BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND DENNING,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         HYMAN FREIGHTWAYS, INC.,                      File Nos. 751584
 
                                                                 834032
 
              Employer,
 
                                                    A R B I T R A T I O N
 
         and
 
                                                       D E C I S I O N
 
         EXCALIBUR INSURANCE COMPANY
 
         by IOWA INSURANCE GUARANTY
 
         ASSOCIATION,                                     F I L E D
 
         
 
              Insurance Carrier,                         MAR 16 1988
 
         
 
         and                                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Raymond 
 
         Denning, claimant, against Hyman Freightways, Inc., employer, 
 
         Excalibur Insurance Company by Iowa Insurance Guaranty 
 
         Association, insurance carrier, and Liberty Mutual Insurance 
 
         Company, insurance carrier, defendants, for benefits as the 
 
         result of an injury that occurred on November 28, 1983 and an 
 
         alleged injury which allegedly occurred on August 18, 1986.  A 
 
         hearing was held in Des Moines, Iowa on August 24, 1987 and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of David Sterr (claim adjuster), Renae 
 
         Herr (legal assistant) and Raymond Denning (claimant).  The 
 
         record also consists of joint exhibits 1 through 6 and 
 
         defendants' exhibit A. All three attorneys submitted excellent 
 
         briefs.
 
         
 
              STIPULATIONS AND ISSUES -- INJURY OF NOVEMBER 28, 1983
 
         
 
              Claimant, employer, and Iowa Insurance Guaranty Association 
 
         agreed to the following stipulations and issues concerning the 
 
         injury of November 28, 1983.
 
         
 
         STIPULATIONS -- INJURY OF NOVEMBER 28, 1983
 
         
 
                                                
 
                                                         
 
              The parties agreed to the following stipulations:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury;
 
         
 
              That claimant sustained an injury on November 28, 1983 which 
 
         arose out of and in the course of employment with the employer;
 
         
 
              That the rate of compensation in the event of an award is 
 
         $408.93 per week;
 
         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable, that the expenses incurred were for 
 
         reasonable and necessary medical treatment and that the expenses 
 
         were caused by the condition on which claimant is now basing his 
 
         claim;
 
         
 
              That claimant had received the workers' compensation 
 
         benefits shown on the form 2A attached to the pre-hearing report 
 
         through August 15, 1986;
 
         
 
              That permanent disability is not an issue in this case at 
 
         this time; and,
 
         
 
              That the issue of penalty benefits under Iowa Code section 
 
         86.13 is bifurcated.
 
         
 
         ISSUES -- INJURY OF NOVEMBER 28, 1983
 
         
 
              At the time of the hearing, the parties submitted the 
 
         following issues for determination:
 
         
 
              Whether the injury of November 28, 1983 is the cause of 
 
         additional temporary disability during a period of recovery;
 
         
 
              Whether claimant is entitled to additional temporary 
 
         disability benefits;
 
         
 
              Whether claimant is entitled to certain medical expenses.
 
         
 
           STIPULATIONS AND ISSUES -- ALLEGED INJURY OF AUGUST 18, 1986
 
         
 
              Claimant, employer and Liberty Mutual Insurance Company, 
 
         agreed to the following stipulations and issues concerning the 
 
         alleged injury of August 18, 1986.
 
         
 
         STIPULATIONS -- ALLEGED INJURY OF AUGUST 18, 1986
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury;
 
         
 
              That the rate of compensation is $370.02 per week;
 
         
 
                                                
 
                                                         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable, that the medical expenses were incurred for 
 
         reasonable and necessary medical treatment and that the expenses 
 
         were caused by the condition on which claimant is now basing his 
 
         claim;
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         prior to hearing;
 
         
 
              That permanent disability is not an issue in this case at 
 
         this time; and,
 
         
 
              That the issue of penalty benefits under Iowa Code section 
 
         86.13 is bifurcated.
 
         
 
         ISSUES -- ALLEGED INJURY OF AUGUST 18, 1986
 
         
 
              At the time of hearing, the parties submitted the following 
 
         issues for determination:
 
         
 
              Whether claimant sustained an injury on August 18, 1986 
 
         which arose out of and in the course of employment with the 
 
         employer;
 
         
 
              Whether the alleged injury of August 18, 1986 was the cause 
 
         of temporary disability during the period of recovery;
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits as a result of the alleged injury on August 18, 1986; 
 
         and,
 
         
 
              Whether claimant is entitled to certain medical expenses as 
 
         a result of the alleged injury on August 18, 1986.
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              The attorney for the employer and Liberty Mutual Insurance 
 
         Company made a correct statement of the case in the following 
 
         words:
 
         
 
              This is a proceeding in arbitration brought by Raymond 
 
              Denning against his Employer, Hyman Freightways, to obtain 
 
              weekly benefits for a period of alleged temporary total 
 
              disability commencing in August 1986.  The Claimant has 
 
              filed two separate actions against his Employer which have 
 
              been consolidated for the purpose of this hearing.  In File 
 
              No. 751584, the Claimant has filed a claim against Hyman 
 
              Freightways and the Iowa Guaranty Association alleging an 
 
              injury to his back on November 28, 1983.  At that time, 
 
              Hyman Freightways was insured by Excalibur Insurance.  The 
 
              claims against Excalibur Insurance are presently being 
 
              handled by the Iowa Guaranty Association.  In File No. 
 
              834032, the Claimant has filed a claim against Hyman 
 
              Freightways and Liberty Mutual for an injury to his back 
 
              which allegedly occurred on August 18, 1986, as a result of 
 
                                                
 
                                                         
 
                   "bouncing in truck and other work activities".  Liberty 
 
              Mutual Insurance Company provided workers' compensation 
 
              insurance coverage for Hyman Freightways on August 18, 
 
              1986.
 
         
 
              More specifically, claimant seeks temporary disability 
 
         benefits for an absence from work from August 27, 1986 to October 
 
         1, 1986 and payment of medical expenses in the total amount of 
 
         $1,335.28 for treatment to his back at that time (exhibit 2).  
 
         Each insurance carrier contends that they are not liable for 
 
         claimant's temporary disability and medical expenses.  Each 
 
         insurance carrier contends that the other carrier is liable for 
 
         claimant's temporary disability and medical expenses.
 
         
 
                              SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              The statement of facts prepared by the attorney for the 
 
         employer and Liberty Mutual Insurance Company (Liberty Mutual) is 
 
         both comprehensive and succinct.  It is also accurate and fair. 
 
         Therefore it is quoted below as a brief overview of the facts of 
 
         this case, but it will be supplemented by additional and other 
 
         evidence.
 
                  
 
                                                         
 
         
 
              The Claimant, Raymond Denning, is a truck driver/dockman 
 
              with Hyman Freightways.  After sustaining an injury to his 
 
              back while unloading a trailer for Hyman Freightways on 
 
              November 28, 1983, the Claimant was off work from November 
 
              28, 1983, through May 13, 1985.  The Claimant was treated by 
 
              William Boulden, M.D., for his back condition, which was 
 
              diagnosed as an extruded disc fragment at L4-5 on the left, 
 
              degenerative facet foraminal stenosis at L4-5 bilaterally 
 
              and at L5-S1 (Ex. 1, p. 42).  A bilateral discectomy and two 
 
              level decompression was performed on February 24, 1984.  
 
              (Ex. 1, pp. 7 and 23).  After a healing period, Dr. Boulden 
 
              released the Claimant to return to work effective May 13, 
 
              1985, for city truck driving only.  (Ex. 1, p. 24).  The 
 
              Claimant did return to work as a city truck driver/dockman 
 
              and continued to work in that position until taken off work 
 
              by Dr. Boulden on August 28, 1986.  (Ex. 5).
 
         
 
              On August 29, 1986, a representative of Hyman Freightways 
 
              prepared a report entitled "Supplementary Report of Injuries 
 
              and Illnesses" concerning the Claimant.  In that report, it 
 
              is stated that as a result of an accident in 1983, the 
 
              Claimant's left leg and back started to hurt and slowly got 
 
              worse.  (Ex. 5).  A copy of that report was sent to the Iowa 
 
              Guaranty Association and to Liberty Mutual.  Upon receipt of 
 
              that report, Dave Sterr, a claim adjuster for Liberty 
 
              Mutual, contacted the Claimant on September 4, 1986, in 
 
              order to take his statement as part of an investigation of 
 
              the claim.  (Ex. 3).  In his statement, Mr. Denning stated 
 
              that his back and left leg started hurting about six months 
 
              ago in February or March of 1986.  (Ex 3, p. 2).  The 
 
              Claimant stated that he first noticed a slight pain in his 
 
              left leg which slowly got worse with time until it was there 
 
              every day.  (Ex. 3, p. 2). When giving the statement, Mr. 
 
              Denning could not relate the onset of pain to any specific 
 
              incident or activity.  (Ex. 3, p. 2).  Mr. Denning was 
 
              unable to say whether he first noticed the pain at home or 
 
              at work.  (Ex. 3, p. 2).  The Claimant reported that after 
 
              his return to work in May of 1985, he did not have any 
 
              trouble other than occasional soreness until the most recent 
 
              episode of pain which started in February or March of 1986.  
 
              (Ex. 3, p. 6).  Commencing with his return to work in May of 
 
              1985 through approximately August 15, 1986, Mr. Denning 
 
              received weekly benefits for permanent partial disability 
 
              from Excalibur Insurance/The Iowa Guaranty Association.  
 
              Effective July 1, 1985, Liberty Mutual began providing 
 
              workers' compensation insurance to Hyman Freightways.
 
         
 
              Mr. Denning reported to Dr. Boulden on August 18, 1986, that 
 
              within the last couple of weeks he began to develop left 
 
              thigh pain down to the knee.  The neurological examination 
 
              of the Claimant on that date was normal.  (Ex. 1, p. 40).  
 
              Dr. Boulden prescribed a CT scan which was scheduled at 
 
              Lutheran Hospital for August 21, 1986, at 4:30 p.m.  (Ex. 1, 
 
              p. 22). Dr. Boulden reported in his notes dated 8-26-86 that 
 
                                                
 
                                                         
 
                   the CT scan showed a possible small fragment of the L5-S1 
 
              disc pressing on the S1 nerve, but that Mr. Denning's 
 
              symptoms did not correspond with this finding.  (Ex. 1, p. 
 
              40).  Dr. Boulden further reported that the Claimant had 
 
              foraminal stenosis at L4-5 that had been previously 
 
              corrected, but had now been reformed with continued 
 
              deterioration of his spine. (Ex. 1, p. 40).  The Claimant 
 
              received an epidural steroid injection which markedly 
 
              improved his pain.  (Ex. 1, p. 40). Dr. Boulden released the 
 
              Claimant to return to work effective October 1, 1986.  The 
 
              Claimant returned to the same job, performing the same 
 
              duties as he had performed prior to being off work.  The 
 
              Claimant continues in the same job today.
 
         
 
              In a letter dated October 21, 1986, addressed to the Iowa 
 
              Insurance Guaranty Association, Dr. Boulden stated:
 
         
 
                   It is my feeling that the patient's problem at the time 
 
                   we saw him in August was further deterioration of his 
 
                   spine from the previous surgeries.  He was having some 
 
                   more foraminal stenosis type pain, which was relieved 
 
                   with the epidural steroid injection.  Therefore, it is 
 
                   my feeling that it was only a temporary aggravation of 
 
                   a pre-existing condition and was related on his first 
 
                   surgery.  In no way do I feel that he has had any 
 
                   increased permanency.
 
         
 
              (Ex. 1, p. 16).
 
         
 
              In a later letter to the Iowa Insurance Guaranty Association 
 
              dated November 5, 1986, Dr. Boulden stated:
 
         
 
                   As you have pointed out in your letter, continued 
 
                   truck driving could further accelerate the 
 
                   degenerative process in Mr. Denning's back.  
 
                   Therefore, this may be one of the reasons this has 
 
                   continued to get worse. This also could be just a 
 
                   natural developing degeneration from the previous 
 
                   surgeries.
 
         
 
                   Therefore, it is hard for me to state which one has 
 
                   more than the other, but I would say that it was a 
 
                   definite contributing factor.
 
         
 
              (Ex. 1, p. 15).
 
         
 
              Claimant testified at the hearing that he has worked for 
 
         this employer for 15 years.  Claimant confirmed the seriousness 
 
         of his injury on November 28, 1983; that he was off work 
 
         approximately one and one-half years as a result of that 
 
         accident; and that he had been back to work for approximately one 
 
         and one-half years before the occurrence of the alleged injury on 
 
         August 18, 1986. Claimant related that, after a return to work in 
 
         May, 1985, he had some problems with his leg and back that would 
 
         come and go.  He related these left leg and back problems to the 
 
                                                
 
                                                         
 
         injury of November 28, 1983 and the surgery on February 24, 1984.  
 
         Claimant added that, when he again tried to drive a truck in his 
 
         job in approximately March of 1986, the pain was more severe, but 
 
         he did not seek any medical treatment for it because Dr. Boulden 
 
         told him that he could expect to always have some pain in his 
 
         left leg and that certain things would aggravate it.  Claimant 
 
         testified that his left leg and back pain became worse between 
 
         March and August of 1986 when his wife told him he had better go 
 
         to the doctor. Claimant granted that driving the truck at work or 
 
         driving his personal vehicle or sitting in one position too long 
 
         caused the symptoms to be worse.  Dock work, in itself, did not 
 
         seem to bother him.  In his statement to the Liberty Mutual 
 
         adjuster on September 4, 1986, claimant did not allege that truck 
 
         driving caused his pain.  On the contrary, he could not pinpoint 
 
         any specific cause for his increase in symptoms.  He did say that 
 
         every once in a while extended driving would hurt his back, but 
 
         when he got out and moved around a little bit, he felt pretty 
 
         good again (exhibit 3).
 
         
 
              Defendant employer and Iowa Insurance Guaranty Association 
 
         (IIGA) contend that the reason claimant returned to the doctor 
 
         was because he was told his August, 1986 check for permanent 
 
         partial disability benefits was to be his last check from the 
 
         injury of November 28, 1983.
 
         
 
              Claimant contended that he was off work from the day he saw 
 
         Dr. Boulden on August 18, 1986 until Dr. Boulden released him to 
 
         return to work on October 1, 1986.  However, it was proven that 
 
         claimant was paid regular wages through Tuesday, August 26, 1986 
 
         (exhibit A).  Claimant testified at the hearing that his back and 
 
         left leg pain in August of 1986 felt like it was related to the 
 
         November 28, 1983 injury.  Claimant testified that, in his 
 
         opinion, it was an extension of the November 28, 1983 injury 
 
         because he had the same symptoms and the same pain.  Claimant 
 
         testified that the doctor told him the pain was from the injury 
 
         of November 28, 1983.
 
         
 
              Claimant said that, even though he returned to work on 
 
         October 1, 1986, he still had pain which felt like the pain he 
 
         had after the November 28, 1983 injury and February 24, 1984 
 
         surgery.
 
         
 
              Claimant also reported that he had a third injury to his 
 
         back in May of 1987.  At this time, he was trying to upright an 
 
         engine block which had tipped over.  This injury is not an issue 
 
         in this case.  Claimant added that he suffered muscle strain at 
 
         the time of this injury and that Liberty Mutual has paid for his 
 
         medical bills and for his time off work from this injury.
 
         
 
              David Sterr, adjuster for Liberty Mutual, testified that he 
 
         received a report of injury on September 4, 1986.  He took a 
 
         statement from claimant and reviewed claimant's medical records 
 
         with Dr. Boulden.  He determined that claimant's injury was a 
 
         continuation of the injury of November 28, 1983.  He notified 
 
         claimant of his decision on September 11, 1986 and denied the 
 
                                                
 
                                                         
 
         claim by letter on September 11, 1986 (exhibit 4).  The basis for 
 
         his denial was that claimant did not report an incident.  
 
         Claimant indicated in his statement that his problems were due to 
 
         his day-to-day activities.  Claimant did not assert any 
 
         particular employment activity was causing his condition.  Sterr 
 
         testified that the facts which he acquired did not present a new 
 
         work injury in his opinion.  Sterr said that Dr. Boulden's 
 
         medical reports of August 18, 1986 and August 26, 1986 (exhibit 
 
         1, pages 21 and 23), said that claimant's problems were a 
 
         continuation of the deterioration of his spine coming from the 
 
         earlier foraminal stenosis.  In addition, Sterr said that 
 
         claimant told him his complaints were a continuation of his 
 
         earlier problems that occurred on November 28, 1983.
 
         
 
              Renae Herr testified that she assists in the administration 
 
         of the IIGA funds.  She stated that she functions like an 
 
         insurance adjuster.  She testified that claimant called her 
 
         office in mid-August of 1986.  She did not take a statement from 
 
         claimant about the alleged injury.  She did write to and talk to 
 
         Dr. Boulden and relied upon his evidence.  She denied telling 
 
         claimant to see Liberty Mutual about this injury.  She said that, 
 
         when she received Dr. Boulden's report of October 21, 1986 
 
         (exhibit 1, page 16), she could not determine if claimant's 
 
         condition was due to his old injury or to a new injury.  
 
         Therefore, she wrote to Dr. Boulden on October 27, 1986.  Dr. 
 
         Boulden responded on November 5, 1986 (exhibit 1, page 15).  Herr 
 
         stated that when Dr. Boulden said the injury could be from truck 
 
         driving, she denied claimant's claim (exhibit 6).  She stated 
 
         that she interpreted Dr. Boulden's letter as saying that claimant 
 
         had an aggravation of a preexisting condition.  Therefore, she 
 
         thought that Liberty Mutual should pay the claim.
 
         
 
              A review and summary of Dr. Boulden's office notes and 
 
 
 
                  
 
                                                         
 
         letters now follows.
 
         
 
              On August 18, 1986, the day that claimant saw Dr. Boulden 
 
         for the alleged injury of August 18, 1986, his notes report the 
 
         following:
 
         
 
              Follow up of bilateral discectomy and L4-5, 5-S1, with two 
 
              level decompression.  The patient has done fairly well until 
 
              the last couple of weeks, when he started to develop left 
 
              thigh pain down to the knee.
 
         
 
              We examined him today and found him to have negative 
 
              straight leg raising and neurologically intact.  However, 
 
              because of the previous two level decompression disc 
 
              surgery, I recommended to repeat the CAT scan to see if 
 
              there may be some abnormalities going on.  Therefore this 
 
              will be set up and I'll check him back in one week. (Exhibit 
 
              1, pages 23 and 40).
 
         
 
              A CT scan was performed on August 21, 1986 (exhibit 1, page 
 
         40).
 
         
 
              On August 26, 1986, Dr. Boulden noted and reported this 
 
         information:
 
         
 
              Follow up of left leg recurrent pain.  The CAT scan showed a 
 
              possible small fragment of L5-S1 disc pressing on the S1 
 
              nerve.  However his symptoms are anterior thigh, which would 
 
              not correspond with this finding.
 
         
 
              He has foraminal stenosis at L4-5 that had been previously 
 
              corrected, but has now been reformed with continued 
 
              deterioration of his spine.  Therefore, I think his symptoms 
 
              are coming from the foraminal stenosis, and I have 
 
              recommended an epidural steroid injection, as well as 
 
              getting off work for two weeks, and see what his symptoms 
 
              do.  We will follow him up after that.  (Exhibit 1, pages 21 
 
              and 40).
 
         
 
              On September 23, 1986, Dr. Boulden, based upon claimant's 
 
         statements to him, injected the idea that truck driving might be 
 
         a factor in the cause of claimant's pain.
 
         
 
              Follow up of foraminal stenosis of L4-5.  The patient 
 
              continues to do quite well.  He is having minimal symptoms. 
 
              He states that as soon as he starts driving he starts having 
 
              a lot of pain, so it would be my recommendation that the 
 
              pain is usually associated with driving, that he refrain 
 
              from driving again in the future.  He feels however, that he 
 
              could handle dock work, and since he says that he has done 
 
              that for many years, he knows how to do it properly, then I 
 
              would be more in favor of returning him back to dock work.
 
         
 
              Therefore, our final conclusion will be that he stop the 
 
              truck driving and return to dock work to see if he could not 
 
                                                
 
                                                         
 
                   handle that, and be productive.  (Exhibit 1, pages 18 and 
 
              39).
 
         
 
              Dr. Boulden's notes reflect that claimant called his office 
 
         on September 29, 1986 requesting a release to return to work.  
 
         Dr. Boulden agreed to a release to return to work, providing 
 
         claimant do "mostly dock work but some driving"  (exhibit 1, page 
 
         39).
 
         
 
              On October 21, 1986, Dr. Boulden's unfortunate use of the 
 
         term "temporary aggravation of a preexisting condition" in the 
 
         following report created a problem.
 
         
 
              It is my feeling that the patient's problem at the time we 
 
              saw him in August was further deterioration of his spine 
 
              from the previous surgeries.  He was having some more 
 
              foraminal stenosis type pain, which was relieved with the 
 
              epidural steroid injection.  Therefore, it is my feeling 
 
              that it was only a temporary aggravation of a pre-existing 
 
              condition and was related on his first surgery.  In no way 
 
              do I feel that he has had any increased permanency.  
 
              (Exhibit 1, page 16).
 
         
 
              Dr. Boulden then had a conference with Herr and responded to 
 
         her letter as follows on November 5, 1986.
 
         
 
              As you have pointed out in your letter, continued truck 
 
              driving could further accelerate the degenerative process in 
 
              Mr. Denning's back.  Therefore, this may be one of the 
 
              reasons this has continued to get worse.  This also could be 
 
              just a natural developing degeneration from the previous 
 
              surgeries.
 
         
 
              Therefore, it is hard for me to state which one has more 
 
              than the other, but I would say that it was a definite 
 
              contributing factor.  If I can be of any further help, 
 
              please feel free to contact me.  (Exhibit 1, page 5).
 
         
 
              Claimant presented these medical expenses for payment:
 
         
 
                                        
 
                                       BILLS
 
                             (See Attached Statements)
 
         
 
              Iowa Lutheran Hospital                         $520.00
 
              (CAT Scan - 8/21/86)
 
         
 
              Des Moines Anesthesiologist                     200.00
 
         
 
              William Boulden, M.D.                           310.00
 
              (Central Iowa Orthopaedics)
 
         
 
              Surgery Center of Des Moines                    270.00
 
         
 
                   TOTAL MEDICAL BILLS OWED                $1,300.00
 
                                                
 
                                                         
 
         
 
              MILEAGE
 
         
 
              William Boulden, M.D.
 
              28 miles rdtrp. x 4 = 112 x .21                  23.52
 
         
 
              Iowa Lutheran Hospital (8/21/86)
 
              28 miles rdtrp. x 1 x .21 =                       5.88
 
         
 
              Surgery Center of Des Moines (8/28/86)
 
              28 miles rdtrp. x 1 x .21                         5.88
 
         
 
                   TOTAL MILEAGE DUE                          $35.28
 
         
 
         (Exhibit 2)
 
         
 
              The parties stipulated that these bills were fair and 
 
         reasonable; were reasonable and necessary medical treatment; and, 
 
         were for the condition on which claimant is now basing his 
 
         claim.
 
         
 
                         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(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 28, 1983 and on 
 
         August 18, 1986 which arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The injury 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 November 28, 1983 and August 
 
         18, 1986 are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              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 5 , 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).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Defendant IIGA contends that claimant sustained a temporary 
 
         aggravation of his underlying permanent impairment which occurred 
 
         during the period of coverage insured by Liberty Mutual.  IIGA 
 
         adds that the cumulative trauma of driving a truck in the 
 
 
 
                         
 
                                                         
 
         performance of claimant's job resulted in a new injury on the day 
 
         claimant was unable to continue to work.
 
         
 
              Defendant Liberty Mutual contends that claimant did not 
 
         sustain a new injury, but rather only a continuation, extension, 
 
         worsening or deterioration of the condition that occurred on 
 
         November 28, 1983 during the period of coverage by IIGA.
 
         
 
              Claimant testified that he continued to have pain that would 
 
         come and go in his left leg and back after the injury of November 
 
         28, 1983 and the surgery of February 24, 1984.  He described his 
 
         left leg and back pain in 1986 and on August 18, 1986 as related 
 
         to, and an extension of, the pain he sustained in the injury of 
 
         November 28, 1983.  Therefore, claimant's testimony supports the 
 
         proposition that his pain was a continuation, extension or 
 
         deterioration of the condition caused by the injury of November 
 
         28, 1983.
 
         
 
              When claimant gave the statement to the adjuster on 
 
         September 4, 1986, he did not state that his pain was caused by 
 
         truck driving.  He said it became worse with extended truck 
 
         driving, but as soon as he got out and moved around, it felt 
 
         better (exhibit 3, page 7).  In his statement, claimant said that 
 
         the pain had no specific onset.  He indicated that he felt it at 
 
         home as well as at work.  There was no specific incident, 
 
         activity or trauma that caused it.  He just did the same things 
 
         he always did around home and at work.  There was a slight pain 
 
         in the left leg and it got worse until it was there all the time 
 
         (exhibit 3, page 2). Claimant testified that Dr. Boulden told him 
 
         this was a continuation and extended deterioration rather than a 
 
         new type of injury (exhibit 3, page 7).
 
         
 
              At the hearing, claimant testified that the pain was worse 
 
         when he drove the truck, but that driving his personal automobile 
 
         also made it worse sometimes and that simply sitting in one 
 
         position for a prolonged period of time also made it worse. 
 
         Therefore, it is not possible to identify the 1986 complaints as 
 
         caused by driving a truck at work based on claimant's own 
 
         testimony, either in his deposition or at the hearing.
 
         
 
              Defendant IIGA did not take a statement or deposition from 
 
         claimant or develop any other evidence to establish that 
 
         claimant's complaints were the result of a cumulative type of 
 
         injury.
 
         
 
              There is evidence of pain.  There is evidence of truck 
 
         driving.  There is no evidence in between to prove numerous minor 
 
         cumulative traumas.  On the contrary, there is evidence that just 
 
         sitting in one position or driving a private passenger automobile 
 
         or truck provoked the pain.  Therefore, it is determined that 
 
         there is insufficient evidence to make a determination that 
 
         claimant sustained a cumulative injury.  In fact, as claimant's 
 
         counsel pointed out in his brief, "There is no testimony by 
 
         claimant of any specific additional trauma" (claimant's brief, 
 
         page 3).
 
                                                
 
                                                         
 
         
 
              A review of the notes and reports of Dr. Boulden supports 
 
         the view that claimant did not sustain a new injury and that 
 
         claimant did not sustain an aggravation of his underlying 
 
         preexisting condition, but rather that claimant suffered from a 
 
         continuation and extension of the condition incurred at the time 
 
         of the injury on November 28, 1983.
 
         
 
              When claimant first saw Dr. Boulden on August 18, 1986, the 
 
         doctor said it was a follow-up of the earlier bilateral 
 
         discectomy and two level decompression.  Dr. Boulden did not 
 
         mention any new injury or trauma, but said that, due to the 
 
         previous surgery, he wanted a repeat CT scan (exhibit 1, pages 23 
 
         and 40).
 
         
 
              On August 26, 1986, Dr. Boulden called it recurrent pain.  
 
         He said the foraminal stenosis that had been corrected had become 
 
         reformed with continued deterioration of the spine.  Dr. Boulden 
 
         plainly stated, "I think his symptoms are coming from his 
 
         foraminal stenosis."  He also stated on August 26, 1986 that he 
 
         was taking claimant off work for two weeks.  Claimant was last 
 
         paid for Tuesday, August 26, 1986 (exhibit A).  Therefore, his 
 
         temporary disability should begin on Wednesday, August 27, 1986. 
 
         Claimant was released to return to work on October 1, 1986 
 
         (exhibit 1, pages 20 and 39).
 
         
 
              On September 23, 1986, Dr. Boulden still described the 
 
         office visit as a follow-up to the foraminal stenosis.  He noted 
 
         that since the pain is worse when driving, claimant should return 
 
         to dock work as much as possible (exhibit 1, pages 18 and 39).
 
         
 
              On October 21, 1986, Dr. Boulden flatly stated, "It is my 
 
         feeling that the patient's problem at the time we saw him in 
 
         August was further deterioration of his spine from the previous 
 
         surgeries."  Dr. Boulden's statement, "that it was only a 
 
         temporary aggravation of a pre-existing condition and was related 
 
         on his first surgeries" is further evidence that this condition 
 
         is related to the injury of November 28, 1983 rather than the 
 
         alleged injury of August 18, 1986.  It is not believed that Dr. 
 
         Boulden used the term "temporary aggravation of a pre-existing 
 
         condition" as words with a technical, legal meaning, but only in 
 
         a descriptive manner.  Furthermore, Dr. Boulden linked the 
 
         aggravation to the first surgery and not to any occurrence or 
 
         activity which occurred on or about August 18, 1986 (exhibit 1, 
 
         page 16).
 
         
 
              On November 5, 1986, Dr. Boulden acknowledged that it was 
 
         possible the truck driving could accelerate the degenerative 
 
         process.  He did not say it was probable or likely.  Furthermore, 
 
         it would appear that the idea that truck driving could accelerate 
 
         the degenerative process originated with a question from Herr, 
 
         rather than a spontaneous and voluntary statement from Dr. 
 
         Boulden (exhibit 1, page 15).
 
         
 
              Therefore, it is found that the injury of November 28, 1983 
 
                                                
 
                                                         
 
         is the cause of claimant's left leg and back pain in 1986 and, 
 
         more specifically, on August 18, 1986.  Claimant then is entitled 
 
         to additional healing period compensation from August 27, 1986 to 
 
         October 1, 1986.  Claimant is also entitled to $1,335.28 in 
 
         medical bills and medical mileage (exhibit 2).  These amounts are 
 
         due from employer and the IIGA.
 
         
 
              Under the evidence presented, it is determined that claimant 
 
         did not sustain an injury or an aggravation of a preexisting 
 
         condition under the cumulative injury theory or otherwise on 
 
         August 18, 1986 which arose out of and in the course of 
 
         employment with employer.  Therefore, no amounts are due from 
 
         employer and Liberty Mutual for the alleged injury on August 18, 
 
         1986.
 
         
 
              The contention of the IIGA that healing period disability 
 
         benefits cannot be awarded after the prior payment of healing 
 
         period and permanent partial disability benefits because it does 
 
         not fall within the framework of the workers' compensation law is 
 
         without merit.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained a recurrence, extension, 
 
         continuation and further deterioration of his foraminal stenosis 
 
         which was caused by the injury of November 28, 1983.
 
         
 
              That the recurrence, extension, continuation and further 
 
         deterioration is the cause of additional healing period 
 
         compensation and time off work from August 27, 1986 to October 1, 
 
         1986.
 
         
 
              That claimant incurred $1,335.28 in medical expenses and 
 
         medical mileage to treat this recurrence and further 
 
         deterioration.
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based upon the evidence presented and the 
 
         foregoing findings of fact, the following conclusions of law are 
 
         made:
 
         
 
              That the injury of November 28, 1983 was the cause of 
 
         additional healing period compensation.
 
         
 
              That claimant is entitled to healing period compensation 
 
         from August 27, 1986 to October 1, 1986.
 
         
 
              That claimant is entitled to the payment of medical expenses 
 
         in the amount of $1,335.28.
 
         
 
              That claimant did not sustain a new injury on August 18, 
 
                                                
 
                                                         
 
         1986 which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              That claimant is not entitled to compensation or medical 
 
         benefits from Liberty Mutual.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant employer and IIGA pay to claimant five point 
 
         one four three (5.143) weeks of healing period compensation at 
 
         the rate of four hundred eight and 93/100 dollars ($408.93) per 
 
         week for the period from August 27, 1986 to October 1, 1986 in 
 
         the total amount of two thousand one hundred three and 13/100 
 
         dollars ($2,103.13).
 
         
 
              That defendant employer and IIGA pay this amount in a lump 
 
         sum together with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant employer and IIGA pay claimant's Iowa Code 
 
         section 85.27 medical benefits in the amount of one thousand 
 
         three hundred thirty-five and 28/100 dollars ($1,335.28).
 
         
 
              That defendant employer and IIGA pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That all defendants file Claim Activity Reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              That this case be returned to the pre-hearing calendar for 
 
 
 
                                    
 
                                                         
 
         assignment of the issue of penalty benefits pursuant to Iowa Code 
 
         section 86.13 on claim file number 751584.
 
         
 
              Signed and filed this 16th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
         
 
 
 
                                            1106, 1108.50, 1402.20, 
 
                                            1402.30
 
                                            1402.60, 1403.30, 1802, 2206
 
                                            2207, 2209, 2501, 4200
 
                                            Filed March 16, 1988
 
                                            WALTER R. MCMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND DENNING,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         HYMAN FREIGHTWAYS, INC.,
 
          
 
              Employer,                               File Nos. 751584
 
                                                                834032
 
         and
 
                                                   A R B I T R A T I 0 N
 
         EXCALIBUR INSURANCE COMPANY
 
         by IOWA INSURANCE GUARANTY                   D E C I S I 0 N
 
         ASSOCIATION,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106, 1108.50, 1402.20, 1402.30, 1402.40, 1402.60, 1403.30, 1802 
 
         2206, 2207, 2209, 2501, 4200
 
         
 
              Back strain was held to be a continuation, extension, 
 
         worsening and deterioration of a former injury and surgery rather 
 
         than a new injury under the cumulative injury theory, or 
 
         otherwise, based on claimant's testimony and doctors' statements. 
 
         Claimant allowed additional healing period compensation and 
 
         medical benefits from the insurance carrier for the earlier 
 
         injury.  Insurance carrier for the second alleged injury was not 
 
         liable for any payments.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
                                      4000.2; 3800; 4200
 
                                      Filed May 23, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                               
 
                                                               
 
        RAYMOND DENNING,
 
        
 
             Claimant,
 
             
 
        vs.                                           File No. 751584
 
        
 
        HYMAN FREIGHTWAYS, INC.,                      A R B I T R A T I 
 
        O N
 
        
 
            Employer,                                D E C I S I O N
 
        
 
        and
 
        
 
        EXCALIBUR INSURANCE CO. by
 
        IOWA INSURANCE GUARANTY INS.
 
        ASSOCIATION,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        4000.2
 
        
 
             Fifty percent maximum penalty assessed against defendants 
 
             for unreasonable denial of two weeks of temporary disability 
 
             benefits. Defendants' insurance adjuster relied on several 
 
             incorrect, erroneous and improper reasons for denying claimant's 
 
             benefits. Several section 86.13 case cites are contained in this 
 
             decision.
 
        
 
        3800
 
        
 
             Interest due from date of decision in the case of Iowa Code 
 
             section 86.13 penalty benefits.
 
        
 
        4200
 
        
 
             A dispute between an employer's insurance carriers as to 
 
             which one owes the claim does not justify a delay or denial of 
 
             benefits which are clearly due from employer to employee under 
 
             Iowa Code sections 85.3(1), 85.33 and 85.34.
 
        
 
            Failure to use Iowa Code section 85.21 cannot be the basis 
 
        for mandatory penalty benefits, but does provide the carrier a 
 
        method to pay and avoid being charged penalty benefits later for 
 
        unreasonable delay or denial.
 
        
 
        
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        OSVALDO CARLOS KOCK,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 751783
 
        
 
        FORT DODGE COUNTRY CLUB,           A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        GENERAL CASUALTY INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding temporary 
 
        total disability and transportation expenses.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; claimant's exhibits 1 through 14 and 
 
        defendants' exhibits A through L. No briefs were filed on 
 
        appeal.
 
        
 
                                      ISSUE
 
        
 
        As appellant filed no brief on appeal, this appeal will be 
 
        considered generally without specified errors to determine its 
 
        compliance with the law.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
        
 
        KOCK V. FORT DODGE COUNTRY CLUB
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the deputy in conjunction with the issues and 
 
        evidence presented is adopted.
 
        
 
        The deputy correctly excluded exhibits 9 and 12. Claimant's 
 
        petition was filed on March 22, 1984. On May 1, 1985, a 
 
        prehearing was held but claimant indicated he needed further 
 
        discovery. On November 26, 1985, a second prehearing was held but 
 
        claimant's attorney indicated he was not ready to proceed because 
 
        of further discovery and claimant's presence in Brazil. On 
 

 
        
 
 
 
 
 
        November 11, 1986, a third prehearing was held which set this 
 
        matter down for hearing and set specific time perimeters. It is 
 
        quite apparent that claimant's actions caused the delays in this 
 
        proceeding. To allow claimant at such a late date to introduce 
 
        such reports would have been prejudicial to defendants and in 
 
        violation of the prior order.
 
        
 
        Furthermore, the doctor's report of January 23, 1987 would have 
 
        little weight in that he was opining as to disability, not 
 
        impairment.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant fell at work on December 9, 1983 and received a 
 
        contusion of the arm, cervical strain and persistent headaches.
 
        
 
        2. Claimant already had several spinal problems that predated 
 
        this injury which Dr. Carlstrom said could have been either 
 
        traumatic injuries or congenital defects.
 
        
 
        3. Dr. Carlstrom found that the injury that claimant sustained in 
 
        the fall on December 9, 1983 was simply myofascial strain or 
 
        muscle strain.
 
        
 
        4. Claimant did not require any permanent restrictions as a 
 
        result of this injury.
 
        
 
        5. Claimant attained maximum medical improvements on August 2, 
 
        1984 and could work without restrictions on and after that date.
 
        
 
        6. Claimant has no permanent impairment.
 
        
 
        7. Claimant has no permanent disability.
 
        
 
        8. Claimant was able to perform work as a graduate student from 
 
        September 1984, until his graduation in May of 1985 when he 
 
        obtained a Master's degree in finance with a 3.5 grade point 
 
        average.
 
        
 
        KOCK V. FORT DODGE COUNTRY CLUB
 
        Page 3
 
        
 
        
 
        9. After graduation from postgraduate school claimant worked as a 
 
        financial analyst for $24,000 per year from June of 1985 until 
 
        September of 1986.
 
        
 
        10. Claimant has been employed as an accounting supervisor since 
 
        November of 1986 at a salary of $30,000 per year.
 
        
 
        11. Claimant did not seek any employment from the date of the 
 
        injury on December 9, 1983 until after his graduation in May of 
 
        1985.
 
        
 
        12. Claimant incurred reasonably necessary transportation 
 
        expenses in the amount of $1,566.78.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that the injury was the cause of any permanent 
 
        disability.
 
        
 
        Claimant is not entitled to any additional temporary total 
 
        disability benefits.
 
        
 

 
        
 
 
 
 
 
        Claimant is not entitled to any permanent partial disability 
 
        benefits.
 
        
 
        Claimant did not make a prima facie showing of permanent total 
 
        disability.
 
        
 
        Claimant is entitled to $1,566.78 in transportation expenses as 
 
        enumerated above.
 
        
 
        THEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant in lump sum one thousand five 
 
        hundred sixty-six and 78/100 dollars ($1,566.78) in medical 
 
        expenses for reasonable and necessary transportation and 
 
        miscellaneous expenses under Iowa Code section 85.27.
 
        
 
        That no other amounts are due from defendants to claimant for 
 
        either temporary or permanent disability benefits.
 
        
 
        That claimant pay the costs of this appeal pursuant to Division 
 
        of Industrial Services Rule 343-4.33.
 
        
 
        KOCK V. FORT DODGE COUNTRY CLUB 
 
        Page 4
 
        
 
        
 
        That the defendants file claim activity reports as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
        
 
        Signed and filed this 22nd day of December, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         OSVALDO CARLOS KOCK,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                File No. 751783
 
         FORT DODGE COUNTRY CLUB,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         GENERAL CASUALTY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         temporary total disability and transportation expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; claimant's exhibits 1 through 14 and 
 
         defendants' exhibits A through L.  No briefs were filed on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              As appellant filed no brief on appeal, this appeal will be 
 
         considered generally without specified errors to determine its 
 
         compliance with the law.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the deputy in conjunction with the issues 
 
         and evidence presented is adopted.
 
         
 
              The deputy correctly excluded exhibits 9 and 12.  Claimant's 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         PAGE   2
 
         
 
         
 
         petition was filed on March 22, 1984.  On May 1, 1985, a 
 
         prehearing was held but claimant indicated he needed further 
 
         discovery.  On November 26, 1985, a second prehearing was held 
 
         but claimant's attorney indicated he was not ready to proceed 
 
         because of further discovery and claimant's presence in Brazil.  
 
         On November 11, 1986, a third prehearing was held which set this 
 
         matter down for hearing and set specific time perimeters.  It is 
 
         quite apparent that claimant's actions caused the delays in this 
 
         proceeding.  To allow claimant at such a late date to introduce 
 
         such reports would have been prejudicial to defendants and in 
 
         violation of the prior order.
 
         
 
              Furthermore, the doctor's report of January 23, 1987 would 
 
         have little weight in that he was opining as to disability, not 
 
         impairment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant fell at work on December 9, 1983 and received a 
 
         contusion of the arm, cervical strain and persistent headaches.
 
         
 
              2.  Claimant already had several spinal problems that 
 
         predated this injury which Dr. Carlstrom said could have been 
 
         either traumatic injuries or congenital defects.
 
         
 
              3.  Dr. Carlstrom found that the injury that claimant 
 
         sustained in the fall on December 9, 1983 was simply myofascial 
 
         strain or muscle strain.
 
         
 
              4.  Claimant did not require any permanent restrictions as a 
 
         result of this injury.
 
         
 
              5.  Claimant attained maximum medical improvements on August 
 
         2, 1984 and could work without restrictions on and after that 
 
         date.
 
         
 
              6.  Claimant has no permanent impairment.
 
         
 
              7.  Claimant has no permanent disability.
 
         
 
              8.  Claimant was able to perform work as a graduate student 
 
         from September 1984, until his graduation in may of 1985 when he 
 
         obtained a Master's degree in finance with a 3.5 grade point 
 
         average.
 
         
 
              9.  After graduation from postgraduate school claimant 
 
         worked as a financial analyst for $24,000 per year from June of 
 
         1985 until September of 1986.
 
         
 
             10.  Claimant has been employed as an accounting supervisor 
 
         since November of 1986 at a salary of $30,000 per year.
 
         
 
             11.  Claimant did not seek any employment from the date of 
 
         the injury on December 9, 1983 until after his graduation in May 
 
         of 1985.
 
         
 
             12.  Claimant incurred reasonably necessary transportation 
 
         expenses in the amount of $1,566.78.
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         PAGE   3
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.
 
         
 
              Claimant is not entitled to any additional temporary total 
 
         disability benefits.
 
         
 
              Claimant is not entitled to any permanent partial disability 
 
         benefits.
 
         
 
              Claimant did not make a prima facie showing of permanent 
 
         total disability.
 
         
 
              Claimant is entitled to $1,566.78 in transportation expenses 
 
         as enumerated above.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant in lump sum one thousand 
 
         five hundred sixty-six and 78/100 dollars ($1,566.78) in medical 
 
         expenses for reasonable and necessary transportation and 
 
         miscellaneous expenses under Iowa Code section 85.27.
 
         
 
              That no other amounts are due from defendants to claimant 
 
         for either temporary or permanent disability benefits.
 
         
 
              That claimant pay the costs of this appeal pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That the defendants file claim activity reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dan T. McGrevey
 
         Attorney at Law
 
         403 Snell Bldg.
 
         P. O. Box 1157
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Marvin E. Duckworth
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         PAGE   4
 
         
 
         
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1800; 1801; 4100
 
                                               Filed December 22, 1988
 
                                               DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         OSVALDO CARLOS KOCK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 751783
 
         FORT DODGE COUNTRY CLUB,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         GENERAL CASUALTY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1801
 
         
 
              Deputy's decision awarding temporary total disability was 
 
         affirmed on appeal.  Claimant was unable to resume prior 
 
         employment as chef.  However, claimant was able to perform work 
 
         as a graduate student and obtained a masters degree in finance.
 
         
 
         4100; 1800
 
         
 
              Claimant failed to establish odd-lot employee status.  
 
         Besides the question of odd-lot status became moot since claimant 
 
         was determined not to be permanently disabled.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         __________________________________________________________________
 
         
 
          OSVALDO CARLOS KOCK,
 
          
 
             Claimant,
 
         
 
         VS.                                          File No.  751783
 
         
 
         FORT DODGE COUNTRY CLUB,                  A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         GENERAL CASUALTY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Osvaldo 
 
         Carlos Kock, claimant, against Fort Dodge Country Club, employer, 
 
         and General Casualty, insurance carrier, defendants for benefits 
 
         as a result of an injury which occurred December 9, 1983.  A 
 
         hearing was held on February 9, 1987 at Fort Dodge, Iowa and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of Osvaldo Carlos Kock (claimant); 
 
         claimant's exhibits 1 through 8, 10, 11, 13 and 14; and 
 
         defendants' exhibits A through L.  Both attorneys were ordered to 
 
         file briefs by May 1, 1987.  Defendants' attorney filed an 
 
         excellent brief on April 29, 1987.  Claimant's attorney did not 
 
         file a brief.
 
         
 
                            PRELIMINARY MATTERS
 
         
 
              Defendants objected to claimant's exhibits 9 and 12 for the 
 
         reason that (1) they were not served within 60 days of the 
 
         signing and filing of the hearing assignment order as required by 
 
         that order and (2) they were not available for him to use in his 
 
         deposition examination of Thomas Carlstom, M.D., on January 27, 
 
         1987.  The hearing assignment order required exhibit lists and 
 
         all medical records to be served within 60 days of the signing 
 
         and filing of that order.  The order was signed and filed on 
 
         November 12, 1986.  Sixty days later would be January 11, 1987.  
 
         Claimant admitted that these exhibits were not on his exhibit 
 
         list and they were not served within the 60 day period specified 
 
         in the hearing assignment order.  However, claimant argued that 
 
         he served them as soon as he received them.  One of
 
         the reports had not even been written by January 11, 1987.  
 
         Therefore, it was not possible for him to serve them since they 
 
         had not yet been written and he had not yet received them 
 
         himself.  Defendants' motion to exclude claimant's exhibits 9 and 
 
         12 is granted because these exhibits were not timely served as 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   2
 
         
 
         
 
         required by the hearing assignment order.  Defendants' objections 
 
         to claimant's exhibits 10, 11, 13 and 14; because they are not 
 
         causally related to the injury and because they are not 
 
         reasonable and necessary expenses, is overruled and these 
 
         exhibits are admitted into evidence.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on December 9, 1983 which 
 
         arose out of and in the course of his employment with employer.
 
         
 
              That the injury was the cause of some temporary disability.
 
         
 
              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 the weekly rate of compensation in the event of an 
 
         award of weekly benefits is $139.08 per week.
 
         
 
              That the defendants are entitled to a credit for workers' 
 
         compensation benefits paid prior to the hearing from December 9, 
 
         1983 to October 24, 1984 at the rate of $139.08 per week.
 
         
 
                                 ISSUES
 
         
 
              The following issues were submitted by the parties for 
 
         determination at the time of the hearing.
 
         
 
              Whether the injury was the cause of any permanent 
 
              disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
              Whether claimant is entitled to certain medical  benefits.
 
         
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was age 29 at the time of the injury and age 32 at 
 
         the time of the hearing.  He was born, raised and educated in 
 
         Santiago, Chile.  He completed high school there.  After high 
 
         school he received a mechanical degree in automotive work and 
 
         machine tools.  Past employments in Chile include mechanical work 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   3
 
         
 
         
 
         in a garage and tin and copper work in a foundry (Exhibit K, page 
 
         20).  Claimant also owned and operated his own mechanical garage 
 
         for a short period of time (Ex. K, pp. 26-30).  He came to the 
 
         United States in 1978 at age 24 to attend Iowa Central Community 
 
         College in Fort Dodge, Iowa.  He graduated and received an 
 
         Associate of Arts degree (Ex. K, pp. 10 and 11).  While attending 
 
         college, claimant worked picking apples and performed restaurant 
 
         work.  In time, he became a self-taught cook and head chef.  
 
         Later, he graduated from Northeast Missouri State College in May 
 
         of 1982 with a Bachelor of Science degree in business.  His grade 
 
         point average was 3.5 (Ex. K, pp. 9 and 10).  Claimant could not 
 
         find a business job immediately so he continued to cook for 
 
         employer (Ex. K, p. 15).  Claimant testified that he could 
 
         perform the strenuous work of a cook and that he had no back 
 
         problems prior to this injury (Ex. K, pp. 39-41 and 65).  He 
 
         denied that he suffered any other injuries after this injury (Ex. 
 
         K, p. 66).
 
         
 
              On December 9, 1983, while working for employer claimant 
 
         slipped on the icy steps while taking a pan of hot grease 
 
         outside.  He bumped his head and shoulder several times on the 
 
         descending steps but he did prevent getting burned by the grease 
 
         (Ex. K, p. 49).  Claimant related that when he woke up after the 
 
         fall he was surrounded by people (Ex. K, p. 50).  The country 
 
         club manager took him to Trinity Regional Hospital in Fort Dodge 
 
         where he was examined, x-rayed, medicated and sent home (Ex. K, 
 
         pp. 50-53).  He was diagnosed as having acute contusions of the 
 
         right shoulder (Ex. 1, pp 7 and 8).  X-rays on the date of injury 
 
         revealed the following:
 
         
 
              RIGHT SHOULDER AND SCAPULA:
 
              Two views each of the right shoulder and scapula shows the 
 
              bony and joint structures to be intact without fracture or 
 
              dislocation.  No soft tissue calcification is present.
 
         
 
              IMPRESSION:
 
              NORMAL RIGHT SHOULDER AND SCAPULA.
 
         
 
         (Ex. 1, p. 3)
 
         
 
              J. J. Landhuis, M.D., saw claimant on December 12 and 15, 
 
         1983 for contusion of the arm, cervical strain and persistent 
 
         headache (Ex. 1, pp. 1 and 2).  Claimant testified that he 
 
         fainted twice at home and that his friends took him back to the 
 
         emergency room.  A CT scan on December 19, 1983 resulted in a 
 
         normal head CT scan (Ex. 1, p. 4).  Intracranial hemorrhage was 
 
         ruled out (Ex. 1, p. 6).  Dr. Landhuis said on December 19, 1983 
 
         that claimant should not work for two weeks (Ex. 1,.p. 6).  Dr. 
 
         Landhuis prescribed a cervical collar (Ex. 1, p. 1) for his neck 
 
         and a sling for his arm (Ex. K, pp. 52 and 55).
 
         
 
              Claimant stated that he then went to live with his brother 
 
         in Colorado on December 20, 1983.  At that time claimant was 
 
         experiencing pain in his back, shoulder and neck, vomiting and 
 
         had throbbing headaches all of the time (Ex. K, pp. 55 and 56).  
 
         On December 30, 1983 and January 16, 1984 claimant saw W. D. 
 
         Burch, M.D., a general practitioner, in Greely, Colorado.  Dr. 
 
         Burch commented that claimant had pain and was out of pain pills.  
 
         Dr. Burch referred claimant to Earl Hutchins, M.D., a neurologist 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   4
 
         
 
         
 
         (Ex. 2, pp. 1 and 2; Ex. K, pp. 56, 57 and 59).
 
         
 
              Dr. Hutchins first saw claimant on January 18, 1984.  This 
 
         doctor found claimant's hand discolored, sweaty, puffy and 
 
         swollen.  He noted pain and weakness in claimant's right upper 
 
         extremity (Ex. I. p. 3).  Claimant was admitted to the hospital 
 
         on January 30, 1984 for x-rays, a CT scan, a bone scan and a 
 
         cervical myelogram.  Claimant was discharged on February 7, 1984 
 
         (Ex. G, pp 1,2 and 3).
 
         
 
              The radiologist reported on January 30, 1984 that claimant's 
 
         spine x-rays disclosed narrowing on the right side at C-6 and the 
 
         left side at C-7; sclerotic changes at C-6 and C-7 with moderate 
 
         hypertrophic spurring associated with previous trauma.  The 
 
         changes appeared old with chronicity greater than the two months 
 
         since the injury on December 9, 1983 (Ex. G, p. 4).
 
         
 
              The bone scan revealed increased isotope activity in the 
 
         lower cervical spine corresponding to the posttraumatic change at 
 
         C-6 shown on the x-rays (Ex. G, p. 6).
 
         
 
              The cervical myelogram also showed C-6, C-7 narrowing of the 
 
         interspace with hypertrophic lipping.  The radiologist gave this 
 
         result:
 
         
 
              IMPRESSION:
 
              1.  Extradural defect at C6 C7 on the left and anteriorly at 
 
              C4 C5 that are most suggestive of bony hypertrophic change 
 
              rather than any herniated disc disease.  There is nothing 
 
              suggesting herniated disc disease and no intradural 
 
              abnormalities are identified.
 
         
 
         (Ex. G, p. 7)
 
         
 
              Dr. Hutchins requested a consultation with Ronald D. Clark, 
 
         M.D., on January 31, 1984.  Dr. Clark reached the following 
 
         conclusion:
 
         
 
              X-RAY DATA: I have reviewed the x-rays of the cervical 
 
              spine.  There does appear to be significant injury of the 
 
              cervical spine at the C6, 7 area particularly on the right 
 
              side.  There is osteophyte formation that would make me 
 
              think this is an older injury than six weeks.
 
         
 
                 IMPRESSION: 1. I do not find very good evidence of nerve 
 
                                root compromise or irritation in this 
 
                                patient.  I feel that most of the evidence 
 
                                points to soft tissue injury in the neck 
 
                                with a low-grade shoulder-hand syndrome on 
 
                                the right side.
 
         
 
         (Ex. I, p. 5)
 
         
 
              On February 17, 1984 Dr. Hutchins referred claimant to the
 
         Mayo Clinic with all of his films, x-rays and reports (Ex. I, 
 
         pp.
 
         1, 2 and 8).
 
         
 
              Claimant was then treated at the Mayo Clinic by John G. 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   5
 
         
 
         
 
         Mayne, M.D. Dr. Mayne gave the following information:
 
         
 
              Osvaldo Carlos Kock registered at the Mayo Clinic on 
 
              February 29, 1984 for a second opinion for neck and right 
 
              shoulder pain which followed an accident at work on December 
 
              9, 1983.  It is my feeling and that of my colleague, Dr. 
 
              Kenneth Johnson of our Orthopedic Surgery Department that 
 
              his present incapacitating neck and right arm pain follows 
 
              the significant injury.
 
         
 
         (Ex. C)
 
         
 
              Claimant was given stellate ganglion blocks and physical 
 
         therapy to relieve his pain.  Dr. Mayne said claimant reported 
 
         poorly localized pain in the area of the right shoulder and 
 
         scapula radiating down his arm which caused tingling in his 
 
         fingers.  His physical examination was normal except for pain 
 
         with abduction and rotation of the right arm at the shoulder.  
 
         Dr. Mayne examined the x-rays, CT scan, EMG and myelogram done 
 
         earlier in Fort Dodge and in Colorado.  He also ordered an EMG of 
 
         his own and some x-rays which demonstrated narrowing and 
 
         degenerative disc disease at C-6 (Ex. C, pp. 1, 2 and 3).
 
         
 
              A C-6, C-7 and possibly a C-1 fusion was considered (Ex. C, 
 
         pp 1, 3 and 4); however, claimant elected against surgery at 
 
         least until finishing his Masters degree (Ex. C, p. 5).  Claimant 
 
         was discharged on March 13, 1984 with considerable improvement in 
 
         his symptoms. (Ex. C, p. 7)
 
         
 
              Dr. Mayne concluded as follows:
 
         
 
              Dr. Johnson noted that Mr. Kock does have significant 
 
              degenerative changes at the C6-7 level but these 
 
              degenerative changes were present before his fall on 
 
              December 9, 1983 since they were evident on the January 30 
 
              x-rays just two months after his injury.  It may be that he 
 
              exacerbated a pre-existing condition and that he will be 
 
              able to return to the activities he could do before the 
 
              December 1983 fall if given enough time and conservative 
 
              therapy.
 
         
 
         (Ex. C, p. 7).
 
         
 
              Claimant then moved to California with his brother (Ex. K, 
 
         p. 60).  He said he registered at the university and hoped to get 
 
         a Masters degree in business if he could get off the medication 
 
         which made him drowsy all of the time (Ex. K, pp. 62,63, 66-70).  
 
         He testified that he continued to receive physical therapy in 
 
         California in order to avoid surgery (Ex. K, pp. 69 and 70).
 
         
 
              In California, claimant contacted James A. Westcott, M.D.,
 
         on June 7, 1984 for stiffness and pain in his neck and a tingling 
 
         sensation in both hands.  Dr. Westcott continued a heavy regimen 
 
         of medication, continued physical therapy and referred claimant 
 
         to Jeffrey M. Lobosky, M.D., on July 24, 1984 for neurosurgical 
 
         consultation to see if claimant needed an operation to fuse his 
 
         neck (Ex. 5, pp. 10, 11 and 12; Ex. K, pp. 61 and 62).
 
         
 
              At the request of defendants, claimant returned to Iowa and 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   6
 
         
 
         
 
         was examined by Thomas A. Carlstrom, M.D., a neurosurgeon, on 
 
         August 2, 1984.  Dr. Carlstrom made this report:
 
         
 
                   After examining this patient, I obtained an EMG that 
 
              same day which was normal, cervical spine x-rays with 
 
              flexion and extension which showed a significant abnormality 
 
              between C6 and 7 with interpretation of the abnormality 
 
              being either congenital or a healed fracture at that level, 
 
              and no significant abnormalities with flexion or extension.  
 
              The CT scan showed no abnormalities in either the 
 
              intraspinal or brachial plexus regions of the cervical 
 
              thoracic junction.
 
         
 
                   This patient is suffering from, I believe, myofascial, 
 
              that is mechanical neck and shoulder and arm pain.  I see no 
 
              evidence for radiculopathy and no evidence for a surgical 
 
              [sic] lesion.
 
         
 
         (Ex. D, pp. 1 and 2)
 
         
 
         
 
              Later, Dr. Carlstrom gave a deposition on January 27, 1987.  
 
         He described claimant's complaints as follows: "At the time I saw 
 
         him, he was complaining of pain in his arm and shoulder on the 
 
         right side, and in his neck; numbness and tingling in his hand, 
 
         and he had had a fairly significant work-up completed by that 
 
         time.O (Ex. L, p. 6)
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   7
 
         
 
         
 
              Dr. Carlstrom declared that the C-6, C-7 abnormality had 
 
         been present for several years because it appeared the same in 
 
         his August 1984 x-rays as it appeared in the x-rays in Colorado 
 
         in February 1984.  Dr. Carlstrom stated that-the C-6, C-7 problem 
 
         was either traumatic or congenital.  Dr. Carlstrom's expert 
 
         medical opinion was that claimant suffered a muscular strain 
 
         of-the right shoulder, that is, that he stretched the muscles 
 
         (Ex. L, pp. 8 and 9).  Dr. Carlstrom asserted that the period of 
 
         recovery should be six to eight months.  He stated that claimant 
 
         had recuperated at the time of his examination on August 2, 1984 
 
         (Ex. L, p. 9).
 
              The doctor also stated that maximum medical improvement 
 
         would have occurred in approximately eight months after the 
 
         injury (Ex. L, p. 17).  On October 16, 1984 Dr. Carlstrom wrote 
 
         that he did not believe that any additional therapy would be 
 
         beneficial to claimant and that he would not recommend any future 
 
         physical therapy (Ex. F).
 
         
 
              In his deposition Dr. Carlstrom added that no specific 
 
         restrictions should be placed on claimant's activity.  He stated 
 
         that claimant did not need any further treatment (Ex. L, pp. 8, 9 
 
         and 10).  Dr. Carlstrom said he did not examine x-rays from Fort 
 
         Dodge because they could not be found; however, he did examine 
 
         the studies done in Colorado and these reports confirm the 
 
         correctness of his opinions (Ex. C, pp. 10-13).
 
         
 
              Dr. Carlstrom said that during the period of time from the 
 
         date of the injury on December 9, 1983 up until the time of his 
 
         examination on August 2, 1984 claimant should have avoided 
 
         lifting with his upper extremities of more than 20 to 35 pounds 
 
         (Ex. L, pp. 16 and 17).  Dr. Carlstrom said that claimant's 
 
         defects at C-6, C-7 would amount to a three to five percent 
 
         impairment rating; however, these defects were not caused by the 
 
         injury of December 9, 1983 (Ex. L, pp. 17-20).  The actual 
 
         dialogue between claimant's counsel and Dr. Carlstrom was as 
 
         follows:
 
         
 
                   Q.  Then the final area of questions that I have, 
 
              Doctor, if the abnormalities that existed in the x-ray did 
 
              relate to the trauma that we are under litigation for, would 
 
              they give rise to a permanent partial disability rating?
 
         
 
                   A.  Well, first, they didn't arise.  Second, yes, they 
 
              might.
 
         
 
         
 
         
 
         
 
              Q.  Okay.  And what would your opinion as to the permanent 
 
         partial disability rating be?
 
         
 
              MR. DUCKWORTH: Assuming the defect occurred because of the 
 
         injury, is that right?
 
         
 
              MR. McGREVEY: Uh-huh.
 
         
 
              A.  Impairment rating might be in the neighborhood
 
              of 3 to 5 percent.
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   8
 
         
 
         
 
              Q.  I got the impression from your use of the words--I 
 
         believe it was "significant abnormalities" that it was a more 
 
         serious condition than what you seemed to be expressing with a 3 
 
         to 5 percent disability rating.
 
         
 
              A.  Well, I did not mention a disability rating.  I stated 
 
         an impairment rating.  And, of course, we don't give impairment 
 
         ratings based upon x-rays.  We give impairment ratings based upon 
 
         physical exam, basically.  And his physical examination is 
 
         not--or was the 2nd of August not particularly remarkable.
 
         
 
              Q.  During the discussions on that last question, you said 
 
         it was not caused.  Are you of the opinion that you are 100 
 
         percent certain that these abnormalities were not caused by the 
 
         trauma that he says caused these?
 
         
 
              A.  Within a reasonable degree of medical certainty, yes.
 
         
 
              Q.  And you base that finding on what?
 
         
 
              A.  The abnormalities present were old on x-ray in August, 
 
         were old on x-ray in February, too old to have been caused in 
 
         December, in February for sure, and probably in August, and they 
 
         were associated with other abnormalities in the spine consistent 
 
         with a congenital basis or a previous traumatic basis, including 
 
         fused ribs and some abnormalities of the upper thoracic spine 
 
         also.
 
         
 
              Q.  But if I understand what you are saying right, these 
 
         preexisting injuries could have been either traumatic or 
 
         congenital.  You don't have an idea which one?
 
         
 
              A.  I really don't have any idea, no.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Q.  All you know is that the trauma didn't come from this 
 
         particular time?
 
         
 
              A.  The x-rays do not demonstrate changes that occurred in 
 
         December 1983.
 
         
 
              (Ex. L, pp. 17-20)
 
         
 
              All of the medical evidence shows, and claimant verified in 
 
         his testimony at the hearing on February 9, 1987, that he has 
 
         taken a great deal of medication since the date of his injury on 
 
         December 9, 1983.  At the hearing he testified that he still has 
 
         to take pain killers.   He testified that he still must use a 
 
         TENS unit every day as well as perform his home physical 
 
         therapy.
 
         
 
              Notwithstanding Dr. Carlstrom's findings that claimant was 
 
         recuperated, claimant returned to California and kept his 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page   9
 
         
 
         
 
         appointment with Dr. Lobosky on August 22, 1984 for surgical 
 
         evaluation if conservative measures failed (Ex. 5, pp. 5-8).  Dr. 
 
         Lobosky carried out a very extensive examination.  The x-ray 
 
         portion of his report read as follows:
 
         
 
                   X-RAYS: Review of the cervical spine films shows some 
 
              scoliosis to the cervical spine.  He also has severe 
 
              degenerative changes which appear present at the C5-6 and 
 
              C6-7 levels.  There are also minor changes at the C7-Tl 
 
              levels.  There appears to be anterior and posterior 
 
              osteophytes at C5-6 and especially at C6-7 where the disease 
 
              process appears to be most marked.  This includes disk space 
 
              narrowing as well as the osteophyte formation.  He also has 
 
              evidence of congenital fusion of the posterior ribs 1, 2 and 
 
              3 on the left.
 
         
 
              (Ex. 5, pp. 7 and 8)
 
         
 
              Dr. Lobosky's assessment was possible cervical 
 
         radiculopathy.  He ordered earlier studies to make a comparison 
 
         (Ex. 5, p. 8).  On October 10, 1984, Dr. Lobosky wanted to start 
 
         from scratch.  He wanted new EMG studies, a cervical CT scan and 
 
         cervical myelography.  If a cervical lesion was identified, then 
 
         treatment should be rendered (Ex. 5, pp. 4 and 9).  On March 25, 
 
         1985, Dr. Lobosky reported that claimant's arm pain and tingling 
 
         had almost completely resolved, but he had significant neck pain.  
 
         The doctor reported that claimant was now opposed to surgical 
 
         intervention.  Dr. Lobosky agreed because surgery for localized 
 
         neck pain is not very successful.  Dr. Lobosky concluded as 
 
         follows:
 
         
 
              ASSESSMENT:  Stable at this point.
 
         
 
              PLAN:        It is my opinion that this patient
 
         
 
              probably had an underlying cervical spondylosis which was 
 
              greatly exacerbated by his industrial injury.  His 
 
              disability at this time I think is stable and permanent.  It 
 
              is my opinion that he is disabled to the point that he is 
 
              only able to work to 50% of his capacity for physical 
 
              therapy which would require excessive bending, lifting, 
 
              etc.. I have told him that he should be considering other 
 
              lines of work that are nonstrenuous, and he has assured me 
 
              that he is completing his Master's Degree in business right 
 
              now and will be pursuing that in the future.  I have renewed 
 
              his prescription at this time for Dalmane and told him that 
 
              I would be more than happy to see him back on a prn basis 
 
              and to contact my office if we can be of further assistance.  
 
              As long as he continues to improve in terms of his pain 
 
              syndrome, I have encouraged him to increase his exercise 
 
              activities and that there would be no reason for me to see 
 
              him back on a regular basis.
 
         
 
         (Ex. 5, p. 1)
 
         
 
              At the hearing claimant testified that before this injury he 
 
         had no limitations.  Now he cannot participate in sports, lift, 
 
         perform the chef job or do any physical work that requires 
 
         exertion or force.  After he graduated with his Master's degree 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  10
 
         
 
         
 
         in May of 1985, he began work as a financial analyst in Detroit 
 
         at $24,000 per year.  He did that from June of 1985 until 
 
         September of 1986.  Since November of 1986, claimant has been 
 
         employed as as an accounting supervisor at $30,000 per year.  
 
         Claimant testified that he has aspirations of becoming a CPA.  
 
         His cooking jobs were mainly used to finance his education.  
 
         These jobs only paid a few thousand dollars per year.
 
         
 
              Claimant testified that he was not employed and did not seek 
 
         any employment from the date of his injury on December 9, 1983 
 
         until June of 1985 when he had finished college and his 
 
         postgraduate work and took the financial analyst job.  He stated 
 
         that he received workers' compensation benefits up until October 
 
         of 1984.  Credit life insurance took care of his car payment.  
 
         Other than that, claimant testified that he had no other income 
 
         but lived on his savings.
 
         
 
              Claimant requested transportation expenses for his first 
 
         trip to the Mayo Clinic, second trip to the Mayo Clinic and his 
 
         trip to see defendants' doctor.  He submitted itemized receipts 
 
         as follows:
 
         
 
              First trip to Mayo Clinic               $131.82
 
              Trip to defendants' doctor
 
              Air fare                                 125.00
 
         
 
              Gas expense                               73.65
 
              Second trip to Mayo Clinic               138.07
 
              Total                                   $468.54
 
          
 
          (Ex. 10, pp. 1-6)
 
         
 
              Claimant also requested food and meal expenses.and attached 
 
         itemized receipts as follows:
 
         
 
              First trip to Mayo Clinic               $153.27
 
              Trip to defendants' doctor               108.42
 
              Second trip to Mayo Clinic               142.27
 
              Total                                   $403.96
 
          
 
          (Ex. 13, pp. 1-9)
 
         
 
              Claimant also attached itemized hotel costs as follows:
 
         
 
              First trip to Mayo Clinic                $343.70
 
              Trip to defendants' doctor                 55.40
 
              Second trip to Mayo Clinic                111.70
 
              Total                                    $510.80
 
          
 
          (Ex. 13, pp. 10-12)
 
         
 
              Claimant also submitted itemized miscellaneous expenses of:
 
         
 
              Medications                             $  33.88
 
              Parking                                     3.20
 
              Total                                   $  37.08
 
          
 
          (Ex. 13, p. 13)
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  11
 
         
 
         
 
              Although defendants objected to these exhibits on the 
 
         grounds that they were not causally related to the injury and 
 
         were not reasonable and necessary expenses, nevertheless, 
 
         defendants did not take specific exception or objection to any of 
 
         these itemized expenses in particular.  Therefore, these expenses 
 
         appear to be reasonable and are allowed.
 
         
 
              After submitting itemized gas tickets for two trips to Mayo 
 
         Clinic, which have already been allowed, claimant also claimed 
 
         mileage allowance for these same trips (Ex. 14).  Therefore, the 
 
         mileage allowance claim cannot be allowed because the itemized 
 
         expenses for these two trips have already been allowed.  All that 
 
         can be allowed as reasonable mileage from claimant's
 
         exhibit 14 are the following expenses:
 
         
 
         
 
         Fort Dodge               Dr. Landhuis            35 miles
 
         Rochester                Mayo Clinic            100 miles
 
         Greely, Colorado         Physical Therapy       400 miles
 
         Rochester                Mayo Clinic             75 miles
 
         Total                                           600 miles
 
         
 
              Therefore, claimant is allowed 610 miles at .24 per mile for 
 
         a total mileage allowance of $146.40.
 
         
 
              All of these allowances come to the grand total of 
 
         $1,566.78.
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  12
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 9,1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 
 
         (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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of December 9, 1983 
 
         was the cause of any permanent disability.  It is true that 
 
         claimant has some serious spine and rib problems as was 
 
         frequently demonstrated on his many x-rays, CT scans and 
 
         myelograms; however, these reports invariably confirm that these 
 
         spinal problems and rib problems predate this injury, even though 
 
         claimant testified that he had no prior problems.
 
         
 
              The radiologist in Colorado on January 30, 1984, said that 
 
         claimant's condition was associated with previous trauma that was 
 
         greater than the two months that had transpired since this injury 
 
         had occurred (Ex. G, p. 4).  The radiologist who interpreted the 
 
         myelogram done on February 1, 1984, stated that these were 
 
         hypertrophic changes rather than herniated disc disease.  He 
 
         reported that no intradural abnormalities were identified (Ex. G, 
 
         p. 7).
 
         
 
              Dr. Clark, in Colorado, declared on January 31, 1984 that 
 
         the injury of the cervical spine at C-6, C-7 is older than six 
 
         weeks prior due to the osteophyte formation.  Therefore, he 
 
         confirmed that this condition predated the injury (Ex. I, P. 5).
 
         
 
              Dr. Mayne, at the Mayo Clinic, on May 7, 1984  recorded that 
 
         the significant degenerative changes were present before 
 
         claimant's fall on December 9, 1983 (Ex. C, p. 7).
 
         
 
              Dr. Carlstrom saw claimant on August 2, 1984.  He 
 
         unequivocally stated that claimant's C-6, C-7 problem and 
 
         other,spinal abnormalities, such as scoliosis and fused ribs, all 
 
         predated this injury of December 9, 1983 (Ex. L, pp. 8, 9, 18 and 
 
         19).
 
         
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  13
 
         
 
         
 
              Even Dr. Lobosky's report on August 22, 1984 clearly shows 
 
         that claimant's spinal problems were degenerative and congenital 
 
         (Ex. 5, pp. 7 and 8).  He believed claimant had an underlying 
 
         spondylosis which was aggravated by the fall of December 9, 1983 
 
         (Ex. 5, p. 1).  Dr. Lobosky did not attempt to say that the fall 
 
         caused these various spinal abnormalities that appeared in the 
 
         various x-rays, CT scans and myelograms.
 
         
 
              Dr. Carlstrom, defendants' evaluating physician in this 
 
         case, gave the most sound and definitive opinion.  He spoke with 
 
         the most clarity and certainty of all the many doctors who 
 
         examined claimant.  Dr. Carlstrom said claimant was suffering 
 
         from a myofascial strain.  Claimant had mechanical neck, shoulder 
 
         and arm pain (Ex. D, pp. 1 and 2).  He declared that claimant had 
 
         a muscle strain of the right shoulder, that is, claimant 
 
         stretched his muscles (Ex. L. pp. 8 and 9).  He asserted that a 
 
         reasonable period of recovery would be six to eight months.  He 
 
         declared that claimant had fully recovered at the time of his 
 
         examination on August 2, 1984 (Ex. L, pp. 9 and 17).
 
         
 
              Dr. Landhuis took claimant off work immediately after the 
 
         injury (Ex. 1, p. 6).  Dr. Mayne felt on March 9, 1984 that the 
 
         injury was still incapacitating (Ex. C, p. 1).  Dr. Carlstrom 
 
         said claimant had reached maximum medical improvement on August 
 
         2, 1984 (Ex. L, pp. 9 and 17).  Dr. Lobosky found that claimant 
 
         did not become stable until March 25, 1985; however, this would 
 
         be an unduly long period of time for a strain or an aggravation 
 
         of a spondylosis (Ex. 5, p. 1).
 
         
 
              Dr. Carlstrom's opinion then, is adopted rather than the 
 
         view of Dr. Lobosky.  Rockwell Graphics Systems, Inc. V. Prince, 
 
         366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Therefore, it is determined that claimant is entitled to 
 
         temporary total disability from December 9, 1983, the date of the 
 
         injury, to August 2, 1984, the date that Dr. Carlstrom said 
 
         claimant had recovered and had reached maximum medical 
 
         improvement.
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of December 9, 1983 
 
         caused any permanent disability.  Claimant was initially 
 
         diagnosed as having contusion of the arm, cervical strain and 
 
         headache by Dr. Landhuis.  X-rays of his right shoulder and 
 
         scapula (Ex. 1, p. 3) and a CT scan of his head (Ex. 1, p. 4) 
 
         were normal.  The only objective medical evidence of physical 
 
         injury were the abnormalities of claimant's spine and ribs that 
 
         predated this injury as previously discussed.
 
         
 
              Dr.Carlstom said that claimant had an impairment of three to 
 
         five percent; however, it was not caused by this injury (Ex. L, 
 
         pp. 17, 18 and 19).  He further stated claimant needed no further 
 
         treatment after August 2, 1984.  In addition, there was no need 
 
         for any specific restrictions on claimant's activities at that 
 
         time (Ex.  L, pp. 8, 9 and 10).  Dr. Lobosky indicated that 
 
         claimant was disabled to the point that he was only able to work 
 
         up to 50 percent of his capacity for physical therapy which would 
 
         require bending, lifting, etc. (Ex. 5, p.1). Dr. Lobosky did not 
 
         assess an impairment rating.  Rather he gave his own opinion of 
 
         the claimant's disability.  Again, Dr. Carlstrom's opinion is 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  14
 
         
 
         
 
         adopted as the better opinion.  It is supported by the most 
 
         factual data and it is the most informative and reasonable 
 
         opinion.
 
         
 
              Therefore, it is determined that claimant did not sustain 
 
         the burden of proof by a preponderance of the evidence that the 
 
         injury of December 9, 1983 was a cause of any permanent 
 
         impairment or disability.  Consequently, claimant is not entitled 
 
         to any permanent partial disability benefits.
 
         
 
              Since claimant is not permanently disabled, the issue of 
 
         whether claimant is an odd-lot employee is now moot.  It might be 
 
         noted by way of dicta, however, that claimant testified that he 
 
         never sought any employment of any kind after the date of the 
 
         injury on December 9, 1983 until after he graduated from 
 
         postgraduate school with his Master's degree in May of 1985.  In 
 
         order to be entitled to the odd-lot doctrine a claimant normally 
 
         should demonstrate a bona fide attempt to find employment in the 
 
         area of residence.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
         (Iowa 1985).  Emshoff Petroleum Transportation and Great West 
 
         Casualty Co., file no .753723 (Appeal Decision March 31 1987). 
 
         Also, it might be added that if claimant was capable of student 
 
         work, then he was capable of doing a number of other desk jobs, 
 
         especially with his high intelligence and motivation to achieve 
 
         and excel.
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he is entitled to medical 
 
         benefits under Iowa Code section 85.27 through August 2, 1984 and 
 
         for his examination by Dr. Carlstrom on that date.  Medical 
 
         expenses after that date are determined to be unreasonable and 
 
         repetitious for what was initially described by Dr. Landhuis as a 
 
         contusion of the arm, cervical strain and persistent headache; 
 
         and what was eventually diagnosed by Dr. Carlstrom as myofascial 
 
         or muscle strain.  It is more likely that claimant's persistent 
 
         neck and arm problems are due to his spinal abnormalities that 
 
         predated this injury.  Therefore, all medical expenses after 
 
         August 2, 1984 are determined to be not caused by the injury of 
 
         December 9, 1983, which are essentially all the expenses incurred 
 
         by claimant in California (Ex. 6, 7 and 8).  All of claimant's 
 
         medical expenses prior to that date are reasonable and it is 
 
         determined that they are to be paid by employer.
 
         
 
              No allowance is made for any of the medical expenses in 
 
         Exhibit 11.  Many of these are already paid according to the 
 
         itemized accounting attached to industrial commissioner form 2a.  
 
         Others were incurred in California after August 2, 1984.  Exhibit 
 
         11 p. 15 is a bill from Neuroassociates in Des Moines in the 
 
         amount of $100.00 dated January 9, 1987, cannot be allowed 
 
         because there is no indication on the bill what service was 
 
         performed for these charges.  Likewise, Ex. 11, p. 16, a bill 
 
         from Mercy Hospital Medical Center in Des Moines in the amount of 
 
         $186.50 dated December 22, 1986 cannot be allowed because, again, 
 
         on this statement there is no indication what service was 
 
         rendered for these charges.
 
         
 
              Whether defendants authorized certain medical expenses or 
 
         not is irrelevant and immaterial.  Defendants denied liability 
 
         for an injury up until the time of the hearing.  Iowa Code 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  15
 
         
 
         
 
         section 85.27 gives defendants the right to choose the care. 
 
         However, defendants in their answer denied that claimant's 
 
         injuries arose out of and in the course of employment.  The issue 
 
         of arising out of and in the course of employment was included in 
 
         the prehearing order as an issue to be tried.  It does not seem 
 
         logical that defendants can deny liability on the one hand and 
 
         guide the course of treatment on the other.  Barnhart v. MAQ, 
 
         Inc., 1 Iowa Industrial Commissioner Report 16, 17 (Appeal 
 
         Decision 1981).  The fact that defendants paid some benefits does 
 
         not constitute an admission of liability, Iowa Code section 
 
         86.13.  Nor is failure to file a denial of liability an admission 
 
         of liability on their part, Iowa Code section 85.26 (2).
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant fell at work on December 9, 1983 and received 
 
         a contusion of the arm, cervical strain and persistent 
 
         headaches.
 
         
 
              That claimant already had several spinal problems that 
 
         predated this injury which Dr. Carlstrom said could have been 
 
         either traumatic injuries or congenital defects.
 
         
 
              That Dr. Carlstrom found that the injury that claimant 
 
         sustained in the fall on December 9, 1983, was simply myofascial 
 
         strain or muscle strain.
 
         
 
              That claimant did not require any permanent restrictions as 
 
         a result of this injury.
 
         
 
              That claimant attained maximum medical improvement on August 
 
         2, 1984 and could work without restrictions on and after that 
 
         date.
 
         
 
              That claimant was able to perform work as a graduate student 
 
         from September 1984 until his graduation in May of 1985 when he 
 
         obtained a Master's degree in finance with a 3.5 grade point 
 
         average.
 
         
 
              That after graduation from postgraduate school claimant 
 
         worked as a financial analyst for $24,000 per year from June of 
 
         1985 until September of 1986.
 
         
 
              That claimant has been employed as an accounting supervisor 
 
         since November of 1986 at a salary of $30,000 per year.
 
         
 
              That claimant did not seek any employment from the date of 
 
         the injury on December 9, 1983 until after his graduation in May 
 
         of 1985.
 
         
 
              That claimant incurred reasonably necessary transportation 
 
         expenses in the amount of $1,566.78.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  16
 
         
 
         
 
         principles of law previously discussed the following conclusions 
 
         of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.
 
         
 
              That claimant is not entitled to any additional temporary 
 
         total disability benefits.
 
         
 
         
 
              That claimant is not entitled to any permanent partial 
 
         disability benefits.
 
         
 
              That claimant is not permanently disabled.
 
         
 
              That claimant did not make a prima facie showing of 
 
         permanent total disability.
 
         
 
              That claimant is entitled to $1,566.78 in transportation
 
         
 
         expenses as enumerated above.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant in lump sum one thousand 
 

 
         
 
         
 
         
 
         KOCK V. FORT DODGE COUNTRY CLUB
 
         Page  17
 
         
 
         
 
         five hundred sixty-six and 78/100 dollars ($1,566.78) in medical 
 
         expenses for reasonable and necessary transportation and 
 
         miscellaneous expenses under Iowa Code section 85.27.
 
         
 
              That no other amounts are due from defendants to claimant 
 
         for either temporary or permanent disability benefits.
 
         
 
              That the costs of this action are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That the defendants file claim activity reports as 
 
              requested
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1
 
         
 
              Signed and filed this 21st day of December, 1987.
 
         
 
         
 
                                        
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dan McGrevey
 
         Attorney at Law
 
         403 Snell Bldg
 
         P.O. Box 1157
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Terrace Center, STE 111 
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.40; 1801;1802
 
                                                   1803; 4100
 
                                                   Filed December 21, 1987 
 
                                                   WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         OSVALDO CARLOS KOCK,
 
          
 
              Claimant,
 
          
 
          VS.                                       File No.  751783
 
          
 
          FORT DODGE COUNTRY CLUB,               A R B I T R A T I 0 N
 
          
 
              Employer,                             D E C I S I 0 N
 
          
 
          and
 
          
 
          GENERAL CASUALTY INSURANCE,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40; 1801; 1802; 1803; 4100
 
         
 
              Claimant slipped and fell and injured his neck and shoulder 
 
         at work as a cook.  He also had a number of preexisting spinal 
 
         and rib anomalies that could have been either congenital or 
 
         traumatic.  Claimant was paid medical and temporary total 
 
         disability benefits up until defendants' evaluating doctor said 
 
         claimant had reached maximum medical improvement.  Claimant 
 
         failed to prove the injury was the cause of additional temporary 
 
         total disability or permanent disability.  Defendants' doctor 
 
         said any disability was from the preexisting conditions.  None of 
 
         claimant's doctors gave a specific impairment rating.
 
         
 
              Claimant was not odd-lot.  He pursued and achieved getting a 
 
         Masters degree in business while he was recuperating and was 
 
         earning $30,000 at the time of the hearing as an accounting 
 
         supervisor.  He never applied for any jobs until after 
 
         graduation.
 
         
 
              Claimant was allowed $1,566.78 in medical mileage, motels 
 
         and meals and costs of this action.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
           CONNIE M. STUFFLEBEAM,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 752191
 
         IOWA DEPARTMENT OF
 
         TRANSPORTATION,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
         and
 
                                                 D E C I S I 0 N
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Connie M. 
 
         Stufflebeam against the Iowa Department of Transportation and the 
 
         State of Iowa.  Claimant contends that she injured her back while 
 
         performing shoveling in her employment during the period of 
 
         November 7, 8, and 9, 1983.  Claimant seeks compensation for 
 
         healing period, permanent disability, section 85.27 benefits and 
 
         costs.
 
         
 
              The case was heard at Des Moines, Iowa on March 31, 1987 and 
 
         was fully submitted upon conclusion of the hearing.  The evidence 
 
         in the case consists of testimony from Connie M. Stufflebeam, 
 
         Kenny Stewart, Fred Morris, Leon Craig McCombs and Steven 
 
         Vannoni.  The record also contains claimant's exhibits one 
 
         through ten and defendants' exhibit A.
 
         
 
                                 ISSUES
 
         
 
              The issues presented by the parties for determination are:
 
         
 
              1.  Whether claimant sustained injury on or about November 
 
         9, 1983 which arose out of and in the course of her employment;
 
         
 
              2.  Whether the alleged injury is a cause of any temporary 
 
         or permanent disability;
 
         
 
              3.  Determination of claimant's entitlement to compensation 
 
         for healing period or temporary total disability;
 
         
 
              4.  Determination of claimant's entitlement to compensation 
 
         for permanent disability;
 
         
 
              5.  Determination of claimant's rate of compensation;
 
         
 
              6.  Determination of claimant's entitlement to section 
 

 
         85.27
 
              benefits; and,
 
         
 
              7.  Determination of the employer's right to credit under 
 
         section 85.38(2).
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Connie M. Stufflebeam is a 29-year-old lady with a high 
 
         school education who had been employed by the Department of 
 
         Transportation since November, 1980.  Her prior employments had 
 
         generally involved semi-skilled, manual labor.  Claimant has 
 
         experienced a tragic life which includes the death of her husband 
 
         in Vietnam, the death of her young daughter, serious health 
 
         problems of her own and the back problems which are the basis for 
 
         this action.
 
         
 
              Claimant's work for the Department of Transportation 
 
         involved a number of duties, including operating a snow plow, 
 
         tractor, jack hammer, endloader, and tractor-mower, installing 
 
         road signs, performing highway maintenance and doing other 
 
         related functions.  The work sometimes involved manually digging 
 
         holes and a lot of shoveling.  She stated that, at times, she 
 
         would lift as much as 100 pounds.
 
         
 
              Claimant has suffered several injuries in her employment.  
 
         In 1981, she slipped on ice while using a pickaxe.  On another 
 
         occasion, she injured herself while carrying 100-pound bags of 
 
         chloride.  In 1983, she was injured while operating a manual 
 
         hydraulic auger.  She was once injured while pulling temporary 
 
         road signs off a truck.  Claimant felt that the 1981 injury had 
 
         resulted in permanent damage to her, but she has not filed a 
 
         claim for any of those prior injuries.  She stated that it still 
 
         bothers her and is in the same part of her body as the injuries 
 
         which are the basis for this claim.
 
         
 
              Claimant testified that, in late October or early November, 
 
         a date which she estimated to be approximately November 1, 1983, 
 
         she slipped from a small stool while hanging curtains at her 
 
         home.  She stated that she caught herself in an odd position and 
 
         felt pain in her upper back between her shoulders.  She testified 
 
         that the following morning she again felt pain while combing her 
 
         hair.  She testified that it hurt for two or three days, but that 
 
         it resolved itself and did not cause her to miss any work.  
 
         Claimant testified that, following the incident, her supervisor, 
 
         Steven Vannoni, could tell that her back was bothering her and 
 
         assigned her to perform light duty.  She stated that her 
 
         immediate supervisor, Leon Craig McCombs, kept her on regular duty.  
 
         Claimant testified that she did as she was told and shoveled for 
 
         eight hours a day for approximately ten days.  She testified 
 
         that, on November 5, 1983, Vannoni came to the job site where 
 
         they were working and that she reported to him that she had been 
 
         shoveling.  Claimant testified that Vannoni replied he could not 
 
         verify that she had been shoveling and indicated he would talk 
 
         with McCombs.  Claimant testified that, on November 9, 1983, she 
 
         told Vannoni to expect a telephone call from a doctor about an 
 
         appointment and also that her low back was bothering her badly.  
 
         She stated that when the time for the appointment,arrived, 
 
         Vannoni came to the work site and got her.  Claimant testified 
 
         that she saw Randall Hart, D.O., was taken off work for two 
 
         weeks, was treated with therapy and was then hospitalized.
 
         
 
              Claimant testified that she had no back problems before the 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   3
 
         
 
         
 
         1981 injury, but that after it, every subsequent injury made her 
 
         back a little worse and that she did experience back problems 
 
         intermittently.  She stated that, in November, 1983, she was 
 
         shoveling thirty to thirty-five pounds of sand, lifting, twisting 
 
         and putting it into the bucket of an endloader.  She stated that 
 
         she was twisting with a shovel full of sand when she felt a 
 
         sharp, severe pain in the small of her back which radiated down 
 
         the outside of her left leg to her ankle and to the outside of 
 
         her foot.  She described it as a "Popping" sensation in her back 
 
         and stated that the pain was really bad.
 
         
 
              Claimant testified that she turned around when it happened 
 
         and told Kenny Stewart she had just hurt her back, but that he 
 
         instructed her to continue working.  She stated that she did so 
 
         because Stewart was second in the line of command and that if she 
 
         refused to, it would be grounds for discipline.  Claimant 
 
         testified that the injury actually occurred on the seventh or 
 
         eighth of November.  Claimant testified that she was shoveling 
 
         sand on the ninth before she went to the doctor.  She did not 
 
         recall being assigned to clean up the shop on the ninth before 
 
         going to the doctor.
 
         
 
              Claimant testified that she told McCombs and Stewart that 
 
         she had pulled something in her back.  She testified that she 
 
         filled out an injury report and placed it on Steve Vannoni's 
 
         desk, but that he did not acknowledge receiving the report.
 
         
 
              Claimant testified that the history she gave to Dr. Hart is 
 
         not accurately reflected in his report, claimant's exhibit 9. She 
 
         testified that the history that she gave to the physicians when 
 
         she was seen at the Mayo Clinic is accurately reported in their 
 
         reports, but that she did discuss shoveling with them.  She 
 
         stated that the portion which states that her back had not 
 
         bothered her since the 1981 injury is inaccurate.  Claimant 
 
         testified that, when she worked following October 25, 1983, her 
 
         low back pain became increasingly worse.
 
              
 
              Kenny Stewart and Leon Craig McCombs both testified that, on 
 
         November 7 and 8, 1983, claimant and the two of them all 
 
         performed the same activity, namely shoveling, operating the sign 
 
         and operating the tractor.  Stewart testified that claimant made 
 
         a statement that the shoveling was harder on her back than 
 
         scrubbing floors, but made no mention of any injury.  McCombs 
 
         testified that claimant did not make any mention of an injury.
 
         
 
              Fred Morris, claimant's fiance who has lived with her for 
 
         eight or nine years, did not recall any incident of her slipping 
 
         off a stool, but did recall something of a problem when she was 
 
         combing her hair.  Morris stated that claimant has had back 
 
         problems since 1981 and attributed a change in her lifestyle to a 
 
         1981 injury.  Morris testified that, since November, 1983, she 
 
         has been in a lot of pain.  He stated that he obtained an 
 
         accident report form, took it to her while she was in the 
 
         hospital and then returned it to the Department of Transportation 
 
         office in Oskaloosa.
 
         
 
              Steven Vannoni, the Department of Transportation highway 
 
         maintenance supervisor at Oskaloosa, testified that, in the 
 
         morning of October 25, 1983, claimant spoke with him about 
 
         falling from a stool while hanging curtains at her home the 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   4
 
         
 
         
 
         preceding evening.  He stated that she had indicated she may not 
 
         be able to endure working the entire day.  Vannoni testified that 
 
         she phoned in on the 26th of October and indicated that her back 
 
         was still bothering and that she did not work on that day.  
 
         Vannoni indicated that claimant did work on the 27th of October 
 
         without making any complaints, but that she did indicate her back 
 
         still bothered a little.  Vannoni indicated that claimant took a 
 
         day of vacation on November 1, 1983.
 
         
 
              Vannoni testified that, on November 7 and 8, 1983, claimant 
 
         was assigned with Stewart and McCombs to clean gutters near 
 
         Fremont and that claimant was to perform traffic control using 
 
         the stop and go panel.  He testified that, at approximately 10:00 
 
         a.m. on the seventh, he went to the work site and, while there, 
 
         claimant indicated that her back was still hurting and asked 
 
         about group insurance paying for an examination.  Vannoni stated 
 
         that, on November 8, claimant worked the last two hours of the 
 
         day cleaning up in the shop and that she informed him she had a 
 
         doctor's appointment at 11:00 on the following day.  Vannoni 
 
         testified that he kept her in the shop until the time for the 
 
         appointment.  He testified that claimant did not ask for an 
 
         accident report form.
 
         
 
              Vannoni further testified that, on the evening of November 
 
         21, claimant phoned his home and indicated that her sister would 
 
         be in to pick up her paycheck and an accident report form.   He 
 
         stated that she made no mention of an earlier accident report 
 
         form.  Vannoni stated that he gave the form to the woman and told 
 
         her to bring it back to him.  The completed form, which was
 
         
 
         handwritten, was sent to the Department of Transportation office 
 
         in Ames rather than to Vannoni, but he eventually received a copy 
 
         of the form.
 
         
 
         Claimant's exhibit 9 is a collection of her medical records and 
 
         reports.  At page one it is indicated she injured her back while 
 
         using a pick on March 4, 1981 and was taken off work for three 
 
         days.  Page four contains an entry of December 10, 1982 which 
 
         reports an injury while lifting bags of chloride.  It seems to 
 
         indicate that claimant was to remain off work until December 13, 
 
         1983.  Page six contains an office note dated November 9, 1983 
 
         which reads as follows:
 
         
 
              In with back and neck discomfort.  Has been present the 
 
              past 2 weeks.  Hurt back 2 years ago and has not been 
 
              since [sic].  Works heavy manual laboring, shoveling, 
 
              heavy lifting, for the Depart. of Transportation.  Two 
 
              weeks ago, states was lifting up to comb her hair when 
 
              suddenly had back pain in the lower and upper back.  
 
              Has taken Motrin the past week or so without any 
 
              improvement.  Headache also present.
 
         
 
              When claimant did not recover under conservative treatment, 
 
         she was hospitalized.  The history upon admission is found in 
 
         claimant's exhibit 3 which states:
 
         
 
              HISTORY OF PRESENT ILLNESS: This 29 year old female 
 
              admitted to the hospital through the Family Medical 
 
              Center with increasing severe low back pain, 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   5
 
         
 
         
 
              unresponsive to out-patient physical therapy over the 
 
              past week daily.  She has had the pain for about the 
 
              past three weeks.  She stated that about the time 
 
              before the pain began, she has been lifting a comb to 
 
              comb her hair when she suddenly had severe pain and 
 
              upper back pain as well.  She gives a history of two 
 
              years ago hurting her back and states has not been 
 
              bothering since then until the present above reported 
 
              episode.
 
         
 
               A note from a physical therapist dated November 11, 1983 is 
 
          found at page 19 of exhibit 9. It states:
 
         
 
              The patient stated she hurt her back approximately two 
 
              years ago doing maintenance work for the highway 
 
              department.  She states that it basically hurts in the 
 
              midback and also up high into the neck region.  She 
 
              does have some radiating buttock pain and also hip 
 
              joint pain.
 
         
 
              The therapist notes that claimant is in subacute back and
 
         
 
         
 
         
 
         
 
         upper neck distress due to a work-related injury.  No mention is 
 
         made of any recent incident.
 
         
 
              A lumbar CT scan was performed on November 22, 1983 and was 
 
         interpreted as showing nothing abnormal (claimant's exhibit 9, 
 
         page 22).
 
         
 
              Claimant was examined by Donald D. Berg, M.D., on December 
 
         2, 1983.  The report states:
 
         
 
              She is complaining of back pain.  She was shoveling wet 
 
              sand and dirt away from a curb and was putting this in 
 
              an endloader bucket on November 20 [sic], 1983 in 
 
              Fremont, Iowa when she developed back pain with pain in 
 
              the lumbar spine which radiates down into her buttocks 
 
              and back of her legs. (Claimant's exhibit 9, page 23).
 
         
 
         Later in the record the incorrect date is clarified (claimant's 
 
         exhibit 9, page 26).
 
         
 
              Claimant was seen at the University of Iowa Hospitals and 
 
         Clinics on February 6, 1984.  At that time she gave a history of 
 
         developing severe, sharp low back pains as a result of shoveling 
 
         wet sand on approximately November 9, 1983 (claimant's exhibit 
 
         6).  No mention is made of falling from a stool.
 
         
 
              On April 16, 1985, claimant was evaluated at the Mayo 
 
              Clinic.
 
         
 
         The report states, in part:
 
         
 
              She indicated that she did not have any back or leg 
 
              problem until January of 1981 when she fell at work and 
 
              developed back pain.  She reported persistence of this 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   6
 
         
 
         
 
              pain with periods of aggravation.  In late October of 
 
              1983, she fell at home while standing on a stool of 
 
              about six inches high, hanging curtains.  She slipped 
 
              but caught herself and landed on her feet.  There were 
 
              no immediate problems, but the next morning while 
 
              getting ready in front of the mirror as she lifted her 
 
              arm to comb her hair, she experienced severe low 
 
              interscapular pain which extended down to the left 
 
              buttock and posterior aspect of the left thigh. 
 
              (Claimant's exhibit 4).
 
         
 
              Claimant was evaluated at the Mercy Hospital Medical 
 
         Occupational Evaluation Center on October 30, 1985.  The 
 
         significant past history reported by Joshua Kimelman, D.O., 
 
         states that claimant reported to him that she had worked in 
 
         constant and severe back pain during the last two years she had 
 
         worked for the Department of Transportation and that she 
 
         attributed the pain to multiple episodes of job-related injuries.  
 
         In claimant's 
 
         
 
         exhibit 7, Dr. Hart indicates that he received from Dr. Berg a 
 
         history of claimant injuring her back while shoveling wet sand 
 
         and dirt.
 
         
 
              In a report dated July 15th, 1986, R.R. Reschly, M.D., an 
 
         orthopaedic surgeon, indicates that claimant has reported having 
 
         six or seven different accidents and that it would be impossible 
 
         for him to determine how much of her current problems should be 
 
         assigned to each of those various accidents (claimant's exhibit 
 
         8).
 
         
 
              Claimant has been thoroughly evaluated by a number of 
 
         physicians at a number of medical facilities.  She suffers from a 
 
         number of medical ailments, including her back problems.  Dr. 
 
         Reschly has rated her as having a 20% permanent partial 
 
         impairment (claimant's exhibit 2).  He did not believe that she 
 
         was malingering even though her subjective complaints seemed to 
 
         outweigh the objective medical findings that had been made.  
 
         Thomas H. Stanzel, D.C., has rated claimant as having a 15% 
 
         permanent partial impairment (claimant's exhibit 1).
 
         
 
                             APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on or about November 9, 1983 
 
         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.2 548 (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).
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   7
 
         
 
         
 
         
 
              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).
 
         
 
              The evidence is conflicting on several important matters 
 
         concerning the events of November 7, 8 and 9, 1983.  At hearing, 
 
         claimant admitted falling from a stool at her home while hanging 
 
         curtains and experiencing pain in her upper back the following 
 
         morning.  In claimant's exhibit 4, however, the history includes 
 
         pain running into the left buttock and thigh while combing the 
 
         hair.  In her testimony, claimant stated she did not miss any
 
         
 
         work as a result of the fall from the stool, but Vannoni 
 
         indicated she missed work on October 26 and that she took 
 
         vacation on November 1. At one point in her testimony, claimant 
 
         stated that the problems from falling off the stool resolved, but 
 
         at another point she states that her low back pain increased 
 
         during the period of time commencing with October 25, 1983.  
 
         Claimant stated that she had been assigned to shoveling for eight 
 
         hours a day for approximately ten days prior to November 9, 1983, 
 
         but that testimony is clearly contradicted by testimony from 
 
         Vannoni, Stewart and McCombs.  Claimant testified that she 
 
         reported the injury immediately to Stewart and McCombs, but they 
 
         both denied any such report.  Only Stewart, who is himself now 
 
         disabled and retired from the Department of Transportation, could 
 
         recall any complaint of back discomfort and he indicated that it 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   8
 
         
 
         
 
         was in the nature of claimant saying that shoveling bothered her 
 
         back more than scrubbing floors.  Claimant testified that she had 
 
         been assigned to perform shoveling up until the time Vannoni came 
 
         to get her for the doctor's appointment, but Vannoni testified 
 
         that she had been in the shop all morning prior to the doctor's 
 
         appointment and also for the last two hours of the preceding day.  
 
         Similar inconsistencies exist regarding an accident report.  The 
 
         initial medical records show claimant's initial history to have 
 
         dealt with combing her hair (claimant's exhibit 9, page 6; 
 
         claimant's exhibit 3).  The early records from Dr. Hart make no 
 
         mention of injury while shoveling or from slipping off a stool.  
 
         Claimant's records with Dr. Berg deal with injury by shoveling 
 
         and make no mention of any problems in falling from a stool or 
 
         while combing her hair (claimant's exhibit 9, page 23).  The Mayo 
 
         Clinic report refers to falling from a stool and makes no mention 
 
         of any injury while shoveling.
 
         
 
              Claimant testified to having problems getting along with 
 
         co-employees in her early years of employment with the Department 
 
         of Transportation, but stated that during the last year or more 
 
         she had gotten along well with the other employees.  She stated 
 
         that she did not have any problems whatsoever with Vannoni.
 
         
 
              Falling from a stool could produce a substantial impact to a 
 
         person's spine if they landed in the wrong position.  If such an 
 
         injury had occurred, it would be expected that an activity such 
 
         as shoveling or any other lifting would produce discomfort.  
 
         Falling from the stool is found to have produced significant 
 
         injury in the sense that it did cause claimant to take off work 
 
         on October 26, 1983.  The fact that she took vacation on November 
 
         1, 1983 is unexplained, but it clearly shows that she did not 
 
         work on that day.  In short, claimant's testimony regarding her 
 
         activities of November 7, 8 and 9, 1983 are not well corroborated 
 
         by other evidence in the record.  In fact, her testimony is 
 
         contradicted in several ways.  The evidence in this case shows a 
 
         significant possibility that claimant sustained a serious and 
 
         permanent injury in 1981, but that event is not being 
 
         adjudicated.  The results of any prior permanent injury could 
 
         likely make
 
         claimant more susceptible to injury than an average person or 
 
         than what she herself had previously been.  When all the evidence 
 
         is considered, it is determined that claimant has failed to prove 
 
         by a preponderance of the evidence that she sustained injury on 
 
         November 7, 8 or 9, 1983 which arose out of and in the course of 
 
         her employment.  While such an occurrence of injury is possible 
 
         under the evidence presented, it is not shown to be any more 
 
         likely a source of her current problems than the incident of 
 
         falling from the stool at her home.  In fact, the fall from the 
 
         stool seems to be the primary precipitating event for the 
 
         problems for which claimant seeks benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Connie M. Stufflebeam has experienced a series of 
 
         injuries while she was employed by the Department of 
 
         Transportation, some of which produced an undetermined degree of 
 
         permanent disability.
 
         
 
              2.  On or about October 24, 1983, Connie M. Stufflebeam fell 
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   9
 
         
 
         
 
         from a stool while hanging curtains at her home and injured her 
 
         back.
 
         
 
              3.  As a result of that back injury, Stufflebeam was absent 
 
         from work on October 26, 1983.
 
         
 
              4.  In the days following October 24, 1983, claimant's back 
 
         problems worsened.
 
         
 
              5.  On November 7 and 8, 1983, Stufflebeam worked as part of 
 
         a three-person crew cleaning sand and dirt from highway gutters 
 
         near Fremont, Iowa.  In doing so, she shoveled, operated a 
 
         tractor and operated a traffic control sign.
 
         
 
              6.  Stufflebeam experienced discomfort while working on 
 
         November 7 and 8, 1983, but did not make any report of injury to 
 
         her immediate supervisor, McCombs, or to Vannoni, the highway 
 
         maintenance supervisor, until she requested an accident report 
 
         form from him on November 21, 1983.
 
         
 
              7.  When claimant initially sought treatment from Dr. Hart 
 
         on November 9, 1983, she did not report falling from a stool, but 
 
         did report difficulty while combing her hair.  She also related 
 
         that her job involved shoveling and physical labor, but did not 
 
         relate any recent incident of injury while shoveling.
 
         
 
              8.  Claimant has failed to introduce evidence showing it to 
 
         be more likely than not that she injured herself while shoveling 
 
         on November 7, 8 or 9, 1983.
 
         
 
              9.  Claimant has failed to establish the credibility of her. 
 
         testimony.
 
         
 
              10.  The testimony from Stewart, McCombs and Vannoni is 
 
         accepted as being correct.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to carry the burden of proving that 
 
         she sustained an injury which arose out of and in the course of 
 
         her employment with the Iowa Department of Transportation on 
 
         November 7, 8 or 9, 1983.
 
         
 
              3.  Claimant has failed to prove an entitlement to any 
 
         benefit provided under Chapter 85 of the Code.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that costs of this action are assessed 
 
         against defendants pursuant to Division of Industrial Services' 
 
         Rule 343-4.33.
 
         
 
         
 

 
         
 
         
 
         
 
         STUFFLEBEAM V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page  10
 
         
 
         
 
         Signed and filed this 17th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                             MICHAEL G. TRIER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael Brice
 
         Attorney at Law
 
         402 High Avenue E
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. Mark Hunacek
 
         Assistant Attorney General
 
         Iowa Department of Transportation 
 
         800 Lincoln Way
 
         Ames, Iowa 50010
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.20, 1402.30
 
                                                 Filed September 17, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
          CONNIE M. STUFFLEBEAM,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 752191
 
         IOWA DEPARTMENT OF
 
         TRANSPORTATION,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
         and
 
                                                 D E C I S I 0 N
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.20, 1402.30
 
         
 
              Claimant's testimony of the circumstances of her injury were 
 
         uncorroborated.  In fact, they were contradicted in a number of 
 
         ways.  It was held that claimant failed to establish the 
 
         credibility of her testimony.  It was held that claimant had 
 
         failed to prove by a preponderance of the evidence that she 
 
         sustained an injury which arose out of and in the course of her 
 
         employment.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENDA K. HUTT,
 
         
 
             Claimant,
 
         
 
         VS.                                      FILE NO. 752425
 
         
 
         LUTHERAN HOME FOR AGING,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         INSURANCE COMPANY OF NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Brenda K. 
 
         Hutt, claimant, against Lutheran Home for Aging, employer 
 
         (hereinafter referred to as Lutheran Home), and Insurance Company 
 
         of North America, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on December 6, 1983.  
 
         On September 9, 1987, a hearing was beld on claimant's petition 
 
         and the matter was considered fully submitted at the close of 
 
         this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which is approved and accepted as a part 
 
         of the record in this case at the time of hearing.  Oral 
 
         testimony was received during the bearing from claimant and the 
 
         following witnesses: Harry Hutt and Elizabeth Barstead.  The 
 
         exhibits received into the evidence at bearing are listed in the 
 
         prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  On December 6, 1983, claimant received an injury which 
 
         arose out of and in the course of her employment with Lutheran 
 
         Home.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $129.41 per week.
 
         
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   2
 
         
 
         
 
              3.  Claimant is only seeking temporary total disability 
 
         or
 
         
 
         healing period benefits from December 6, 1983 which is the last 
 
         day claimant worked for Lutheran Home.
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  The medical bills submitted by claimant at the hearing 
 
         in the prehearing report were fair and reasonable but that the 
 
         issue of their causal connection to a work injury remains an 
 
         issue to be decided.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding in the prehearing report.
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              II. The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
             III  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              Claimant testified that she worked for Lutheran Home from 
 
         1978 until the alleged work injury in this case as a nurses aid 
 
         She stated that her duties consisted of taking care of elderly 
 
         persons on the night shift.  During her employment, claimant 
 
         attended and successfully completed a medical course at an area 
 
         community college to assist in giving medication to patients.  
 
         Claimant earned approximately $9,000 to $10,000 per year in this 
 
         job prior to the alleged work injury.  Claimant testified that 
 
         she was considered a good worker during her Lutheran Home 
 
         employment.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that on or about December 6, 1983, 
 
         she slipped and fell on ice adjacent to an exit from the Lutheran 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   3
 
         
 
         
 
         Home while leaving her shift.  Claimant stated that she lost 
 
         consciousness briefly after the fall and awoke on her back.  
 
         Claimant said that she bad pain in her back, neck and head after 
 
         the fall.  Claimant was initially treated by Robert L. Bender, 
 
         II, M.D., after the injury.  Dr. Bender only saw claimant once 
 
         and prescribed at that time Indocine.  In a report submitted into 
 
         the evidence, Dr. Bender states that he considered the injury as 
 
         minor.
 
         
 
              Claimant then sought treatment from her family physician, 
 
         John L. Beattie, M.D., a general practitioner with a specialty in 
 
         general surgery.  Dr. Beattie first saw claimant on December 9, 
 
         1983 with complaints of cervical and thoracic pain and head pain.  
 
         Dr. Beattie diagnosed a cerebral concussion and ordered X-rays 
 
         which revealed nothing abnormal.. Claimant also complained of 
 
         dizziness and vertigo.  Dr. Beattie prescribed muscle relaxants, 
 
         pain medication and anti-vertigo medicine at this time along with 
 
         physical therapy.  The complaints persisted over the next several 
 
         weeks and claimant was referred by Dr. Beattie to Michael J. 
 
         Kitchell, M.D., a neurologist.  Dr. Kitchell examined claimant in 
 
         January, 1984.  Claimant complained to him of neck, back and head 
 
         pain along with dizziness and difficulty in concentrating and 
 
         sleeping.  Dr. Kitchell reports that his neurological examination 
 
         of claimant revealed nothing abnormal and Dr. Kitchell concluded 
 
         that claimant has symptoms typical of post-concussive syndrome.  
 
         He prescribed Amitriptyline (trademade Elavil) to prevent 
 
         headaches and muscle spasms.  Claimant then returned to Dr. 
 
         Beattie in February, 1984, with additional complaints of cold 
 
         sweats, shakes, nausea, depression symptoms and crying easily.  
 
         Dr. Beattie increased the level of Amitriptyline, which is 
 
         normally an anti-depressant medicine.  On February 27, 1984, 
 
         claimant was admitted to the hospital for a short period of time 
 
         after passing out in the bathroom of her home upon awakening one 
 
         morning.  No diagnosis was made at the time except that the 
 
         hospital doctors reported that the episode was probably due to 
 
         post-concussive disorder.  In March, 1980, claimant complained to 
 
         Dr. Beattie that an increase in physical activity causes tremors, 
 
         weakness, headaches, nausea and rapid heartbeats.  Dr. Beattie 
 
         felt that claimant's problems were related to depression but 
 
         referred claimant back to Dr. Kitchell in April, 1984.  Upon his 
 
         reexamination of claimant, Dr. Kitchell felt that due to the fact 
 
         that an EKG of claimant's heart proved to be normal, the rapid 
 
         heartbeat and tremors were caused by the Elavil medication and 
 
         recommended a different anti-depressant drug.  Dr. Kitchell also 
 
         concluded at the time that claimant's problems were functional or 
 
         mentally induced and attributable to anxiety attacks.  Dr. 
 
         Kitchen recommended that claimant return to work as soon as 
 
         possible.
 
         
 
              Claimant apparently did not like what Dr. Kitchell had to 
 
         say and she had Dr. Beattie refer her to another neurologist, 
 
         Michael J. Steine, D.O.  After his examination of claimant in 
 
         June, 1984, Dr. Steine essentially concurred with the views of 
 
         Dr. Kitchell and felt that claimant's problems were probably 
 
         emotional.  Claimant then returned to Dr. Beattie who admitted in 
 
         his deposition that the persistence of claimant's symptoms were 
 
         unusual in the normal post-concussive syndrome case.  In 
 
         September, 1984, Dr. Beattie stated that claimant should undergo 
 
         education to teach her how to live with her difficulties.  In 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   4
 
         
 
         
 
         October, 1984, Dr. Beattie prescribed an addictive pain 
 
         medication to help eleviate claimant's pain complaints.  Claimant 
 
         at that time was complaining of headaches lasting four to seven 
 
         days.  Dr. Beattie continued to treat claimant for the rest of 
 
         1984 and into 1985.
 
         
 
              In a treatment and referral process which Dr. Beattie labels 
 
         in his deposition testimony as "musical doctors" in an attempt to 
 
         arrive at a diagnosis of claimant's symptoms, Dr. Beattie 
 
         referred claimant to the neurological department of the 
 
         University of Iowa Hospitals and Clinics in April, 1985.  Rodney 
 
         Quinn, M.D., the staff neurologist at the University of Iowa 
 
         reports that his diagnosis was again a post-concussive syndrome.  
 
         Dr. Quinn goes on to rate claimant as suffering from a permanent 
 
         impairment in the following manner:
 
         
 
              For complex integrated cerebral
 
                   function disturbance               5%
 
              Emotional disturbance                   5%
 
              Episodic neurological disorder          5%
 
         
 
         Dr. Quinn combines these ratings into an overall permanent rating 
 
         of 14 percent for her problems.  There was no explanation from 
 
         Dr. Quinn as to the nature of a condition which he termed as 
 
         complex integrated cerebral function disturbance.  Dr. Quinn had 
 
         reported that claimant's neurological exam was normal.
 
         
 
              According to Dr. Beattie in his deposition testimony, Dr. 
 
         Quinn's diagnosis changed his views in that he felt before that 
 
         the symptoms were only functional and caused by depression.  
 
         However, this new diagnosis caused Dr.  Beattie to believe that 
 
         there was a dysfunction of claimant's brain.  Dr. Beattie 
 
         continues to treat claimant at the present time primarily with 
 
         medication.  At the present time claimant continues to complain 
 
         of chronic headaches (lasting days at times requiring bed rest), 
 
         a sore back, shoulder and neck problems, periodic dizziness, hot 
 
         flashes, shakiness, crying episodes, faintness, weakness and 
 
         rapid heartbeating which she claims occurs after even light 
 
         physical activity such as washing dishes or other light household 
 
         work.  Dr. Beattie opines that claimant is unable to work and is 
 
         totally disabled primarily because of her mental dysfunction and 
 
         headaches.
 
         
 
              In November, 1985, claimant was examined by Thomas A. 
 
         Carlstrom, M.D., a board certified neurosurgeon.  Dr. Carlstrom 
 
         states in his deposition testimony that from his examination of 
 
         claimant, review of past medical records and examination of CT 
 
         scans and EMG tests he ordered, he could not arrive at a 
 
         diagnosis of claimant's symptoms.  He did not find any evidence 
 
         to support the types of conditions rated by Dr. Quinn.  Dr. 
 
         Carlstrom initially felt that claimant's symptoms would be due to 
 
         either temporal seizures or hyperventilation from anxiety.  He 
 
         has since ruled out temporal seizures as a possible cause.  He 
 
         also opines that claimant suffers from no permanent impairment 
 
         from the symptoms and could not detect any mental impairment or 
 
         memory loss upon his examination of claimant.  Claimant had 
 
         related to the doctor many things in her past history which 
 
         indicated a normal memory.  Dr. Carlstrom states as follows in 
 
         his last report: "I think basically this is a patient whose 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   5
 
         
 
         
 
         motivation is low enough that any symptoms, however mild, will 
 
         result in a lack of interest in pursuing occupational goals."
 
         
 
              Claimant is currently working part-time in a nursing home 
 
         wheeling patients in wheelchairs to the dining room and assisting 
 
         in their feeding.  Claimant works approximately two hours per day 
 
         at the rate of $4.00 per hour.  Claimant stated that she tried to 
 
         work three hours but her back and neck hurt so much that it was 
 
         impossible for her to walk.  She has not applied for other 
 
         employment and she states that she does not know what she can 
 
         do.
 
         
 
              Claimant is 44 years of age and has completed high school.  
 
         Claimant testified that she was a homemaker for a number of years 
 
         after high school.  As stated above, claimant completed a med-aid 
 
         course at a local area community college.  Claimant indicates 
 
         that she received high grades in this course.  Claimant's past 
 
         employments have been as a waitress and in various clerical 
 
         positions.
 
         
 
              Claimant denies any physical or mental problems before 
 
         December, 1983.  According to Dr. Beattie, claimant has 
 
         complained to him of headaches as far back as 1979.  Dr. 
 
         Beattie's office records also show a continuation of headache 
 
         complaints both in 1980 and 1981.  However, claimant was not 
 
         treated by Dr. Beattie for these headaches in the past.  Claimant 
 
         admits in her testimony that she had headaches in the past before 
 
         the work injury and labels them as tension headaches.  She states 
 
         that now her headaches are "migraine" and much more severe than 
 
         in the past.  No physician makes the same type of distinction as 
 
         claimant in the type of headaches she is having.  It should be 
 
         noted that Dr. Quinn, at the University of Iowa Hospitals and 
 
         Clinics, did not mention any prior headache problems in his 
 
         reports and neither does Dr. Carlstrom.  Dr. Kitchell., however, 
 
         specifically notes claimant's history of headaches before the 
 
         alleged work injury in this case.
 
         
 
              In February, 1985, a vocational rehabilitation specialist, 
 
         Elizabeth Barstead, was retained by the defendant's insurance 
 
         carrier.  Barstead initially talked with Dr. Beattie who 
 
         apparently indicated to her that claimant was not employable.  
 
         Barstead attempted to work with Lutheran Home and with Dr. 
 
         Kitchell who approved a plan to gradually return claimant to 
 
         work.  Claimant however did not cooperate and wrote Barstead that 
 
         she was unable to return to work.  At hearing Barstead testified 
 
         that claimant has skills that are marketable in the geographical 
 
         area of her residence and that there are jobs in the Des Moines 
 
         area available to claimant in the clerical and medical assistant 
 
         field.  She notes that no doctor has imposed physical 
 
         restrictions upon claimant's activity.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   6
 
         
 
         
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal. connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the exsert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
             Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such.evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that she suffered 
 
         a permanent disability as a result of a work injury due to 
 
         permanent impairment to the body as a whole.  This body as a 
 
         whole impairment is allegedly caused by chronic neck and shoulder 
 
         problems as well as chronic headaches, vertigo and other symptoms 
 
         allegedly attributable to a brain disorder or emotional problems.  
 
         The preponderance of the evidence fails to demonstrate such a 
 
         permanent impairment despite a showing by the greater weight of 
 
         evidence that her emotional problems were apparently precipitated 
 
         by the December, 1983, work injury.
 
         
 
              All of the claimant's physicians agree that claimant 
 
         certainly has considerable symptomatology and the consensus of 
 
         the medical opinion in claimant's case is that the symptoms are 
 
         due to depression and anxiety.  Although claimant had headaches 
 
         before, there is no evidence that she experience any sort of 
 
         symptoms such as dizziness, vertigo, severe chronic headaches, 
 
         nausea or rapid heart rate before the work injury.  It does not 
 
         matter whether these symptoms are functional or mentally induced 
 
         as they were clearly either induced or significantly aggravated 
 
         by the work injury.
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   7
 
         
 
         
 
         
 
              However, the question of whether claimant's symptoms have 
 
         resulted in permanent disability is another matter.  First, 
 
         claimant's testimony cannot be solely relied upon as most of the 
 
         doctors believe that her complaints far exceed objective 
 
         evidence.  Claimant has not otherwise established that she 
 
         suffers from permanent impairment either due to her physical or 
 
         mental problems.  With reference to claimant's physical 
 
         complaints, no physician including Dr. Beattie has opined that 
 
         claimant suffers from permanent impairment due to her back or 
 
         neck problems.  Dr. Beattie indicates that claimant's primary 
 
         difficulties is not with her back or neck but with her headaches, 
 
         dizziness and what other physicians describe as depression or 
 
         anxiety symptoms.
 
         
 
              With reference to claimant's depressive symptoms or 
 
         headaches, Dr. Beattie felt that claimant is totally disabled.  
 
         Aside from the fact that he does not adequately explain what 
 
         precise activities claimant is unable to perform, his views 
 
         cannot be given the greater weight in this proceeding.  He is not 
 
         a specialist in neurological problems and his views as to the 
 
         permanency of any neurological condition cannot be given more 
 
         weight than those of neurological specialists.  Of the four 
 
         specialists in the field of neurology who have rendered opinions 
 
         in this case, only one at the University of Iowa gives impairment 
 
         ratings for the persistence of post-concussive syndrome.  This 
 
         opinion appears to have limited value as no mention is made of 
 
         claimant's prior headaches before 1983.  On the other hand, the 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   8
 
         
 
         
 
         three remaining specialists, Drs.  Kitchell, Steine and 
 
         Carlstrom, agree that claimant's problems are primarily 
 
         functional and do not result in permanent impairment or an 
 
         inability to work.  Finally, no physician, including Dr. Beattie, 
 
         has imposed physical restrictions on activity due to claimant's 
 
         mental difficulties.  The fact that claimant's symptoms persist 
 
         today was certainly considered in this decision but claimant has 
 
         not established that the persistence of symptoms is due to a 
 
         permanent condition rather than a lack of proper treatment by 
 
         health care practitioner with a specialty in the field of 
 
         neurology or mental illness.
 
         
 
              Although claimant has not established permanent impairment 
 
         or entitlement to permanent disability benefits, she is entitled 
 
         to weekly benefits for temporary total disability under Iowa Code 
 
         section 85.3(l) from the date of injury until she returns to work 
 
         or until she is medically capable of returning to substantially 
 
         similar work to the work she was performing at the time of 
 
         injury.
 
         
 
              On May 23, 1984, Dr. Kitchell opined it was now time for 
 
         claimant to return to work.  His opinions were supported by Dr. 
 
         Steine and later Dr. Carlstrom.  Therefore, claimant has 
 
         established a period of temporary total disability beginning on 
 
         the date of injury until Dr. Kitchell's examination on May 23, 
 
         1984.  According to the prehearing report, claimant has already 
 
         been paid 69 weeks of weekly benefits and therefore, claimant is 
 
         not entitled to further benefits.
 
         
 
              II. Claimant is entitled to reimbursement for reasonable 
 
         medical expenses incurred as a result of a work injury under Iowa 
 
         Code section 85.27.  According to the prehearing report, claimant 
 
         seeks reimbursement for $128 for treatment by Dr. Beattie from 
 
         August 17, 1984 to August 27, 1987.  The medical records show 
 
         that claimant was treated for the conditions found causally 
 
         connected to the December, 1983 injury above.  Defendants' 
 
         contentions with reference to these expenses is not clear.  
 
         Although defendants may claim that the treatment was not 
 
         authorizes, defendants have denied liability for the claimantOs 
 
         symptomatology treated by Dr. Beattie and therefore have no right 
 
         to chose the care.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 
         Commissioner Report 16 (1981).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Due to her demeanor and history of functional pain 
 
         complaints, claimant was not found to be a credible witness with 
 
         reference to her extent and nature of disability.
 
         
 
              2.  Claimant was in the employ of Lutheran Home at all times 
 
         material herein.
 
         
 
              3.  On December 6, 1983, claimant suffered an injury to the 
 
         upper back, neck and head in a fall which arose out of and in the 
 
         course of her employment at Lutheran Home.  The injury resulted 
 
         in post-concussive syndrome with persistent complaints of 
 
         headaches, dizziness and depression and anxiety symptoms.
 
         
 
              4.  The work injury of December 6, 1983 was a cause of a 
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page   9
 
         
 
         
 
         period of disability from work beginning on December 6, 1983 and 
 
         ending on May 23, 1984 at which time claimant was able to return 
 
         to substantially similar work she was performing at the time of 
 
         the work injury.
 
         
 
              5.  Although claimant suffers from depression and anxiety 
 
         symptoms which may require additional treatment in the future, 
 
         claimant is not disabled from work as a result of these symptoms 
 
         and it could not be found from the evidence presented that she 
 
         suffers from permanent impairment as a result of the December 6, 
 
         1983 injury.
 
         
 
              6.  The medical expenses listed in claimant's exhibit 4 
 
         which, according to the prehearing report are the expenses which 
 
         claimant seeks reimbursement in this proceeding, are fair and 
 
         reasonable and were incurred by claimant for reasonable and 
 
         necessary treatment of her work injury on December 6, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits as awarded below.  Claimant 
 
         has not established entitlement to any further weekly benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant the sum of one hundred 
 
         twenty-eight and no/100 dollars ($128.00) in medical expenses.
 
         
 
              2.  Each party shall pay their own costs of this action 
 
         under Division of Industrial Services Rule 343-4.33 except that 
 
         claimant and defendants will equally divide the cost of the court 
 
         reporter at hearing.
 
         
 
              3.  Defendants shall file activity reports on payment of 
 
         this award as requested by this agency.
 
         
 
         
 
              Signed and filed this 25th day of November, 1987.
 
         
 
         
 
         
 
                                        
 
                                             LARRY P. WALSHIRE
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         
 
         
 
         Mr. Gregory L. Kenyon
 
         Attorney at Law
 
         930 Grand
 
         West Des Moines, Iowa 50265
 

 
         
 
         
 
         
 
         HUTT V. LUTHERAN HOME FOR AGING
 
         Page  10
 
         
 
         
 
         
 
         Mr. Frank T. Harrison 
 
         Attorney at Law 
 
         Suite 1110, Terrace Center
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed November 25, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENDA K. HUTT,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                     FILE NO.  752425
 
         LUTHERAN HOME FOR AGING,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         INSURANCE COMPANY OF NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Although claimant established a causal connection between 
 
         her depression and anxiety symptoms to the work injury, claimant 
 
         failed to establish that the symptoms resulted in permanent 
 
         impairment and permanent disability benefits were denied.  
 
         Claimant was awarded temporary total disability benefits for a 
 
         limited period of time and it was found due to the fact that 
 
         claimant had already been paid these benefits, no further 
 
         benefits were awarded.  Claimant was given additional medical 
 
         benefits in the decision.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONFR
 
         _________________________________________________________________
 
         
 
         ELDON PAY, JR.,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 752493
 
         G.E.T. PLASTICS,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         COMMERCIAL UNION INSURANCE
 
         COMPANIES,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a decision on 86.13 benefits denying 
 
         all such benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         hearing, claimant's exhibits 1 through 5 and defendants' 
 
         exhibitEA.  Both parties filed briefs on appeal.
 
         
 
                                  ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                   I.   When does interest start to accrue when 
 
              liability and permanency are both an issue?
 
         
 
                   II.  Should a penalty be assessed for failure to 
 
              timely make payment to claimant pursuant to the 
 
              deputy's decision?
 
         
 
                   III.  Should a penalty be assessed for defendants' 
 
              failure to make payment to claimant of medical expense 
 
              as specifically ordered in the deputy's decision?
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              An arbitration decision was filed in this case on April 24, 
 
         1985.  The following order appears in that decision:
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
                   Defendants pay claimant permanent partial benefits 
 
              for fifty (50) weeks at a rate of two hundred eleven 
 
              and 15/100 dollars ($211.15).
 
         
 

 
                   Defendants pay claimant healing period benefits at 
 
              a rate of two hundred eleven and 15/100 dollars 
 
              ($211.15) from the date he was actually off work on 
 
              account of his injury through June 4, l984.
 
         
 
                   Defendants pay accrued amounts in a lump sum.
 
         
 
                   Defendants pay claimant the following medical 
 
              expenses:
 
         
 
                Neuro-Associates, P.C.                     $3,965.00
 
                Gary D. Parson, D.C.                          189.00
 
                Medical Center Anesthesiologists, P.C.        350.00
 
                Mercy Hospital Medical Center               5,158.24
 
         
 
                   Defendants pay claimant mileage expenses for 
 
              2,497 miles at a rate of twenty-four cents ($.24) 
 
              per mile.
 
         
 
                   Defendants pay interest pursuant to section 
 
              85.30.
 
         
 
                   Defendants pay costs of this proceeding.
 
         
 
                   Defendants file a final report when this award is 
 
              paid.
 
         
 
              In his professional statement made at the hearing 
 
         defendants' attorney stated that following expiration of the 20 
 
         day period for filing an appeal after the arbitration decision he 
 
         requested partial disability, healing period and mileage as 
 
         specified in the arbitration decision.  No where in the 
 
         arbitration decision does it say that claimant actually paid 
 
         those medical expenses himself.  Defendants' attorney admitted 
 
         that he neglected to inform the insurance carrier of the amount  
 
         of interest which was due on the arbitration award.
 
         
 
              Defendants' attorney disclosed that the check for the 
 
         permanent partial disability, healing period and mileage was 
 
         returned to him uncashed.  Defendants' attorney responded by 
 
         sending a letter to claimant's attorney and re-tendered the 
 
         original check and offered to have a check in the amount of 
 
         $1,478.87 issued to claimant to cover the interest awarded in the 
 
         arbitration decision.
 
         
 
         
 
              Defendants' attorney then received a letter from claimant's 
 
         attorney inquiring whether or not the check that was re-tendered 
 
         would constitute partial payment.  Defendants' attorney replied 
 
         in a letter dated July 5, 1.985, which states:
 
         
 
              This check represents the complete amounts due your 
 
              client under the decision for those items, and does not 
 
              constitute a partial payment of those specific 
 
              benefits.  Additionally, as set out in my letter to you 
 
              of June 26, 1985, 1 have requested Commercial Union to 
 
              issue a check to your client-in the amount of $1,478.87 
 
              representing the interest due to the date of the 
 
              arbitration decision.  Likewise, that check will 
 
              represent full payment of those interest amounts and 
 
              not a partial payment.  Do with these drafts what you 
 
              will with this knowledge.
 
         
 
         (Claimant's Exhibit 4)
 

 
         
 
         
 
         
 
         RAY V. G.E.T. PLASTICS
 
         Page   3
 
         
 
         
 
         
 
              Defendants' attorney next beard from claimant's attorney in 
 
         November of 1985 when claimant's attorney informed him that the 
 
         re-tendered check had not been cashed and the time for cashing it 
 
         had expired.  Another check was sent which defendants' attorney 
 
         assumes has been cashed.
 
         
 
              Claimant's exhibit 5 is a letter to claimant's attorney from 
 
         defendants' attorney which states:
 
         
 
                   As per your request, I am writing you to verify 
 
              that the check now in your possession which was 
 
              originally tendered pursuant to the decision of the 
 
              Deputy Industrial Commissioner may be cashes and the 
 
              funds disbursed to your client.
 
         
 
                   This is done with the understanding that the 
 
              cashing of the check does not constitute a waiver by 
 
              either party of any of the remaining claims and that 
 
              all rights and remedies which either party may have by 
 
              virtue of the decision or method of payment is reserved 
 
              to them.
 
         
 
              Defendants' exhibit A contains copies of checks issued 
 
         pursuant to the arbitration decision.  Page I of exhibit A is a 
 
         copy of a check issued to claimant and his attorney in the amount 
 
         of $1,478.87. The issue date is August 7, 1985 and in the box 
 
         marked "In payment of" the notation "Interest" appears.  Page 2 
 
         is a copy of a check issued to claimant and his attorney in the 
 
         amount of $17,310.29. The issue date is June 3, 1985 and the box 
 
         marked "In payment of" the notation "For PPD, Mileage and Healing 
 
         period per Award." Pages 3 through 7 are copies of checks issued 
 
         to medical Providers totaling $8,119.50.
 
         
 
              Claimant revealed that he received a check following the 
 
         arbitration decision which was for permanent partial disability 
 
         and healing period.  He indicated he understood that this check 
 
         was to be full payment after reading the letters marked 
 
         claimant's exhibits 2 and 4.
 
         APPLICABLE LAW
 
         
 
              Iowa Code section 86.13, unnumbered paragraph 4 states:
 
         
 
                   If a delay in commencement or termination of 
 
              benefits occurs without reasonable or probable cause or 
 
              excuse, the industrial commissioner shall award 
 
              benefits in addition to those benefits payable under 
 
              this chapter, or chapter 85, 85A, or 85B, up to fifty 
 
              percent of the amount of benefits that were 
 
              unreasonably delayed or denied.
 
         
 
              In Klein v. Furnas Electric Company, 384 N.W.2d 370, 373 
 
         (Iowa 1986), the supreme court stated:
 
         
 
              Our reading of these statutes [86.13 and 85.36] 
 
              suggests that both of these statutes are applicable by 
 
              their express terms to weekly compensation payments for 
 
              industrial disability and do not support the allowance 
 
              of interest or penalties for late payment of medical 
 

 
         
 
         
 
         
 
         RAY V. G.E.T. PLASTICS
 
         Page   4
 
         
 
         
 
              expenses allowed under section 85.27. Nor does section 
 
              535.2 empower the commissioner to add interest onto the 
 
              award of medical expenses.
 
         
 
                                  ANALYSIS
 
         
 
              The first argument claimant asserts on appeal concerns 
 
         accrual of interest on late compensation payments.  The 
 
         prehearing report and order approving the same reflects that the 
 
         only issue for determination is whether a penalty should be 
 
         assessed pursuant to section 86.13 for late payment.  The only 
 
         other issue which appears in any of the prehearing orders is how 
 
         the medical expenses were paid.  The parties were aware of the 
 
         issues at he time of the prehearing and should have indicated at 
 
         that time that interest was an issue.  Since it  was not 
 
         discussed at the time of prehearing, it will not be considered 
 
         here.
 
         
 
              The second argument claimant raises is whether a penalty 
 
         should be assessed for failure to make timely payment of weekly 
 
         compensation due under the arbitration decision.  The deputy 
 
         found that defendants' actions in tendering payment of weekly 
 
         benefits were reasonable.  The record shows that a check for 
 
         permanent partial disability, healing period and mileage was 
 
         issued on June 3, 1985 and that claimant received that check 
 
         shortly thereafter.
 
         
 
         
 
              Claimant cannot, through his own refusal to cash his weekly 
 
         benefit check, seek penalty benefits for delay in payment of 
 
         those benefits.  The fact that the check defendants tendered did 
 
         not include medical expenses and interest as ordered by the 
 
         arbitration decision does not assist claimant's cause.  Cashing 
 
         the check as tendered by defendants would not have prejudiced 
 
         claimant's entitlement to payment of interest and medical 
 
         expenses.  Further, it is noted that defendants did issued a 
 
         check for interest due under the arbitration decision and that 
 
         this check was for a greater amount than claimant's attorney 
 
         requested in claimant's exhibit 1.
 
         
 
              The final argument claimant makes on appeal is whether a 
 
         penalty should be assessed for failure to make medical expense 
 
         payments to claimant as ordered.  Penalty benefits cannot be 
 
         awarded for delay in payment of medical expenses.  Klein at 373.
 
         
 
              The prior order indicated how the medical payments were to 
 
         be paid.  No one appealed that decision.  Enforcement of that 
 
         decision lies with the district court and not this tribunal (see, 
 
         Iowa Code section 86.42).
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  An arbitration decision was filed April 24, 1985 which 
 
         ordered payment to claimant of 50 weeks of permanent partial 
 
         disability, healing period benefits from the date claimant was 
 
         actually off work through June 4, 1984, mileage, interest and 
 
         certain medical expense.
 
         
 
              2.  Defendants tendered payment to claimant of permanent 
 

 
         
 
         
 
         
 
         RAY V. G.E.T. PLASTICS
 
         Page   5
 
         
 
         
 
         partial disability benefits, healing period benefits and mileage 
 
         on June 10, 1985.
 
         
 
              3.  Defendants paid medical expenses directly to the medical 
 
         providers.
 
         
 
              4.  Claimant did not cash checks tendered in payment of 
 
         permanent partial disability and healing period benefits.
 
         
 
              5.  Defendants did make a good faith attempt to commence 
 
         payment to claimant.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has not established that he is entitled to 
 
         additional benefits under section 86.13, unnumbered paragraph 4.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing as a result of this proceeding.
 
         
 
              That claimant pay the costs of this proceeding.
 
         
 
                                        
 
         
 
                Signed and filed this 30th day of November, 1987.
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Avenue
 
         Des Moines, Iowa 50317
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1403.20 - 3800 - 4000.2
 
                                            Filed November 30, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELDON RAY, JR.,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 752493
 
         G.E.T. PLASTICS,
 
                                                 A P P E A L
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         COMMERCIAL UNION INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1403.20 - 3800 - 4000.2
 
         
 
              Claimant cannot, through his own refusal to cash his weekly 
 
         benefit check, seek penalty benefits for delay in payment of 
 
         those benefits.  The fact that the check defendants tendered did 
 
         not include medical expenses and interest as ordered by the 
 
         arbitration decision does not assist claimant's cause.  Cashing 
 
         the check would not have prejudiced claimant's  entitlement to 
 
         interest and medical.  No penalty available for failure to make 
 
         medical expense payments as ordered.  Klein v. Furnas Electric 
 
         Company, 384 N.W.2d 370,373 (Iowa 1986)
 
 
 
         
 
 
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        MARTHA MCCOY,
 
        
 
            Claimant,
 
        
 
        vs.
 
        
 
        DONALDSON COMPANY, INC.,          Files Nos. 752670/805200
 
        
 
            Employer,                         A P P E A L
 
        
 
        and                                  D E C I S I O N
 
        
 
        TRAVELERS INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant Second Injury Fund of Iowa (hereinafter the Fund) 
 
        appeals from an arbitration decision awarding permanent partial 
 
        disability benefits as the result of an alleged injury on 
 
        September 1, 1982, and June 25, 1984. The record on appeal 
 
        consists of the transcript of the arbitration hearing; claimant's 
 
        exhibits A through Q; and defendant's exhibits 1 through 6. The 
 
        deputy reserved ruling on claimant's exhibit I.
 
        
 
        Both claimant and the Fund filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant Fund states the following issues on appeal:
 
        
 
        1. Deputy Walshire erred by raising sua sponte, the issue of 
 
        cumulative trauma into the case.
 
        
 
        2. Assuming cumulative trauma was a proper issue in the case, 
 
        Deputy Walshire erred by finding that claimant had sustained 
 
        cumulative trauma.
 
        
 
        3. Deputy Walshire erred in finding that the second injury fund 
 
        was liable to claimant.
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 2
 
        
 
        
 
        4. Deputy Walshire erred in awarding interest against the second 
 
        injury fund.
 
        
 
        5. Deputy Walshire erred in finding claimant's gross wages on 
 
        September 10, 1984, were $402.91.
 
        
 

 
        
 
 
 
 
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) 
 
        the industrial commissioner, after analyzing the decisions of 
 
        McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
        Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
        stated:
 
        
 
        Although the court stated that they were looking for the 
 
        reduction in earning capacity it is undeniable that it was the 
 
        "loss of earnings" caused by the job transfer for reasons related 
 
        to the injury that the court was indicating justified a finding 
 
        of "industrial disability." Therefore, if a worker is placed in 
 
        a position by his employer after an injury to the body as a whole 
 
        and because of the injury which results in an actual reduction in 
 
        earning, it would appear this would justify an award of 
 
        industrial disability. This would appear to be so even if the 
 
        worker's "capacity" to earn has not been diminished.
 
        
 
        For example, a defendant employer's refusal to give any sort of 
 
        work to a claimant after he suffers his affliction may justify an 
 
        award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
        181 (Iowa 1980).
 
        
 
        An injury may occur over a period of time. For time limitation 
 
        purposes, the injury in such cases occurs when, because of pain 
 
        or physical disability, the claimant is compelled to leave work. 
 
        McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985)
 
        
 
        Iowa Code section 85.64 states:
 
        
 
        If an employee who has previously lost, or lost the use of, one 
 
        hand, one arm, one foot, one leg, or one eye, becomes permanently 
 
        disabled by a compensable injury which has resulted in the loss 
 
        of or loss of use of another such member or organ, the employer 
 
        shall be liable only for the degree of disability which would 
 
        have resulted from the latter injury if there had been no 
 
        pre-existing disability. In
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 3
 
        
 
        
 
        addition to such compensation, and after the expiration of the 
 
        full period provided by law for the payments thereof by the 
 
        employer, the employee shall be paid out of the "Second Injury 
 
        Fund" created by this division the remainder of such compensation 
 
        as would be payable for the degree of permanent disability 
 
        involved after first deducting from such remainder the 
 
        compensable value of the previously lost member or organ.
 
        
 
        Any benefits received by any such employee, or to which the 
 
        employee may be entitled, by reason of such increased disability 
 
        from any state or federal fund or agency, to which said employee 
 
        has not directly contributed, shall be regarded as a credit to 
 
        any award made against said second injury fund as aforesaid.
 
                                                
 
                                      ANALYSIS
 
        
 
        On appeal, the Fund urges that claimant is prohibited from 
 
        receiving an award based on a cumulative injury where the 
 

 
        
 
 
 
 
 
        claimant did not plead a cumulative injury theory, or advance a 
 
        cumulative injury theory at the time of prehearing or at the 
 
        hearing.
 
        
 
        In Johnson v. George A. Hormel & Company, an appeal decision 
 
        filed June 21, 1988, it was held that a claimant who pled a 
 
        traumatic injury was not prohibited from an award of benefits 
 
        based on cumulative injury where the evidence clearly showed a 
 
        cumulative injury had occurred. Restricting a decision to the 
 
        particular theory of injury pled by the claimant would allow a 
 
        claimant and defendant to make a mutual agreement to the 
 
        detriment of a third party, such as the Fund. An award of 
 
        benefits will be based on the evidence presented and will not 
 
        turn on the technicalities of pleading.
 
        
 
        In addition, the Fund cannot claim undue surprise under this 
 
        approach. Claimant's physicians diagnosed carpal tunnel problems 
 
        and attributed these problems to repetitive work activity in 
 
        1981, 1983, and again in 1984. The Fund was aware of these 
 
        medical reports. Claimant's exhibits Q1 and Q2 are first reports 
 
        of injury which refer to "repetitive use" and "repeated motion" 
 
        as causes of claimant's injury. There was no undue surprise to 
 
        the Fund when the deputy assessed the evidence and concluded that 
 
        a cumulative injury had taken place. The Fund had adequate 
 
        opportunity to meet and rebut evidence of cumulative injury.
 
        
 
        The Fund cites the case of Short v. Roadway Express, (Appeal 
 
        Decision, December 31, 1987). That case is distinguishable on its 
 
        facts, in that the evidence in the Short case clearly involved a 
 
        traumatic injury from a single incident.
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 4
 
        
 
        
 
        The Fund next urges that even if the deputy properly considered a 
 
        cumulative injury theory, claimant's injury was not cumulative. 
 
        However, as pointed out above, at least three medical evaluations 
 
        attributed claimant's carpal tunnel conditions to her repetitive 
 
        work. This is contrary to the Fund's assertion that the only 
 
        evidence of cumulative trauma comes from claimant herself. 
 
        Claimant has suffered cumulative injuries.
 
        
 
        The Fund also urges on appeal that there is no second injury fund 
 
        liability, and offers seven arguments in support.
 
        
 
        The first argument advanced by the Fund is that claimant failed 
 
        to show any permanent impairment of the left hand. However, the 
 
        record contains the report of Thomas B. Summers, M.D., that 
 
        claimant has a two percent permanent physical impairment of the 
 
        left hand. Scott Neff, D.O., did not receive any complaint from 
 
        claimant about her left arm, so Dr. Neff treated the right arm 
 
        only. Dr. Neff eventually rated claimant's left hand as zero 
 
        percent "disability". Dr. Neff, of course, is not qualified to 
 
        make a determination of disability. Medical evidence is 
 
        necessarily limited to physical impairment.
 
        
 
        Bruce Sprague, M.D., did examine claimant's left arm, and 
 
        concluded that claimant had a good result from her release 
 
        surgery. This is not equivalent to a finding of no impairment of 
 
        the left hand. Although the Fund recited that a report of Carl 0. 
 
        Lester, M.D., pertaining to claimant's left hand that was not 
 
        offered into evidence at the hearing was attached to the Fund's 
 
        brief, no such attachment appears in the file. In addition, such 
 
        a report could not be considered part of the record unless it was 
 
        properly admitted into evidence at the hearing, or admitted 
 

 
        
 
 
 
 
 
        pursuant to Division of Industrial Services Rule 343-4.28 after 
 
        the hearing.
 
        
 
        Dr. Summers did assign a two percent permanent impairment of the 
 
        left upper extremity. Claimant clearly has permanent restrictions 
 
        on the use of her left hand. A zero percent rating of impairment 
 
        in light of permanent physical restrictions is inconsistent. 
 
        Taken as a whole, the medical evidence indicates that claimant 
 
        does have a two percent functional loss of her left arm.
 
        
 
        The Fund next argues that claimant failed to show a functional 
 
        loss in the right hand, and relies on a deposition statement by 
 
        Dr. Neff in support of the argument. Although Dr. Neff's 
 
        statement does qualify his rating of five percent by stating that 
 
        he was giving claimant "the benefit of the doubt," he 
 
        nevertheless maintained the rating in light of claimant's prior 
 
        release surgery. Claimant has shown an impairment to her right 
 
        hand.
 
        
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 5
 
        
 
        
 
        The Fund also argues that claimant's right and left carpal tunnel 
 
        conditions developed simultaneously, and therefore the Fund is 
 
        not liable to claimant. However, the medical evidence shows that 
 
        although claimant had pain in both hands in 1980, her condition 
 
        was evaluated and found to be a carpal tunnel syndrome of the 
 
        right hand, and a carpal tunnel release was performed on the 
 
        right hand only in 1980. Subsequent to the release, claimant had 
 
        restrictions on the use of her right hand only.
 
        
 
        It was not until two years later, in 1982, that claimant began to 
 
        experience serious problems with her left hand. Claimant later 
 
        received the same restrictions for her left hand that had been 
 
        previously imposed on her right hand, and eventually underwent 
 
        release surgery on her left hand in December of 1983. Dr. Summers 
 
        opined that claimant's left hand condition developed as a result 
 
        of compensation for claimant's right hand condition. It is 
 
        concluded that claimant's right hand condition and left hand 
 
        condition did not develop simultaneously.
 
        
 
        The Fund argues that under Irish v. McCreary Sawmill, 175 N.W.2d 
 
        364 (Iowa 1970), claimant is required to show at least a 90 
 
        percent "functional disability" to the first scheduled loss to 
 
        trigger Fund liability. This is a misreading of Irish. No 
 
        reasonable construction of the decision in Irish supports the 
 
        Fund's interpretation. In addition, the statutory provisions 
 
        outlining the second injury fund do not support this 
 
        interpretation.
 
        
 
        The next argument urged by the Fund is that the Second Injury 
 
        Compensation Act does not give rise to liability on the part of 
 
        the Fund to a claimant who has suffered both injuries while 
 
        employed by the same employer. In this regard, the Fund argues 
 
        that since the Fund was set up to remove any disincentive on the 
 
        part of employers to hire the handicapped, an intervening change 
 
        of employers must take place before the Fund is liable. In other 
 
        words, the Fund asserts the act protects workers being hired but 
 
        not employees who are merely retained.
 
        
 
        Although the Fund correctly recites the purpose of the Second 
 
        Injury Compensation Act, there is no such limitation in the 
 
        language of the statutes. The Second Injury Fund Act contemplates 
 
        a prior injury. There is no requirement that the prior injury be 
 

 
        
 
 
 
 
 
        compensable. It follows that there is no requirement that the 
 
        prior injury be incurred while employed by a different employer. 
 
        The Fund's argument in this regard is rejected as contrary to the 
 
        statute.
 
        
 
        The Fund next argues that even if claimant's injuries are not 
 
        simultaneous, claimant has not suffered any industrial
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 6
 
        
 
        
 
        disability. The Fund points to statements by claimant as to 
 
        various household tasks she performs, such as washing walls. It 
 
        is noted that claimant described performing this task in the 
 
        context of activities that produced pain.
 
        
 
        The medical evidence shows that claimant has various permanent 
 
        restrictions that prevent her from returning to repetitive work, 
 
        as well as a lifting restriction. Claimant has also received 
 
        ratings of permanent physical impairment of five percent and two 
 
        percent of the right upper extremity, and two percent and zero 
 
        percent of the left upper extremity.
 
        
 
        Claimant's physical impairment is only one factor in the 
 
        determination of industrial disability. Claimant has lost 
 
        earnings as a result of her condition. Donaldson Company refused 
 
        to rehire claimant to a position consistent with her impairment. 
 
        In this case, claimant was laid off in a general economic layoff. 
 
        However, the record indicates that when the layoff was over, 
 
        claimant was not rehired due to her physical restrictions.
 
        
 
        Claimant was 44 years old at the time of the hearing. This places 
 
        claimant at a point in her life when she is perhaps at her 
 
        maximum earning potential, yet her age makes retraining for a new 
 
        occupation difficult. Claimant has many years of her work life 
 
        ahead of her yet. Claimant's work experience is limited to work 
 
        as a waitress, a clerk, and her work for Donaldsons. Claimant has 
 
        a high school education and is of average intelligence. 
 
        Claimant's motivation to find substitute employment is less than 
 
        exemplary, as shown by her minimal efforts to seek another job. 
 
        However, claimant is now selfemployed as a babysitter.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, claimant is determined to have an 
 
        industrial disability of 40 percent.
 
        
 
        The Fund's next two arguments on appeal have been resolved by 
 
        cases decided subsequent to the Fund's brief. The Fund argues 
 
        that this agency's decision in Fulton v. Jimmy Dean Meat Company, 
 
        (Appeal Decision, July 2, 1986) should be reversed. That decision 
 
        has now been affirmed by the Iowa Supreme Court. Second Injury 
 
        Fund of Iowa v. Fulton, decided February 22,
 
        
 
        Similarly, the Fund's argument that the second injury fund should 
 
        not be assessed interest is now resolved in the Fund's favor by 
 
        this agency's ruling in Braden v. Big "W" Welding Service, 
 
        (Appeal Decision, October 28, 1988). The Fund is not required to 
 
        pay interest.
 
        
 
        The Fund's final issue concerns the proper rate. The Fund argues 
 
        that since the deputy found a cumulative injury, a different 
 
        injury date than contemplated by the parties resulted
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 7
 

 
        
 
 
 
 
 
        
 
        
 
        in no reliable evidence as to a proper rate for that date. The 
 
        parties had stipulated to rates for the two injury dates pled. 
 
        Claimant testified that her hourly wage for 1984 was $9.37 per 
 
        hour, for 40 regular hours plus 3 hours extra for meeting 
 
        production quotas. The deputy utilized this testimony to produce 
 
        a rate of $253.73. Claimant's testimony is unrebutted. Claimant's 
 
        exhibits Q2-Q5 indicate her wages for 1982 and 1983, and are not 
 
        controlling for injury dates in 1984. However, those exhibits 
 
        show claimant's hourly wage rising each year until reaching a 
 
        level of $9.04 in 1983. This tends to corroborate claimant's 
 
        testimony that her wages in 1984 were $9.37. The deputy's 
 
        determination as to claimant's rate is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by Donaldson Company, Inc., as a general 
 
        laborer and assembly operator.
 
        
 
        2. Claimant's duties involved repetitive work with her hands.
 
        
 
        3. On April 30, 1984, claimant suffered an injury to her left arm 
 
        arising out of and in the course of her employment with Donaldson 
 
        in the form of a cumulative injury resulting in carpal tunnel 
 
        syndrome.
 
        
 
        4. As the result of the April 30, 1984, injury claimant has a two 
 
        percent permanent partial impairment of her left upper extremity.
 
        
 
        5. On September 10, 1984, claimant suffered an injury to her 
 
        right arm arising out of and in the course of her employment with 
 
        Donaldson in the form of a cumulative injury resulting in carpal 
 
        tunnel syndrome and ulnar nerve irritation.
 
        
 
        6. As the result of the September 10, 1984, injury, claimant has 
 
        a five percent permanent partial impairment of her right upper 
 
        extremity.
 
        
 
        7. Defendant Donaldson failed to rehire claimant to a position 
 
        within her medical restrictions.
 
        
 
        8. Claimant was 44 years of age at the time of the hearing and 
 
        had a high school education.
 
        
 
        9. Claimant's work experience is limited to factory labor, 
 
        waitressing and as a store clerk.
 
        
 
        10. Claimant has lost wages as a result of her injuries.
 
        
 
        11. Claimant cannot return to her work for Donaldson due to her 
 
        injuries. Donaldson Company failed to provide claimant with a job 
 
        within her restrictions.
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 8
 
        
 
        
 
        12. Claimant currently works as a self-employed babysitter.
 
        
 
        13. Claimant made only minimal efforts to seek alternative work.
 
        
 
        14. Claimant's gross weekly earnings at Donaldson during 1984 was 
 
        $402.91.
 
        
 
        15. Defendants, Donaldson and Second Injury Fund of Iowa, were on 
 

 
        
 
 
 
 
 
        notice prior to the arbitration hearing that claimant may have 
 
        suffered a cumulative injury.
 
        
 
        16. As a result of her injuries on April 30, 1984, and September 
 
        10, 1984, claimant has a loss of earning capacity of 40 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant's failure to plead a cumulative injury does not bar a 
 
        finding of cumulative injury.
 
        
 
        Claimant suffered cumulative injuries arising out of and in the 
 
        course of her employment with Donaldson on April 30, 1984, and 
 
        September 10, 1984.
 
        
 
        As a result of her injuries, claimant has a two percent permanent 
 
        partial impairment of the left upper extremity, and a five 
 
        percent permanent partial impairment of the right upper 
 
        extremity.
 
        
 
        Claimant's rate of compensation for her April 30, 1984 injury and 
 
        her September 10, 1984 injury is $253.73.
 
        
 
        As a result of her injuries, claimant has an overall industrial 
 
        disability of 40 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant Donaldson shall pay to claimant five (5) weeks of 
 
        permanent partial disability benefits at the rate of two hundred 
 
        fifty-three and 73/100 dollars ($253.73) per week from April 30, 
 
        1984 and twelve point five (12.5) weeks of permanent partial 
 
        disability benefits at the rate of two hundred fifty-three and 
 
        73/100 dollars ($253.73) per week from September 10, 1984.
 
        
 
        MCCOY V. DONALDSON COMPANY, INC.
 
        Page 9
 
        
 
        
 
        That defendant Second Injury Fund of Iowa shall pay to claimant 
 
        one hundred eighty-two point five (182.5) weeks of permanent 
 
        partial disability benefits at the rate of two hundred 
 
        fifty-three and 73/100 dollars ($253.73) per week beginning 
 
        seventeen point five (17.5) weeks after September 10, 1984.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum 
 
        and shall receive credit against this award for all benefits 
 
        previously paid.
 
        
 
        That defendant Donaldson shall pay interest on benefits it is 
 
        ordered to pay herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants, Donaldson and second injury fund, shall pay the 
 
        costs of this action pursuant to Division of Industrial Services 
 
        Rule 343-4.33. As defendant Donaldson voluntarily paid twelve 
 
        point five (12.5) weeks of permanent partial disability benefits 
 
        before the hearing in this case, it shall pay only two percent 
 
        (2%) of these costs and defendant second injury fund shall pay 
 
        the balance. The second injury fund shall pay the costs of the 
 
        appeal.
 
        
 
        That all defendants shall file activity reports on the payment of 
 

 
        
 
 
 
 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 28th day of April, 1989.
 
        
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTHA MCCOY,
 
         
 
              Claimant,
 
         
 
         vs.                                    File Nos. 752670/805200
 
         
 
         DONALDSON COMPANY, INC.,                    A P P E A L
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
                                                      F I L E D
 
         TRAVELERS INSURANCE COMPANY,
 
                                                     APR 28 1989
 
              Insurance Carrier,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Defendant Second Injury Fund of Iowa (hereinafter the Fund) 
 
         appeals from an arbitration decision awarding permanent partial. 
 
         disability benefits as the result of an alleged injury on 
 
         September 1, 1982, and June 25, 1984.  The record on appeal 
 
         consists of the transcript of the arbitration hearing; claimant's 
 
         exhibits A through Q; and defendant's exhibits 1 through 6.  The 
 
         deputy reserved ruling on claimant's exhibit I.
 
         
 
              Both claimant and the Fund filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant Fund states the following issues on appeal:
 
         
 
              1.  Deputy Walshire erred by raising sua sponte, the issue 
 
              of cumulative trauma into the case.
 
         
 
              2.  Assuming cumulative trauma was a proper issue in the 
 
              case, Deputy Walshire erred by finding that claimant had 
 
              sustained cumulative trauma.
 
         
 
              3.  Deputy Walshire erred in finding that the second injury 
 
              fund was liable to claimant.
 
         
 
              4.  Deputy Walshire erred in awarding interest against the 
 
              second injury fund.
 
         
 
                                                
 
                                                         
 
              5.  Deputy Walshire erred in finding claimant's gross wages 
 
              on September 10, 1984, were $402.91.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                 APPLICABLE LAW
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              An injury may occur over a period of time.  For time 
 
         limitation purposes, the injury in such cases occurs when, 
 
         because of pain or physical disability, the claimant is compelled 
 
         to leave work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).
 
         
 
              Iowa Code section 85.64 states:
 
         
 
                   If an employee who has previously lost, or lost the use 
 
              of, one hand, one arm, one foot, one leg, or one eye, 
 
              becomes permanently disabled by a compensable injury which 
 
              has resulted in the loss of or loss of use of another such 
 
              member or organ, the employer shall be liable only for the 
 
              degree of disability which would have resulted from the 
 
              latter injury if there had been no pre-existing disability. 
 
               In addition to such compensation, and after the expiration 
 
              of the full period provided by law for the payments thereof 
 
              by the employer, the employee shall be paid out of the 
 
              "Second Injury Fund" created by this division the remainder 
 
              of such compensation as would be payable for the degree of 
 
              permanent disability involved after first deducting from 
 
              such remainder the compensable value of the previously lost 
 
                                                
 
                                                         
 
                   member or organ.
 
         
 
                   Any benefits received by any such employee, or to which 
 
              the employee may be entitled, by reason of such increased 
 
              disability from any state or federal fund or agency, to 
 
              which said employee has not directly contributed, shall be 
 
              regarded as a credit to any award made against said second 
 
              injury fund as aforesaid.
 
         
 
                                  ANALYSIS
 
         
 
              On appeal, the Fund urges that claimant is prohibited from 
 
         receiving an award based on a cumulative injury where the 
 
         claimant did not plead a cumulative injury theory, or advance a 
 
         cumulative injury theory at the time of prehearing or at the 
 
         hearing.
 
         
 
              In Johnson v. George A. Hormel & Company, an appeal decision 
 
         filed June 21, 1988, it was held that a claimant who pled a 
 
         traumatic injury was not prohibited from an award of benefits 
 
         based on cumulative injury where the evidence clearly showed a 
 
         cumulative injury had occurred.  Restricting a decision to the 
 
         particular theory of injury pled by the claimant would allow a 
 
         claimant and defendant to make a mutual agreement to the 
 
         detriment of a third party, such as the Fund.  An award of 
 
         benefits will be based on the evidence presented and will not 
 
         turn on the technicalities of pleading.
 
         
 
              In addition, the Fund cannot claim undue surprise under this 
 
         approach.  Claimant's physicians diagnosed carpal tunnel problems 
 
         and attributed these problems to repetitive work activity in 
 
         1981, 1983, and again in 1984.  The Fund was aware of these 
 
         medical reports.  Claimant's exhibits Q1 and Q2 are first reports 
 
         of injury which refer to "repetitive use" and "repeated motion" 
 
         as causes of claimant's injury.  There was no undue surprise to 
 
         the Fund when the deputy assessed the evidence and concluded that 
 
         a cumulative injury had taken place.  The Fund had adequate 
 
         opportunity to meet and rebut evidence of cumulative injury.
 
         
 
              The Fund cites the case of Short v. Roadway Express, (Appeal 
 
         Decision, December 31, 1987).  That case is distinguishable on 
 
         its facts, in that the evidence in the Short case clearly 
 
         involved a traumatic injury from a single incident.
 
         
 
              The Fund next urges that even if the deputy properly 
 
         considered a cumulative injury theory, claimant's injury was not 
 
         cumulative.  However, as pointed out above, at least three 
 
         medical evaluations attributed claimant's carpal tunnel 
 
         conditions to her repetitive work.  This is contrary to the 
 
         Fund's assertion that the only evidence of cumulative trauma 
 
         comes from claimant herself.  Claimant has suffered cumulative 
 
         injuries.
 
         
 
              The Fund also urges on appeal that there is no second injury 
 
         fund liability, and offers seven arguments in support.
 
                                                
 
                                                         
 
         
 
              The first argument advanced by the Fund is that claimant 
 
         failed to show any permanent impairment of the left hand.  
 
         However, the record contains the report of Thomas B. Summers, 
 
         M.D., that claimant has a two percent permanent physical 
 
         impairment of the left hand.  Scott Neff, D.O., did not receive 
 
         any complaint from claimant about her left arm, so Dr. Neff 
 
         treated the right arm only.  Dr. Neff eventually rated claimant's 
 
         left hand as zero percent "disability".  Dr. Neff, of course, is 
 
         not qualified to make a determination of disability.  Medical 
 
         evidence is necessarily limited to physical impairment.
 
         
 
              Bruce Sprague, M.D., did examine claimant's left arm, and 
 
         concluded that claimant had a good result from her release 
 
         surgery.  This is not equivalent to a finding of no impairment of 
 
         the left hand.  Although the Fund recited that a report of Carl 
 
         0. Lester, M.D., pertaining to claimant's left hand that was not 
 
         offered into evidence at the hearing was attached to the Fund's 
 
         brief, no such attachment appears in the file.  In addition, such 
 
         a report could not be considered part of the record unless it was 
 
         properly admitted into evidence at the hearing, or admitted 
 
         pursuant to Division of Industrial Services Rule 343-4.28 after 
 
         the hearing.
 
         
 
              Dr. Summers did assign a two percent permanent impairment of 
 
 
 
                                  
 
                                                         
 
         the left upper extremity.  Claimant clearly has permanent 
 
         restrictions on the use of her left hand.  A zero percent rating 
 
         of impairment in light of permanent physical restrictions is 
 
         inconsistent.  Taken as a whole, the medical evidence indicates 
 
         that claimant does have a two percent functional loss of her left 
 
         arm.
 
         
 
              The Fund next argues that claimant failed to show a 
 
         functional loss in the right hand, and relies on a deposition 
 
         statement by Dr. Neff in support of the argument.  Although Dr. 
 
         Neff's statement does qualify his rating of five percent by 
 
         stating that he was giving claimant "the benefit of the doubt," 
 
         he nevertheless maintained the rating in light of claimant's 
 
         prior release surgery.  Claimant has shown an impairment to her 
 
         right hand.
 
         
 
              The Fund also argues that claimant's right and left carpal 
 
         tunnel conditions developed simultaneously, and therefore the 
 
         Fund is not liable to claimant.  However, the medical evidence 
 
         shows that although claimant had pain in both hands in 1980, her 
 
         condition was evaluated and found to be a carpal tunnel syndrome 
 
         of the right hand, and a carpal tunnel release was performed on 
 
         the right hand only in 1980.  Subsequent to the release, claimant 
 
         had restrictions on the use of her right hand only.
 
         
 
              It was not until two years later, in 1982, that claimant 
 
         began to experience serious problems with her left hand.  
 
         Claimant later received the same restrictions for her left hand 
 
         that had been previously imposed on her right hand, and 
 
         eventually underwent release surgery on her left hand in December 
 
         of 1983. Dr. Summers opined that claimant's left hand condition 
 
         developed as a result of compensation for claimant's right hand 
 
         condition. It is concluded that claimant's right hand condition 
 
         and left hand condition did not develop simultaneously.
 
         
 
              The Fund argues that under Irish v. McCreary Sawmill, 175 
 
         N.W.2d 364 (Iowa 1970), claimant is required to show at least a 
 
         90 percent "functional disability" to the first scheduled loss to 
 
         trigger Fund liability.  This is a misreading of Irish.  No 
 
         reasonable construction of the decision in Irish supports the 
 
         Fund's interpretation.  In addition, the statutory provisions 
 
         outlining the second injury fund do not support this 
 
         interpretation.
 
         
 
              The next argument urged by the Fund is that the Second 
 
         Injury Compensation Act does not give rise to liability on the 
 
         part of the Fund to a claimant who has suffered both injuries 
 
         while employed by the same employer.  In this regard, the Fund 
 
         argues that since the Fund was set up to remove any disincentive 
 
         on the part of employers to hire the handicapped, an intervening 
 
         change of employers must take place before the Fund is liable.  
 
         In other words, the Fund asserts the act protects workers being 
 
         hired but not employees who are merely retained.
 
         
 
              Although the Fund correctly recites the purpose of the 
 
                                                
 
                                                         
 
         Second Injury Compensation Act, there is no such limitation in 
 
         the language of the statutes.  The Second Injury Fund Act 
 
         contemplates a prior injury.  There is no requirement that the 
 
         prior injury be compensable.  It follows that there is no 
 
         requirement that the prior injury be incurred while employed by a 
 
         different employer. The Fund's argument in this regard is 
 
         rejected as contrary to the statute.
 
         
 
              The Fund next argues that even if claimant's injuries are 
 
         not simultaneous, claimant has not suffered any industrial 
 
         disability. The Fund points to statements by claimant as to 
 
         various household tasks she performs, such as washing walls.  It 
 
         is noted that claimant described performing this task in the 
 
         context of activities that produced pain.
 
         
 
              The medical evidence shows that claimant has various 
 
         permanent restrictions that prevent her from returning to 
 
         repetitive work, as well as a lifting restriction.  Claimant has 
 
         also received ratings of permanent physical impairment of five 
 
         percent and two percent of the right upper extremity, and two 
 
         percent and zero percent of the left upper extremity.
 
         
 
              Claimant's physical impairment is only one factor in the 
 
         determination of industrial disability.  Claimant has lost 
 
         earnings as a result of her condition.  Donaldson Company refused 
 
         to rehire claimant to a position consistent with her impairment. 
 
         In this case, claimant was laid off in a general economic layoff. 
 
         However, the record indicates that when the layoff was over, 
 
         claimant was not rehired due to her physical restrictions.
 
         
 
              Claimant was 44 years old at the time of the hearing.  This 
 
         places claimant at a point in her life when she is perhaps at her 
 
         maximum earning potential, yet her age makes retraining for a new 
 
         occupation difficult.  Claimant has many years of her work life 
 
         ahead of her yet.  Claimant's work experience is limited to work 
 
         as a waitress, a clerk, and her work for Donaldsons.  Claimant has 
 
         a high school education and is of average intelligence.  
 
         Claimant's motivation to find substitute employment is less than 
 
         exemplary, as shown by her minimal efforts to seek another job.  
 
         However, claimant is now self-employed as a babysitter.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 40 percent.
 
         
 
              The Fund's next two arguments on appeal have been resolved 
 
         by cases decided subsequent to the Fund's brief.  The Fund argues 
 
         that this agency's decision in Fulton v. Jimmy Dean Meat Company, 
 
         (Appeal Decision, July 21 1986) should be reversed.  That 
 
         decision has now been affirmed by the Iowa Supreme Court.  Second 
 
         Injury Fund of Iowa v. Fulton, decided February 22, 1989.
 
         
 
              Similarly, the Fund's argument that the second injury fund 
 
         should not be assessed interest is now resolved in the Fund's 
 
         favor by this agency's ruling in Braden v. Big "W" Welding 
 
                                                
 
                                                         
 
         Service, (Appeal Decision, October 28, 1988).  The Fund is not 
 
         required to pay interest.
 
         
 
              The Fund's final issue concerns the proper rate.  The Fund 
 
         argues that since the deputy found a cumulative injury, a 
 
         different injury date than contemplated by the parties resulted 
 
         in no reliable evidence as to a proper rate for that date.  The 
 
         parties had stipulated to rates for the two injury dates pled. 
 
         Claimant testified that her hourly wage for 1984 was $9.37 per 
 
         hour, for 40 regular hours plus 3 hours extra for meeting 
 
         production quotas. The deputy utilized this testimony to produce 
 
         a rate of $253.73. Claimant's testimony is unrebutted.  
 
         Claimant's exhibits Q2-Q5 indicate her wages for 1982 and 1983, 
 
         and are not controlling for injury dates in 1984.  However, 
 
         those exhibits show claimant's hourly wage rising each year 
 
         until reaching a level of $9.04 in 1983.  This tends to 
 
         corroborate claimant's testimony that her wages in 1984 were 
 
         $9.37.  The deputy's determination as to claimant's rate is 
 
         adopted.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by Donaldson Company, Inc., as a 
 
         general laborer and assembly operator.
 
         
 
              2.  Claimant's duties involved repetitive work with her 
 
         hands.
 
         
 
              3.  On April 30, 1984, claimant suffered an injury to her 
 
         left arm arising out of and in the course of her employment with 
 
         Donaldson in the form of a cumulative injury resulting in carpal 
 
         tunnel syndrome.
 
         
 
              4.  As the result of the April 30, 1984, injury claimant has 
 
         a two percent permanent partial impairment of her left upper 
 
         extremity.
 
         
 
              5.  On September 10, 1984, claimant suffered an injury to 
 
         her right arm arising out of and in the course of her employment 
 
         with Donaldson in the form of a cumulative injury resulting in 
 
         carpal tunnel syndrome and ulnar nerve irritation.
 
         
 
              6.  As the result of the September 10, 1984, injury, 
 
         claimant has a five percent permanent partial impairment of her 
 
         right upper extremity.
 
         
 
              7.  Defendant Donaldson failed to rehire claimant to a 
 
         position within her medical restrictions.
 
         
 
              8.  Claimant was 44 years of age at the time of the hearing 
 
         and had a high school education.
 
         
 
              9.  Claimant's work experience is limited to factory labor, 
 
         waitressing and as a store clerk.
 
         
 
                                                
 
                                                         
 
              10.  Claimant has lost wages as a result of her injuries.
 
         
 
              11.  Claimant cannot return to her work for Donaldson due to 
 
         her injuries.  Donaldson Company failed to provide claimant with 
 
         a job within her restrictions.
 
         
 
              12. Claimant currently works as a self-employed babysitter.
 
         
 
              13.  Claimant made only minimal efforts to seek alternative 
 
         work.
 
         
 
              14.  Claimant's gross weekly earnings at Donaldson during 
 
         1984 was $402.91.
 
         
 
              15.  Defendants, Donaldson and Second Injury Fund of Iowa, 
 
         were on notice prior to the arbitration hearing that claimant may 
 
         have suffered a cumulative injury.
 
         
 
              16.  As a result of her injuries on April 30, 1984, and 
 
         September 10, 1984, claimant has a loss of earning capacity of 40 
 
         percent.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant's failure to plead a cumulative injury does not bar 
 
         a finding of cumulative injury.
 
         
 
              Claimant suffered cumulative injuries arising out of and in 
 
         the course of her employment with Donaldson on April 30, 1984, 
 
         and September 10, 1984.
 
         
 
              As a result of her injuries, claimant has a two percent 
 
         permanent partial impairment of the left upper extremity, and a 
 
 
 
                             
 
                                                         
 
         five percent permanent partial impairment of the right upper 
 
         extremity.
 
         
 
              Claimant's rate of compensation for her April 30, 1984 
 
         injury and her September 10, 1984 injury is $253.73.
 
         
 
              As a result of her injuries, claimant has an overall 
 
         industrial disability of 40 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant Donaldson shall pay to claimant five (5) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred fifty-three and 73/100 dollars ($253.73) per week from 
 
         April 30, 1984 and twelve point five (12.5) weeks of permanent 
 
         partial disability benefits at the rate of two hundred 
 
         fifty-three and 73/100 dollars ($253.73) per week from September 
 
         10, 1984.
 
         
 
              That defendant Second Injury Fund of Iowa shall pay to 
 
         claimant one hundred eighty-two point five (182.5) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         fifty-three and 73/100 dollars ($253.73) per week beginning 
 
         seventeen point five (17.5) weeks after September 10, 1984.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              That defendant Donaldson shall pay interest on benefits it 
 
         is ordered to pay herein as set forth in Iowa Code section 
 
         85.30.
 
         
 
              That defendants, Donaldson and second injury fund, shall pay 
 
         the costs of this action pursuant to Division of Industrial 
 
         Services Rule 343-4.33.  As defendant Donaldson voluntarily paid 
 
         twelve point five (12.5) weeks of permanent partial disability 
 
         benefits before the hearing in this case, it shall pay only two 
 
         percent (2%) of these costs and defendant second injury fund 
 
         shall pay the balance.  The second injury fund shall pay the 
 
         costs of the appeal.
 
         
 
              That all defendants shall file activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
                                               DAVID E LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803, 3002, 2209-2900
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTHA MCCOY,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         DONALDSON COMPANY, INC.,
 
                                                  Files Nos. 
 
                                                      752670/805200
 
              Employer,
 
         
 
         and                                            A P P E A L
 
         
 
         TRAVELERS INSURANCE COMPANY,                 D E C I S I 0 N
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         2209-2900
 
         
 
              It was held that claimant could be awarded benefits on a 
 
         cumulative injury theory even though claimant did not plead or 
 
         rely on a cumulative injury theory.
 
         
 
         53800
 
         
 
              Second Injury Fund held not liable to pay interest.
 
         
 
         3002
 
         
 
              Claimant and defendant stipulated to rates on two injury 
 
         dates pled.  The deputy found a cumulative injury and an injury 
 
         date not pled.  Affirmed the deputy's use of claimant's testimony 
 
         on gross wages for the time period of the cumulative injury date 
 
         to calculate rate.
 
         
 
         51803
 
         
 
              Claimant given award of 40 percent industrial disability for 
 
         bilateral carpal tunnel syndrome.