate in approximately six months.  Once the base 
 
         rate pay is reached, jobs are classified by bracket and the 
 
         worker receives $.05 per hour more than the base per each bracket 
 
         of classification.  Workers receive overtime pay at time and 
 
         one-half the regular rate for all hours.over eight per day and 
 
         for all hours over forty per week.  Claimant reported that he 
 
         initially worked trucking fat on the cut floor and that this was 
 
         a zero bracket job at which he worked 48 to 50 hours per week and 
 
         pushed from 2 to 400 pounds.  Claimant subsequently worked 
 
         pulling chittlings.  Claimant stated he was not then qualified 
 
         for brackets but worked 45 to 50 hours per week and lifted 
 
         approximately eight pounds.  Claimant later returned to the 
 
         chittling job and received two brackets.  Claimant also worked as 
 
         a night checker.  He testified that he worked 50 to 55 hours per 
 
         week and that the job was an eleven bracket job on which he 
 
         earned $11.55 per hour.  Claimant was subsequently bumped off the 
 
         night checker job but reported that approximately twice a month 
 
         he was called to work that job and then received the eleven 
 
         bracket pay.  Claimant apparently sustained a carpal tunnel 
 
         injury while doing the chittling job and transferred to a day 
 
         janitor job.  He characterized that job as a zero bracket job at 
 
         which he earned $8.05 per hour and worked 42 to 44 hours per 
 
         week.  Claimant reported that the job required him to scoop and 
 
         shovel up to twenty pounds of meat.  Claimant subsequently worked 
 
         at the night janitor job at Swift.  That is also a zero bracket 
 
         job at which claimant earned $8.35 per hour while reportedly 
 
         working 45 to 50 hours per week.
 
         
 
              Bary Carl, personnel manager for Swift Independent Packing, 
 
         testified that it would be unusual for any production worker to 
 
         average more than 44 to 45 work hours per week, but agreed that
 
         the night checkers would likely work approximately four hours 
 
         overtime on Fridays.  He reported that the janitorial jobs were 
 
         generally straight eight hour per day jobs.
 
         
 
              Cost of living adjustments were made to Swift Independent 
 
         employees every six months to October 1982.  Employees were 
 
         guaranteed a 36 hour work week and received paid vacation after 
 
         one year.  Claimant testified that employees received two weeks 
 
         of paid vacation after one year.  Mr. Carl indicated that one and 
 
         two year employees received one week of paid vacation only with 
 
         three year to twenty year employees receiving two weeks of paid 
 
         vacation.  Swift employees also received eight paid holidays per 
 
         year.  Swift also provided its employees with a group health and 
 
         accident insurance plan, a payroll savings plan, and a $10,000 
 
         death benefit policy as well as a pension and disability program.  
 
         Eligible employees, of which claimant was one, could also 
 
         participate in a group retirement program which would be 
 
         effective after thirty years of employment.  Claimant reported 
 
         that under the savings plan, Swift made a maximum contribution of 
 
         $3.00 per check into the savings plan program which the employee 
 
         could then match.  Claimant reported that he generally 
 
         participated at the maximum amount in that plan.  He reported 
 
         that after 1982, employees were required to pay $2.30 per week 
 
         for the pension and disability plan.  Mr. Carl reported that 
 
         Swift employees now contribute $3.00 per pay period for 
 
         individual health and accident insurance with the company.
 
         
 
              Claimant testified that he resigned from Swift following his 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   4
 
         
 
         
 
         injury because the work aggravated his back condition.  He opined 
 
         he also could not do other jobs he had held at Swift without 
 
         aggravating his back condition.  Claimant testified that he had 
 
         worked on the loading dock as a shipping clerk for over a year 
 
         before being bumped and was unaware of any employer 
 
         dissatisfaction with his work.  Eleven brackets is the highest 
 
         job classification at Swift for nonmaintenance and nonskilled 
 
         workers.  Claimant was a member of a union while at Swift.
 
         
 
              Claimant returned to work as a pressman at the Times 
 
         Republican in November 1983 and continues to work there.  Prior 
 
         to beginning that employment, he signed a waiver of physical 
 
         defect concerning his carpal tunnel problem and his back injury.  
 
         Claimant reported that his wages have increased from $7.05 when 
 
         he began employment on November 20, 1983 to $7.63 per hour at 
 
         time of hearing.  Claimant was expecting his annual review on 
 
         November 22, 1983 and anticipated a $.30 per hour raise following 
 
         such review.  Claimant reported that the Times is a nonunion shop 
 
         and that he generally has received no overtime.  Claimant 
 
         reported that the Times has a 60-40 employer-employee 
 
         contribution medical benefits program under which he is required 
 
         to pay $24.74 every two weeks for health insurance.  Claimant 
 
         receives two weeks paid vacation and five paid holidays per year. 
 
          Claimant is not yet eligible to receive disability insurance or 
 
         participate in the company
 
         retirement plan.  Each of those programs require ten years of 
 
         employment before an employee is eligible to participate.  The 
 
         retirement plan is effective after 35 years of service when an 
 
         employee reaches age 65.  On cross-examination, claimant agreed 
 
         that retirement plan vesting period with his present employer is 
 
         the same as that with Swift.  Claimant agreed that only Dr. 
 
         Walker has recommended surgery for his back and stated that 
 
         claimant prefers postponing surgery.
 
         
 
              Claimant reported that he restricts his personal activities 
 
         because of fear that he will reinjure himself.  He stated that he 
 
         does not lift, jog, play football or baseball. on 
 
         cross-examination, claimant agreed that he has never jogged.  
 
         Claimant reported that he has low back pain which progresses into 
 
         his right leg on a daily basis and that he is now having left leg 
 
         pain.  He reported having trouble mowing his lawn, riding in a 
 
         car, sitting, and sleeping.  Claimant reported that he continues 
 
         to golf and golfed in early Summer 1986 approximately four or 
 
         five times per week using a pull cart.  Claimant signed up for 
 
         and apparently participated in a beer drinkathon golf tournament 
 
         in the Summer 1986.  Claimant fishes and has a boat in Missouri.  
 
         He described his boat as a 15 foot John motorboat with an 
 
         electric troller motor and boat trailer.  Claimant launches the 
 
         boat from the trailer.  Claimant described his fishing tackle box 
 
         as weighing from five to ten pounds and as being one foot long by 
 
         eight inches by six inches.  Claimant's wife works nights and 
 
         claimant reported that he cares for his two children, ages eight 
 
         and nine, when he is not attending evening classes.
 
         
 
              Since September 1986, claimant has been enrolled at 
 
         Marshalltown Community College taking courses in Introduction to 
 
         Business and Accounting I.  He expressed his belief that he needs 
 
         to get out of manual labor and stated he would like to use that 
 
         schooling to either advance in his present position or with 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   5
 
         
 
         
 
         another company.  Claimant has not sought either formal 
 
         vocational .counseling or vocational rehabilitation.  Claimant 
 
         agreed that he has not had to actively search for a new job since 
 
         leaving Swift.
 
         
 
              Harry Lake testified that he is 69 years old and before his 
 
         January 12, 1984 retirement had worked sixteen years and five 
 
         months as a job service manpower specialist in the Marshalltown 
 
         area.  Mr. Lake indicated that he was familiar with the 
 
         Marshalltown job market at the time of his retirement and that he 
 
         has attempted to stay abreast with that market since his 
 
         retirement.  Lake responded that that low back problems and 
 
         related restrictions such as those outlined in claimant's 
 
         exhibits 41 through 45 would affect the employability of a person 
 
         otherwise having claimant's characteristics and residing in the 
 
         Marshalltown area in a negative sense in that employers generally 
 
         do not hire persons with low back injuries.  Lake agreed that if 
 
         claimant had received a 4.00 GBA in his printing courses and a 
 
         3.50 GBA in high school, those facts would suggest that, with 
 
         training, additional jobs would open for claimant.  Lake reported 
 
         that employers generally make a genuine attempt to accommodate 
 
         handicap workers, but when employment applicants are plentiful 
 
         they take only the best; whereas when employment applicants are 
 
         few, employers will select employees with physical defects 
 
         provided they can continue to protect their own interests.
 
         
 
              Mr. Carl testified that the Swift health questionnaire which 
 
         potential employees are required to complete with their job 
 
         applications does contain considerable questions concerning prior 
 
         workers' compensation claims and prior back problems.  Carl 
 
         testified that Swift would not necessarily exclude an individual 
 
         with prior back problems from employment, but stated that for, 
 
         primarily humanitarian reasons, such individuals would not be 
 
         considered for positions which they could not physically handle 
 
         or where they might experience an aggravation of their condition 
 
         or further injury.
 
         
 
              Claimant's wages, tips, and other compensation in his last 
 
         full year at Swift, that is 1982, were $32,701.01.  Claimant's 
 
         wages, tips, and other compensation with his current employer in 
 
         1985 were $15,257.03.  As of October 23, 1986, claimant had 
 
         earned $13,473.72 with his current employers in 1986.
 
         
 
              In his deposition, Dr. Wirtz indicated that strenuous 
 
         activity will irritate claimant's back condition temporarily and 
 
         that he will have intermittent low back pain and some leg 
 
         radiation with activities that are strenuous.  In an October 31, 
 
         1983 report, Dr. Wirtz indicated that strenuous activities would 
 
         include lifting, repeated lifting of objects, as well as 
 
         prolonged carrying of heavy objects.  He reported that awkward 
 
         positions of the back would tend to likewise give claimant low 
 
         back complaints.   In an October 13, 1983 report, Dr. Wirtz 
 
         characterized claimant's problem as degenerative disc disease 
 
         which would be symptomatic with heavy labor activities and would 
 
         produce future injuries with such activities.
 
         
 
              Per the prior decision in this matter, claimant's medical 
 
         condition is characterized as as protrusion at L4, 5 centrally 
 
         and at L5, Sl centrally and on the left side.
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   6
 
         
 
         
 
         
 
              John R. Walker, M.D., an orthopedic specialist, reexamined 
 
         claimant and reported thereon on February 12, 1986.  The doctor 
 
         characterized as a rather marked change that the fifth lumbar 
 
         disc was practically collapsed down to zero height, although some 
 
         disc was left anteriorally and in the mid portion of the disc as 
 
         seen in lateral x-rays.  Dr. Walker stated that claimant did have 
 
         some permanent problem with a somewhat narrower fifth lumbar disc 
 
         prior to his injury and that that could be set at six percent 
 
         [permanent partial impairment] of the body as a whole.  Dr. 
 
         Walker 
 
         
 
         subsequently indicated that claimant had a twelve percent 
 
         [permanent partial impairment] of the body as a whole as a result 
 
         of his work injury giving him a total eighteen percent permanent 
 
         partial "disability."  On November 3, 1986, Dr. Walker opined 
 
         that claimant should particularly avoid the following 
 
         activities:
 
         
 
              1.)  He should avoid all shoveling, pitching hay, shoveling 
 
              sand, shoveling dirt or spading and/or shoveling meat.
 
         
 
              2.)  The patient should not repeatedly bend down, and pick 
 
              up objects from the floor and repeatedly lift them from the 
 
              floor to a table height.  If he does, he must squat down.  
 
              He should not pick up ten to fifteen pounds at a time and 
 
              certainly not repetitively.
 
         
 
              3.)  Any lifting should be accompanied by a squat position 
 
              rather than a bending of the lumbo-dorsal spine.
 
         
 
              4.)  As far as carrying is concerned, probably he could 
 
              carry as much as 35 to 40 lbs. from table height to another 
 
              distance of say 5 to 10 feet but this should not be done 
 
              repeatedly.
 
         
 
              5.)  The patient should avoid riding lawn mowers, tractors 
 
              or vehicles which give a lot of spring and bounce.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our sole concern is claimant's entitlement to permanent 
 
         partial disability benefits on account of his August 9, 1983 
 
         injury.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   7
 
         
 
         
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   8
 
         
 
         
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Apportionment of disability is limited to those situations 
 
         where the prior injury or illness, unrelated to employment, 
 
         independently produces some ascertainable portion of the ultimate 
 
         industrial disability found to exist following the employment 
 
         related aggravation.  Varied Industries, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant is a younger worker whose present and past 
 
         educational records suggest considerable intellectual ability.  
 
         Apparently,only Dr. Walker has assigned claimant an impairment 
 
         rating, that being 18 percent of the body as a whole, 12 percent 
 
         of which the doctor attributes to claimant's work injury.   
 
         Claimant's preexisting lumbar disc narrowing to which the 
 
         remaining six percent is attributed did not appear to be 
 
         producing any industrial disability prior to claimant's work 
 
         injury.  Claimant to that point had satisfactorily performed his 
 
         job at Swift without problems related to a back condition.  
 
         Hence, any industrial disability ultimately found cannot be 
 
         apportioned between claimant's work injury and the preexisting 
 
         condition.  Both Dr. Walker and Dr. Wirtz generally have 
 
         restricted claimant from physical maneuvers of lifting, bending, 
 
         carrying over 35 to 45 pounds and other strenuous activities 
 
         associated with heavy manual labor.  Claimant voluntarily left 
 
         his job at Swift following his injury.  He testified he did so 
 
         because he could no longer carry on his job duties without 
 
         aggravating his back condition.  The fact that claimant's income 
 
         dropped by at least 50 percent in the year following his job 
 
         change gives additional credibility to claimant's testimony in 
 
         that regard.  Claimant fortunately has training, skills and work 
 
         experience in other than heavy manual labor and was able to 
 
         utilize these to return to a position as a pressman with his 
 
         previous employer.  Claimant's job with that employer appears 
 
         secure and claimant's salary is increasing consistently with his 
 
         longevity with the employer.  In several years, it may nearly 
 
         equal the wage level he could have received had he remained with 
 
         Swift.  Claimant's need to sign a waiver of physical defect 
 
         regarding his back condition with his prior employer upon his 
 
         rehire after leaving Swift is reflective of difficulties Mr. Lake 
 
         testified claimant might well encounter in the open labor market 
 
         were he to need to compete for work positions with other workers 
 
         of like experience and skills but lacking a back injury, however.  
 
         One suspects claimant's prior work record with his present 
 
         employer was of assistance in his securing that position despite 
 
         his back injury.  One also suspects that had that previous work 
 
         history been lacking, claimant's present employer would have been 
 
         less likely to have hired him even with a waiver of physical 
 
         defect.  On his job transfer, claimant lost benefits he received 
 
         as a Swift employee.  His current benefit package is not 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   9
 
         
 
         
 
         significantly less than that received at Swift, however.  
 
         Claimant's testimony concerning the amount of overtime he 
 
         generally earned at Swift is discrepant with Mr. Carl's testimony 
 
         on that subject.  We are not convinced claimant's accounting of 
 
         earned overtime is necessarily more correct.  Hence, we do not 
 
         believe lost overtime hours is a significant factor in assessing 
 
         claimant's loss of earning capacity.  Likewise, claimant's 
 
         current nonunion status is not a condition which can be said to 
 
         result from his work injury and, therefore, is not a factor in 
 
         assessing lost earning capacity.  Claimant testified to 
 
         restrictions on his nonwork life activities.  We believe that 
 
         testimony was exaggerated in claimant's favor in that claimant 
 
         later acknowledged that he has never jogged and in that claimant 
 
         continues to be able to golf, launch and operate his motorboat 
 
         and care for his children, both of whom are at an age where a 
 
         fair level of physical prowess would generally be required of 
 
         their caretaker.  As noted by Drs. Wirtz and Walker, claimant 
 
         does have some real physical limitations on his activities on 
 
         account of his back condition, however.  He is motivated to 
 
         continue work and to train himself for less physically demanding 
 
         work.  Given his younger age, his intellectual capacities, and 
 
         his personal ambition, he is likely to be successful in those 
 
         goals and may well achieve a future income and future employment 
 
         security greater than that which he enjoyed at Swift.  
 
         Nevertheless, claimant has sustained a present loss of earning 
 
         capacity which under all factors considered equals 20 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant is a younger worker who graduated from high  school 
 
         in 1973 with a 3.5 GBA and attended and graduated from a 
 
         community college printing trades course with a 4.00 GBA.
 
         
 
              Claimant was employed as a newspaper pressman prior to 
 
         beginning work with Swift.
 
         
 
              Claimant voluntarily left his employment at Swift following 
 
         his work injury and returned to work as a pressman with his 
 
         pre-Swift employer.
 
         
 
              Claimant initially experienced a near 50 percent drop in his 
 
         income on account of his voluntary quit from Swift.
 
         
 
              Claimant left Swift because he could not handle his duties 
 
         without aggravating his back condition.
 
         
 
              Claimant was required to sign a waiver of physical defect on 
 
         being hired by his pre-Swift employer.
 
         
 
              Claimant would have difficulties competing on the open labor 
 
         market as a manual laborer on account of his back condition.
 
         
 
              Claimant has medically imposed restrictions on lifting, 
 
         carrying, bending, shoveling, and other activities generally 
 
         required in heavy manual labor.
 
         
 
              Claimant is able to physically handle his present position 
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page  10
 
         
 
         
 
         as a pressman.
 
         
 
              His present level of training and experience is well suited 
 
         to that position.
 
         
 
              Claimant's position as a pressman is secure and in time he 
 
         may achieve earnings nearly equal to those who could reasonably 
 
         have anticipated at Swift.
 
         
 
              Claimant gave up nonsalary job benefits at Swift.  
 
         Claimant's present benefit package is not significantly less than 
 
         that at Swift, however.
 
         
 
              Claimant is well motivated.
 
         
 
              Claimant is continuing his education in the hopes of 
 
         obtaining training necessary for nonphysically demanding work.
 
         
 
              Claimant has a moderate permanent physical impairment 
 
         related to his August 9, 1983 work injury.
 
         
 
              Claimant has a loss of earning capacity of 20 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his August 9, 1983 injury of twenty percent 
 
         (20%).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for one hundred (100) weeks at the rate of two hundred 
 
         thirty-four and 23/100 dollars ($234.23).
 
         
 
              Defendant pay accrued amounts in a lump sum.
 
         
 
              Defendant pay interest pursuant to section 85.30.
 
         
 
              Defendant pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33.
 
         
 
              Defendant file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 12th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             HELEN JEAN WALLESER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page  11
 
         
 
         
 
   
 
         
 
         Copies to:
 
         
 
         Mr. James C. Wilson
 
         Attorney at Law
 
         P.O. Box 431
 
         Eldora, Iowa 50627
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803
 
                                                   Filed 1-12-87
 
                                                   Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DENNIS J. BLACKFORD,
 
         
 
              Claimant,                              File Nos. 744940
 
                                                               747501
 
         VS.
 
                                                       R E V I E W -
 
         SWIFT INDEPENDENT PACKING
 
         COMPANY, a/k/a SWIFT FRESH                 R E 0 P E N I N G
 
         MEATS COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Twenty percent industrial disability awarded younger 
 
         claimant with disc protrusions at L4, 5 and L5, Sl who had 
 
         voluntarily left work with defendant employer following injury 
 
         because he experienced difficulties carrying out his duties on 
 
         account of his injury.  Claimant had transferable skills as 
 
         pressman which he utilized in present job and considerable 
 
         academic and intellectual ability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH M. HERNANDEZ,
 
         
 
              Claimant,                               File No. 745080
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         CHARTER COACHES, INC.,                       D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                        JAN 29 1988
 
         CARRIERS INSURANCE COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Joseph M. Hernandez, against his employer, Charter Coaches, Inc., 
 
         and its insurance carrier, Carriers Insurance Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury allegedly sustained on July 15, 1983.  This matter 
 
         came on for hearing before, the undersigned deputy industrial 
 
         commissioner at Cedar Rapids, Iowa, on August 25, 1987.  A first 
 
         report of injury was filed September 25, 1983.  No benefits have 
 
         been paid.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of claimant's exhibits 1 through 16 as identified on 
 
         claimant's exhibit list and defendants' exhibits A through F as 
 
         identified on defendants' exhibit list.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated that claimant's commencement date for permanent 
 
         partial disability benefits, if such are due, would be July 15, 
 
         1983.  The issues remaining for resolution are:
 
         
 
              Whether claimant received an injury which arose out of and 
 
         in the course of his employment;
 
         
 
              Whether there is a causal relationship between the alleged 
 
         injury and the claimed disability;
 
         
 
              Whether claimant is entitled to benefits and the nature and 
 
         extent of any benefit entitlement, including the related question 
 
         of whether claimant is an odd-lot worker under the Guyton 
 
                                                
 
                                                         
 
         doctrine; and,
 
         
 
              Claimant's rate of weekly compensation, in the event of an 
 
         award.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 54-year-old gentleman who worked for Charter 
 
         Coaches intermittently from spring, 1982 through his alleged 
 
         injury y date.  Claimant earned $3.35 per hour without employee 
 
         benefits.  He reported that he received passenger gratuities of 
 
         from $6.00 to $18.00 per week, but denied that he was a part-time 
 
         Charter Coach employee.  Claimant's Charter Coach duties included 
 
         picking up and delivering airplane passengers and luggage as well 
 
         as serving as a limousine service driver.  Prior to working for 
 
         Charter Coaches, claimant was self-employed as a taxi driver 
 
         where he earned approximately $2.00 per hour.  He also had worked 
 
         as an over-the-road trucker.  Claimant reported that his only 
 
         post-Charter employments included babysitting in his home on two 
 
         occasions, earning $8.00 each time, and working five hours in the 
 
         week prior to the hearing delivering luggage for an airport taxi 
 
         service.  He agreed he has sought and been granted Social 
 
         Security disability benefits since July 15, 1983.  Claimant 
 
         reported that, subsequent to July 7, 1983, when he sought renewal 
 
         of his Department of Transportation (chauffeur's) license, his 
 
         driving license was restricted to vehicles of five tons or less.  
 
         Claimant served in the United States Navy from 1952 through 1956.  
 
         Claimant agreed his medical problems while in the Navy included a 
 
         seizure disorder, bronchial asthma and probable steroid 
 
         myothrophy. Claimant had medically recorded seizures in 1979 and 
 
         1981.  He was hospitalized in 1979 with dilantin subsequently 
 
         prescribed.  Claimant had discontinued the use of dilantin prior 
 
         to July 15, 1983, however.  Claimant also had had rheumatic 
 
         fever, hiatal hernia, sinusitis, allergic vasculitis and gout 
 
         prior to July, 1983.  Claimant testified that he returned to 
 
         full-time employment after (treatment) for each condition.
 
         
 
              Claimant testified that, on July 15, 1983, he began work at 
 
         4 a.m.  He reported that another employee had not appeared for 
 
         work in Cedar Rapids and that claimant, therefore, was one of 
 
         only two people covering Charter Coaches' passenger service in 
 
         the Cedar Rapids, Iowa City area.  Claimant reported that, at 
 
         noon, he was given an extra time trip to Iowa City.  Claimant 
 
         stated that he was upset and hot and that he had taken no work 
 
         breaks and eaten no food, but for ingested medications from 4 
 
         a.m. until after he discontinued work on July 15, 1983.  Claimant 
 
         described his passenger as an author on Mexican immigration.  He 
 
         reported that he did not otherwise recall the passenger, but 
 
         found that fact upsetting since claimant had an interest in that 
 
         issue.  Claimant reported that he took his passenger to the wrong 
 
         location and subsequently had to receive new directions to find 
 
         the appropriate location.  Claimant reported that, after doing 
 
         so, he drove to the Veterans Administration hospital in Iowa 
 
         City.  Claimant testified that he was there told he was having a 
 
                                                
 
                                                         
 
         seizure.  Claimant testified that two physicians advised him to 
 
         not drive.  Claimant called Charter Coaches from the Veterans 
 
         Administration Hospital; an individual was sent to pick up his 
 
         vehicle.  Claimant reported that he had a gout episode within ten 
 
         days of July 15, 1983 with a hospitalization for asthma within 
 
         one month of that date.  He reported that, over the next three 
 
         years, he was in the hospital with asthma at each quarter.
 
         
 
              Claimant agreed that he had seen a physician on July 13, 
 
         [1983] with complaints of suicidal ideation.  He reported that 
 
         his psychiatric problems prior to July, 1983 resulted from 
 
         situations which he could not control.  Claimant characterized 
 
         his asthmatic condition as so fickle that "anything can touch it 
 
         off."  Claimant agreed that he was released for full-time 
 
         employment upon discharge from his August 15, 1983 hospital 
 
         admission.  Claimant was released for driving as of April 23, 
 
         1984.
 
         
 
              Claimant further testified by way of his deposition taken 
 
         August 15, 1985.  The deposition disclosed that claimant has an 
 
         Associate of Arts degree from Kirkwood Community College.  
 
         Claimant testified he had had rheumatic fever in the Navy and has 
 
         had a lumbar laminectomy.  He reported he currently had 
 
         osteoarthritis. Claimant stated that, as of the deposition date, 
 
         he had not had a full--blown seizure nor been hospitalized for 
 
         seizures since July 16, 1983.  He reported that he had had "nerve 
 
         seizures" after which testing was undertaken to determine whether 
 
         his Dilantin dosage should be increased.  Claimant attributed the 
 
         fact he did not know his July 15, 1983 passenger's destination to 
 
         Charter Coach personnel's failure to provide him with a passenger 
 
         receipt containing that information as well as the passenger's 
 
         name. Claimant reported he was upset about not knowing the 
 
         individual's name as such decreased the probability that he would 
 
         receive a tip.
 
         
 
              John E. Kasik, M.D., testified by way of his deposition 
 
         taken September 3, 1985.  Dr. Kasik is chief of staff at the 
 
         Veterans Administration Hospital (in Iowa City) and professor of 
 
         internal medicine and associate dean in the college of Medicine 
 
         at the University of Iowa.  Dr. Kasik is a board-certified 
 
         internist, who has had additional postgraduate training in lung 
 
         disease, infectious disease and pharmacology.  Dr. Kasik reported 
 
         that claimant was seen at the Veterans Hospital on July 15, 1983 
 
         with a confusional episode thought to be a seizure.  Claimant was 
 
         subsequently seen by a neurology service in consultation to 
 
         determine whether he had actually had a seizure.  Diagnosis was 
 
         seizure disorder, probably temporal lobe, but with inability to 
 
         rule out an atypical migraine history after using Metapral.  Dr. 
 
         Kasik reported that claimant had taken a number of drugs for his 
 
         asthma including Prednisone, a drug which can lower one's seizure 
 
         threshold.  Dr. Kasik subsequently opined that claimant's seizure 
 
         incident of July 15, 1983 related to claimant's asthmatic 
 
         condition.  Dr. Kasik reported that claimant was taking 
 
         Prednisone in April, 1983 at 20 milligrams every other day, which 
 
         is a moderate dose and which was not as high as the dosage on 
 
                                                
 
                                                         
 
         other occasions.  The doctor characterized claimant as "one of 
 
         the most unstable asthmatics" he had seen in practice and as "one 
 
         of the most difficult asthmatics to take care of."  The doctor 
 
         stated that an episode in which an asthmatic hyperventilated 
 
         could trigger an attack of the type described (for July 15, 1983) 
 
         in someone with a lowered seizure threshold.  Dr. Kasik reported 
 
         that claimant was disabled because of bad asthma, but stated that 
 
         causal effect was more difficult to ascertain as certainly part 
 
         of the problem that Mr. Hernandez has goes back for many years, 
 
         well into the 70's."  The doctor reported that claimant was 
 
         diagnosed as having severe asthma in approximately 1975 and 
 
         agreed that claimant has had 37 Veterans Administration 
 
         hospitalizations for that condition since 1957.  Dr. Kasik agreed 
 
         that claimant's history reports that his neurological examination 
 
         of July 16, 1983 was normal and that the history did not indicate 
 
         that claimant had asthmatic attack symptoms such as wheezing or 
 
         shortness of breath.  Claimant's presenting complaint on July 15, 
 
         1983 was that he felt confused.  The doctor agreed that the 
 
         hospital notes reveal that claimant had had visual aura, which 
 
         might have been a premonition of a seizure or could have been 
 
         something else, in the days prior to July 15, 1983.  The doctor 
 
         indicated that claimant's aura was "not really a major complaint 
 
         in the chart" as of July 15, but that the major complaint was 
 
         confusion, difficulty in being oriented to what was ongoing.  The 
 
         doctor stated that claimant's confusion was much better prior to 
 
 
 
                              
 
                                                         
 
         claimant's hospital discharge. Dr. Kasik stated that claimant has 
 
         been taking either inhaled or oral steroids, of which Prednisone 
 
         is one, for at least 15 years. The doctor reported that he felt 
 
         the cause of claimant's July 15, 1983 confusion was a small 
 
         seizure which he related, in part, to claimant's steroid intake 
 
         with the remainder probably a propensity to having seizures and 
 
         the fact that claimant could have hyperventilated during that 
 
         day.  He agreed there was no record that claimant had 
 
         hyperventilated, however.
 
         
 
              Deposition exhibit 1, a Veterans Administration medical 
 
         certificate dated July 15, 1983, states in part:
 
         
 
              1 week ago had several minutes of seeing bright colors out 
 
              of [left] eye and similar episodes 3 days ago.  Today was 
 
              driving limosine [sic] from CR airport to I.C.  Is foggy for 
 
              most trip but remembers starting the trip and conversing 
 
              [with] passenger on trip down.  On arrival in I.C. took the 
 
              wrong streets several times before arriving at destination. 
 
              Then came to VA [for] resolution of confusion.  Currently 
 
              [complains of] [left] sided dull [headache].  No prior 
 
              [history] of migraine, [headache], FH convulsive disorder, 
 
              head trauma, recent (?) in meds, ETOH abuse.  Has been not 
 
              sleeping very well lately and was seen by psych 7/13 [with] 
 
              suicidal and homicidal ideation.  Has been followed by 
 
              psychology for marital difficulty.  Denies unusual stress at 
 
              this time.
 
         
 
              No breakfast or lunch today.
 
         
 
              Progress notes of July 15, 1983 from the Veterans 
 
         Administration Hospital report a presenting complaint of 
 
         "confused this am. drove here but don't know how got here."  
 
         Also, "I think I had a seizure am.  Been very tired lately."  A 
 
         note of John J. Sand, R2, reports claimant's condition of July 
 
         15, 1983 as confusion and memory loss.  A non-initialed note, 
 
         apparently of the same date, reports that "Today had visual (?) 
 
         while driving and lost way, not wholly aware of leaving driven to 
 
         destination." A further note, apparently of the same date, signed 
 
         by Henkle, R3, reports that claimant had a convulsive disorder in 
 
         1979 with workup here.  The note further states he had:
 
         
 
              Resolution of [seizure] on Dilantin.  Stopped med 1 year 
 
              ago. 1 week ago had visual hallucinations x minutes.  Today 
 
              had 1/2 hour confusion.  Annestic for 1/2 hour.
 
         
 
              Veterans Administration medical certificate of August 15, 
 
         1983 reports that claimant presents with asthma attacks starting 
 
         with a mild sore throat yesterday and followed by wheezing during 
 
         that a.m.  A further note relative to that admission reports that 
 
         claimant began wheezing following exposure to ragweed pollen and 
 
         cat dander several days ago while visiting a friend's farm.  A 
 
         note of August 18, 1983 states in part:
 
         
 
              Seen 7/15/83 after episode of "seeing funny lights" and not 
 
                                                
 
                                                         
 
                   knowing where going while driving.  Pt placed back on 
 
              Dilantin but since has had several episodes of seeing lines 
 
              and lights lasting [less than] one minute usually while 
 
              coughing or straining on stool.
 
         
 
              An abbreviated medical record for an admission of August 15, 
 
         1983 and discharge of August 18, 1983 reports a past history of 
 
         "being on steroids [for] 8 years, off since 2/83."  A November 1, 
 
         1983 note of Roberta R. Hallquist, M.D., reports that claimant 
 
         had a apparent seizure on July 15, 1983 and therefore should not 
 
         operate a motor vehicle until he has been completely seizure-free 
 
         for six months, no earlier than January 15, 1984.
 
         
 
              A medical summary by Andrew Braun, R-1, for an admission 
 
         date of February 23, 1984 with a discharge date of February 28, 
 
         1984, states that claimant has a history of steroid dependent 
 
         asthma dating back about 12 years.  The historian stated that 
 
         claimant reported he has been on near continuous Prednisone for 
 
         the past nine years.  He had then been on 60 milligrams per day 
 
         of Prednisone since the previous November.  A pulmonary function 
 
         test in September, 1983 showed an FEV1 of 1.64 and an FEC of 3.35 
 
         with little response to bronchodilators.  Claimant is reported as 
 
         having stated that his asthma seems to be triggered by furnace 
 
         air, car heat, grasses and cigarettes.  Claimant had then noted 
 
         increased shortness of breath, dyspnea on exertion and cough 
 
         production of yellow-white sputum over the past six weeks. 
 
         Claimant was reporting night sweats for the past four months.
 
         
 
              A March 8, 1978 report of Joseph A. Sopko, M.D., Pulmonary 
 
         Fellow, Department of Internal Medicine, University of Iowa 
 
         Hospitals and Clinics, states that claimant has been followed at 
 
         the Pulmonary Clinic of the Veterans Administration Hospital 
 
         since 1974 and has carried the diagnosis of asthma since that 
 
         time.  He is reported as being steroid dependent and has been 
 
         taking other medicines including "Prednisone, 50 mg po qd."  It 
 
         is reported that claimant was then attempting to work as a cab 
 
         driver and could do this part-time, but after approximately 20 
 
         hours of work, he usually got into severe problems.  Dr. Sopko 
 
         opined that he and Dr. Kasik believed claimant had severe asthma 
 
         which prohibited him from working full-time and that even 20 
 
         hours per week may be, in a sense, "pushing it" in terms of his 
 
         asthma.
 
         
 
              Veterans Administration progress note of November 26, 1984 
 
         characterizes claimant as having a 15-year history of steroid 
 
         dependent reactive airway disease with multiple exacerbations 
 
         precipitated by multiple, stimuli in the environment, including 
 
         dust, dry air, perfume and cigarette smoke.  Claimant's admission 
 
         diagnosis is of "Steroid-dependent asthma.  ? of hemoptysis" and 
 
         of seizure disorder which may be related to treatment on 
 
         Prednisone and on "theo."
 
         
 
              A note of February 12, 1984 reports that claimant's chest 
 
         tightness and shortness of breath are worsened with exposure to 
 
         dry air, some cooking vapors and dust.
 
                                                
 
                                                         
 
         
 
              Numerous medical reports speak of attempts to taper 
 
         claimant's Prednisone intake after July 15, 1983.
 
         
 
              R. W. Jasinski, M.D., interpreted a chest X-ray of November 
 
         14, 1983 as revealing that the lungs are well-inflated without 
 
         focal infiltrates and as showing no change compared to (x-ray of) 
 
         September 22, 1982.
 
         
 
              Claimant was admitted to Mercy hospital on May 8, 1984 after 
 
         he noticed a fullness in his chest, was very fatigued and had 
 
         discomfort in his right shoulder, abdomen and generally over his 
 
         chest after mowing his and his father's lawns that day.  M. T. 
 
         Hirleman, M.D., interpreted a chest x-ray of May 8, 1984 as 
 
         showing left lower lobe pneumonia.
 
         
 
              A May 25, 1979 report of Fred E. Abbo, M,.D., states that 
 
         claimant's seizure disorder, bronchial asthma and probable 
 
         steroid myopathy could not be related to rheumatic heart 
 
         disease.
 
         
 
              A medical report of Gerald J. Fogarty, M.D., of November 14, 
 
         1983 characterizes the type of aura preceding claimant's seizure 
 
         as confusion.  A medical report of Q. S. Dickson, M.D., of 
 
         October 18, 1984, characterizes the aura as visual.
 
         
 
              On April 23, 1984, Roberta R. Hallquist, M.D., reported that 
 
         claimant had been seizure-free since July, 1983 and could return 
 
         to work and drive.
 
         
 
              Medical costs with Mercy Hospital and with Dr. Fogarty were 
 
         in evidence as well as charges of $23.00 with Mercy Hospital for 
 
         medical request and medical record abstract.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concerns are the related questions of whether 
 
         claimant received an injury which arose out of and in the course 
 
         of his employment and the question of whether there is a causal 
 
         relationship between that alleged injury and his claimed 
 
         disability.  Claimant asserts that his confusional episode of 
 
         July 15, 1983 was a work-related injury and that his subsequent 
 
         absence from work was proximately caused by that episode.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 15, 1983 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central. 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
                                                
 
                                                         
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al Counties, 188 
 
         N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Injuries arising out of risks or conditions personal to the 
 
         claimant do not arise out of the employment unless the employment 
 
         contributes to the risk or aggravates the injury.  When the 
 
         employee has a preexisting physical weakness or disease, this 
 
         employment contribution may be found either in placing the 
 
         employee in a position which aggravates the effects of a fall due 
 
         to the idiopathic condition, or in precipitating the effects of 
 
         the condition by strain or trauma.  (Larson Workmen's 
 
         Compensation Law 12:00).
 
         
 
                         
 
                                                         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 15, 1983 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (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 555(17)a.
 
         
 
              Claimant has a long history of medical problems including 
 
         very severe asthma for which he had been taking steroids for from 
 
         8 to 15 years.  Among the steroids which claimant had either 
 
         ingested or inhaled is Prednisone, which Dr. Kasik stated is 
 
         known to produce seizures in susceptible individuals.  Claimant 
 
         had had documented and medically treated full seizures in 1979 
 
         and 1981. Claimant had aura or evidence of preseizure events both 
 
         one week and three days prior to his July 15, 1983 confusional 
 
         episode. Such suggests that claimant was highly susceptible to a 
 
                                                
 
                                                         
 
         seizure event, at or near July 15, 1983.  That fact supports a 
 
         finding that claimant's confusional episode of that date was 
 
         idiopathic and arose from a risk personal to claimant.  Claimant 
 
         apparently argues that traumatic events at work on the morning of 
 
         July 15, 1983 precipitated the seizure episode.  Claimant 
 
         testified that he had not had an opportunity to eat or drink that 
 
         morning, that directions given him for his final trip were 
 
         inadequate, that the identity of his passenger was upsetting for 
 
         him, and that he was forced to work an extra trip on that 
 
         morning.  He apparently believes that his confusional episode 
 
         would not have occurred, but for those facts.  The medical 
 
         evidence in the record, taken as a whole, does not support 
 
         claimant's position, however.  While claimant's description of 
 
         the events on the morning of July 15, 1983 bears some resemblance 
 
         to his own description of his state and the happenings prior to 
 
         one of his earlier seizures, it cannot be ascertained on this 
 
         record whether those events or claimant's perception of those 
 
         events led to the seizure or were part of the milieu of the. 
 
         seizure itself.  No medical testimony directly relates claimant's 
 
         July 15, 1983 confusional episode to his work of that morning.  
 
         Dr. Kasik did opine that an episode in which an asthmatic 
 
         hyperventilated could trigger an attack of the type described for 
 
         July 15, 1983 in someone with a lowered seizure threshold.  While 
 
         claimant, apparently because of the effects of Prednisone, 
 
         apparently had a lower seizure threshold, there is no evidence 
 
         that claimant hyperventilated on July 15, 1983.  One would think 
 
         that that would have been a fact of sufficient significance that 
 
         the many medical notes made that day would have recorded such an 
 
         event.  One would also think that claimant would have reported 
 
         any episode of hyperventilation to his multiple examiners of July 
 
         15, 1983.  No such report is in the record.  As noted above, 
 
         medical notes of July 15, 1983 do report "aura" or near seizure 
 
         events twice in the week preceding July 15, 1983. That fact 
 
         further supports a finding that claimant's July 15, 1983 event 
 
         was an idiopathic event arising from a condition personal to 
 
         claimant and did not constitute an injury arising out of and in 
 
         the course of claimant's employment.
 
         
 
              Likewise, claimant's asthmatic condition, as a cause of 
 
         disablement, cannot be traced to his July 15, 1983 incident. Dr. 
 
         Kasik reported that claimant was disabled because of bad asthma, 
 
         but stated that the causal effect was more difficult to ascertain 
 
         as claimant's problems had been ongoing for many years.  The 
 
         doctor characterized claimant as one of the most unstable 
 
         asthmatics he had seen in practice.  Claimant, himself, testified 
 
         that anything could set off his asthma.  His asthmatic attack 
 
         most proximate in time to the July 15, 1983 incident was that 
 
         related to his August 15, 1983 hospitalization.  Notes as of that 
 
         time relate that attack's onset to a farm visit where claimant 
 
         was exposed to ragweed, pollen and cat dander.  Veterans 
 
         Administration progress notes report that claimant has had 
 
         multiple exacerbations of his asthma, with those precipitated by 
 
         multiple stimuli in the environment, including dust, dry air, 
 
         perfume and cigarette smoke.  Hence, even had the July 15, 1983 
 
         incident been found an injury arising out of and in the course of 
 
                                                
 
                                                         
 
         claimant's employment, claimant has not established that that 
 
         incident had any relationship to the status of his ongoing 
 
         asthmatic condition; nor does that incident appear in any way 
 
         related to claimant's multiple other medical conditions, all of 
 
         which predated the July 15, 1983 incident.
 
         
 
              Likewise, nothing suggests that the July 15, 1983 
 
         confusional episode, even had it been found an injury arising out 
 
         of and in the course of claimant's employment, could he related 
 
         to claimant's later near seizure or preseizure events.  Each such 
 
         event, like similar events prior to July 15, 1983, appears to 
 
         have been a separate episode related to claimant's underlying 
 
         predisposition to seizures on account of his steroid dependent 
 
         asthmatic condition and not in any way related to the episode of 
 
         July 15, 1983.
 
         
 
              Because claimant's July 15, 1983 confusional episode has 
 
         been found to be an idiopathic condition arising from a risk 
 
         personal. to claimant, claimant is not entitled to recovery of 
 
         either medical or other benefits.  We note that, had claimant 
 
         established a temporary aggravation of his preexisting condition 
 
         through the events of the morning of July 15, 1983, at most 
 
         claimant would be entitled to recover for medical costs and time 
 
         off on account of any such temporary aggravation.  It appears, 
 
         however, that there are no medical costs to claimant directly 
 
         related to the July 15, 1983 episode as the Veterans 
 
         Administration provided care for the episode.  Furthermore, any 
 
         inability to work from July 15, 1983 onward apparently relates to 
 
         claimant's underlying condition, that is, his asthmatic 
 
         propensity to seizures on account of his steroid dependency as 
 
         well as to claimant's multiple other health problems and not to 
 
         the confusional episode of July 15, 1983.  Hence, temporary total 
 
         disability benefits would not have been due for that episode, 
 
         even had a temporary aggravation been found.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant had a history of very severe asthma for which he 
 
         had either ingested or inhaled steroids drugs.
 
         
 
              Among the drugs prescribed for claimant is Prednisone.
 
         
 
              Prednisone is known to produce seizures in susceptible 
 
         individuals.
 
         
 
              Claimant had had seizures in 1979 and 1981 for which he had 
 
         sought and received medical treatment.
 
         
 
              Claimant had had near or preseizure events both one week 
 
         before and three days before July 15, 1983.
 
         
 
              On July 15, 1983, claimant was employed for Charter Coaches, 
 
         Inc. as a driver who picked up and delivered airplane 
 
                                                
 
                                                         
 
         passengers.
 
         
 
              On July 15, 1983, claimant reported to work at approximately 
 
         4 a.m.
 
         
 
              On July 15, 1983, claimant did not eat, nor drink, nor take 
 
         a break from beginning work until leaving work.
 
         
 
              On July 15, 1983, claimant had to deliver a passenger from 
 
         Cedar Rapids to Iowa City.
 
         
 
              Claimant's passenger was an expert in Mexican immigration. 
 
         Claimant found this upsetting as the subject was one in which 
 
         claimant had an interest.
 
         
 
              Claimant did not know the passenger's name.  Claimant felt 
 
         he would be less likely to receive a tip on account of that 
 
         fact.
 
         
 
              Claimant did not believe he had received adequate directions 
 
         as to where to deliver the passenger.  Claimant initially 
 
         delivered the passenger to the wrong location, sought additional 
 
         directions from his dispatcher, and subsequently delivered the 
 
         passenger.
 
         
 
              Upon delivering the passenger, claimant was confused and 
 
         reported to the Veterans Administration Hospital.
 
         
 
              An episode such as claimant's work episode of July 15, 1983 
 
         might precipitate a seizure in an asthmatic who had 
 
         hyperventilated.
 
         
 
              Medical notes of July 15, 1983 do not report any incident in 
 
 
 
                                
 
                                                         
 
         which claimant hyperventilated.
 
         
 
              Claimant's asthmatic condition was very volatile and could 
 
         be set off by a multitude of environmental factors including 
 
         dust, dry air, perfume, cigarette smoke, ragweed pollen and cat 
 
         dander.
 
         
 
              Claimant's August 15, 1983 asthmatic hospitalization was the 
 
         hospitalization most proximate to the July 15, 1983 confusional 
 
         episode.
 
         
 
              Claimant's August 15, 1983 asthmatic hospitalization 
 
         resulted from an asthmatic attack set off after claimant visited 
 
         a farm at which he was exposed to ragweed pollen and cat dander.
 
         
 
              Claimant has had multiple other health conditions including 
 
         rheumatic fever, hiatal hernia, sinusitis, allergic vasculitis 
 
         and gout.
 
         
 
              Claimant has been disabled on account of his asthmatic 
 
         condition, his propensity to seizures and his multiple other 
 
         medical conditions since July 15, 1983.
 
         
 
              Claimant's July 15, 1983 episode was an idiopathic episode 
 
         relating to risks personal to claimant and not an injury which 
 
         arose out of and in the course of claimant's employment.
 
         
 
              Claimant's disablement after July 15, 1983 relates to his 
 
         underlying medical conditions and not to that idiopathic episode, 
 
         per se.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established any injury arising out of and 
 
         in the course of his employment on July 15, 1983.
 
         
 
              Claimant has not established that his current disablement 
 
         related to that alleged injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kenneth F. Dolezal
 
         Attorney at Law
 
         430 Higley Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. Scott E. McLeod
 
         Attorney at Law
 
         526 Second Avenue SE
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa  52406
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100, 1108.50
 
                                                 Filed January 29, 1988
 
                                                 HELEN JEAN WALLESER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH M. HERNANDEZ,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 745080
 
         CHARTER COACHES, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         CARRIERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100, 1108.50
 
         
 
              Claimant, with history of very severe asthma for which he 
 
         had taken steroid medication known to predispose one to seizure 
 
         disorders, did not establish an injury arising out of and in the 
 
         course of his employment when he had a confusional episode while 
 
         at work.  The seizure condition and the episode were held to be 
 
         idiopathic and to have arisen from a risk personal to the 
 
         employee.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          CAROL WYMER,
 
          
 
               Claimant,                 File  Nos. 745312
 
                                                    745314
 
          VS.                                       745315
 
         
 
         JOHN DEERE AND CO., d/b/a       A R B I T R A T I 0 N
 
         JOHN DEERE OTTUMWA WORKS
 
                                            D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Carol Wymer, 
 
         claimant, against John Deere and Company, d/b/a John Deere 
 
         Ottumwa Works, employer and self-insured defendant, for benefits 
 
         as the result of three alleged injuries which occurred on April 
 
         12, 1981, January 5, 1982, and October 21, 1982.  A hearing was 
 
         held in Ottumwa, Iowa, on March 9, 1989 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Carol Wymer, claimant, and joint exhibits 1 
 
         through 20.  Claimant was represented by Mr. Steven C. Jayne.  
 
         Defendant was represented by Mr. Roger Ferris.  The attorneys 
 
         should be commended for the good manner in which the exhibits 
 
         were marked, which included separately marking every page where 
 
         appropriate.  Both attorneys submitted excellent prehearing 
 
         briefs.  Defendant's attorney also submitted a posthearing brief.  
 
         The hearing 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 the time off work for which claimant now seeks 
 
         temporary disability benefits is from April 13, 1981 to July 5, 
 
         1981 and again from January 6, 1982 to February 1, 1982.
 
         
 
              That the type of permanent disability, if the injury is, 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That claimant's gross weekly earnings are shown on pages two 
 
         through five of the attachments to the prehearing report and that 
 
         claimant is single and entitled to three exemptions.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 2
 
         
 
         
 
              That no claim is made for medical benefits at this time.
 
         
 
              That in the event of an award, defendant is entitled to an 
 
         appropriate credit for the nonoccupational group health plan 
 
         benefits paid to claimant prior to hearing as shown on page 1 
 
         attached to the prehearing report.
 
         
 
              That defendant makes no claim for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on April 12, 1981, 
 
         January 5, 1982, and October 21, 1982, which arose out of and in 
 
         the course of employment with employer to include whether the 
 
         injury of October 21, 1982 is a cumulative injury.
 
         
 
              Whether any of the alleged injuries were the cause of either 
 
         temporary or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits, to include whether or not claimant is an odd-lot 
 
         employee.
 
         
 
              Whether claimant filed a timely claim pursuant to Iowa Code 
 
         section 85.26(l) is asserted by defendant as an affirmative 
 
         defense with respect to the alleged injury of April 12, 1981.
 
         
 
              Whether claimant is entitled to the benefit of the discovery 
 
         rule with respect to the alleged injury of April 12, 1981.
 
         
 
              What is the proper rate of compensation in the event of an 
 
         award.
 
         
 
                             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 is 38 years old, and has two 
 
         dependant children.  She graduated from high school.  She also 
 
         graduated from beauty school and worked as a beautician for three 
 
         years.  Claimant started to work for employer in May of 1973 
 
         handling parts.  Later, she worked as a tractor driver and skid 
 
         hunter, a fork lift driver, a hand trucker and a material handler 
 
         supplying the line with parts.  The fork lift job involved a lot 
 
         of bouncing around that aggravated her back.  The material
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                        
 
                                        
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 3
 
         
 
         
 
         handler job involved bending, twisting, lifting and walking.  It 
 
         also involved sliding, shoving, and pulling boxes with her body 
 
         and stacking heavy rings that weigh 90 to 100 pounds (transcript 
 
         13-27).  Claimant prepared a card which shows that she handled 
 
         weights from as low as 12 pounds to as high as 488 pounds 
 
         (exhibit 5, deposition ex. 1).  Employer maintained a record of 
 
         the jobs performed by claimant from September 26, 1977 to October 
 
         21, 1982, at which time claimant was terminated (tr. pp. 29 & 
 
         30).
 
         
 
              Claimant was hospitalized three times in 1980 for back 
 
         problems and again in February of 1981.  Claimant believed that 
 
         her problem was diagnosed as arthritis (tr. pp. 31 & 32).  She 
 
         was returned to work on February 16, 1981, sanding roll ends for 
 
         the round baler.  Initially she worked under a 15 pound lifting 
 
         restriction.  Eventually she returned to work as a material 
 
         handler in March of 1981 (tr. pp. 33-38).
 
         
 
              With respect to first alleged injury, claimant testified 
 
         that she was hospitalized on April 12, 1981 until May 9, 1981, 
 
         but that she had no recollection of any traumatic event from 
 
         slipping, falling or lifting.  She does not know of anything 
 
         unusual that happened at that time (tr. pp. 38 & 39).  Claimant 
 
         said she was treated by D. Dale Emerson, M.D. and Donald D. Berg, 
 
         M.D., who performed surgery on her back after he took a myelogram 
 
         (tr. pp. 39-41).  Claimant testified that she returned to work on 
 
         July 6, 1981 as a material handler and that she was feeling fine 
 
         and pain free at that time.  In October of 1981 she was able to 
 
         work without restrictions (tr. pp. 39-43).
 
         
 
              With respect to the second alleged injury of January 5, 
 
         1982, claimant was admitted to the hospital again by Dr. Berg for 
 
         a urinary tract infection and back pain.  She received therapy 
 
         and traction and was released from the hospital on January 24, 
 
         1982.  Claimant testified that she had no recollection of any 
 
         unusual event such as slipping, falling or picking up an object 
 
         that might have injured her back.  Claimant testified that she 
 
         returned to work in February of 1982 (tr. pp. 41-46).
 
         
 
              Claimant was hospitalized again in July of 1982 for back 
 
         pain and received therapy and traction.  She returned to work on 
 
         August 5, 1982.  Previously she had worked on the second shift in 
 
         the evening, but this time she was put on the day shift.  The day 
 
         shift required two or three times more work than the evening 
 
         shift and claimant could not keep up.  Claimant testified that it 
 
         was a two man job and it was only a one man job on the evening 
 
         shift.  She testified that she developed hammer toe, a curling up 
 
         of her toe, from all of the additional walking to supply the 
 
         line.  The evening line was only about one-half block whereas the 
 
         day line was a full block long.  She also developed blisters on 
 
         her feet on October 6, 1982.  Her work caused pain in her lower 
 
         back and down her leg.  She returned to work from the blisters 
 
         and hammer toe on October
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 4
 
         
 
         
 
         21, 1982 (tr. pp. 46-50).
 
         
 
              As to the third alleged injury, claimant was released on 
 
         October 19, 1982 to return to work on October 21, 1982.  She 
 
         reported to work, but could not walk very good and was called to 
 
         the front office and fired.  A disciplinary action dated October 
 
         25, 1982, reports that claimant was suspended on October 21, 1982 
 
         as being unemployable due to absenteeism after a meeting with 
 
         company officials and union representatives (tr. pp. 50-53; ex. 
 
         1).  The disciplinary action hearing shows that claimant was 
 
         discharged on October 21, 1982 for a high percentage of 
 
         absenteeism, most of it related to numerous and widely varied 
 
         illnesses and health conditions (ex. 1).
 
         
 
              Claimant described that currently she has terrible 
 
         discomfort, muscle spasm and pain in her lower back and down both 
 
         legs that shoots up and into her arms, shoulders and hands.  She 
 
         related that she has not had a good nights sleep for over five 
 
         years.  She has difficulty being on her feet and also driving a 
 
         car (tr. pp. 53 & 54).
 
         
 
              Claimant told that her daughter was born in late 1979 and 
 
         after that claimant gained a lot of weight.  Her weight increased 
 
         to approximately 230 to 250 pounds.  Claimant testified that she 
 
         weighed 246 pounds at the time of the hearing (tr. pp. 54 & 55).
 
         
 
              Claimant said that she could only walk one to one and 
 
         one-half blocks before she gets severe pain.  The pain interferes 
 
         with her concentration (tr. pp. 56 & 57).
 
         
 
              Claimant testified that she has looked for all kinds of work 
 
         as a clerk, gas station attendant, factory worker, receptionist, 
 
         and beautician, but that she has not been able to find a job in 
 
         18 months of searching (tr. pp. 57 & 58).
 
         
 
              On cross examination, claimant acknowledged that she did not 
 
         actually sustain an injury on October 21, 1982, but rather that 
 
         was the day she was fired.  She granted also that this was not 
 
         the first day that she had missed work on account of her back 
 
         condition.  She admitted that she had been missing work due to 
 
         her back since 1978 and possibly even since 1973.  Claimant 
 
         testified that sometimes her back pain and time lost from work 
 
         was due to activities at work and sometimes it was due to 
 
         personal activities outside of work.  Claimant said that she 
 
         would not quarrel with a company record that showed she lost work 
 
         on August 2, 1974, on account of her back which she believed was 
 
         due to her work.  Claimant testified that she weighed 220 when 
 
         she started to work for employer, but that she lost much weight 
 
         on two occasions, but that it had gone back up again since her 
 
         surgery.  She denied that she had hurt her back in high school or 
 
         in any automobile accidents (tr. pp. 58-65).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 5
 
         
 
         
 
              A review of the medical evidence reveals, and both parties 
 
         know, that claimant has suffered a long and difficult health 
 
         history of not only back pain, but numerous other health 
 
         conditions as well.  Defendant's posthearing brief enumerates 30 
 
         instances of situations where claimant received treatment for her 
 
         back prior to any of these injuries under consideration in this 
 
         hearing (defendant's posthearing brief pp. 1-6).
 
         
 
              Most pertinent to this decision is the testimony of Donald 
 
         D. Berg, M.D., an orthopedic surgeon at Ottumwa, who treated 
 
         claimant for all three alleged injuries (ex. 7).  At his 
 
         deposition on May 17, 1988, Dr. Berg identified his substantial 
 
         curriculum vitae and stated that he was a board certified 
 
         orthopedic surgeon.  Dr. Berg related that he first saw claimant 
 
         when she was hospitalized in the Ottumwa Hospital for pelvic 
 
         inflammatory disease and back pain in consulation with Dr. 
 
         Emerson in April of 1981.  Dr. Berg testified that he examined 
 
         the office records of Jack W. Brindley, M.D., which disclosed to 
 
         Dr. Berg that claimant had a long history of chronic back pain 
 
         and degenerative disc disease, especially narrowing between L5 
 
         and Sl (ex. 7, dep. ex. 2; ex. 7, pp. 7 & 8).  Dr. Berg described 
 
         that his myelogram verified a very large herniated disc at the 
 
         L4, L5 disc space (ex. 7, p. 8).  He removed this disc which had 
 
         herniated mostly to the right, but also to the left (ex. 7, pp. 
 
         11 & 12).  Dr. Berg answered that he could not tell when this 
 
         problem occurred, but he speculated that it could have been there 
 
         for some time (ex. 7, p. 13).  He said that claimant was taken 
 
         off work by Dr. Emerson on April 13, 1981, and he returned her to 
 
         work on July 6, 1981, with a 25 pound weight restriction for one 
 
         month (ex. 7, p. 14).
 
         
 
              Dr. Berg testified that normally he notes it in his records 
 
         if he has evidence that a situation is a work-related injury (ex. 
 
         7, pp. 16 & 17).  He added that he did not feel that this was a 
 
         work-related injury because he was not given any history of a 
 
         work-related injury.  Furthermore, he has no sheet filled out 
 
         that this was a workers' compensation claim (ex. 7, pp. 19-21).  
 
         Dr. Berg testified that he could not say that claimant's job 
 
         duties caused the disc problem to occur or caused it to flare-up 
 
         because he had no information that it did (ex. 7, pp. 21 & 22).  
 
         The following dialogue transpired between claimant's counsel and 
 
         Dr. Berg:
 
         
 
              Q.  And in summary, you felt that it was possible that her 
 
              occupational duties with Deere--whatever they were that she 
 
              was performing at that time--again could aggravate the level 
 
              of the surgery and produce the symptoms that she was 
 
              expressing at that time?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  It's a possibility, yes.
 
              
 
              Q.  Well, and in addition to that, she was having
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 6
 
         
 
         
 
              a weight problem, as you recall?
 
              
 
              A.  Yes.
 
              
 
              Q.  And that would also be a factor that would enter into 
 
              aggravation at this level?
 
              
 
              A.  Yes.  I think that's probably the major factor.
 
         
 
         (ex. 7, pp. 25 & 26)
 
         
 
              Dr. Berg testified that claimant suffered back pain, leg 
 
         pain and muscle spasms on January 6, 1982 and again on July 15, 
 
         1982 and was hospitalized on both of these occasions.  He said 
 
         that she had been operating a fork lift at that time.  He agreed 
 
         that this type of activity could aggravate her condition (ex. 7, 
 
         pp. 26-29).
 
         
 
              Dr. Berg said that he next saw claimant on October 18, 1982 
 
         for back pain.  At that time he recommended that she lose 75 
 
         pounds and have gastric bypass surgery (ex. 7, p. 30).  He 
 
         acknowledged that she might have some scar tissue from the April 
 
         1981 surgery, but he felt that the major factor causing her 
 
         condition was her weight.  She was even much heavier a year later 
 
         in 1983 (ex. 7, pp. 31 & 32).  Even when she was no longer 
 
         working in October of 1983, she continued to have problems (ex. 
 
         7, p. 33).  He continued to see claimant for back problems on 
 
         September 12, 1984 and again on February 10, 1988 with the same 
 
         general complaints (ex. 7, pp. 34 & 35).  Dr. Berg stated that 
 
         claimant had a 10 percent physical impairment.  As far as her 
 
         functional impairment he recommended that she not do extremely 
 
         heavy lifting (ex. 7, pp. 38 & 39).
 
         
 
              On October 7, 1985, Dr. Emerson restricted claimant from 
 
         lifting and carrying 10 pounds.  He also stated that continuous 
 
         sitting would be a severe problem and claimant would need to be 
 
         able to lie down (ex. 10, p. 1).  On December 19, 1986, Dr. 
 
         Emerson stated that claimant is unable to do any work which 
 
         requires sitting, lifting or walking (ex. 10, p. 2).
 
         
 
              With reference to the alleged second injury of January 5, 
 
         1982, Dr. Berg made the following office note on January 7, 1982:
 
         
 
              INTERVAL NOTE:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Patient, Carol Wymore [sic], is girl, 31 years of age, who 
 
              complains of rathermarked [sic] back pain and sid e [sic] 
 
              pain with history of radiation into her legs but now is not 
 
              radiating into her legs and more abdominal and side pain and 
 
              she recently had laminectomy and removal of herniated disc 
 
              from lumbar spine earlier this year and it was felt that she 
 
              may be having recurrent sciatica but upon evaluation
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS 
 
         Page 7
 
         
 
         
 
              today, 1/7/82, I feel she may be having evidence of urinary 
 
              tract infection and so patient was admitted [sic] and placed 
 
              at bed rest and will be seen in consultation by regular 
 
              family physician, Dr. Emerson.
 
              
 
              PHYSICAL EXAMINATION:
 
              Reveals negative straight leg raise and reflexes are present 
 
              and equal.
 
              
 
              RESTOF [sic] PHYSICAL EXAMINATION: PAST MEDICAL HISTORY:
 
              Unchanged from her recent hospitalizations.
 
              
 
              CLINICAL IMPRESSION:
 
              Urinary infection with back pain probably secondary to this 
 
              urinary tract infection.
 
         
 
         (ex. 13, p. 5)
 
         
 
              With respect to the alleged injury of October 21, 1982, Dr. 
 
         Berg wrote the following information on October 18, 1982:
 
         
 
              Patient Carol Wymer was seen and evaluated concerning 
 
              recurrent back pain and sciatic pain.  She works for John 
 
              Deere and is markedly overweight.  She has had a previous 
 
              laminectomy at L4-5 and is now having recurrent sciatic pain 
 
              and tenderness in the plantar surface of both feet.
 
              
 
              Recommended she use metatarsal pads in her shoes and also 
 
              recommend she lose about 75 pounds and possibly seek help in 
 
              regard to this with a gastric bypass operation.  She is to 
 
              think about this and will see a general surgeon to see if 
 
              this is what she desires to do.  I feel her only chance to 
 
              improve is with weight loss.  Also recommended she stay off 
 
              work for about three days.
 
         
 
         (ex. 11, p. 4)
 
         
 
              Claimant's counsel wrote a lengthy letter to Dr. Berg on May 
 
         7, 1987 (ex. 11, p. 6).  Dr. Berg's reply on May 14, 1987 was as 
 
         follows:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dear Attorney Jayne:
 
              
 
              I reviewed your letter written May 4, 1987 regarding Carol 
 
              Wymer and would state that on the 2nd page that the word 
 
              probable should be changed to possible.  I cannot, with 
 
              reasonable medical certainty, state that that is a probable 
 
              cause was her occupational duties.  There is a possibility 
 
              that they were involved but I have no history of definite 
 
              date of injury
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS 
 
         Page 8
 
         
 
         
 
              and it would be impossible that that is a probable cause.
 
              
 
              Further on down the page at about the 4th paragraph, I feel 
 
              that a major contributing factor as far as her symptoms were 
 
              concerned is her weight and would only state that possibly 
 
              her work may have aggravated [sic] her situation but I could 
 
              not state with any degree of medical certainty that this is 
 
              the probable cause.
 
              
 
              On your question that you posed at the end of your letter 
 
              whether in my opinion there is a relationship between the 
 
              conditions noted in October 1983 and the residuals of the 
 
              April/May 1981 surgery, I would state it is probably no.  
 
              The only possible relationship would be that she may have 
 
              had some scar tissue formation present.  I think her major 
 
              factor in this situation is her being overweight which 
 
              continues to cause a stain [sic] on her back.
 
         
 
         (ex. 11, p. 9)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a  preponderance of 
 
         the evidence that he received an injuries on April 12, 1981, 
 
         January 5, 1982 and October 21, 1982, 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 April 12, 1981, January 5, 1982 
 
         and October 21, 1982 are causally related to the disability on 
 
         which she now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 
 
         18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital., 251 Iowa 375,
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 9
 
         
 
         
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained injuries on 
 
         April 12, 1981, January 5, 1982 and on October 21, 1982, that 
 
         arose out of and in the course of employment with employer.  Dr. 
 
         Berg was confronted on several occasions point blank with the 
 
         question of whether claimant's back pain was caused by her 
 
         employment.  Dr. Berg always responded that it was possible, but 
 
         he said that there was no way that he could say that her back 
 
         injury or injuries were probably caused by her employment or were 
 
         probably aggravated by her jobs at work.  On the contrary, Dr. 
 
         Berg clearly stated that the major factor or cause of claimant's 
 
         back complaints was her weight (ex. 7, pp. 21 & 22, 25 & 26, 
 
         26-29; ex. 13, p. 5; ex. 11, p. 2; ex. 11, p. 9).
 
         
 
              As to the alleged injury of April 12, 1981, Dr. Berg said in 
 
         his deposition that it was possible that her work for employer 
 
         could aggravate or produce these symptoms that she experienced in 
 
         April of 1981, but that claimant's weight was probably the major 
 
         factor (ex. 7, pp. 25 & 26).
 
         
 
              As to the alleged injury of January 5, 1982, the most that 
 
         Dr. Berg could say was that the fork lift job "could" aggravate 
 
         her condition (ex. 7, pp. 26-29).  The doctor's office note on 
 
         January 7, 1982, clearly shows that he determined that claimant 
 
         had a urinary tract infection with back pain secondary to the 
 
         urinary tract infection (ex. 13, p. 5).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is a well known principle in workers' compensation law as 
 
         to causation that a possibility is insufficient, a probability is 
 
         necessary.  Claimant points out that if the available expert 
 
         testimony is insufficient alone to support a finding of causal 
 
         connection, then such testimony may be coupled with nonexpert 
 
         testimony to show causation and be sufficient to sustain an 
 
         award.  Giere vs. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
         N.W.2d 911 (1966).  However, in this case, a review of all of the 
 
         evidence--medical evidence or nonexpert evidence--does not 
 
         produce any sufficient evidence that would warrant a finding that 
 
         claimant's work caused these three alleged injuries.
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS 
 
         Page 10
 
         
 
         
 
              On the contrary, claimant herself testified that she could 
 
         not describe any occurrence, event or incident, such as a slip, 
 
         fall, or lifting, that injured her back (tr. pp. 38 & 39, 44-46, 
 
         50-53 and 58 & 59).  Her statement that she had to walk one block 
 
         on the day shift as compared to a half block on the evening shift 
 
         is not sufficient to make a determination that this walking 
 
         caused a back injury.  Her primary complaint from this walking 
 
         was blisters on her feet and hammer toe (tr. p. 49).
 
         
 
              As to the alleged injury of October 21, 1982, claimant 
 
         admitted that there was no actual event or incident of injury 
 
         that occurred on that date.  Dr. Berg further testified that even 
 
         though claimant might have had some recurrence from scar tissue 
 
         from the surgery in April of 1981, he felt that the major factor 
 
         was her weight (ex. 7, pp. 31 & 32).  At that time he recommended 
 
         to claimant that she loose 75 pounds and consider having a 
 
         gastric bypass operation.  He said that her only chance to 
 
         improve is with weight loss (ex. 11, p. 2).
 
         
 
              Dr. Berg bolstered his opinion by testifying that even after 
 
         claimant had terminated her employment in October of 1981 and was 
 
         no longer an employee of employer, she nevertheless, continued to 
 
         have back complaints on September 12, 1984, and again on February 
 
         10, 1988 because she had maintained her excessive weight (ex. 7, 
 
         pp. 34 & 35).
 
         
 
              In his letter to claimant's counsel on May 14, 1987, Dr. 
 
         Berg repeated and compounded his steadfast opinion that he could 
 
         not say :that claimant's condition was caused by her occupational 
 
         duties.  He acknowledged it was possible, but he had no history 
 
         of a definite injury date and that it would be impossible that 
 
         her occupational duties were a probable cause.  In the second 
 
         paragraph of this letter he restated that it was possible her 
 
         work may have aggravated her situation, but he could not say that 
 
         it was a probable cause.  The major contributing factor was her 
 
         weight.  In the final paragraph of this letter, he ruled out that 
 
         later back complaints in 1983, were the residuals of the surgery 
 
         in April of 1981.  Again, he said that the major factor is her 
 
         overweight condition which continues to put a strain on her back 
 
         (ex. 11, p. 9).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Moreover, even if claimant had established a cumulative 
 
         injury, which she did not do, there is no legal authority at this 
 
         time which states that the date of the injury is the date that an 
 
         employee is terminated from employment for absenteeism due to an 
 
         inordinate number of other health problems.
 
         
 
              Since claimant failed to prove an injury arising out of and 
 
         in the course of employment, then all of the other issues in the 
 
         case are now moot and will not be addressed.  Likewise, since 
 
         claimant did not prove that any of her back complaints were 
 
         caused by her employment, it is not possible to find a cumulative 
 
         injury on October 21, 1982.  Moreover, even if claimant
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 11
 
         
 
         
 
         had established a cumulative injury., which she did not do, there 
 
         is no legal authority at this time which states that the date of 
 
         injury is the date that an employee is terminated from employment 
 
         for absenteeism due to an inoridnate number of health problems.  
 
         In McKeever Custom Cabinets vs. Smith, 379 N.W.2d 368 (Iowa 
 
         1985), Smith introduced evidence of a number of minor cumulative 
 
         traumas from pounding with a hammer in his occupation as a 
 
         carpenter for several years.  There was no such similar 
 
         corresponding evidence of numerous cumulative traumas in the 
 
         evidence introduced in this case.  Dr. Berg ruled out bouncing on 
 
         the fork lift as a probable. cause of aggravation of her back 
 
         condition.
 
         
 
              The issues of the nature and extent of temporary and 
 
         permanent disability, the proper rate of compensation, the 
 
         odd-lot doctrine and the statute of limitations with respect to 
 
         the discovery rule then are now moot issues.
 
         
 
              The weight of the evidence is that claimant's back 
 
         complaints and many of her other health problems are due the 
 
         condition of being overweight.  Hopefully she will be able to 
 
         find help for this problem.  Claimant did not sustain the burden 
 
         of proof by a preponderance of the evidence that her back 
 
         complaints were caused by her work.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That Dr. Berg, claimant's treating physician, testified that 
 
         claimant's back problems were possibly due to her work, but he 
 
         could not testify that they were probably due to her work.
 
         
 
              Dr. Berg further testified that he believed that claimant's 
 
         back problems were due to her overweight condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That there was no nonexpert evidence or any other evidence 
 
         coupled with the testimony of Dr. Berg that her work possibly 
 
         caused her back complaints which support the proposition that her 
 
         work caused her back complaints.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury to her 
 
         back on April 12, 1981, January 5, 1982 or October 21, 1982, that 
 
         arose out of and in the course of her employment with employer.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
         
 
         
 
         WYMER VS. JOHN DEERE OTTUMWA WORKS
 
         Page 12
 
         
 
         
 
              That claimant did,not sustain this burden of proof by a 
 
         preponderance of the evidence that she sustained and injury on 
 
         April 12, 1981, January 5, 1982 or October 21, 1982, that arose 
 
         out of and in the course of her employment with employer.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendant to claimant.
 
         
 
              That since there is no award that there can be no credits 
 
         allowed under Iowa Code section 85.38(2).
 
         
 
              That the costs of this proceeding, including the cost of the 
 
         transcript, are charged to claimant pursuant to Iowa Code section 
 
         86.19(l) and Division of Industrial Services rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         Signed and filed this 30th day of May, 1989.
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Steven Jayne
 
         Attorney at Law
 
         5835 Grand Ave STE 201
 
         Des Moines, IA 50312
 
         
 
         Mr. Roger Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106, 51108.50, 51401, 51402.2;
 
                                         51402.30, 51402.40, 51402.60
 
                                         Filed May 30, 1989
 
                                         WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CAROL WYMER,
 
         
 
              Claimant,                  File Nos. 745312
 
                                                   745314
 
          vs.                                      745315
 
          
 
          JOHN                           DEERE AND CO., d/b/a   A R B I T R A T I 0 N
 
          JOHN                           DEERE OTTUMWA WORKS,
 
                                         D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51106, 51108.50, 51401, 51402.20, 51402.30, 51402.40, 51402.60
 
         
 
              Grossly overweight claimant, with long-term chronic bad 
 
         back, could not describe a specific event for any of her three 
 
         alleged back injuries.  The treating physician said several times 
 
         claimant's work did not cause any of her three alleged back 
 
         injuries.  He clearly stated all three alleged injuries were due 
 
         to her overweight condition and recommended gastric bypass 
 
         surgery.