BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        JOHN L. HOFFMANN,
 
        
 
            Claimant,                   File No. 760418
 
        
 
        vs.                                A P P E A L
 
        
 
        NATIONAL FARMERS ORGANIZATION,   D E C I S I O N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        CIGNA INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an order dismissing his petition for 
 
        benefits as the result of an alleged injury on April 20, 1982.
 
        
 
        The record on appeal consists of the order of dismissal and all 
 
        filings of the parties. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        Claimant states the following issue on appeal: "Should Claimant's 
 
        case be dismissed based upon an alleged failure to proceed with 
 
        his case in a timely fashion?" 
 
        
 
        Defendants state the following issues on appeal: "(1) whether or 
 
        not dismissal of claimant's action by Deputy McSweeney on 
 
        November 20, 1987, was appropriate; and, (2) whether Deputy 
 
        McSweeney's denial of rehearing on December 15, 1987, was 
 
        appropriate."
 
        
 
                                 REVIEW OF THE EVIDENCE
 
                                                
 
        This appeal is based on rulings by the deputy industrial 
 
        commissioner dismissing claimant's petition and denying rehearing 
 
        on the dismissal. Claimant filed his original notice and 
 
        petition on April 18, 1984.
 
        
 
        A prehearing conference was held on April 7, 1986. At that time, 
 
        claimant's attorney indicated he was having difficulty
 
        
 
        HOFFMANN V. NATIONAL FARMERS ORGANIZATION
 
        Page 2
 
        
 
        
 
        in obtaining claimant's cooperation. As a result of that 
 
        conference, a prehearing order was issued requiring claimant to 
 
        file a statement within 30 days indicating he intended to pursue 
 
        the case, and to answer defendants' interrogatories within 30 
 
        days. Claimant did comply with this order. Another prehearing 
 
        conference was held on December 19, 1986. A prehearing order was 
 
        issued on December 31, 1986, continuing the case for completion 
 
        of discovery. A third prehearing conference was held on October 
 
        29, 1987. A prehearing order filed October 30, 1987 recited that 
 
        defendants would be moving to dismiss the case.
 

 
        
 
 
 
 
 
        
 
        On November 2, 1987, defendants filed a motion to dismiss under 
 
        Iowa Division of Industrial Services Rules 343-4.34 and 343-4.36, 
 
        alleging that three and one-half years had elapsed since the 
 
        filing of the petition, and claimant had failed to prosecute his 
 
        case.
 
        
 
        On December 7, 1987, claimant filed a combination notice of 
 
        appeal and request for "reconsideration" of the dismissal. 
 
        Claimant amended this document on December 10, 1987, by filing a 
 
        copy of a physicians' report. Defendants filed a resistance to 
 
        the motion for reconsideration, reciting that claimant had not 
 
        shown any good cause for his failure to prosecute the case. On 
 
        December 15, 1987, the deputy treated claimant's motion for 
 
        reconsideration as a motion for rehearing, and overuled the 
 
        motion. On December 21, 1987, claimant filed a new notice of 
 
        appeal.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Division of Industrial Services Rule 343-4.34 states in part:
 
        
 
        Dismissal for lack of prosecution. It is the declared policy that 
 
        in the exercise of reasonable diligence, all contested cases 
 
        before the industrial commissioner, except under unusual 
 
        circumstances, shall be brought to issue and heard at the 
 
        earliest possible time. To accomplish such purpose the 
 
        industrial commissioner may take the following action:
 
        
 
        4.34(1) Any contested case, where the original notice and 
 
        petition is on file in excess of two years, may be subject to 
 
        dismissal after the notice in 4.34(2) is sent to all parties and 
 
        after the time as provided for in the notice.
 
        
 
        4.34(2) After the circumstances provided in 4.34(1) occur, all 
 
        parties to the action, or their attorneys, shall be sent notice 
 
        from the division of industrial services by certified mail 
 
        containing the following:
 
        
 
        a. The names of the parties;
 
        
 
        HOFFMANN V. NATIONAL FARMERS ORGANIZATION
 
        Page 3
 
        
 
        
 
        b. The date or dates of injury involved in the contested case or 
 
        appeal proceeding;
 
        
 
        c. Counsel appearing;
 
        
 
        d. Date of filing of the petition or appeal;
 
        
 
        e. That the contested case proceeding will be dismissed without 
 
        prejudice on the thirtieth day following the date of the notice 
 
        unless good cause is shown why the contested case proceeding 
 
        should not be dismissed.
 
        
 
        Division of Industrial Services Rule 343-4.36 states:
 
        
 
        If any party to a contested case or an attorney representing such 
 
        party shall fail to comply with these rules or any order of a 
 
        deputy commissioner or the industrial commissioner, the deputy 
 
        commissioner or industrial commissioner may dismiss the action. 
 
        Such dismissal shall be without prejudice. The deputy 
 
        commissioner or industrial commissioner may enter an order 
 
        closing the record to further activity or evidence by any party 
 

 
        
 
 
 
 
 
        for failure to comply with these rules or an order of a deputy 
 
        commissioner or the industrial commissioner.
 
        
 
                                      ANALYSIS
 
        
 
        The record clearly establishes that subsequent to the filing of 
 
        claimant's petition, little action was taken by claimant to 
 
        pursue this case. Even after the motion to dismiss was filed, 
 
        claimant failed to file a resistance to the motion, but instead 
 
        waited until after the motion to dismiss was granted before 
 
        filing a motion to reconsider. Claimant's motion to reconsider 
 
        failed to show good cause for the failure to prosecute, but 
 
        rather merely submitted a doctor's report. No explanation for 
 
        the failure to prosecute the case was given.
 
        
 
        It is impossible to determine from the deputy's order what 
 
        conclusions he relied on in determining that claimant's petition 
 
        should be dismissed. The deputy's order also failed to state 
 
        what rule or authority he relied on in dismissing the petition. 
 
        The deputy merely concludes that defendants' motion was 
 
        "persuasive," without explanation of why the petition should be 
 
        dismissed.
 
        
 
        A perusal of the file does not indicate that any rule or order of 
 
        this agency was not complied with by claimant and thus the order 
 
        of dismissal would not appear to be predicated on Rule 343-4.36.
 
        
 
        HOFFMANN V. NATIONAL FARMERS ORGANIZATION
 
        Page 4
 
        
 
        
 
        Rule 4.34 enunciates a public policy that workers' compensation 
 
        cases be handled expeditiously. The effectiveness of the workers' 
 
        compensation adjudication system depends on a timely and orderly 
 
        processing of contested cases. Claimant's lack of reason or 
 
        excuse for letting this case pend more than three years subverts 
 
        that public policy goal.
 
        
 
        However, although the merits of this case certainly justify the 
 
        deputy's dismissal, procedurally rule 4.34 was not complied with. 
 
        Rule 4.34 contemplates a notice to the parties that the case has 
 
        been pending more than two years, and that the case is subject to 
 
        dismissal for lack of prosecution. The file indicates that such a 
 
        notice was not issued to the parties in this case. For that 
 
        reason, the deputy's dismissal of the action was premature.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant's petition was filed April 18, 1984.
 
        
 
        2. Claimant's petition was dismissed on November 20, 1987.
 
        
 
        3. Claimant did not receive a notice pursuant to Division of 
 
        Industrial Services Rule 4.34 that his petition was subject to 
 
        dismissal for lack of prosecution.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        The dismissal of claimant's petition was improper.
 
        
 
        WHEREFORE, the decision of the deputy is reversed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, claimant's petition is hereby reinstated.
 
        
 

 
        
 
 
 
 
 
        The costs of the appeal are charged to defendants.
 
        
 
        Signed and filed this 31st day of January, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JOHN L. HOFFMANN,         :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 760418
 
            NATIONAL FARMERS ORGANIZATION,:
 
 		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
  		            and       :
 
                  		      :
 
            AETNA LIFE AND CASUALTY,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 30, 1991 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Ave.
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 28, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JOHN L. HOFFMANN,	      :
 
                      		      :
 
                 Claimant,  	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 760418
 
            NATIONAL FARMERS ORGANIZATION,:
 
                      		      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
         		   and        :
 
                      		      :
 
            AETNA LIFE AND CASUALTY,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 30, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN L. HOFFMANN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  760418
 
            NATIONAL FARMERS ORGANIZATION,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA LIFE AND CASUALTY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by John L. 
 
            Hoffmann, claimant, against National Farmers Organization, 
 
            employer, and Aetna Life and Casualty, insurance carrier, 
 
            defendants, for benefits as the result of an alleged injury 
 
            which occurred on April 21, 1982.  The original notice and 
 
            petition designated the hearing request as one for 
 
            arbitration and also review-reopening.  At the hearing, 
 
            however, claimant deleted the request for a review-reopening 
 
            and requested that the hearing be designated as an 
 
            arbitration hearing (transcript pages 3 and 4).  A hearing 
 
            was held in Des Moines, Iowa, on December 12, 1989, and the 
 
            case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Jeffrey G. Flagg.  Defendants 
 
            were represented by Frank T. Harrison.  The record consists 
 
            of the testimony of John L. Hoffman, claimant; Carol B. 
 
            Hoffmann, claimant's wife; Garland Fickess, employer's 
 
            administrative assistant; and Rene Niese, trust 
 
            administrator; claimant's exhibits 1 through 309, 400 
 
            through 423, and 438 through 599; and defendants' exhibits A 
 
            through G.  Defendants presented a statement of defendants' 
 
            contentions at the time of hearing.  The deputy ordered a 
 
            copy of the transcript of the hearing.  Both attorneys 
 
            submitted excellent posthearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on April 21, 1982, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the nature and extent of 
 
            benefits to which he is entitled. 
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 Whether claimant gave timely notice of claim as 
 
            required by Iowa Code section 85.23 has been asserted as an 
 
            affirmative defense by defendants.
 
            
 
                               preliminary matters
 
            
 
                 The hearing assignment order shows that one of the 
 
            designated hearing issues is whether defendants are entitled 
 
            to a credit under Iowa Code section 85.38(2).  However, the 
 
            parties stipulated on the record that defendants were 
 
            entitled to a credit for medical benefits paid under an 
 
            employee group health plan in an undetermined amount and 
 
            that defendants would be entitled to a credit for wages paid 
 
            to claimant from the alleged date of injury, April 21, 1982, 
 
            to the end of 1982 and then for the first 19 weeks in 1983 
 
            (tr. pp. 6-9).  
 
            
 
                                 Findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his left elbow which arose out of and in the course of 
 
            employment with employer on or about April 21, 1982.  
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury to his groin which caused a hernia on or about April 
 
            21, 1982, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury to his back on or about April 21, 1982, which arose 
 
            out of and in the course of employment with employer.
 
            
 
                 Claimant testified and submitted other evidence 
 
            asserting that, "[I] tore the tendon in my left elbow, 
 
            herniated myself and caused back damage, slipped disk and 
 
            herniated disk in the back." (tr. p. 27), while lifting 
 
            luggage out of the rear trunk of a rented car upon returning 
 
            home from a business trip (claimant's exhibit 496 & 524).  
 
            Even though claimant initially reported that the injury 
 
            occurred at Manhattan, Kansas, on April 20, 1982, and then 
 
            changed the date and place to April 21, 1982, at Corning, 
 
            Iowa, and even though the treating physician, William R. 
 
            Hamsa, Jr., M.D., reported that claimant told him that the 
 
            injury occurred on March 25, 1982, it is, nevertheless, 
 
            determined that claimant did sustain an injury to his left 
 
            elbow on or about April 21, 1982, for the reason that he did 
 
            seek treatment from Dr. Hamsa on April 22, 1982, for his 
 
            only office visit concerning this injury (cl. ex. 247).  Dr. 
 
            Hamsa reported that during this man's employment he lifted a 
 
            heavy case from his trunk and experienced a tearing 
 
            sensation about the lateral side of the left elbow and that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he has had pain in this region with difficulty in using his 
 
            wrist.  Dr. Hamsa said that x-rays of the elbow were normal 
 
            and he diagnosed traumatic lateral epicondylitis of the left 
 
            elbow, job related (cl. ex. 247).  Claimant has sustained 
 
            the burden of proof by a preponderance of the evidence that 
 
            he sustained a left elbow injury because his testimony is 
 
            corroborated by Dr. Hamsa in his medical report (cl. ex. 
 
            247).
 
            
 
                 It is further noted that Dr. Hamsa makes absolutely no 
 
            mention of any complaints of any kind about an injury to 
 
            claimant's groin or to his back.  Claimant maintained that 
 
            he reported the groin injury to Dr. Hamsa, but Dr. Hamsa 
 
            said that claimant would have had to see some other doctor 
 
            for that particular complaint.  Claimant made a telephone 
 
            call to Dr. Hamsa some five years later and Dr. Hamsa 
 
            recorded this on May 15, 1987, as follows:
 
            
 
                 Phone call from patient who is now in New York.  
 
                 He wants me to go over his records which I have 
 
                 done.  He is concerned there is some type of 
 
                 inguinal hernia or rupture problem that he 
 
                 mentioned to me.  Our records make no mention of 
 
                 this at all.  He has apparently seen Dr. Kirchner 
 
                 with this in the past and I suggest he will have 
 
                 to visit with him about that.
 
            
 
            (claimant's exhibit 247)
 
            
 
                 Thus, Dr. Hamsa disclaimed any knowledge that claimant 
 
            reported hernia complaints to him on April 22, 1982, the 
 
            only time that he saw and treated claimant.
 
            
 
                 Claimant did not allege that he sought any further 
 
            treatment for his left elbow and there is no evidence in the 
 
            entire record that claimant did seek any further treatment 
 
            for his left elbow traumatic epicondylitis.
 
            
 
                 Subsequently, claimant was hospitalized in Omaha from 
 
            June 2 to June 7, 1982, for chest pain, hypertension and 
 
            gastrointestinal problems (cl. ex. 248-400).  Prior to this 
 
            injury, claimant received a physical examination at the Mayo 
 
            Clinic in March of 1981, which disclosed, "...an exaggerated 
 
            impulse in the left inguinal region." (cl. ex. 241).  John 
 
            R. Kirchner, M.D., who treated claimant at the time of his 
 
            hospitalization on June 2, 1982, also found, "...a very 
 
            small impulse bulge in the inguinal canal which represented 
 
            a[n] early left inguinal hernia." (cl. ex. 248).  Thus, it 
 
            would appear that the predisposition for a left inguinal 
 
            hernia was essentially unchanged in June of 1982 after the 
 
            alleged groin injury.
 
            
 
                 Claimant opted to have his hernia repaired on June 7, 
 
            1983, by Sherman Bull, M.D., and a left inguinal 
 
            herniorrhaphy was performed on that date (cl. ex. 401).  Dr. 
 
            Bull's notes disclose:
 
            
 
                    A 49 year old married white male financial 
 
                 consultant admitted for elective repair for left 
 
                 inguinal hernia.  The patient has noted a left 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 groin bulge for the past 4 weeks.  There has been 
 
                 increasing discomfort with no history of 
 
                 incarceration....
 
            
 
            (claimant's exhibit 402)
 
            
 
                 Thus, it would appear that claimant's left inguinal 
 
            impulse did not become a bulge or an active hernia until 
 
            four weeks prior to February 7, 1983, which would be 
 
            approximately January 7, 1983, which is approximately eight 
 
            or nine months after the alleged injury date of April 21, 
 
            1982.  Dr. Bull does not mention the lifting incident of 
 
            April 21, 1982, in either his surgical report or his medical 
 
            notes (cl. exs. 401 & 402).  
 
            
 
                 Claimant was next seen by Joseph Gromults, M.D., an 
 
            internist, who hospitalized claimant from April 11, 1983 to 
 
            April 26, 1983, for prolonged diarrhea, nausea and 
 
            testicular pain and swelling (cl. ex. 405).  Dr. Gromults 
 
            requested Robert Lovegrove, M.D., a urologist, to perform an 
 
            observation cystoscopy for a suspected benign prosatic 
 
            hyperplasia on April 22, 1983.  The cystoscopy demonstrated 
 
            a bladder neck constriction.  Dr. Gromults requested a 
 
            colonoscopy to be performed by William Pintauro, M.D., a 
 
            gastroenterologist, which showed an essentially normal 
 
            colon.  Dr. Gromults diagnosed, "Bladder neck constriction.  
 
            Diarrhea, due to adverse effect of medication (Tenormin).  
 
            Non infectious hepatitis.  Type 2-B hyperlipoproteinemia.  
 
            Hypertension." (cl. ex. 406).  Dr. Gromults does not 
 
            attribute any of these problems to the lifting incident on 
 
            April 21, 1982, or to the herniorrhaphy performed by Dr. 
 
            Bull.  
 
            
 
                 Claimant was hospitalized again on September 22, 1983, 
 
            for surgery by Dr. Lovegrove for bladder neck contracture 
 
            with residual urine and obstructive uropathy.  He performed 
 
            a cystoscopy and transurethral resection of the prostate 
 
            (cl. ex. 408).  No mention is made of the lifting injury of 
 
            April 21, 1982, or the herniorrhaphy performed on February 
 
            7, 1983.
 
            
 
                 Claimant was hospitalized again by Dr. Gromults on 
 
            February 5, 1985, on an emergency basis for right flank pain 
 
            with radiation to the penis.  Dr. Gromults diagnosed right 
 
            renal colic and diabetes mellitus, adult onset (cl. ex. 410 
 
            & 411).  No mention is made of the injury of April 21, 1982 
 
            or claimant's groin complaints and previous herniorrhaphy.
 
            
 
                 Claimant began treating with Ira Cliff Schulman, M.D., 
 
            on April 10, 1984.  He reviewed claimant's extensive medical 
 
            history on January 31, 1985.  Dr. Schulman concluded, "As 
 
            noted in the history, I cannot ascertain which if any of his 
 
            medical problems stem from his employment with National 
 
            Farmers Organization and hope this can be clarified by the 
 
            physicians who have followed him subsequent to April of 
 
            1984."  (cl. ex. 413).  Dr. Schulman changed his opinion on 
 
            December 8, 1987, by stating:
 
            
 
                 As you will note, he was in fairly good medical 
 
                 health until April 21, 1982, when returning from a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 business trip he suffered the development of the 
 
                 left inguinal hernia which was subsequently 
 
                 repaired in February of 1983 at St. Joseph's 
 
                 Hospital.  He has subsequently been totally 
 
                 incapacitated from a multiplicity of medical 
 
                 problems all of which appear to begin with his 
 
                 hernia.  The extensive and difficult medical and 
 
                 surgical course, which has resulted from the 
 
                 hernia repair is outlined for your referral and I 
 
                 submit this to be considered on the basis of 
 
                 Workman's Compensation.
 
            
 
            (claimant's exhibit 420)
 
            
 
                 Dr. Schulman summarized claimant's health condition on 
 
            October 11, 1989, as (1) hypothyroidism for which he takes 
 
            Synthroid daily; (2) profound peripheral neuropathy of 
 
            unclear etiology; (3) bilateral cataracts of unclear 
 
            etiology; (4) hypertension; (5) sexual impotence; and (6) 
 
            urinary dysfunction (cl. ex. 421).  On November 7, 1989, Dr. 
 
            Schulman stated, "I believe the initiating event dates back 
 
            to his hernia repair which apparently occurred subsequent to 
 
            his injury."  (cl. ex. 423).
 
            
 
                 It is noted that Dr. Schulman did not specifically 
 
            state that the lifting incident of April 21, 1982, caused a 
 
            groin injury or caused the herniorrhaphy.  The fact that 
 
            claimant's problems date back to the herniorrhaphy are of no 
 
            consequence because it has not been established that the 
 
            lifting incident of April 21, 1982, was the cause of a groin 
 
            injury or the herniorrhaphy.  A closely contested case, such 
 
            as this one, which has such far reaching consequences, 
 
            requires a more clear and unequivocal statement of causal 
 
            connection to support an injury arising out of and in the 
 
            course of employment from the lifting incident of April 21, 
 
            1982.  
 
            
 
                 Claimant was examined for defendants by Paul From, 
 
            M.D., an internist, who made a report on September 26, 1989.  
 
            He found the epicondylitis to be healed.  He found that 
 
            claimant's numerous physical problems were not related to 
 
            the lifting incident of April 21, 1982, in these words:
 
            
 
                 I do not believe the injury would have been 
 
                 related, in any way, to the long list of diagnoses 
 
                 and problems he has had, but believe these are all 
 
                 secondary to overweight, hypertension, being a 
 
                 "hot reactor", and having alcohol abuse and other 
 
                 degenerative problems as described.
 
            
 
            (claimant's exhibit 439)
 
            
 
                 Although Dr. From found that the injury did aggravate 
 
            the preexisting left inguinal hernia, his conclusion is not 
 
            supported by the medical evidence cited above and is, 
 
            therefore, rejected.  In particular, both before and after 
 
            this injury, claimant only had an inguinal impulse and he 
 
            told Dr. Bull that the bulge occurred four weeks before 
 
            February 7, 1983, which is nine months after the alleged 
 
            injury.  Dr. From made a list of 26 diagnoses of claimant 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            from childhood to the date of his report (cl. ex. 441).  He 
 
            also traced claimant's medical history from the Mayo Clinic 
 
            physical examination in March of 1981 through May 27, 1989 
 
            (cl. exs. 443-445).  Claimant did not develop a disc bulge 
 
            in his lumbar spine until May 27, 1989 (cl. ex. 445).  
 
            
 
                 Claimant was awarded social security disability 
 
            benefits dating back to January 10, 1983.  However, this 
 
            determination is based on claimant's overall health 
 
            condition and not specifically the lifting incident of April 
 
            21, 1982.  The fact the administrative law judge felt that 
 
            claimant's medical problems related to the hernia operation 
 
            on February 7, 1983, does not affect this decision because 
 
            claimant did not establish for the purposes of this case 
 
            that he received a groin injury on April 21, 1982, or that 
 
            this lifting injury was in any way otherwise responsible for 
 
            the herniorrhaphy (cl. exs. 503-507).  
 
            
 
                 Dr. From gave a deposition on November 29, 1989, in 
 
            which he reversed his opinion in his letter of September 26, 
 
            1989, by stating, "I don't believe there's any connection 
 
            between the lifting incident in 1982 and the onset of his 
 
            hernia in 1983." (defendants' ex. B, p. 10).  Dr. From 
 
            further testified that the bulge that appeared four weeks 
 
            prior to the surgery on February 7, 1983, was when 
 
            claimant's hernia predisposition noted at the Mayo Clinic in 
 
            1981 became symptomatic (def. ex. B, pp. 11 & 12).  He said 
 
            the epicondylitis was caused by the injury on April 21, 1982 
 
            (def. ex. B, p. 14), but none of the other conditions in 
 
            claimant's 26 diagnoses were related to the lifting episode 
 
            of April 21, 1982 (def. ex. B, pp. 14 & 15).  
 
            
 
                 From the foregoing evidence, it is determined as a 
 
            matter of fact that claimant did sustain an injury on April 
 
            21, 1982, to his left elbow; but did not sustain an injury 
 
            to his groin or left inguinal area or to his back on April 
 
            21, 1982.
 
            
 
            causal connection-entitlement-temporary disability-permanent 
 
                                    disability
 
            
 
                 It is determined that the injury of April 21, 1982, to 
 
            claimant's left elbow was not the cause of any temporary 
 
            disability or permanent disability and that claimant is not 
 
            entitled to any temporary or permanent disability benefits.
 
            
 
                 With respect to emporary disability, Dr. Hamsa stated 
 
            that claimant continued to work despite his symptoms.  
 
            Therefore, claimant lost no time from work.  Furthermore, it 
 
            was stipulated by the parties that claimant was paid his 
 
            full wages from April 21, 1982 to December 31, 1982 and 19 
 
            weeks in 1983 and defendants would be entitled to a credit 
 
            for that period of time.
 
            
 
                 With respect to permanent disability, claimant was only 
 
            treated once for the epicondylitis.  No doctor issued an 
 
            impairment rating.  Claimant had no further complaints about 
 
            his left elbow.  Therefore, it is determined that claimant 
 
            has not sustained any permanent disability.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                Medical benefits 
 
            
 
                 It is determined that claimant is entitled to $50 in 
 
            medical expense for the bill of Dr. Hamsa for the office 
 
            call of April 22, 1982, in the amount of $50 (consultation 
 
            $25, x-ray $25, total $50) (cl. ex. 1).  
 
            
 
                 Dr. Hamsa said the injury occurred on March 25, 1982.  
 
            Even though the statute of limitations for filing a claim 
 
            [Iowa Code section 85.26(1)] would have expired at the time 
 
            of the filing of this claim, the statute of limitations was 
 
            not asserted as an affirmative defense in this case.  
 
            Deputies only hear issues which are pled, raised at the 
 
            prehearing conference and are designated as hearing issues 
 
            on the prehearing report.  Presswood v. Iowa Beef 
 
            Processors, file number 735442 (Appeal Decision 1986).  
 
            Therefore, this injury to the left elbow is not barred by 
 
            the two-year statute of limitations [Iowa Code section 
 
            85.26(1)] and defendants are liable for this $50 medical 
 
            expense.
 
            
 
                                      notice
 
            
 
                 It is determined that claimant did give notice as 
 
            required by Iowa Code section 85.23.  Defendants did not 
 
            sustain the burden of proof by a preponderance of the 
 
            evidence that claimant failed to give notice or that they 
 
            did not have actual notice of the injury within 90 days 
 
            after its occurrence.
 
            
 
                 Claimant testified that he notified Geraldine Chrysler, 
 
            personnel manager, and told her the exact same story that he 
 
            related in his testimony at the hearing.  Claimant testified 
 
            that she said that she would take care of it (tr. pp. 
 
            28-30).  Defendants, through the testimony of Garland 
 
            Fickess, administrative assistant, established that she did 
 
            not receive a report of injury from claimant until December 
 
            9, 1983, nevertheless, defendants never rebutted or refuted 
 
            the testimony of claimant that he reported the accident to 
 
            Geraldine Chrysler on the date that it occurred.  Claimant 
 
            explained that he only contacted Fickess on December 9 to 
 
            make sure that a report of injury had been filed (tr. p. 
 
            77).  The fact that the initial first report of injury 
 
            showed an injury date of April 20, 1982, at Manhattan, 
 
            Kansas, and claimant later amended that to April 21, 1982, 
 
            at Corning, Iowa, are simply inconsequential details and do 
 
            not prove that claimant failed to report the injury as he 
 
            testified.  If defendants wanted to refute claimant's 
 
            testimony they should have produced Geraldine Chrysler or 
 
            explained why her testimony was not produced.
 
            
 
                 Therefore, it is determined that claimant gave notice 
 
            to Geraldine Chrysler on the day the injury occurred on 
 
            April 21, 1982, and defendants did not prove that claimant 
 
            failed to give notice as required by Iowa Code section 
 
            85.23.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant did sustain an injury to his left elbow 
 
            on April 21, 1982, which arose out of and in the course of 
 
            employment with employer; that claimant did not sustain the 
 
            burden of proof by a preponderance of the evidence that he 
 
            sustained an injury to his groin or to his back on April 21, 
 
            1982.  Iowa Code section 85.3(1); 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).
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury to his left 
 
            elbow on April 21, 1982, was the cause of either temporary 
 
            or permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945); Sondag v. Ferris Hardware, 
 
            220 N.W.2d 903 (Iowa 1974). 
 
            
 
                 That claimant is not entitled to either temporary or 
 
            permanent disability benefits.  Iowa Code section 
 
            85.34(1)(2).
 
            
 
                 That claimant is entitled to $50 in medical expenses 
 
            for the charges of Dr. Hamsa.  Iowa Code section 85.27.
 
            
 
                 That defendants did not sustain the burden of proof by 
 
            a preponderance of the evidence that claimant failed to give 
 
            notice as required by Iowa Code section 85.23.  DeLong v. 
 
            Highway Commissioner, 229 Iowa 700, 295 N.W. 91 (1940); 
 
            Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 
 
            (1941); Mefferd v. Ed Miller & Sons, Inc., Thirty-third 
 
            Biennial Report of the Industrial Commissioner 191 (Appeal 
 
            Decision 1977).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are owed by defendants to claimant for 
 
            weekly workers' compensation benefits.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services fifty dollars ($50) in medical expenses for 
 
            the charges of Dr. Hamsa on April 22, 1982.
 
            
 
                 That defendants are entitled to a credit for this 
 
            charge in the event this charge is one of the undetermined 
 
            charges that the parties stipulated that defendants had paid 
 
            from the employee nonoccupational group health plan prior to 
 
            hearing (tr. p. 6).  
 
            
 
                 That each party is to pay their own separate costs of 
 
            this action with the exception that defendants are ordered 
 
            to pay for the cost of the attendance of the court reporter 
 
            at hearing and the transcript of the hearing.  Rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file any claim activity reports that 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            may be requested by this agency.  Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Ave
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. WILSON,
 
          
 
              Claimant,
 
                                         File Nos. 760432,
 
          VS.
 
                                           760433 & 760434
 
          
 
          PARKER BROTHERS, INC.,         A R B I T R A T I 0 N
 
          
 
               Employer,                 D E C I S I 0 N
 
          
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE
 
          COMPANIES,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by Richard L. 
 
         Wilson, claimant, against Parker Brothers, Inc., employer 
 
         (hereinafter referred to as Parker Brothers), and Liberty Mutual 
 
         Insurance Companies, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of alleged injuries on 
 
         September 30, 1982, March 11, 1983 and September 10, 1983.  On 
 
         June 14, 1988, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Roger Marquardt and Richard Meier.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  Subsequent to hearing, the parties 
 
         withdrew exhibit 19 which is now a part of exhibit 3.  According 
 
         to the prehearing report, the parties have stipulated to the 
 
         following matters:
 
         
 
              1. At the time of the alleged injuries an employer/employee 
 
         relationship existed between Parker Brothers and claimant.
 
         
 
              2. Claimant is seeking temporary total disability or healing 
 
         period benefits from October 1, 1982 through January 3, 1983, 
 
         March 14, 1983 through September 6, 1983 and from September 9, 
 
         1983 through the present time.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 2
 
         
 
         
 
              3. For purposes of computing claimant's rate of weekly 
 
         compensation, claimant was married and entitled to three 
 
         exemptions.
 
         
 
              4. The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which the claim herein is based but that the issue 
 
         of the causal connection of this condition to a work injury 
 
         remains in dispute.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and in 
 
         the course of employment;
 
         
 
              II. Whether there is a causal relationship between any of 
 
         the alleged work injuries and the claimed disability;
 
         
 
              III. The extent of claimant's entitlement to weekly benefits 
 
         for disability;
 
         
 
              IV. The rate of compensation to which claimant is entitled;
 
          and,
 
          
 
              V.The extent of claimant's entitlement to medical
 
          benefits.
 
          
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a brief summary of the more pertinent 
 
         evidence submitted in this proceeding.  Whether or not 
 
         specifically referred to in these statements, all of the evidence 
 
         received at the hearing was reviewed and considered in arriving 
 
         at this decision.  Any conclusionary statements in the following 
 
         summary should be considered as preliminary findings of fact.
 
         
 
              The claimant, Richard L. Wilson, is 43 years old and  has an 
 
         eleventh grade education.  He began working at Parker Brothers in 
 
         1967 and last worked there in September of 1983.  The claimant 
 
         worked in the shipping department the entire time he was employed 
 
         by Parker Brothers.  In 1974, the claimant became a clamp truck 
 
         operator at Parker Brothers.  A clamp truck is similar to a 
 
         forklift truck.  The claimant would sit while driving the clamp 
 
         truck which was operated by the use of the right foot on a gas 
 
         pedal and brake. occasionally, the claimant would be required to 
 
         get off of the clamp truck in order to fill orders by hand when 
 
         there was an odd number of items in the order.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 3
 
         
 
         
 
              The claimant was first diagnosed as having insulin dependent 
 
         diabetes mellitus at age 23 in 1968.  As a complication of his 
 
         diabetes, the claimant has a condition called diabetic neuropathy 
 
         which in claimant's case is a loss of sensation in the lower 
 
         extremities.  As a result of this diabetic neuropathy, the 
 
         claimant has open sores on his feet called neurogenic foot 
 
         ulcers.  The claimant has had ulcers on his feet since 1977.
 
         
 
              The claimant is obese.  He has had and continues to have 
 
         hypertension.  There have been many occasions where the 
 
         claimant's diabetes has not been well controlled.  On August 11, 
 
         1979, the claimant went on medical leave for three weeks from 
 
         Parker Brothers because of his diabetes.  On October 5, 1980, the 
 
         claimant was admitted to Clarke County Hospital and was described 
 
         as being unresponsive, with no respiration, no blood pressure but 
 
         a pulse was found with carotid palpitation.  The impressions of 
 
         the Emergency Room physician, Robert Good, D.O., were diabetic 
 
         ketoacidosis with metabolic acidosis, metabolic encephalopathy 
 
         with secondary seizure activity, severe dehydration with 
 
         hypovolemic shock, large pressure ulcer-left foot and possible 
 
         alcohol abuse.  Diabetic ketoacidosis is caused by a failure to 
 
         take the proper amount of insulin.  The claimant was transferred 
 
         to Iowa Methodist Medical Center via helicopter.  The claimant 
 
         was treated at Iowa Methodist than discharged October 24, 1980.  
 
         It was noted that the claimant had a bilateral peripheral 
 
         neuropathy.  The claimant returned to work on November 10, 1980.
 
         
 
              The claimant was again admitted to Clarke County Public 
 
         Hospital on November 19, 1980, in a comatose condition.  The 
 
         diagnosis was acute hypoglycemic reaction secondary to insulin 
 
         and diabetic neurogenic ulcer of the left 'Loot.  While he was in 
 
         the hospital a surgical debridement of the claimant's left foot 
 
         was performed and a bacterial culture of the left foot was found 
 
         to be positive.  The claimant gave a history of periodic ankle 
 
         swelling in the past.  A small amount of pus was noted on the 
 
         margin of the ulcer.  The claimant was discharged from the 
 
         hospital on November 20, 1980.
 
         
 
              On January 3, 1981, the claimant was admitted to Clarke 
 
         County Public Hospital for the purpose of a full thickness skin 
 
         graft of the neurogenic ulcer of the left foot.  The claimant 
 
         remained on medical leave from Parker Brothers until returning to 
 
         work on March 23, 1981 as a clamp truck driver.
 
         
 
              The claimant continued to treat with Dr. Robert Good of the 
 
         Clarke Medical Clinic.  In an entry in Dr. Good's notes dated 
 
         August 21, 1981, the doctor states that the claimant has gained 
 
         too much weight having gained 40 pounds since last October.  His 
 
         weight was noted to be 221 1/2 pounds.  On October 7, 1981, the 
 
         claimant had a large amount of odorous drainage from his left 
 
         foot.  Dr. Good referred the claimant to Michael Adelman, D.O. In 
 
         his report dated October 28, 1981, Dr. Adelman
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WlLSON V. PARKER BROTHERS, INC.,
 
         Page 4
 
         
 
         
 
         stated that the claimant had large ulcers on the plantar aspects 
 
         of both of his feet.  A large amount of callus tissue surrounded 
 
         the ulcer sites and some drainage was present.  Dr. Adelman 
 
         prescribed innersoles for the claimant with cutouts for the ulcer 
 
         sites in order to remove the pressure and to allow healing to 
 
         occur.  On December 12, 1981, Dr. Good reported that claimant had 
 
         large neurogenic ulcers of both feet.  The claimant was laid off 
 
         from Parker Brothers on December 23, 1981. on January 11, 1982, 
 
         the claimant was admitted to Clarke County Public Hospital for 
 
         surgical debridement of the neurogenic ulcers on both his right 
 
         and left feet.  The claimant returned to work on March 15, 1982 
 
         as a clamp truck driver.
 
         
 
              Michael Harvey, M.D., first started caring for the claimant 
 
         on May 28, 1982.  On October 1, 1982, the claimant was admitted 
 
         to Des Moines General Hospital with an admitting diagnosis of 
 
         cellulitis, right foot and insulin dependent diabetes mellitus.  
 
         The claimant gave a history of long-standing bilateral neurogenic 
 
         foot ulcers and reported that the ulcer on the right foot had 
 
         become progressively worse over the proceeding two to three 
 
         months prior to admission.  Dr. Harvey found the claimant to have 
 
         marked swelling, heat and tenderness in the right leg.
 
         
 
              Terrance Kurtz, M.D., an infectious disease specialist, saw 
 
         the claimant in the hospital on October 3, 1982.  Dr. Kurtz 
 
         reported that the claimant has had diabetes for 13 years, has 
 
         been taking insulin for ten years and has had high blood pressure 
 
         for ten years.  Dr. Kurtz's examination of the claimant revealed 
 
         the presence of two large ulcers on the ball of each foot.  The 
 
         doctor noted that a severely foul odored, purulent discharge, was 
 
         expressed from the margins of each ulcer.  On October 5, 1982, 
 
         surgical debridement of the ulcers on both feet and biopsies of 
 
         the metatarsal bones of both feet were carried out by N. K. 
 
         Pandeya, D.O. The claimant was discharged from the hospital on 
 
         November 2, 1982.  The final diagnosis was cellulitis of the 
 
         right and left foot, osteomyelitis of the right foot, bilateral 
 
         neurogenic ulcers of the feet, insulin dependent diabetes 
 
         mellitus and essential hypertension, controlled.
 
         
 
              On November 4, 1982, the claimant was admitted to Des Moines 
 
         General Hospital because of hypoglvcemia caused by an insulin 
 
         reaction.  At the hospital the claimant's blood sugar was found 
 
         to be 835.  The final diagnosis was hypoglycemia secondary to 
 
         insulin reaction, insulin dependent diabetes mellitus and 
 
         osteomyelitis of both feet.  The claimant was referred to Dr. 
 
         Michael Adelman on November 23, 1982 for the purpose of obtaining 
 
         special molded shoes which would take the weight off of the 
 
         ulcers on his feet.  The claimant was fitted for the molded shoes 
 
         by Dr. Adelman.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 5
 
         
 
         
 
              The claimant was on medical leave from Parker Brothers 
 
         during his stay in the hospital and continued on leave until 
 
         January 3, 1983, when he returned to different work as an 
 
         assembler.  The claimant applied for and received nonoccupational 
 
         group disability benefits during his leave of absence.  In his 
 
         application for group benefits the claimant indicated that the 
 
         sickness or injury did not arise ' out of employment.  In the 
 
         physicians statement in support of the application for group 
 
         benefits Dr. Harvey stated that the claimant's condition was not 
 
         due to an injury or sickness arising out of claimant's 
 
         employment.
 
         
 
              As stated above, the claimant was transferred to the 
 
         position of assembler when he returned from his leave of absence 
 
         in January, 1983.  The claimant spent about 50 percent of his 
 
         time on the assembly line.  When he was not working on the 
 
         assembly line the claimant would fill orders, repair damaged 
 
         games and clean up.  The claimant tried to sit down whenever 
 
         possible while working on the assembler job and Parker Brothers 
 
         did all it could to accommodate the claimant's disability.  
 
         However, claimant was on his feet the majority of the time.
 
         
 
              The molded shoes were actually dispensed by Dr. Adelman to 
 
         claimant on February 3, 1983.  The claimant returned to see Dr. 
 
         Adelman after wearing the shoes for one week and the doctor 
 
         reported that the ulcers were slowly closing but they were still 
 
         large.
 
         
 
              On March 11, 1983, the claimant was readmitted to Des Moines 
 
         General Hospital with the chief complaint of pain and swelling in 
 
         the left foot and lower leg region.  The claimant continued to 
 
         have bilateral neurogenic foot ulcers.  The claimant's blood 
 
         sugar was found to be in the 200-400 range initially upon 
 
         admission.  The claimant was discharged on March 25, 1983, in an 
 
         improved condition.
 
         
 
              The claimant was placed on medical leave beginning March 14, 
 
         1983.  The claimant applied for and received nonoccupational 
 
         group disability benefits.  On September 6, 1983, the claimant 
 
         returned to work at Parker Brothers as an assembler and worked a 
 
         total of approximately 26 hours that week.  That is the last time 
 
         the claimant worked at Parker Brothers.
 
         
 
              The claimant was admitted to Des Moines General Hospital on 
 
         September 16, 1983 with bilateral neurogenic foot ulcers.  Dr. 
 
         Kurtz felt that the claimant had cellulitis of the left foot.  
 
         The claimant's position with Parker Brothers was terminated on 
 
         January 20, 1984 when the Des Moines Facility closed.  The 
 
         claimant was again admitted to Des Moines General hospital on 
 
         January 27, 1984.  In the records it is reported that the 
 
         claimant had been doing quite well at home over the last several 
 
         months, however, on January 26, 1984, the claimant noticed 
 
         increased swelling and slight pus drainage from the lateral
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 6
 
         
 
         
 
         aspect of his left foot.  The claimant's feet were again debrided 
 
         on January 28, 1984.  Since that time the claimant has had 
 
         periodic episodes of infection and cellulitis of his feet.  After 
 
         each acute episode the claimant's feet would improve but never 
 
         completely heal.  The claimant still has bilateral neurogenic 
 
         foot ulcers.
 
         
 
              There is no dispute among the physicians as to the severity 
 
         of the claimant's disabling condition and all agree that he could 
 
         not return to his former employment or any other position that 
 
         requires weight bearing on his feet.
 
         
 
              Roger Marquardt, a vocational rehabilitation specialist, 
 
         evaluated the claimant and stated that in his opinion the 
 
         claimant was not employable in a competitive labor market due to 
 
         his severe physical limitations, lack of education, and lack of 
 
         transferable skills.  He further thought the claimant was 
 
         motivated to return to work, particularly in light of the 
 
         claimant's past work history.  Marquardt stated that although 
 
         claimant has good transferable skills he is physically unable to 
 
         utilize them.
 
         
 
              Richard Meier, the transportation manager at Parker 
 
         Brothers, testified that he was aware of claimant's foot problems 
 
         and difficulty with standing during his job.  He testified that 
 
         he attempted to accommodate claimant's problems by trying to get 
 
         fellow employees to cooperate in providing claimant with more 
 
         sitting time during the assembly job.
 
         
 
              Michael Harvey, D.O., the claimant's treating physician, 
 
         testified by deposition that weight bearing activities 
 
         superimposed upon an individual with long-standing diabetes 
 
         compromises the circulation and ultimately breaks down the 
 
         tissues so that ulcers develop.  He further expressed his opinion 
 
         that the claimant's work activity in the fail of 1982 and the 
 
         spring of 1983 would have been a substantial factor in producing 
 
         the claimant's disability as the result of an aggravation of the 
 
         neurogenic ulcers and subsequent complications which have now 
 
         progressed to the point where the claimant is unable to be 
 
         gainfully employed.  Dr. Harvey also indicated that the claimant 
 
         was compliant with medical treatment and that his condition was 
 
         not related to a lack of care of his feet.
 
         
 
              Paul From, M.D., a board certified internist, treats a great 
 
         number of diabetic patients and had examined the claimant.  Dr. 
 
         From testified that the claimant's preexisting diabetic condition 
 
         would make him more susceptible to injury from weight-bearing 
 
         activities than a person without this preexisting peripheral 
 
         neuropathy related to his diabetic condition that standing on 
 
         hi-s feet would have aggravated or accelerated his tendency to 
 
         develop neurogenic ulcers.  He attributed the swelling, suffered 
 
         by the claimant since March of 1983, as the result
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 7
 
         
 
         
 
         of repeated insults of neurogenic ulcers and infection.  Dr. From 
 
         thought that the claimant's work activity produced a permanently 
 
         disabling condition which had progressed to the point where the 
 
         claimant was unable to do any kind of work at all and certainly 
 
         no work requiring weight bearing activities.  He further stated 
 
         that the claimant's condition would prevent the claimant from 
 
         engaging in any gainful employment indefinitely into the future 
 
         and that the work activity was a substantial factor in producing 
 
         this disability.  Although Dr. From conceded that many of the 
 
         claimant's problems may have occurred in any event due to 
 
         uncontrolled diabetes obesity, and everyday weight bearing, the 
 
         condition certainly developed sooner because of the work 
 
         activity.
 
         
 
              Terrance Kurtz, M.D., was consulted on the claimant's case 
 
         between October of 1982 and September of 1983.  In his deposition 
 
         Dr. Kurtz indicated that since the claimant was losing sensation 
 
         in his feet, trauma to the lower extremities can result in 
 
         neurogenic ulcer deterioration.  He believed the claimant had a 
 
         chronic condition and that weight bearing would increase the risk 
 
         for further problems.  He did not, however, have any views on the 
 
         claimant's present condition since he had not seen him since 
 
         1983.
 
         
 
              Robert Good, D.O., treated the claimant between 1980 and 
 
         1982.  He noted an increase in the claimant's weight during that 
 
         period of time.  In 1980 he treated the claimant for diabetic 
 
         ketoacidosis.  At that time he noted a large pressure ulcer on 
 
         the claimant's left foot and then, in October of 1981, he noted 
 
         an ulcer on the opposite foot.  He advised the claimant to stay 
 
         off his feet and ultimately a skin graft was performed in January 
 
         of 1981.  Then in January of 1982, the claimant was treated for 
 
         ulcerations on both feet.  Dr. Good testified in his deposition 
 
         that anything that required the claimant to be on his feet would 
 
         aggravate his ulcers further.  He noted that when the claimant 
 
         was hospitalized and taken off of his feet that the ulcers showed 
 
         substantial healing and at one point were entirely healed.  He 
 
         stated that the operation of the pedals on the clamp-truck 
 
         aggravated the condition in addition to standing or walking.  Dr. 
 
         Good recommended that the claimant avoid any type of job which 
 
         required long-standing or required doing something recurrently 
 
         with his feet.
 
         
 
              Edward J. Hertko, M.D., a board certified internist with a 
 
         subspecialty in the care and treatment of diabetes, opined in his 
 
         deposition that claimant's current foot problems are a natural 
 
         progression of his diabetes disease process and that his work 
 
         activity before the assembly job did not contribute to his foot 
 
         problems as he was sitting most of the time on the forklift truck 
 
         job.  Dr. Hertko felt that any increased weight bearing such as 
 
         the assembly job would accelerate the disease process but that 
 
         "in the long run it had no basis for his chronic disability at 
 
         this time." Dr. Hertko believes
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 8
 
         
 
         
 
         that as of the time of his deposition in January, 1988, claimant 
 
         would be unable to work in weight bearing work "no matter what 
 
         type of a job he would have had."
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Defendants, in cross-examination of claimant, raised an 
 
         issue of credibility with reference to claimant's current 
 
         condition, past compliance with physician recommendations as to 
 
         care and treatment and the ability to handle his former job as a 
 
         clamp truck operator.  Therefore, a credibility finding is 
 
         necessary and from his appearance and demeanor claimant is found 
 
         to be credible.
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that he received injuries which arose out of and in 
 
         the course of employment.  The words "out of" refer to the cause 
 
         or source of the injury.  The words "in the course of" refer to 
 
         the time and place and circumstances of the injury. See Cedar 
 
         Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe 
 
         v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
         An employer takes an employee subject to any active or dormant 
 
         health impairments, and a work connected injury which more than 
 
         slightly aggravates the condition is considered to be a personal 
 
         injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 
 
         106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injuries are a cause 
 
         of the claimed disability.  A disability may be either temporary 
 
         or permanent.  In the case of a claim for temporary disability, 
 
         the claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, 
 
         Inc. , 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 9
 
         
 
         
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish v. Fischer, Inc., 
 
         257 Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along 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. Asse 
 
         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, the issue of causal connection and 
 
         whether the injury arose out of the employment was hotly 
 
         contested.  Defendants primarily rely upon the ruling of the 
 
         supreme court in Musselman v. Central Telephone Co., 261 Iowa 
 
         352, 154 N.W.2d 128, 132 (1967) and the testimony of Dr. Hertko.  
 
         In Musselman the court stated that a compensable aggravation of a 
 
         preexisting condition is not shown where "any rationale work" 
 
         would cause the aggravation.  More recently, the court in Cedar 
 
         Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979) 
 
         has apparently adopted a "positional risk" theory by holding that 
 
         an employee injured by a deranged fellow worker was injured in 
 
         the course of his employment.  In Cady the court said that the 
 
         injury must be a natural incident of the work or a rationale 
 
         consequent of a hazard connected with employment.  See Lawyer and 
 
         Higgs, Iowa Workers' Compensation -- Law & Practice, section 5-1, 
 
         pages 32 & 33.  In any event, the legal authorities all agree 
 
         that the undersigned must rely heavily upon the views of experts 
 
         in this case.
 
         
 
              Turning to the experts, Dr. Harvey, the family physician, 
 
         certainly supported claimant's case but his testimony cannot be 
 
         given the same weight as the testimony of the specialists.  Dr. 
 
         Harvey did verify that claimant followed his instructions at 
 
         least insofar as the mechanical care of the disease and the foot 
 
         ulcers.  Obviously, claimant was quite negligent in maintaining 
 
         his weight over the years.
 
         
 
              Dr. Kurtz is an infectious disease specialist but was not 
 
         board certified in the care and treatment of diabetes.  His 
 
         testimony was not very convincing as it greatly conflicted with 
 
         his written reports without adequate explanation.  Claimant's 
 
         employment was considered in Dr. Kurtz's reports to be a 
 
         significant cause of claimant's foot problems, but during his 
 
         testimony
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 10
 
         
 
         
 
         Dr. Kurtz felt that this was only a minor cause.  Dr. Kurtz's 
 
         testimony was, however, useful in that he did testify that 
 
         claimant's chronic infection problems did not exhibit itself 
 
         until after the hospitalization in March, 1983, following the 
 
         performance of the assembly job.  This is a critical fact which 
 
         shows a significant change in condition after this assembly job 
 
         which did not exist previously.
 
         
 
              Dr. Good's deposition testimony was useful to the extent 
 
         that he concurred with others that weight bearing generally would 
 
         aggravate claimant's foot ulcer condition and that claimant 
 
         should avoid weight bearing activities in future employment.
 
         
 
              The case on the whole, however, centered around the 
 
         deposition testimony of two board certified internists, Dr. From 
 
         and Dr. Hertko.  Despite the fact that both were so-called 
 
         "hired" witnesses, they appeared quite credible in what they had 
 
         to say about the cause of claimant's foot problems.  At first 
 
         glance the testimony of these two witnesses appear conflicting 
 
         with Dr. From testifying that claimant's problems were caused by 
 
         the job and Dr. Hertko saying the opposite.  After close 
 
         examination, however, both of these doctors appear to be saying 
 
         the same thing but from different perspectives.  Dr. From opined 
 
         that the ulcer conditions and the resulting disability was 
 
         accelerated by the assembly job but later admits to the strong 
 
         possibility that claimant, over a period of time, would have 
 
         experienced the same problems anyway.  Dr. Hertko opined that 
 
         although any increased standing would accelerate claimant's ulcer 
 
         problems, in the long run this aggravation does not have an 
 
         effect.  Dr. Hertko is convinced that at the time of the 
 
         deposition, claimant's condition would be the same regardless of 
 
         his employment.  Therefore, it is clear that the deteriorating 
 
         condition of claimant's foot ulcers was accelerated by the 
 
         assembly job in early 1983 but, regardless of this acceleration, 
 
         claimant today is in the same condition he would have been had 
 
         there been no reassignment to an assembly job.
 
         
 
              Therefore, it appears that from the greater weight of 
 
         evidence presented that claimant has not established a gradual 
 
         work injury prior to 1983 while working as a forklift operator.  
 
         A job which required little weight bearing does not appear to 
 
         have significantly affected a progression of claimant's diabetes 
 
         disease process.  However, claimant has established a gradual 
 
         injury when he was assigned to the assembly job in early 1983 and 
 
         was, as a result, compelled to leave his work on March 11, 1983.  
 
         Under the gradual injury theory, March 11, 1983 appears to be the 
 
         most appropriate injury date because the return to work during 
 
         the week of 1983 was much too brief to constitute a new injury 
 
         process.  After the assembly job in March, 1983, claimant's 
 
         condition clearly worsened according to the medical experts.  He 
 
         was compelled to leave employment earlier than the time when his 
 
         progressive disease would have
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 11
 
         
 
         
 
         forced a loss of employment.  However, again claimant's condition 
 
         and his ability to work today is no worse than it would be had he 
 
         not been employed at Parker Brothers.  Given his background and 
 
         experienced, Dr. Hertko was very convincing on this point.  
 
         Consequently, the injury did not change claimant's ultimate 
 
         outcome, it only hastened this outcome.
 
         
 
              The question, therefore, is whether the acceleration injury 
 
         in this case is a temporary or permanent disability.  The answer 
 
         to that question is not at all clear under the law.  We have a 
 
         line of death cases in Professor Larson's treatise on workers' 
 
         compensation section 12.23, pp. 3-348.71-75, which hold that the 
 
         eventuality of death due to prior existing conditions is 
 
         irrelevant to the "arising out of" analysis.  On the other hand, 
 
         Larson at sections 12.22, pp. 3-348.34-40 points out that in 
 
         cases where compensation was allowed from employment activity 
 
         which accelerated a disease process, the prior existing condition 
 
         may have continued indefinitely without disability but for the 
 
         employment.  It would appear from a reading of Larson that there 
 
         is a difference in the case law between acceleration of the 
 
         injury or disease process for the purpose 'of determining whether 
 
         or not any injury occurred; and, the acceleration of a loss of 
 
         earnings or earning capacity for the purposes of determining 
 
         extent of disability.  Although the former is sufficient to 
 
         establish a work injury, the latter type of acceleration does 
 
         not, by itself, show permanent disability where the aggravating 
 
         employment ultimately had no effect on the resulting outcome of 
 
         the disability.  The death cases can be distinguished because the 
 
         extent of disability is not at issue in such cases.  The only 
 
         issue in death cases is whether the death arose out of 
 
         employment.  Therefore, it will be found from the facts presented 
 
         that claimant has only shown a temporary aggravation of a 
 
         preexisting condition as a result of a gradual injury on March 
 
         11, 1983.
 
         
 
              Admittedly, one can argue that under the theory of 
 
         Blacksmith, 290 N.W.2d 348, 354 (Iowa 1980), that claimant has at 
 
         least some permanent disability due to the early loss of his job.  
 
         However, this is not a pure body as a whole or industrial 
 
         disability case but involves the loss of use of two scheduled 
 
         members under Iowa Code section 85.34(2)(s). The analysis is 
 
         industrial only to the extent that claimant can show a permanent 
 
         total disability.  First, claimant's assertion of the odd-lot 
 
         doctrine is unfounded because the commissioner has ruled that 
 
         claimant cannot solely rely upon a rehabilitation report but must 
 
         show unsuccessful employment search to utilize the burden 
 
         shifting features of the odd-lot doctrine.  Emshoff v. 
 
         Petroleum Transport Services, file number 753723 (Appeal Decision 
 
         filed March 31, 1987).  Such a showing of an unsuccessful 
 
         employment search has not been made in this case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, regardless of the odd-lot doctrine, the facts of 
 
         this case do not convince the undersigned that all of the
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 12
 
         
 
         
 
         claimant's current but admittedly severe disability is causally 
 
         connected to the brief assembly job at Parker Brothers.  The fact 
 
         remains that prior to and independent of the assembly job, 
 
         claimant was on the path of total disability within a few years 
 
         in any event.  If then claimant is unable to show a causal 
 
         connection to permanent total disability, the analysis is limited 
 
         to a scheduled member case involving a loss of both feet.  
 
         Claimant should note below that the order in this case in terms 
 
         of number of weeks is not significantly different than a full 
 
         award for the loss of use of two feet.
 
         
 
              As claimant has established entitlement to causal connection 
 
         to temporary total disability, claimant is entitled to weekly 
 
         benefits under Iowa Code section 85.33 from the first day of 
 
         disability until claimant returns to work or he is medically 
 
         capable of returning to substantially similar work to the work he 
 
         was performing at the time of the injury.  The start of 
 
         claimant's temporary total disability period is clear and 
 
         coincides with the time claimant left employment on March 11, 
 
         1983.  However, the end of temporary total disability period is 
 
         not clear because claimant has not returned to work and will 
 
         never be able to do so due to his progressive diabetes condition.  
 
         Therefore, a reasonable interpretation of the language would be 
 
         to end the temporary total disability period when claimant could 
 
         return to the type of work he was capable of performing giving 
 
         his progressive disease.  This also would coincide with the time 
 
         when the effect of the acceleration on the foot ulcer had ended 
 
         and when the natural progression of the disease and the foot 
 
         ulcer condition would have caught up with claimant.  According to 
 
         Dr. Hertko, this was true at the time of his deposition on 
 
         January 27, 1988.  We have no other testimony on this issue.  
 
         Therefore, given such testimony, it is found that claimant on 
 
         January 27, 1988, would be able to return to the type of work he 
 
         was capable of performing given his prior existing progressive 
 
         disease.  This may not be to the same type of work he was 
 
         performing in 1983.  Indeed, it may not be to any particular 
 
         employment at all.  However, it is at this point in time that 
 
         claimant's condition was no longer affected by the aggravation 
 
         injury.  Claimant is then entitled to temporary total disability 
 
         from March 11, 1983 through January 27, 1988 except for the 
 
         period from September 7, 1983 through September 8, 1983 when 
 
         claimant briefly returned to work.
 
         
 
              Claimant is entitled to payment of reasonable medical 
 
         expenses incurred for treatment of the gradual work injury found 
 
         in this case.  However, these expenses would be limited to the 
 
         physician and hospital care he received during the temporary 
 
         total disability period found above.  Defendants will be ordered 
 
         to pay these expenses, however, no part of the requested expenses 
 
         for travel could be granted because there was insufficient 
 
         itemization in claimant's listing of such expenses in the 
 
         prehearing report to separate medical travel prior to March 11, 
 
         1983.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 13
 
         
 
         
 
         Therefore, it will be ordered that defendants will pay whatever 
 
         portion is attributable to claimant's foot ulcers during the 
 
         temporary total disability period found in this case.  However, 
 
         claimant is entitled to an order of reimbursement only if 
 
         claimant has paid these expenses.  See Krohn v. State, 420 N.W.2d 
 
         463 (Iowa 1988).  Otherwise, defendants shall pay the provider 
 
         directly.
 
         
 
              With reference to the rate dispute, the problem involves the 
 
         extent of claimant's gross weekly earnings.  According to the 
 
         evidence, claimant customarily worked 40 hours a week although he 
 
         occasionally worked less or more during his entire employment 
 
         experience at Parker Brothers.  Claimant's hourly rate on the 
 
         date of injury was $6.73 per hour.  No reason has been shown by 
 
         either party to use anything other than the customary work week 
 
         in determining rate.  Given a gross weekly rate of $269.20 and 
 
         the parties' stipulation that claimant was married and entitled 
 
         to three exemptions, claimant's weekly compensation rate is 
 
         $175.42 according to the commissioner's rate booklet for an 
 
         injury on March 11, 1983.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2. Claimant was in the employ of Parker Brothers at all 
 
         times material herein.
 
         
 
              3. On March 11, 1983, claimant suffered a gradual injury to 
 
         both of his feet which arose out of and in the course of his 
 
         employment as an assembly worker at Parker Brothers in early 
 
         1983.  This injury was an aggravation of a prior existing 
 
         diabetes and foot ulcer condition.  Although the foot ulcers were 
 
         a result of a progressively deteriorating diabetes condition, the 
 
         employment in early 1983 accelerated this deterioration process.
 
         
 
              4. The work injury of March 11, 1983, was a cause of a 
 
         period of temporary total disability from work beginning on March 
 
         11, 1983 and ending on January 27, 1988 at which time the effect 
 
         of the aggravation injury ended and claimant was able to return 
 
         to the type of work to which he is capable given his prior 
 
         existing progressive disease condition.  Claimant, however, 
 
         briefly returned to work on September 7, 1983.
 
         
 
              5. The following medical expenses are fair and reasonable 
 
         and were incurred by claimant as a result of the work injury on 
 
         March 11, 1983:
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 14
 
         
 
         
 
         Des Moines General Hospital
 
               9/11/83  -  9/30/83                    $  7,144.32
 
               10/14/83                                    201.60
 
               11/18/83 -  11/24/83                      2,144.50
 
               1/29/84 -   1/31/84                       2,264.50
 
               7/20/86 -   7/25/86                       2,253.10
 
          
 
          Terrance Kurtz, D.O. 
 
               3/16/83 -  11/03/86                       1,980.00
 
          
 
          Michael Harvey, D.O.
 
               1/10/83  -  1/27/88                      14,629.50
 
          
 
          Norman Rose, D.O.
 
               9/16/83 -  11/20/83                       1,225.00
 
                                                       $31,842.52
 
         
 
              Claimant also incurred an undetermined amount of medical 
 
         travel expenses.
 
         
 
              6. On March 11, 1983, claimant customarily worked 40 hours 
 
         per week at an hourly rate of $6.73 per hour.  Claimant's gross 
 
         weekly earnings at the time of the work injury was $269.20. Given 
 
         the parties' stipulation as to marital status and exemptions, 
 
         claimant's rate of weekly compensation is $175.42.
 
         
 
              7. Claimant was not found to have suffered a work injury 
 
         prior to March 11, 1983 while claimant was working as a forklift 
 
         operator at Parker Brothers.  Claimant sat most of the time 
 
         during his job and the limited weight bearing activities had 
 
         little impact upon the overall progressive disease process which 
 
         began in claimant's early adult life.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         specific disability and medical benefits and rate of compensation 
 
         awarded below.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant temporary total 
 
         disability benefits from March 14, 1983 through September 6, 1983 
 
         and from September 9, 1983 through January 27, 1988 at the rate 
 
         of one hundred seventy-five and 42/100 dollars ($175.42) per 
 
         week.
 
         
 
              2. Defendants shall pay the medical expenses listed in 
 
         finding number 4 above and the medical expenses of Terrance 
 
         Kurtz, D.O., and Michael Harvey, D.O., and the medical travel 
 
         expenses at the rate of twenty-one cents ($.21) per mile incurred
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILSON V. PARKER BROTHERS, INC.,
 
         Page 15
 
         
 
         
 
         by claimant during the period of temporary total disability 
 
         beginning on March 14, 1983 and ending on January 27, 1988.
 
         
 
              3. Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendants shall file activity reports upon the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 8th day of March, 1989.
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert Siddens
 
         Attorney at Law
 
         650 42nd St.
 
         Des  Moines, Iowa  50301
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1800
 
                                         Filed March 8, 1989
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. WILSON,
 
          
 
                Claimant,
 
                                                      File Nos. 760432,
 
          VS.                                           760433 & 760434
 
          
 
          PARKER BROTHERS, INC.,                     A R B I T R A T I 0 
 
         N
 
          
 
                Employer,                             D E C I S I 0 N
 
          
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE
 
          COMPANIES,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
         1800    Permanent v. Temporary  Disability
 
         
 
              Claimant was a long-term diabetic who was suffering a 
 
         progressively deteriorating condition in his feet consisting of 
 
         foot ulcers and chronic infection.  It was found that his work as 
 
         a forklift operator in which he performed little weight bearing 
 
         activities while on the job did not materially aggravate this 
 
         progressive disease process.  However, claimant was reassigned 
 
         for a brief time as an assembly operator after which time his 
 
         condition worsened and claimant was forced to leave his 
 
         employment.  It was found that this was a gradual injury but that 
 
         claimant was already on the path of permanent total disability 
 
         before the injury and the injury only accelerated this process.  
 
         It was found that claimant had not established a causal 
 
         connection of all of his problems to the brief period of 
 
         employment as an assembly operator, however, it was found that 
 
         claimant had suffered a significant amount of temporary total 
 
         disability as a result of his having to leave the work force 
 
         early and approximately five years of temporary total disability 
 
         was awarded.  The time the temporary total disability ended 
 
         coincided with the time that claimant was able to return to the 
 
         type of work he was capable of performing given his progressive 
 
         disease process.  This also coincided with the time the medical 
 
         experts agreed that the effects of the accelerated disease 
 
         process from the work had subsided and at that time claimant 
 
         would have been at that condition regardless of any work 
 
         experience.  Claimant was awarded medical benefits during the 
 
         period of time of the temporary total disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES R. HAYES,                            File No. 760655
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                       F I L E D
 
         
 
              Employer,                                 JAN 22 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charles R. 
 
         Hayes, claimant, against Wilson Foods Corporation, employer, and 
 
         self-insured defendant for benefits as a result of an injury that 
 
         occurred on February 13, 1984.  The original notice and petition 
 
         allege that the injury occurred on February 12, 1984; however, 
 
         all of the other evidence shows that the injury occurred on 
 
         February 13, 1984.  Therefore, February 13, 1984 will be used as 
 
         the injury date.  A hearing was held at Storm Lake, Iowa on April 
 
         14, 1987 and the case was fully submitted at the close of the 
 
         hearing.  The record consists of joint exhibits 1 through 67; 
 
         defendant's exhibit 1; and the testimony of Charles R. Hayes 
 
         (claimant); Tami Hayes (claimant's wife); Richard Corbin 
 
         (claimant's friend); Mike Wilbur (co-employee); John Ketelsen 
 
         (union representative); and Mary Kitterman (nurse and workers' 
 
         compensation administrator).
 
         
 
                                STIPULATIONS
 
         
 
              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 claimant sustained an injury on or about February 
 
         13, 1984 which arose out of and in the course of his employment 
 
         with employer.
 
         
 
              That the alleged injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to and has been paid 41 weeks of 
 
         temporary disability benefits for the period specified in the 
 
         prehearing report and that additional temporary disability is not 
 
         an issue in this case.
 
         
 
              That claimant is entitled to and has been paid 45 weeks of 
 
                                                
 
                                                         
 
         permanent disability benefits based upon a nine percent 
 
         impairment rating of the body as a whole.
 
         
 
              That the type of permanent disability to which claimant is 
 
         entitled, in the event of an award of additional benefits, is 
 
         industrial disability to the body as a whole.
 
         
 
              That commencement for permanent partial disability benefits 
 
         is April 20, 1986.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         additional weekly benefits, is $236.51 per weeks.
 
         
 
              That claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 is not in dispute, but there is an issue with 
 
         respect to Iowa Code section 85.39 for an examination by Horst G. 
 
         Blume, M.D.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged were reasonable and defendant is not offering 
 
         contrary evidence.
 
         
 
              That no credit is claimed for benefits paid under a 
 
         nonoccupational employee group plan.
 
         
 
              That defendants are entitled to credit for 41 weeks of 
 
         temporary benefits and 45 weeks of permanent partial disability 
 
         benefits paid prior to hearing at the rate of $236.51 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant is entitled to additional permanent partial 
 
         disability benefits for industrial disability to the body as a 
 
         whole.
 
         
 
              Whether claimant is entitled to be reimbursed for the cost 
 
         of an examination by Horst G. Blume, M.D. in the amount of 
 
         $150.00 as an independent medical examination under the 
 
         provisions of Iowa Code section 85.39.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 40 years old, married and has two dependant 
 
         children.  He graduated from high school in 1965.  He acquired 
 
         one and one-half years of junior college by attending nights and 
 
         weekends.  Former employments include laborer on bridge 
 
         construction, welder, fork lift driver and punch press operator. 
 
                                                
 
                                                         
 
         He started to work for employer in May of 1966.  He had no 
 
         physical problems at that time.  Claimant has sustained a number 
 
         of previous work-related injuries to his hand, to his testicle, 
 
         and to his knee while working for employer for which workers' 
 
         compensation benefits have been paid.
 
         
 
              On February 13, 1984 while stuffing extra dry and large 
 
         hams, claimant felt his shoulder pop and his face and neck went 
 
         numb. The employer's physician Keith Garner, M.D., sent claimant 
 
         to the University of Nebraska Medical Center at Omaha where 
 
         claimant was treated by W. Michael Walsh, M.D., an orthopedic 
 
         surgeon.  Dr. Walsh first referred claimant to Lyal G. Leibrock, 
 
         M.D., a neurosurgeon, at the university hospital.  An EMG, 
 
         myelogram and spine films were all essentially normal (Exhibit 
 
         7).  Claimant was then referred back to Dr. Walsh.  Dr. Walsh 
 
         then diagnosed a rotator cuff tear that occurred on the job while 
 
         pushing a ham through a machine.  Dr. Walsh performed an 
 
         arthrogram and arthrotomogram.  On May 29, 1984, Dr. Walsh 
 
         performed a right shoulder arthroscopic debridement of a labrum 
 
         tear, Neer acromioplasty, Mumford distal clavicle resection and 
 
         coracoacromial ligament resection (Ex. 12 and 16).  On August 27, 
 
         1984, Dr. Walsh said claimant had recovered to 70 percent of 
 
         normal (Ex. 13).  On December 4, 1984, Dr. Walsh awarded a 
 
         permanent partial impairment rating of 15 percent of the right 
 
         upper extremity.  On January 21, 1985, Dr. Walsh increased this 
 
         impairment rating to 30 percent of the right upper extremity.  On 
 
         April 26, 1985, Dr. Walsh felt that claimant should not be in a 
 
         job that involved heavier lifting than perhaps 30 pounds (Ex. 
 
         20). On May 21, 1985, Dr. Walsh finally determined that claimant 
 
         sustained a 10 percent permanent partial impairment to the right 
 
         upper extremity (Ex. 21).  On July 24, 1985, Dr. Walsh wrote to 
 
         Dr. Garner as follows:
 
         
 
              It is my opinion that Chuck Hayes will not be able to 
 
              continue in his same job for Wilson Foods.  I do not think 
 
              that he will do well in the future in work that involves 
 
              heavy use of the upper extremity such as lifting.  I have 
 
              advised him to see employment in another field.  In the 
 
              meantime, we are treating the short term problem with 
 
              anti-inflammatory medication and physical therapy.  Mr. 
 
              Hayes may return to see me as necessary.
 
         
 
         (Ex. 22)
 
         
 
              On June 17, 1985 claimant was examined by Richard P. Murphy, 
 
         M.D., an orthopedic surgeon in Omaha.  Dr. Murphy awarded 
 
         claimant a 15 percent permanent partial impairment of the right 
 
         upper extremity.  Dr. Murphy said claimant's work should be 
 
         modified to prevent heavy lifting above shoulder level.
 
         
 
              Claimant testified that when he returned to work he was 
 
         unable to do the shirmatic job and the tree washing job which 
 
         paid extra brackets and also paid overtime.  As a result, 
 
         claimant was forced to perform laboring types of work with only 
 
         two brackets or no brackets and without any overtime pay.  
 
                                                
 
                                                         
 
         Claimant testified that the young man who did the tree washing 
 
         job last year earned $27,000.00.  Claimant said that he only 
 
         earned $20,000.00. Claimant then testified that he, therefore, 
 
         lost $7,000.00 last year due to this injury because he contended 
 
         that he could no longer do the tree washing job.
 
         
 
              Claimant related that he was a member of the National Guard 
 
         from 1966 to 1969 and again from 1972 until 1976.  When he tried 
 
         to rejoin the National Guard he was unable to do so because he 
 
         could not pass the physical examination.  Therefore, claimant 
 
         alleged that he lost $200.00 per weekend in monthly drill pay, 
 
         plus another amount for the two week annual training period. 
 
         Claimant estimated this loss at approximately $2,600.00 to 
 
         $2,700.00 per year.  Claimant also asserted that he was forced to 
 
         quit his part-time job of tending bar that paid about $1,000.00 
 
         per month.  This is the only evidence on these losses.  They were 
 
         not supported by any other evidence or income tax records. 
 
         Claimant related that he still has pain in his right neck, face, 
 
         shoulder and shoulder blade most of the time.  He takes Advil 
 
         during the day.  Motrin makes him sick at his stomach.  He is 
 
         stiff and sore at night and has to apply ice or heat or Ben-Gay.
 
         
 
              Claimant has sought help for vocational rehabilitation and 
 
         he is ready for training but lacks the finances to go to school. 
 
         Claimant testified that he is interested in a two to three year 
 
 
 
                           
 
                                                         
 
         course in sales at Western Iowa Tech (WIT).  He looked at a 
 
         nautilus job and an insurance adjuster job, but he did not have 
 
         enough education for either of them.
 
         
 
              Claimant testified that he is no longer able to play golf, 
 
         water ski, coach little league, do yard work, shingle, paint or 
 
         remodel the house.
 
         
 
              Claimant testified that when he requested an independent 
 
         medical examination under Iowa Code section 85.39 he was shown a 
 
         piece of paper and was told that he already had elected and had 
 
         received an Iowa Code section 85.39 examination from Scott Neff, 
 
         D.O.  This paper reads as follows:
 
         
 
                   I request, under the provisions of Section 85.39 of the 
 
              Workers Compensation Law, an independent medical examination 
 
              from Dr. Scott Neff to determine the amount, if any, of my 
 
              physical impairment because of a claimed Workers 
 
              Compensation injury.
 
         
 
                   Dated this 7 day of May, 1986
 
         
 
                                       _____/s/____________
 
                                       Employee
 
         
 
         (Defendants' Ex. 1)
 
         
 
              Claimant testified that he could not have requested Dr. Neff 
 
         because he didn't even know Dr. Neff.  Claimant said that Dr. 
 
         Garner sent him to Dr. Neff.
 
         
 
              Dr. Garner gave a signed statement on May 10, 1987 to the 
 
         effect that claimant signed the second opinion form in his 
 
         presence and that it was claimant's decision to see Dr. Neff in 
 
         Des Moines.  This is Dr. Neff's statement.
 
         
 
              Charles Hayes was seen at Wilson Foods on 4-4-86 
 
              complaining of pain in the right shoulder.  He stated 
 
              physical therapy did not help and Motrin bothered his 
 
              stomach.  He was put on Advil, he was not working, and 
 
              requested to see Dr. Welch. He was referred Dr. Walsh, 
 
              University of Nebraska College of Medicine, Omaha, 
 
              Nebraska.  He was seen at Wilson Foods 4-16-86 which time 
 
              the patient returned stating that Dr Walsh told him not to 
 
              work.  By this time we had already received a letter from 
 
              Dr. Walsh dated Wednesday 4-9-86 in which Dr. Walsh stated 
 
              that he had told Mr. Hayes to continue working. At this 
 
              time Mr. Hayes said that he was requesting a second 
 
              opinion.  Examination of his records revealed he had 
 
              already received a second opinion from Dr. Murphy in Omaha.  
 
              He was therefore referred to the safety director Larry 
 
              Flood.  The patient was seen on 5-7-86.  In consultation 
 
              with Larry Flood Mr. Hayes stated in the presence of the 
 
              nurse and myself that he wished to go to Dr. Neff in Des 
 
              Moines for another opinion.  The company second opinion 
 
                                                
 
                                                         
 
                   form was filled out at this time.  The patient signed the 
 
              filled out form in the presence of the nurse and myself.  
 
              Appointment was made with Dr. Neff 4-5-86 at 2:30 p.m.  
 
              Thank you for your attention to this matter.
 
         
 
         (Ex. 64)
 
         
 
              Claimant countered that only Mary Kitterman was present when 
 
         he signed this paper.  He also alleged that no doctors name was 
 
         on it when he signed it.  Claimant contended that the name of 
 
         Scott Neff was added later.  Claimant then testified that he 
 
         later saw Dr. Garner who told him that "We will give you another 
 
         opinion", and told him that "We will send you to see Dr. Neff in 
 
         Des Moines."
 
         
 
              Dr. Neff saw claimant on May 20, 1986 as did Dr. Neff's 
 
         assistant, Thomas W. Bower, L.P.T.  Together they awarded 
 
         claimant a 13 percent permanent partial impairment rating of the 
 
         right upper extremity.  Dr. Neff also stated "I believe that 
 
         there are significant jobs that he can continue doing, and would 
 
         agree with his previous restriction of eliminating him or 
 
         restricting him from overhead work, but would recommend that the 
 
         weight be decreased from 20 pounds to no work eye level with the 
 
         right hand." (Ex. 66).
 
         
 
              Claimant was given a complete orthopedic and neurologic 
 
         examination by Byron L. Linden, D.C., on July 9, 1986.  Dr. 
 
         Linden gave claimant an impairment rating of 20 percent of the 
 
         body as a whole.  Dr. Linden cautioned, however, that it was not 
 
         to be considered a permanent impairment rating, because in his 
 
         opinion claimant had not obtained maximum medical improvement.  
 
         In view of claimant's work history, Dr. Linden felt that if 
 
         claimant continued on his present work it would promote further 
 
         damage to already injured physical structures.  Dr. Linden 
 
         recommended that claimant seek other work (Ex. 61).
 
         
 
              Dr. Blume saw claimant on August 4, 1986.  He determined 
 
         that claimant suffered a 31 percent permanent partial impairment 
 
         of the right upper extremity.  He charged $150.00 for his 
 
         examination (Ex. 62).
 
         
 
              Claimant admitted on cross examination that he did not own 
 
         the shirmatic or the tree washing job.  Claimant admitted that he 
 
         had been bumped from both of these jobs prior to the injury.  He 
 
         also admitted that he had been bumped from other jobs and was 
 
         stuffing hams by hand at the time of the injury.  Since his 
 
         return to work on April 26, 1986, claimant testified that he has 
 
         only performed waist level jobs.  Claimant testified that he now 
 
         had the seniority to own the shirmatic job and tree washing job, 
 
         but that he was unable to do them due to this injury.  The tree 
 
         wash job pays two brackets or ten cents extra and the shirmatic 
 
         job pays six brackets or 30 cents extra.  Both jobs also have 
 
         overtime pay.
 
         
 
              Tami Hayes, claimant's wife, testified that claimant's 
 
                                                
 
                                                         
 
         activities, working at home and playing with the children are now 
 
         restricted.  He comes home from work and has to put ice or heat 
 
         on his shoulder.  When they go out in the evening they have to 
 
         come home early.  She testified that she has had to take on two 
 
         part-time jobs to make up for claimant's lost income.
 
         
 
              Richard Corbin, a close friend of claimant, testified that 
 
         he used to play golf, water ski and play softball with claimant.  
 
         He also performed carpenter jobs with claimant.  Now, however, 
 
         claimant cannot lift his arm past a certain point.  He testified 
 
         that claimant can no longer shingle, paint or play golf.  The 
 
         witness testified that he shingled claimant's garage for him and 
 
         that he painted the eves on claimant's house for him.
 
         
 
              Mike Wilbur testified that he has been employed by employer 
 
         for 20 years.  He stated that he operates the shirmatic machine 
 
         now and earned $24,000.00 doing that job.  Claimant contended 
 
         that he lost $4,000.00 because he can no longer perform that 
 
         job.
 
         
 
              John Ketelsen testified that he has been employed by 
 
         employer for 21 years.  He is vice-president of the union local 
 
         number 179. He has handled workers' compensation for the union 
 
         since 1983.  He stated that he would choose Dr. Neff for 
 
         treatment but he would not choose him to give a rating for an 
 
         injury because Dr. Neff does not give good ratings.  Ketelsen 
 
         verified that claimant had enough seniority to qualify for the 
 
         tree wash job, the shirmatic job and smokehouse jobs.  These are 
 
         strenuous jobs, however, but they pay overtime daily and on 
 
         weekends.
 
         
 
              Mary Kitterman, R.N., day shift nurse and workers' 
 
         compensation administrator, testified that she was familiar with 
 
         defendants' exhibit one, a request for independent medical 
 
         examination.  She testified that it was executed in her office. 
 
         Those present at the time it was signed were claimant, Dr. Garner 
 
         and herself.  She testified that Dr. Neff's name was written in 
 
         at the time claimant signed it.  She testified that claimant 
 
         signed the form in the presence of Dr. Garner and herself.  
 
         Kitterman stated that Dr. Garner recommended Dr. Neff for a 
 
         second opinion. Claimant said that he had heard good things about 
 
         Dr. Neff.  Dr. Garner then said "Stop by after work and we will 
 
         have an appointment set up for you."  Kitterman testified that 
 
         she had heard no complaints with Dr. Neff either with respect to 
 
         his treatment or his ratings.
 
         
 
              Claimant testified in rebuttal that Dr. Garner was not 
 
         present when the form was signed and that Scott Neff's name was 
 
         not filled in when he signed it.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 13, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
                                                
 
                                                         
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 32 
 
         (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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
 
 
                        
 
                                                         
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Dr. Walsh recommended a 30 pound lifting restriction with 
 
         respect to claimant's right arm and recommended employment in 
 
         another field of work.  He eventually and finally awarded 
 
         claimant a ten percent permanent partial impairment of the right 
 
         upper extremity.  This rating translates to six percent to the 
 
         body as a whole according to Guides to the Evaluation of 
 
         Permanent Impairment, second edition, page 23, table 20.  Dr. 
 
         Walsh was the primary treating physician and the surgeon who 
 
         operated on and cared for claimant's injury from beginning to 
 
         end.
 
         
 
              Dr. Murphy, who appears to be a one time evaluating 
 
         physician, awarded a 15 percent permanent partial impairment 
 
         rating of the right upper extremity.  This translates to nine 
 
         percent of the body as a whole.  Dr. Murphy recommended against 
 
         lifting above shoulder level with the right shoulder.
 
         
 
              Dr. Neff, too, was an evaluating doctor.  He did not treat 
 
         claimant.  Dr. Neff agreed with eliminating or restricting 
 
         overhead work at least above eye level, but did not feel that a 
 
         weight restriction was necessary.  He awarded claimant a 13 
 
         percent permanent partial impairment rating of the right upper 
 
         extremity.  This translates to eight percent of the body as a 
 
         whole.
 
         
 
              Dr. Linden, who both treated and evaluated the claimant, 
 
         felt that claimant should change jobs.  He awarded claimant an 
 
         impairment rating of 20 percent of the body as a whole.  However, 
 
         Dr. Linden did not feel claimant had reached maximum medical 
 
         improvement and therefore, he stated that his rating might not be 
 
         the final permanent impairment rating.
 
         
 
              Dr. Blume, another evaluating physician, did not impose any 
 
         working restrictions or limitations on claimant's activities.  He 
 
         awarded claimant a 31 percent permanent partial impairment rating 
 
         of the right upper extremity.  This translates to 19 percent of 
 
         the body as a whole.
 
         
 
              As a practical matter claimant is now unable to work with 
 
         his right arm above approximately shoulder level or eye level.  
 
         Also, he has been instructed to be careful about how much weight 
 
         he lifts with his right arm and shoulder.
 
         
 
              Defendants' attorney requested the following factors to be 
 
         taken into consideration in determining industrial disability.
 
         
 
                   Mr. Hayes returned to work at Wilson Foods on April 20, 
 
              1986, and has worked steady since that time and is still 
 
              working at that job.
 
                                                
 
                                                         
 
         
 
                   His physical impairment has not caused him to lose any 
 
              time after he was fully paid for his healing period.
 
         
 
                   The only claim to loss of earnings at Wilson Foods that 
 
              Mr. Hayes was able to come up with consisted in speculating 
 
              that his impairment prevented him from attempting to get one 
 
              or two other positions which because of the weight lifting 
 
              he might not have been able to perform.  These jobs, in and 
 
              of themselves, were scarcely any different in wage rate. 
 
              However, he claimed they presented opportunities for 
 
              considerable overtime.
 
         
 
                   In other words, his loss of income because of his 
 
              impairment was predicated on the speculative basis that he 
 
              could claim one of these jobs and then by working overtime 
 
              receive more money.  This is a rather flimsy and highly 
 
              speculative basis for industrial disability.  Mr. Hayes was 
 
              working at the same type of work for the same type of pay 
 
              when he was injured as he has done since he returned to 
 
              work. And he has continued doing this work for the last year 
 
              and he is still working at this job.
 
         
 
              It is true that whether claimant could obtain and retain 
 
         either the shirmatic job or the tree wash job on a long term 
 
         basis and earn the extra pay brackets and overtime pay is 
 
         somewhat speculative, but the operation of the seniority bidding 
 
         system is not speculative.  Also, whether claimant's injury 
 
         precluded him from serving a third tour in the National Guard or 
 
         working part time as a bar tender is somewhat speculative.  
 
         Numerous other factors, many of them unpredictable, make these 
 
         losses of income speculative.  What claimant's earning capacity 
 
         might have been at some future date under different circumstances 
 
         is purely speculation.  Stewart v. Crouse Cartage Co., File No. 
 
         738644 (Appeal Decision February 20, 1987).
 
         
 
              At the same time, claimant is unable to work with his right 
 
         arm above shoulder level according to one doctor, and eye level 
 
         according to another doctor.  Moreover, he must be careful not to 
 
         lift too much weight with his right arm.  Thirty pound and 20 
 
         pound weight restrictions were mentioned.  In this respect, 
 
         claimant has suffered a significant impairment.  It is clear from 
 
         claimant's testimony and the medical experts that claimant's 
 
         earning capacity has been impaired in that certain employment 
 
         opportunities will be foreclosed to claimant.  Michael v. 
 
         Harrison Co., 34 Biennial Report of the Industrial Commissioner, 
 
         218, 219 (1979).
 
         
 
              Claimant's attorney requested that the following factors be 
 
         taken into consideration in determining industrial disability.
 
         
 
         Age
 
         
 
                   At age 40, with a partially grown family, Claimant 
 
              faces minimally 25 years in the work force with 
 
                                                
 
                                                         
 
                   obviously diminished capacities.  He is at an age where 
 
              this factor is extremely important in designating an 
 
              adequate award of industrial disability.
 
         
 
         Education
 
         
 
                   Claimant basically has a high school education 
 
              with a smattering of night school background along 
 
              general lines.
 
         
 
                   He has qualified for vocational rehabilitation, 
 
              but he is without funds to pursue further training for 
 
              work which would not involve the general labor type 
 
              work he has performed for the first 22 years since high 
 
              school.
 
         
 
                   Then this factor, too, should warrant a relatively 
 
              high finding of industrial disability.
 
         
 
         Motivation
 
         
 
                   Everything in the record indicates a high degree 
 
              of motivation by claimant, in working despite pain, in 
 
              seeking vocational rehabilitation, and in 
 
              unsuccessfully seeking other jobs.
 
         
 
         Inability To Continue In
 
                               the Same Line of Work
 
         
 
                   True, Claimant is still working albeit with 
 
              substantial pain and against the advice of his 
 
              doctors.
 
         
 
              At age 40, a person should be in his or her peak earning 
 
         years.  It is a difficult time to change jobs, retrain or to 
 
         perform old employments with limitations and restrictions.  A 
 
         high school education is just about the bare minimum requirement 
 
         in order to obtain living wage employment in our society.  Even 
 
         though claimant is earning approximately the same income after 
 
         the injury that he was earning prior to the injury, nevertheless, 
 
         claimant's earning capacity has been diminished by his 
 
         limitations and restrictions.
 
         
 
              As far as vocational rehabilitation, defendants do not owe 
 
         claimant an education when claimant is able to perform his old 
 
         job at approximately the same pay.  Claimant had performed his 
 
         old job at approximately the same pay for approximately one year 
 
         without loss of time prior to the hearing.
 
         
 
              Claimant testified that he continued to work with pain, but 
 
         pain that is not substantiated by clinical findings is not a 
 
         substitute for impairment.  Waller v. Chamberlain Mfg., II Iowa 
 
         Industrial Commissioner Report, 419, 425 (1981).
 
         
 
              Dr. Walsh and Dr. Linden recommended employment with less 
 
                                                
 
                                                         
 
         stress on claimant's right arm, especially lifting weight with it 
 
         or lifting it above shoulder level.  Dr. Neff, said, however, 
 
         that there are significant jobs claimant can continue doing.  
 
         From the evidence it would appear claimant is in such a job right 
 
         now. Claimant testified that all of his work was now at waist 
 
         level. There was no evidence that he did any lifting which was 
 
         injurious to his right arm.
 
         
 
              Therefore, based upon claimant's age of 40, his high school 
 
         education without additional meaningful job skills or training, 
 
         the pain claimant encounters when doing his present job, his 
 
         mobility to work with his right arm above shoulder or eye level, 
 
         his limitation of lifting less weight when using his right arm, 
 
         and his significant physical impairment ratings awarded by Dr. 
 
         Walsh, Dr. Murphy, Dr. Neff, Dr. Linden and Dr. Blume, it is 
 
         determined that claimant has sustained an industrial disability 
 
         of 25 percent of the body as a whole.
 
         
 
              The initial burden is on the claimant to show entitlement to 
 
         an independent examination under Iowa Code section 85.39.  
 
         Claimant did so when Dr. Walsh gave his rating, which claimant 
 
         believed was too low.
 
         
 
              Defendant contends that claimant requested and obtained Dr. 
 
         Neff for his one independent examination under Iowa Code section 
 
         85.39.  The defense is in the nature of award and satisfaction or 
 
         payment.  Electra Ad Sign Co., Inc. v. Cedar Rapids Truck Center, 
 
         316 N.W.2d 876 (Iowa 1982).  The burden of proving this 
 
         contention is on defendant.  Defendant did sustain the burden of 
 
         proof by a preponderance of the evidence that claimant did 
 
         request and receive an Iowa Code section 85.39 examination by Dr. 
 
         Neff.  This was the testimony of Dr. Garner.  This was the 
 
         testimony of Kitterman.  Defendant's exhibit one is a signed 
 
 
 
                        
 
                                                         
 
         request for an Iowa Code section 85.39 examination by Dr. Neff 
 
         signed by claimant.  Although claimant alleged irregularities in 
 
         the completion of this form he did not deny that he did sign the 
 
         form and receive an examination by Dr. Neff a few days later, nor 
 
         did claimant testify who he expected the 85.39 examiner to be if 
 
         it was not Dr. Neff.  Therefore, defendant did sustain the burden 
 
         of proof by a preponderance of the evidence that claimant did 
 
         request and receive an independent examination under Iowa Code 
 
         section 85.39 by Dr. Neff.  Therefore, no allowance can be made 
 
         for Dr. Blume's fee in the amount of $150.00 for the independent 
 
         examination.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant is able to perform similar work to the work he 
 
         was doing at the time of the injury at similar pay and he has 
 
         been able to do this work for approximately one year without loss 
 
         of time after he returned to work on April 20, 1986, but he has 
 
         lost the ability to perform higher paying jobs which he could 
 
         obtain by bid.
 
         
 
              That claimant testified that he experiences pain in doing 
 
         his work.
 
         
 
              That claimant's skills as a packing house employee are not 
 
         particularly valuable or transferable to the general employment 
 
         market.
 
         
 
              That claimant can no longer do work which requires him to 
 
         raise his right arm above approximately eye level or shoulder 
 
         level.
 
         
 
              That claimant is limited as to how much weight he can lift 
 
         with his right arm.
 
         
 
              That claimant received permanent partial impairment ratings 
 
         of 6 percent, 8 percent, 9 percent, 20 percent, and 19 percent, 
 
         of the body as a whole from five competent physicians.  The 
 
         average of these ratings is 12.4 percent.
 
         
 
              That claimant is age 40 and has a high school education 
 
         without additional meaningful education or training.
 
         
 
              That claimant has sustained an industrial disability of 25 
 
         percent of the body as a whole.
 
         
 
              That claimant requested and received an Iowa Code section 
 
         85.39 examination from Dr. Neff and is not entitled to another 
 
         examination from Dr. Blume.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
                                                
 
                                                         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant is entitled to 125 weeks of permanent partial 
 
         disability benefits based upon an industrial disability of 25 
 
         percent of the body as a whole.
 
         
 
              That claimant is not entitled to an Iowa Code section 85.39 
 
         examination for the examination conducted by Dr. Blume and for 
 
         which he was charged $150.00.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits at the,rate of two 
 
         hundred thirty-six and 51/100 dollars ($236.51) per week in the 
 
         total amount of twenty-nine thousand five hundred sixty-three and 
 
         75/100 dollars ($29,563.75) commencing on April 20, 1986.
 
         
 
              That defendant is entitled to a credit for forty-five (45) 
 
         weeks of benefits previously paid to claimant at the rate of two 
 
         hundred thirty-six and 51/100 dollars ($236.51) in the total 
 
         amount of ten thousand six hundred forty-two and 95/100 dollars 
 
         ($10,642.95).
 
         
 
              That all accrued.benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant is to pay the costs of this proceeding 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services rule 
 
         343-3.1.
 
         
 
              Signed and filed this 22nd day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
                                                
 
                                                         
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa  51012
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
         
 
 
 
                                            1402.40; 1803; 1703;
 
                                            2502
 
                                            Filed January 22, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES R. HAYES,
 
         
 
              Claimant,                              File No. 760655
 
         
 
         vs.                                      A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1402.40
 
         
 
              Claimant, age 40, high school education, packing house 
 
         worker, has rotator cuff injury and surgery.  Various permanent 
 
         partial impairment ratings were 6%, 8%, 9%, 20% and 19% of the 
 
         body as a whole.  These ratings average 12.5%.  Claimant was 
 
         restricted from work above shoulder level, lifting 20 to 30 
 
         pounds, and could no longer bid jobs that required these 
 
         abilities.
 
         
 
         1803
 
         
 
              Claimant awarded 125 weeks of permanent partial disability 
 
         based upon an industrial disability of 25% of the body as a 
 
         whole.
 
         
 
         1703
 
         
 
              Defendant given credit for 45 weeks of PPD paid prior to 
 
         hearing based on 9% of the body as a whole.
 
         
 
         2502
 
         
 
              The burden of proof of entitlement to an ICS 85.39 
 
         examination is upon the claimant.  The burden of proof that 
 
         claimant had already received the ICS 85.39 examination to which 
 
         he was entitled is upon the defendant.  Defendant sustained the 
 
         burden of proof that claimant had already received an ICS 85.39 
 
         examination.
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES R. HAYES,                          File No. 760655
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                     F I L E D
 
         
 
              Employer,                               JUN 03 1988
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
              On April 8, 1988 claimant filed a motion to dismiss 
 
         defendant's appeal.  The defendant having filed a resistance, the 
 
         same comes on for determination.
 
         
 
              Section 86.24(4) requires that the appealing party file an 
 
         affidavit with the industrial commissioner that a transcript has 
 
         been ordered.  The statutory requirement states it "shall be 
 
         filed."  Although the undersigned has the authority to modify the 
 
         time to comply with any rule (Division of Industrial Services 
 
         Rule 343-2.1), the undersigned does not have the same authority 
 
         to modify the statutory requirements.
 
         
 
              WHEREFORE, claimant's motion to dismiss defendant's appeal 
 
         is sustained.
 
         
 
         
 
              Signed and filed this 3rd day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa  51012
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KATHERINE PICKETT,
 
         
 
              Claimant,
 
         VS.
 
                                                 File No. 760739
 
         DAVENPORT LUTHERAN HOME,
 
                                                  A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits based on 35 percent 
 
         industrial disability.  Claimant cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits 1 through 14 and 
 
         defendants' exhibits A through F. Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUES
 
         
 
              The issues on appeal can be stated as:
 
         
 
              1)  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              2)  Whether there is a causal connection between the alleged 
 
         injury and any disability claimant may suffer.
 
         
 
              Claimant states the following issues on cross-appeal.
 
         
 
                   1.  Whether the 1981 lifting incident on the job 
 
              caused any of claimant's disability;
 
         
 
                   2. Whether the finding that claimant is not 
 
              motivated to return to work is supported by the 
 
              evidence;
 
         
 
                   3.  Whether Deputy McSweeney is at liberty to 
 
              disallow interest on the medical payments made by the 
 
              claimant, and 
 
                   
 
                   4.  Whether the finding that the conversion date 
 
              12/31/84 is supported by the evidence, or whether the 
 
              conversion date should be 4/4/85.
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   2
 
         
 
         
 
         
 
                        REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she sustained an injury to her low 
 
         back on March 22, 1984 when she was lifting a patient from a 
 
         wheelchair.  Claimant states that she sought treatment from her 
 
         family physician, Arthur M. Abramsohn, D.O., the next day.  Dr. 
 
         Abramsohn hospitalized claimant for five days.  Dr. Abramsohn 
 
         opines the following in his dismissal summary:
 
         
 
              On 3/28/84 the patient still with some discomfort but 
 
              ambulating well, not requiring sedation.  Continue with 
 
              muscle relaxants.  The patient requesting dismissal 
 
              with care at home and at my office to be continued.  
 
              The patient was dismissed after consultation with 
 
              patient as to continuation of care at home with muscle 
 
              relaxants, lumbosacral support and Osteopathic 
 
              manipulative therapy, coupled with Physical therapy 
 
              with EMS by Medcosonolator.  Condition improved and 
 
              prognosis good.
 
         
 
         (Claimant's Exhibit 1, unnumbered page 8 and Defendants' Ex.  B)
 
         
 
              Dr. Abramsohn states his final diagnosis on page 1 of 
 
         claimant's exhibit 1.
 
         
 
              1)  Lumbosacral myofibrositis, acute
 
         
 
              2)  Somatic musculoskeletal dysfunction of Lumbar spine
 
         
 
              3)  Psoasitis
 
         
 
              While she was hospitalized claimant was also examined by R. 
 
         J. Chesser, M.D. Dr. Chesser reports:
 
         
 
                   On examination, she presents in no acute distress.  
 
              Reflexes are equal at her knees and ankles.  There is 
 
              no ankle clonus or Babinski sign noted.  Sensation is 
 
              normal for pin prick, position and vibration.  Strength 
 
              of the extensor hallucis longus and ankle dorsiflexors 
 
              is normal bilaterally.  From a short sitting position 
 
              she could fully extend her knees and dorsiflex her 
 
              ankles asymptomatically.  Toe and heel walking was 
 
              normal.  Lumbar mobility was full with the complaints 
 
              of right-sided back pain at the extremes of forward 
 
              flexion.
 
         
 
                   EMG STUDY: Both lower extremities were screened.  
 
              Myotomes from L2 through Sl were examined and the 
 
              findings were normal.  There was no membrane 
 
              instability or any fasciculations and motor units were 
 
              normal.  Recruitment pattern was normal and the 
 
              paraspinals bilaterally from Ll through Sl were 
 
              normal.
 
         
 
                   IMPRESSION: Normal EMG findings.  At this time 
 
              there is no EMG evidence of a radiculopathy or of a 
 
              peripherally denervating process.
 
         
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   3
 
         
 
         
 
         (Defendants' Ex.  C)
 
         
 
              Claimant was examined by Raymond W. Dasso, M.D., on 
 
         September 10, 1984.  Dr. Dasso ordered a CT scan of claimant's 
 
         lumbar spine.  Dr. Dasso states the following in his examination 
 
         report:
 
         
 
                   X-RAYS: 9-10-84 Taken in my office.  X-RAY OF 
 
              LUMBAR SPINE: There is no evidence of fracture or 
 
              dislocation.  Bone texture is normal.  The sacroiliac 
 
              joints are within normal limits.  The disc spaces are 
 
              well maintained.
 
         
 
                        9-12-84 Taken at Moline Public Hospital.  CT 
 
              SCAN OF THE LUMBAR SPINE: Conclusion: There is bulging 
 
              disc protruding into the right nerve root foramen at 
 
              the L4-L5 level.
 
         
 
         DIAGNOSIS:  Protruding intervertebral disc L4-L5.
 
         
 
              At defendants' request claimant was examined by John E. 
 
         Sinning, Jr., M.D., on August 9, 1984.  Dr. Sinning opines in his 
 
         examination report:
 
         
 
                   It is my impression that Mrs. Pickett is 
 
              complaining of a hyperextension back strain problem.  I 
 
              see no indication that this is a permanent problem nor 
 
              that any permanent impairment of function exists.  I 
 
              would recommend implementation of the exercise program 
 
              and return to work.
 
         
 
         (Def.  Ex.  A)
 
         
 
              Dr. Sinning examined claimant again on April 30, 1985.  In 
 
         his examination report he states:
 
         
 
                 On examination I found that Mrs. Pickett  moved 
 
              about easily and comfortably.  She stood erect with a 
 
              normal sway back.  She bent over rounding out her back 
 
              normally, stretching out her back a normal five inches.  
 
              Lateral flexion was smooth without splinting.  She had 
 
              no pain as she bent forward and came backward normally.  
 
              Her gait was normal, including tiptoe and heel 
 
              walking.
 
         
 
                   The lower extremity reflexes were brisk with equal 
 
              calf size and no evidence of muscle weakness in the 
 
              muscle groups of the lower legs.  Sitting straight leg 
 
              raising was normal.  Supine straight leg raising was 
 
              801 within a normal range.  I noted Mrs. Pickett's sway 
 
              back as she lay flat but she was able to flatten out 
 
              the sway as she bent her knees.  She complained of 
 
              tenderness as I palpated over the iliac crest on her 
 
              back, perhaps the right a little more than the left.  
 
              She complained of some tenderness in the mid point of 
 
              the lumbar curve and the mid point of the thoracic 
 
              curve.  There was no special irritability but a 
 
              complaint of tenderness on palpation in these areas.  
 
              There was nothing in this examination to indicate 
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   4
 
         
 
         
 
              anything abnormal.
 
         
 
                   I reviewed the CT scan which Mr. and Mrs. Pickett 
 
              brought along from Moline Public Hospital.  The CT scan 
 
              was from the L3 to the sacral level.  Both soft tissue 
 
              and bone density studies were available.  Slice #3 at 
 
              L5-Sl showed mild bulging of the disc at that level.  
 
              Slice #10 showed the bulging disc at L4-5, a little 
 
              more bulge on the right than the left.  I judge both 
 
              these to be a normal bulge.  The disc is spongy with 
 
              elasticity and some bulging is a normal phenomenon.  
 
              There was no evidence of impingement or displacement of 
 
              the nerve roots by this bulge.  The CT scan study was 
 
              dated September 12, 1984.
 
         
 
                   I have reviewed the sit-up program with Mrs. 
 
              Pickett and suggested a modification in the way in 
 
              which she does sit-ups.  This modification means 
 
              tightening the abdominal muscles without motion.
 
         
 
                   It is my impression that there is no suggestion 
 
              that another CT scan would be in order.  Mrs. Pickett 
 
              has no neurological impairment and no evidence of 
 
              sciatica.  A CT scan would be valuable if we were 
 
              trying to evaluate a neurological impairment but with 
 
              no impairment present, the CT scan study would not 
 
              contribute anything to our direction of treatment.
 
         
 
              Mrs. Pickett has controlled her symptoms.  She has no 
 
              evidence of impairment of function in regard to her 
 
              back or legs.  I would not recommend any limitation on 
 
              her activities.
 
         
 
         (Def.  Ex.  D)
 
         
 
             In a March 11, 1985 letter to claimant's attorney, Dr. 
 
         Abramsohn states:
 
         
 
                   We have informed this patient that her condition 
 
              will probably be an intermittent recurring problem 
 
              which will usually respond well with osteopathic 
 
              manipulative treatment for relief of the muscle 
 
              spasticity and the resulting neuritic pains.
 
         
 
                   This condition will probably always be a chronic 
 
              recurring condition.  There will not be a permanent 
 
              state of healing.  She will only need an active therapy 
 
              program when this condition recurs and will probably 
 
              benefit with intermittent, prophylatic osteopathic 
 
              manipulative therapy.
 
         
 
         (Cl.  Ex. 4)
 
         
 
              On April 4, 1985 Dr. Abramsohn released claimant to return 
 
         to work with these restrictions: 1) No lifting, especially 
 
         patients in or out of bed or chairs; 2) No duties requiring 
 
         bending or twisting.  See claimant's exhibit 5.
 
         
 
              Dr. Dasso opines in a letter dated December 30, 1985:
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   5
 
         
 
         
 
         
 
                   Katherine Pickett has never been seen by me since 
 
              the date of examination on 9-10-84.  I do not know what 
 
              her final outcome has been.  Based on the single 
 
              examination and the CT scan report.  CT Scan at Moline 
 
              Public Hospital 9-12-84.  I would states [sic] that she 
 
              has 10% permanent partial disability of her whole body 
 
              because of her low back pain from the protruding 
 
              intervertebral disc.
 
         
 
         (Cl.  Ex. 10)
 
         
 
              Defendants' exhibit F contains copies of Dr. Abramsohn's 
 
         office notes.  An entry dated August 31, 1981 on unnumbered page 
 
         5 reveals that claimant sustained a low back injury lifting a 
 
         patient from a wheelchair.  Subsequent entries disclose that 
 
         claimant continued to experience low back pain until October 23, 
 
         1981 when an entry was made stating "muscle spasticity subsiding 
 
         - moving well." An entry dated March 20, 1984 reveals that 
 
         claimant hurt her back "probably lifting at work."  An entry 
 
         dated April 2, 1934 indicates, "Feeling good.  No back 
 
         complaints." Another entry dated May 3, 1984 indicates that 
 
         claimant experienced back pain lifting a couch five days earlier.  
 
         A May 21, 1984 entry refers again to turning a couch.
 
         
 
              Claimant admits that she sustained a low back injury on 
 
         August 31, 1981 but opines that this injury resulted in no 
 
         permanent disability.  Claimant agrees that she saw Dr. Abramsohn 
 
         on March 20, 1984 but testifies that that visit was for treatment 
 
         of dizziness.  Claimant states she told Dr. Abramsohn that she 
 
         attempted to move, not lift a couch.  Claimant does not recall 
 
         whether she told Dr. Abramsohn on April 2, 1984 that she had no 
 
         back complaints.
 
         
 
              Claimant testified that she has not worked since the date of 
 
         the accident.  Claimant indicates that she would like to return 
 
         to work for defendant employer if she were offered work within 
 
         her restrictions.  Claimant discloses that she has not applied 
 
         for jobs anywhere else.  Claimant stated that she is 45 years 
 
         old       and has a tenth grade education.  Claimant indicates 
 
         that she has worked for defendant for about five and a half 
 
         years.
 
         
 
                                APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 22, 1984 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Section 85.30, Code of Iowa (1985) states:
 
         
 
                   Compensation payments shall be made each week 
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   6
 
         
 
         
 
              beginning on the eleventh day after the injury, and 
 
              each week thereafter during the period for which 
 
              compensation is payable, and if not paid when due, 
 
              there shall be added to the weekly compensation 
 
              payments, interest at the rate provided in section 
 
              535.3 for court judgments and decrees.
 
         
 
                                  ANALYSIS
 
         
 
              The first issue on appeal is whether claimant sustained an 
 
         injury arising out of and in the course of employment on March 
 
         22, 1984.  Claimant's testimony that she sustained an injury at 
 
         work lifting a patient from a wheelchair is unrebutted.  Dr. 
 
         Abramsohn's office notes support claimant's testimony.  Claimant 
 
         has met her burden in proving she sustained an injury arising out 
 
         of and in the course of employment on March 22, 1984.
 
         
 
              The next issue on appeal is whether there is a causal 
 
         connection between the March 22 injury and any disability.  
 
         Claimant has the burden of proving a causal connection.  Claimant 
 
         has not met that burden by a preponderance of the evidence 
 
         presented.  The dismissal summary of Dr. Abramsohn indicated that 
 
         claimant's prognosis was good.  Dr. Chesser's impression was 
 
         normal EMG indicating no radiculopathy or peripherally 
 
         denervating process.  Entries on May 3 and 23, 1984 indicate that 
 
         claimant experienced back pain while moving a couch at home.  The 
 
         undersigned finds the testimony of Dr. Sinning, who examined 
 
         claimant as late as April 1985, to be the most persuasive.  He 
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   7
 
         
 
         
 
         could not find anything abnormal nor did he recommend any 
 
         limitations on claimant's activity.
 
              The greater weight of evidence establishes that claimant's 
 
         period of temporary total disability ended on April 4, 1985 when 
 
         Dr. Abramsohn released her to return to work.
 
         
 
              The deputy was correct in holding that defendants could not 
 
         deny liability and direct the course of claimant's medical 
 
         treatment.  Kindhart v. Fort Des Moines Hotel, Vol. 1, No. 3, 
 
         State of Iowa Industrial Commissioner Decisions 611, 620 (1985); 
 
         Barnhart v. MAQ Incorporated, 1 Iowa Industrial Commissioner 
 
         Report 16 (1981).  Claimant is entitled to payment of the medical 
 
         bills set out in claimant's exhibits 6, 11, 12, and 13.
 
         
 
              Claimant argues on cross-appeal that she is entitled to 
 
         statutory interest on the medical benefits which defendants 
 
         failed to pay.  Iowa Code section 85.30 only provides for the 
 
         payment of interest on weekly compensation benefits.  See Klein 
 
         v. Furnas Electric Company, 384 N.W.2d 370, 375 (Iowa
 
         
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant injured her back lifting a patient from a 
 
         wheelchair on March 22, 1984.
 
         
 
              2.  Claimant reported to her treating physician on May 3 and 
 
         May 21, 1984 that she experienced low back pain while moving a 
 
         couch.
 
         
 
              3.  Claimant currently suffers no permanent impairment as a 
 
         result of her injury on March 22, 1984.
 
         
 
              4.  Claimant was released for return to work on April 4, 
 
         1985 by Dr. Abramsohn.
 
         
 
              5.  Claimant's rate is stipulated to be $134.94 per week.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established that she sustained an injury 
 
         arising out of and in the course of employment on March 22, 
 
         1984.
 
         
 
              Claimant has not established a causal connection between the 
 
         injury on March 22, 1984 and any disability she now suffers.
 
         
 
              Claimant is entitled to benefits for temporary total 
 
         disability for the period commencing March 23, 1984 and ending 
 
         April 4, 1935 at the rate of $134.94 per week.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and reversed in part.
 
         
 
                                        
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         
 
         
 
         PICKETT V. DAVENPORT LUTHERAN HOME
 
         Page   8
 
         
 
         
 
         
 
              That defendants pay claimant one hundred thirty-four and 
 
         94/100 dollars ($134.94) per week for the period commencing March 
 
         23, 1984 and ending April 4, 1985.
 
         
 
              That defendants pay claimant one thousand one hundred 
 
         twenty-seven and 50/100 dollars ($1,127.50) for medical 
 
         expenses.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for weekly benefits already 
 
         paid to claimant.
 
         
 
              That the costs of the appeal including the transcription of 
 
         the hearing proceeding are to be shared equally.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2), as requested by 
 
         the agency.
 
                                        
 
         
 
                 Signed and filed this 30th day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, IL  61201
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E. 6th Street
 
         P.O. Box 339
 
         Davenport, Iowa 52805
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20-1402.30-1402.40
 
                                            1402.60-1801-1803-3800
 
                                            Filed October 30, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KATHERINE PICKETT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 760739
 
         DAVENPORT LUTHERAN HOME,
 
                                                 A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE HOME INSURANCE COMPANY,
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.20 - 1402.30 - 1402.40 - 1402.60 - 1801 - 1803 -  3800
 
         
 
              Claimant's injury found to have arose out of and in the 
 
         course of her employment.  Claimant did not prove causal 
 
         connection between her injury and any disability she may suffer.
 
         
 
              Claimant entitled to payment of medical expenses.  
 
         Defendants may not deny liability and direct the course of 
 
         claimant's medical treatment.
 
         
 
              Section 85.30 only provides for payment of interest on 
 
         weekly compensation benefits.
 
 
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROSALIE J. DESGRANGES,
 
        
 
            Claimant,
 
        
 
        vs                               File No. 76074
 
        
 
        DEPARTMENT OF HUMAN SERVICES,      A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying temporary 
 
        total disability benefits, healing period benefits, permanent 
 
        disability benefits, and medical expenses.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and the exhibits listed in the prehearing 
 
        report except those described in the arbitration decision as 
 
        missing from the package of exhibits. Both parties filed briefs 
 
        on appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are: Whether the deputy erred in making 
 
        certain findings of fact; whether claimant received injuries 
 
        arising out of and in the course of her employment; whether the 
 
        deputy erred in limiting claimant's presentation of her case; and 
 
        whether the deputy erred in assessing the costs of the 
 
        arbitration proceeding to the claimant.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review of evidence will be discussed generally in three parts 
 
        to facilitate the understanding of the large volume of evidence 
 
        and testimony in this matter. The first part of the discussion 
 
        will relate to the reliability of claimant's testimony. The 
 
        second part will relate to claimant's alleged fall and back 
 
        injury. The third part will relate to claimant's alleged mental 
 
        disability.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 2
 
        
 
        
 
        Claimant testified that on the afternoon of December 6, 1983 she 
 
        fell as she was ascending steps where she worked. She stated she 
 
        limped and favored her back at the office. She also testified 
 
        that she had not initiated contact with an attorney who 
 
        represented Bonnie Bolander Davies, who was involved in a hearing 
 
        with the Department of Human Services (hereinafter department) 
 
        regarding termination of Davies' parental rights. The only aspect 
 

 
        
 
 
 
 
 
        of these events supported by other testimony was testimony by 
 
        Bonnie Davies that she had seen claimant fall. The other aspects 
 
        of claimant's testimony described were directly contradicted by 
 
        testimony of other witnesses.
 
        
 
        Claimant disclosed during her testimony that she was confused in 
 
        October 1982 and in February 1984. She also indicated that she 
 
        was having trouble concentrating during her testimony and stated 
 
        that she rambled a lot when she talked.
 
        
 
        Bonnie Davies testified that she was nervous during the court 
 
        hearing and revealed that she went to the bathroom and was 
 
        leaving the courthouse when she saw claimant fall on the stairs. 
 
        Bonnie Davies' account of the events of December 6, 1983 did not 
 
        include a confrontation with a judge which was described in the 
 
        testimony of her attorney.
 
        
 
        The second evidentiary matter to be reviewed relates to 
 
        claimant's alleged fall and back injury. In addition to the 
 
        evidence described above, the following evidence is also 
 
        described. Claimant testified that she fell on December 6, 1983 
 
        and had continuing pain until the last day she worked, February 
 
        10, 1984, and after that date. Claimant stated that she 
 
        complained a lot about the pain to individuals (Teresa Hill, 
 
        Cindy Sands, Joe Torres, and Sue Hallock) with whom she worked. 
 
        She further testified that Dr. Egger in January 1984 and St. Paul 
 
        hospital on February 23, 1984 were aware of the pain but 
 
        explained that the lack of medical notes concerning her pain 
 
        until April 1984 was because they did not make a note of the 
 
        pain.
 
        
 
        Sue Hallock testified that claimant never told her that she had 
 
        fallen and hurt her back. Teresa ~ill and Cindy Sands both 
 
        generally testified that they did not notice claimant limping or 
 
        favoring her back or arm. Joe Torres did not testify.
 
        
 
        A note from the progress records of St. Paul Hospital in Dallas, 
 
        Texas, dated February 23, 1984, reported: "Pt. complained today 
 
        of numbness & tingling of left arm. On questioning stated it had 
 
        been bothering her for 2 months." Claimant contacted The 
 
        Hillcrest Institute in Dallas, Texas on February 14, 1984 
 
        regarding treatment and possible hospitalization. In a letter 
 
        dated March 23, 1984, D. F. Martinez, M.D., psychiatrist, gave a 
 
        diagnosis of claimant's psychological problems only. In a letter 
 
        dated April 29, 1985, which was cosigned by Dr. Martinez, he 
 
        related:
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 3
 
        
 
        
 
        In February, 1984, Ms. Desgranges came to our office for 
 
        evaluation and treatment. She was placed in St. Paul Hospital and 
 
        given Triavil 4-25 three times a day, for depression. X-rays were 
 
        also performed on her neck and left shoulder but the results were 
 
        negative. She continued to complain of pain on the left side and 
 
        it was recommended that she see a neurologist. Ms. Desgranges 
 
        returned to Council Bluffs and was seen by Dr. Miller, an 
 
        orthopedic surgeon, who conducted additional tests and X-rays 
 
        that were also reportedly negative. Dr. Miller referred her to 
 
        Dr. Gooding, a neurologist.
 
        
 
        (Joint Exhibit 83)
 
        
 
        R. Schuyler Gooding, M.D., a neurosurgeon; first saw claimant on 
 
        April 17, 1984. In a letter dated March 14, 1985, Dr. Gooding 
 

 
        
 
 
 
 
 
        reported:
 
        
 
        She was referred to me by Dr. Ronald Miller, the Council Bluffs 
 
        Orthopedic Surgeon, and she was originally seen by me in my 
 
        office on April 17, 1984.
 
        
 
        She is a thirty-nine year old, Left-handed caucasian female, who, 
 
        on the 6th of December 1983, fell at work while carrying a load 
 
        of mail, landing hard on her buttock, bruising her Right buttock, 
 
        and since that time, she has had variable numbness and tingling 
 
        of the Left arm, and to a slightly lesser extent the Left leg. 
 
        She also describes some stiffness and discomfort in her lower 
 
        back, and to a slightly lesser extent, in her neck....
 
        
 
        
 
        
 
        Further and detailed evaluation by myself revealed normal 
 
        cervical spine X-rays, but X-rays of the lumbar spine revealed a 
 
        slight L5 anterior on Sl listhesis. EMG studies of the Left-sided 
 
        extremities were normal. A total Amipague Myelogram revealed a 
 
        ventral C6-C7 defect seen in the lateral projection as a double 
 
        density, felt to be consistent with a disc herniation. A Cervical 
 
        Discogram, did not add any additional information to this noted 
 
        abnormality. In the lumbar region, the Myelogram revealed a 
 
        moderate ventral L5-Sl defect with bilateral amputation of the Sl 
 
        nerve roots. This abnormality was felt to reflect, at least in 
 
        part, her spondylolisthesis, with a contribution by a ruptured 
 
        disc at that level, also being considered.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 4
 
        
 
        
 
        The overall impression, is that this patient has a ruptured disc 
 
        at the C6-C7 level, which is contributing to her discomfort and 
 
        paresthesiae involving the Left upper extremity. The problems of 
 
        her Left lower extremity, are no doubt related to the abnormality 
 
        described at the L5-Sl level.
 
        
 
        The history, as related to me, is that this patient had none of 
 
        these problems prior to the fall, and therefore, I would directly 
 
        relate the symptomatic picture involving the Left-sided 
 
        extremities as being definitely related to the afore-mentioned 
 
        [sic] fall, in that the under-lying [sic] abnormalities, if not 
 
        absolutely and totally caused by the fall, (spondylolisthesis is 
 
        most likely congenital in orgin [sic]), at least they were 
 
        brought into symptomatic relief by the super imposed [sic] trauma 
 
        of the fall.
 
        
 
        (Jt. Ex. 82)
 
        
 
        Dr. Gooding further reported in a letter dated April 24, 1986:
 
        
 
        [M]y impression continues to be of a patient who has some 
 
        documentable problems with both her cervical and lumbar spine, 
 
        interwoven with a series of falls, and with the patient appearing 
 
        to have progressively more symptoms, as time goes on, and as the 
 
        falls begin to add up.
 
        
 
        It even crosses my mind that perhaps her subsequent falls are 
 
        increasingly the product of her problem, rather than the cause of 
 
        it.
 
        
 
        Certainly, all of the history of trauma that this patient has 
 
        experienced during this period that she has had problems with her 
 
        spine, is most important.
 

 
        
 
 
 
 
 
        
 
        But it is also important to recognize that we may be dealing with 
 
        a progressive situation initiated by the fall in December of 
 
        1983, rather than a series of isolated traumatic incidents, all 
 
        of which are relatively independent of one another.
 
        
 
        (Jt. Ex. 82)
 
        
 
        Claimant was admitted to Jennie Edmundson Memorial Hospital on 
 
        October 22, 1984 where a myelogram and cervical discogram
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 5
 
        
 
        
 
        were performed on October 22, 1984 and October 23, 1984, 
 
        respectively. The findings of the myelogram procedure were:
 
        
 
        In the lumbar region, there was a moderate ventricle L5-51 defect 
 
        with the Sl nerve roots amputated bilaterally. (The patient does 
 
        have a first degree spondylolithesis.) In the thoracic region, no 
 
        significant abnormalities were noted. In the cervical region, 
 
        there was a ventral C6-7 defect seen in the lateral projection as 
 
        a double density. It was felt that this latter defect may 
 
        represent a ruptured disc.
 
        
 
        (Jt. Ex. 82)
 
        
 
        George W. Warton, M.D., noted on December 4, 1984: "I think we 
 
        badly need any old medical records from this patient's previous 
 
        treatment. Her history is quite uncertain and it is difficult to 
 
        make any sense of the story which is available." (Jt. Ex. 87)
 
        
 
        An office note made by Dr. Martinez dated August 13, 1984 
 
        reported that claimant "fell at sisters bruised [right] arm, 
 
        [right] leg & both knees. [Left] leg seemed give way - tingles up 
 
        to hip. Low back pain." (Jt. Ex. 83)
 
        
 
        The third evidentiary matter to be reviewed relates to claimant's 
 
        alleged mental disability. Claimant began working for the 
 
        department at its Mills County office in December 1980. In March 
 
        1982, the department reorganized its office structure and 
 
        claimant's former supervisor, Ray Buell, was replaced by Sue 
 
        Hallock. Sue Hallock supervised the social workers in Mills and 
 
        Fremont counties and claimant was the secretary for Sue Hallock 
 
        and the social workers in the Mills County office. The record is 
 
        in dispute as to whether or not Sue Hallock had a critical and 
 
        berating attitude.
 
        
 
        Michael L. Egger, M.D., a psychiatrist, treated claimant in 
 
        August 1982 when he saw her approximately six times and then saw 
 
        her again in January and February 1984. Claimant had sought Dr. 
 
        Egger's care after a misunderstanding between her and Hallock 
 
        regarding whether claimant's request for time off was to be 
 
        treated as "comp time" or vacation time. Dr. Egger's office note 
 
        dated August 11, 1982 indicates that claimant was treated by Dr. 
 
        Mount in Texas sometime between 1975 and 1978.
 
        
 
        Claimant again sought treatment in 1984. Claimant had received a 
 
        written reprimand at work in December 1983. Joseph H. Lindsay, 
 
        M.D., psychiatrist, gave an impression when claimant was admitted 
 
        to St. Paul Hospital on February 20, 1984 of "Paranoid 
 
        personality. Rule out paranoid schizophrenia." His impression 
 
        when claimant was admitted on May 7, 1984 was "(1)
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 

 
        
 
 
 
 
 
        Page 6
 
        
 
        
 
        Depression. (2) Emotionally unstable personality."
 
        
 
        D. F. Martinez, M.D., psychiatrist, is the medical director at 
 
        the Hillcrest Institute in Dallas, Texas where claimant was 
 
        treated. A letter dated April 29, 1985 cosigned by Dr. Martinez 
 
        reads in relevant part:
 
        
 
        Ms. Desgranges is still under our care as a result of her 
 
        work-related injuries of both a physical and psychological 
 
        nature....
 
        
 
        In January, 1984, Ms. Desgranges saw Dr. Egger in Council Bluffs 
 
        as she continued to have pain and numbness from her earlier 
 
        injury as we]l 25 depression as a result of this continuing pain 
 
        as well as job-related stress aggravated by stringent supervision 
 
        at work. Dr. Egger recommended that Ms. Desgranges terminate her 
 
        employment, but she was unable to follow this recommendation 
 
        given her financial condition. Therefore, she was forced to 
 
        continue working under adverse conditions that contributed to her 
 
        present state of being disabled.
 
        
 
        (Jt. Ex. 83)
 
        
 
        George Mount, Ph.D., is the psychology director at the Hillcrest 
 
        Institute. He testified that his first contact with claimant was 
 
        on February 22, 1984 and she had been in the office approximately 
 
        60 times for about 50 minutes each session. His final diagnosis 
 
        was Axis I: generalize anxiety disorder with some depression and 
 
        Axis II: avoidant personality disorder. He opined that the cause 
 
        of claimant's disorders were related to stress in claimant's work 
 
        environment.
 
        
 
        Robert E. Smith, M.D., psychiatrist, saw claimant pursuant to 
 
        defendants' request for about one hour on August 8, 1985 and her 
 
        husband for about half an hour and reviewed materials relating to 
 
        her. He testified that his diagnosis for Axis I is dysphoria, 
 
        chronic and there was no evidence for a major depressive disorder 
 
        which is a more severe dysphoria. His diagnosis for Axis II was 
 
        borderline personality disorder. Dr. Smith testified in 
 
        depositions on cross-examination:
 
        
 
        Q. You would agree that Doctor Mount and Doctor Martinez have 
 
        had a better opportunity than you to observe her conditions of 
 
        health, functional viability and everyday life more than you 
 
        have?
 
        
 
        A. No, I disagree with that. Doctor Mount and Doctor Martinez 
 
        have seen her during two exacerbations
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 7
 
        
 
        
 
        of a long-term process. And we have no records of what their 
 
        diagnosis or treatment was in 1976, but we do have records of the 
 
        1984.
 
        
 
        They are focusing purely on the major complaints that the patient 
 
        has; depression, anxiety. They have failed to look at what is the 
 
        context in which these symptoms are arising from, what is the 
 
        basis of this personality of this person as an individual. And 
 
        that's where they're at conflict with the doctor in their own 
 
        clinic who has made the diagnosis the same as the one I'm making.
 

 
        
 
 
 
 
 
        
 
        Q. Okay. Now, could those perceived stressful events have in 
 
        actuality been stressful events, not just being perceived 
 
        stressful events.
 
        
 
        A. In my experience, in dealing with her employers and dealing 
 
        with her work environment, there is always a significant 
 
        component of one misconception and a significant component of 
 
        their behavior actually feeding into a negative situation; the 
 
        removal of support, the removal of an environment in which they 
 
        feel comfortable. They contribute to the downfall --
 
        
 
        Q. I understand that.
 
        
 
        A. -- because of the nature of their disorder.
 
        
 
        
 
        Does the job stress contribute to the aggravation or the lighting 
 
        up of that condition?
 
        
 
        A. Minimum.
 
        
 
        Q. But it does contribute to it?
 
        
 
        A. Minimum.
 
        
 
        [Jt. Ex. 105 ( 1)]
 
        
 
        He opined that claimant's work environment did not cause her 
 
        borderline personality disorder, that it was present prior to 
 
        working for the department, and that it was exacerbated and came 
 
        to flourish in the work setting because of her feeding into it. 
 
        He indicated that the increase in pressure on the job was 
 
        contributed to by her interpersonal behavior with individuals in 
 
        the work setting.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 8
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        Claimant has the burden of proving by a preponderance of the 
 
        evidence that claimant received an injury which arose out of and 
 
        in the course of her employment. The words "out of" refer to the 
 
        cause or source of the injury. The words "in the course of" 
 
        refer to the time and place and circumstances of the injury. See 
 
        Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
        Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
        (1955). An employer takes an employee subject to any active or 
 
        dormant health impairments, and a work connected injury which 
 
        more than slightly aggravates the condition is considered to be a 
 
        personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 
 
        613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
        
 
        The question of causal connection is essentially within the 
 
        domain of expert medical opinion. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of 
 
        experts need not be couched in definite, positive or unequivocal 
 
        language and the expert opinion may be accepted or rejected, in 
 
        whole or in part, by the trier of fact. Sondag v. Ferris 
 
        Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish v. Fischer, Inc., 257 
 
        Iowa 516, 133 N.W.2d 867 (1965).
 

 
        
 
 
 
 
 
        
 
        Furthermore, if the available expert testimony is insufficient 
 
        alone to support a finding of causal connection, such testimony 
 
        may be coupled with nonexpert testimony to show causation and be 
 
        sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 
 
        259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does 
 
        not, however, compel an award as a matter of law. Anderson v. 
 
        Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish 
 
        compensability, the injury need only be a significant factor, not 
 
        be the only factor causing the claimed disability. Blacksmith v. 
 
        All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). 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 Services stores, 
 
        255 Iowa 1112, 125 N.W.2d 251 (1963).
 
        
 
        In cases involving alleged mental injuries which are not the 
 
        result of physical trauma, the required showing to establish a 
 
        compensable mental injury arising out of employment vary from 
 
        state to state. See Sersland, Mental Disability Caused by Mental 
 
        Stress: Standards of Proof on Workers' Compensation Cases, 33 
 
        Drake L.Rev. 751 (1984). The Iowa Supreme Court has not as yet 
 
        decided what rule applies in this state. The court has only 
 
        stated that claimant's employment must provide more than a "stage 
 
        for the nervous injury." Newman v. John Deere
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 9
 
        
 
        
 
        Ottumwa Works, 372 N.W.2d 199 (Iowa 1985). On one occasion in the 
 
        past this agency has indicated preference for the so-called 
 
        "objective'' or "Wisconsin" rule which was first expressed in 
 
        School District #1 v. Department of Industry, L. & H.R., 62 
 
        Wis.2d 370, 215 N.W.2d 373 (1974) and later in Swiss Colony v. 
 
        Dept. of ILAR, 72 Wis.2d 46, 240 N.W.2d 128 (1976). See 
 
        Schreckengast v. Hammermills, Inc., IV Iowa Industrial 
 
        Commissioner Report 305 (Appeal Decision 1983). However, this 
 
        agency's decision in Schreckengast was appealed to the Iowa 
 
        Supreme Court which affirmed the agency on other grounds. Whether 
 
        or not the ruling from this agency in Schreckengast is binding in 
 
        this case, the Wisconsin rule appears to be the best approach and 
 
        is favored by Professor Larson in his treatise on workers' 
 
        compensation law. See Larson, The Law of Workmen's Compensation, 
 
        Vol. lB, p. 7-637 et. seq., section 42.23(b). The rule insures 
 
        that the claimed emotional difficulty is truly work related given 
 
        the difficulties surrounding proof of the existence and nature of 
 
        emotional harm. Furthermore, the rule is consistent with the 
 
        concept in personal injury cases long recognized in Iowa that 
 
        damages are more difficult to recover in a case involving only an 
 
        emotional injury than a case involving a physical injury. 
 
        Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), negligent 
 
        infliction of emotional harm; Barnett v. Collection Service Co., 
 
        214 Iowa 1303, 1312, 242 N.W. 25, 28 (1932), intentional 
 
        infliction of emotional harm.
 
        
 
        Under the Wisconsin rule, a nontraumatically caused mental injury 
 
        is compensable only when the injury "resulted from a situation of 
 
        greater dimensions than the day-to-day mental stresses and 
 
        tensions which all employees must experience." Swiss Colony, 240 
 
        N.W.2d at 130. In other words, there are two issues which must be 
 
        resolved before finding an injury arising out of 
 
        employment--medical and legal causation. The medical causation 
 
        issue is strictly an examination into the cause and effect 
 
        relationship between the stresses and tensions at work and the 
 

 
        
 
 
 
 
 
        mental difficulties. If the medical causation issue is resolved 
 
        in favor of the claimant, legal causation is next examined. This 
 
        determination concerns the issue of whether the work stresses and 
 
        tensions (viewed objectively, not as perceived by claimant) were 
 
        "out of the ordinary from the countless emotional strains and 
 
        differences that employees encounter daily without serious mental 
 
        injury." School District #1, 215 N.W.2d at 377
 
        
 
                                      ANALYSIS
 
        
 
        The first matter to be considered is the reliability of 
 
        claimant's testimony. The deputy found that claimant was not a 
 
        credible witness. Claimant argues on appeal that this finding was 
 
        erroneous because claimant's testimony was corroborated by other 
 
        witnesses. While some of claimant's testimony is corroborated by 
 
        other witnesses, other testimony is contradicted. It
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 10
 
        
 
        
 
        should be noted that a material aspect of claimant's testimony 
 
        regarding the occurrence of her alleged fall is corroborated by 
 
        Davies who was herself under duress on the day of the fall and 
 
        the credibility of Davies' testimony would be suspect. 
 
        Furthermore, Davies' testimony would be suspect because her 
 
        account of her activities on the day of the fall excluded her 
 
        confrontation with the judge. A sufficient amount of the 
 
        testimony is contradicted, confused, and implausible so that it 
 
        is impossible to rely on claimant's testimony. Claimant's own 
 
        testimony was that she was confused during the time she worked 
 
        for the department and at the time of the hearing. Claimant's 
 
        confusion and the contradictions in her testimony as well as 
 
        Davies' testimony leave enough information in doubt as to 
 
        conclude that the testimony of neither the claimant nor Davies is 
 
        reliable.
 
        
 
        The second matter to be considered is whether claimant suffered a 
 
        mental injury that arose out of and in the course of her 
 
        employment. As will be discussed below, claimant has not 
 
        established that she had a back injury that arose out of and in 
 
        the course of her employment. It should be noted that claimant's 
 
        treatment for her mental condition in August 1982 predated her 
 
        alleged fall in December 1983. Therefore, the alleged mental 
 
        injury would not be the result of a physical trauma. In 
 
        discussing whether claimant's employment was the cause in fact of 
 
        claimant's mental condition, the deputy stated:
 
        
 
        There was dispute among the medical experts testifying in this 
 
        case as to the exact diagnosis of claimant's mental problems. 
 
        Claimant's treating psychiatrist, D. F. Martinez, M.D., and 
 
        treating psychologist, George R. Mount, Ph.D., diagnosed claimant 
 
        as suffering from only "avoidant personality disorder," a lesser 
 
        degree of personality disorder than [borderline personality 
 
        disorder]. Drs. Martinez and Mount state that this condition made 
 
        claimant susceptible to severe and disabling depression and 
 
        anxiety caused by various stressors in her work environment. 
 
        However, the views of the expert retained by defendants, Robert 
 
        E. Smith, M.D., a board certified psychiatrist, were given the 
 
        greater weight....Although Dr. Mount is an extremely able 
 
        psychologist and Dr. Martinez has not been shown to lack in 
 
        credentials, Dr. Smith's academic credentials along with his 
 
        teaching and clinical experience as an instructor at a major 
 
        medical school and teaching hospital were impressive despite Dr. 
 
        Martinez's and Dr. Mount's longer clinical experience with 
 
        claimant. also, Dr. Smith's portrayal of a typical person 
 

 
        
 
 
 
 
 
        suffering from "borderline personality disorder" was more 
 
        descriptive of claimant's behavior in this case.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 11
 
        
 
        
 
        According to Dr. Smith, persons who have a borderline personality 
 
        disorder suffer from recurrent episodes of depression which 
 
        require hospitalization. Such persons encounter difficulty with 
 
        interpersonal relationships and exhibit mood instability. 
 
        Borderlines generally seek to control their environment. They do 
 
        not easily take criticism. Such persons seek recognition from 
 
        others and sometimes attempt to manipulate their environment to 
 
        achieve recognition of being good or better than others. Also, 
 
        borderlines tend to blame others for their difficulties rather 
 
        than examine their own possible capability for their problems. 
 
        Finally, the depression experienced by borderlines unlike 
 
        endogenous or biochemical induced depression generally improves 
 
        very quickly upon hospitalization and medication therapy. 
 
        However, Dr. Smith also states that because of their desire to 
 
        control, borderlines do not tend to follow through with follow-up 
 
        treatment after depression episodes and they likewise are not 
 
        likely to continue taking prescribed medication. For these 
 
        reasons, borderlines are difficult to treat and their prognosis 
 
        is generally not good.
 
        
 
        Only two other psychiatrists were involved in this case. Michael 
 
        L. Egger, M.D., who treated claimant in 1982 and Joseph H. 
 
        Lindsay, M.D., an associate of Drs. Martinez and Mount who 
 
        initially admitted claimant to the hospital in 1984. Dr. Smith 
 
        testified that these physicians agree with his diagnosis from his 
 
        review of their reports. Except for the fact that Dr. Mount 
 
        stated that Dr. Lindsay only briefly dealt with claimant, he did 
 
        not dispute Dr. Smith's-assessment of their views.
 
        
 
        The deputy correctly concluded that claimant suffered from a 
 
        psychiatric condition termed a borderline personality disorder 
 
        prior to her employment with defendant employer. Not only did Dr. 
 
        Smith's portrayal of a typical person suffering from borderline 
 
        personality disorder describe claimant's behavior in this case, 
 
        but his explanation as to why his diagnosis differed from Dr. 
 
        Mount's was convincing. While Dr. Smith may have had less contact 
 
        with claimant, he based his diagnosis on the general picture of 
 
        claimant's condition and not merely components or symptoms of 
 
        claimant's condition or complaints by claimant.
 
        
 
        Although Dr. Smith did indicate that job stress may have 
 
        aggravated claimant's condition, he emphasized that it was a 
 
        minimum contribution. It was also his opinion that the increase 
 
        in the pressure on the job experienced by claimant was 
 
        contributed to by claimant's interpersonal behavior with 
 
        individuals in the
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 12
 
        
 
        
 
        work setting. It is impossible to tell the extent that job stress 
 
        contributed to the aggravation of claimant's condition. There is 
 
        insufficient medical evidence in the record to determine at any 
 
        one point in time how much of claimant's condition was due to her 
 
        underlying condition and how much was due to the aggravation of 
 
        the condition. There were apparently other factors that also 
 
        contributed to the aggravation and it is impossible to determine 
 
        how much of the aggravation could be attributed to job stress and 
 

 
        
 
 
 
 
 
        how much was attributed to the other factors.
 
        
 
        Those doctors who opine that claimant's condition in 1984 or 
 
        thereafter was a result of the work environment do not specify 
 
        what, if any, aspects of the work environment were the 
 
        contributing factors. It is impossible to tell at any time if 
 
        claimant's condition was due to the work environment or the 
 
        normal progress of claimant's mental condition. Dr. Smith 
 
        indicated that claimant's condition was exacerbated in the work 
 
        setting because of her own interpersonal behavior. It is not 
 
        clear whether it was Dr. Smith's opinion, which is the most 
 
        reliable, that the work setting aggravated claimant's condition 
 
        or the aggravation was the result of claimant's own interpersonal 
 
        behavior.
 
        
 
        A work connected injury which more than slightly aggravates a 
 
        preexisting condition can be the cause of a compensable injury. 
 
        In this case claimant has not demonstrated that her work 
 
        environment developed a pattern of stress over a significant 
 
        period of time. She first sought care for her mental condition 
 
        only a matter of several months after the office reorganization. 
 
        The misunderstanding regarding whether claimant was to have time 
 
        off charged as "Comp time" or vacation time was certainly not 
 
        part of any pattern. That misunderstanding was not an out of the 
 
        ordinary work stress. It cannot be said that this 
 
        misunderstanding was an actual precipitating factor for 
 
        claimant's condition at that time. Claimant has not proved that 
 
        that misunderstanding or any other work activity aggravated her 
 
        condition beyond the normal progression of her condition. 
 
        Claimant has not proved that her work environment, in fact, 
 
        caused her mental condition nor has she proved that it aggravated 
 
        her preexisting mental condition. This is especially true since 
 
        claimant is not credible and the physicians were basing their 
 
        opinions on claimant's statements as to history and complaints.
 
        
 
        The third matter to be considered is whether claimant received a 
 
        physical injury that arose out of and in the course of her 
 
        employment. In discussing this issue, the deputy stated:
 
        
 
        Drs. Mount and Martinez also opine that claimant's difficulties 
 
        beginning in February 1984 were also significantly aggravated by 
 
        claimant's back problems caused by the alleged fall experienced 
 
        by claimant at work on December 6, 1983. This opinion is based
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 13
 
        
 
        
 
        upon the history that claimant provided them of this fall and 
 
        that all of her back problems began at that time. Dr. Smith 
 
        agrees that a borderline personality individual will have more 
 
        difficulty dealing with physical problems than a normal person. 
 
        Claimant was diagnosed in October 1984 as suffering from a 
 
        herniated disc in her cervical spine and spondylolisthesis in her 
 
        lower spine resulting in upper and lower back pain and numbness 
 
        in the left upper and lower extremities.
 
        
 
        However, due to a lack of credible evidence, no finding can be 
 
        made that claimant actually suffered a fall at work on December 
 
        6, 1983 or at any other time. Claimant contends that she had no 
 
        back problem before a fall she experienced in the Mills County 
 
        courthouse on the day of the juvenile court proceeding in which 
 
        she testified on behalf of Davis [sic]. At that time, toward the 
 
        end of the day, claimant testified that she fell on her buttocks 
 
        while attempting to climb the stairs near her office. 
 
        Interestingly, the only person to verify her story was Davis 
 

 
        
 
 
 
 
 
        [sic] herself. Claimant stated that her back pain and numbness 
 
        started at that time and that she experienced continuous severe 
 
        pain since that time. Claimant said that she reported the fall to 
 
        Hallock but that Hallock ignored her because Hallock was upset 
 
        over claimant's testimony that day. Hallock denies that claimant 
 
        ever mentioned the fall at any time prior to leaving work in 
 
        February 1984.
 
        
 
        Aside from the fact that claimant generally is not credible, 
 
        claimant's story regarding the fall is not plausible. She did not 
 
        seek immediate medical attention despite a complaint of an 
 
        immediate onset of continuous back pain that she supposedly had 
 
        never before experienced. Although claimant apparently complained 
 
        of neuritis symptoms during the February 1984 hospitalization and 
 
        x-rays were taken of her back at that time, no such fall was 
 
        mentioned in any of the histories reported by her physicians in 
 
        Texas until October 1984. After the February 1984 
 
        hospitalization, claimant did not seek further treatment of her 
 
        back until April 1984 and then again no further treatment was 
 
        received until October 1984. The only mention of any fall prior 
 
        to October 1984 in any of claimant's medical records concerned a 
 
        fall at her sister's house in Texas in August 1984 after which 
 
        she complained of
 
        low backache and numbness in her left leg. Furthermore, if 
 
        claimant had thought she orally notified
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 14
 
        
 
        
 
        Hallock on the day of the fall, why did she feel it necessary to 
 
        retain an attorney to file a first report of injury in March 
 
        1984, three months after the alleged fall, before Hallock or 
 
        anyone else knew claimant was filing a workers' compensation 
 
        claim in this matter. Hallock simply had no opportunity to deny 
 
        the oral notice of injury prior to the first report of injury.
 
        
 
        Furthermore, Davis' [sic] verification of claimant's fall is not 
 
        credible. Her testimony in her deposition submitted into the 
 
        evidence contained numerous inconsistencies and conflicts with 
 
        other credible evidence in this case. Davis [sic] at first denied 
 
        talking with claimant especially about her work and her problems 
 
        with Hallock-before the--juvenile hearing but later on upon 
 
        further questioning she admitted to prior discussions with 
 
        claimant on at least two occasions, once in her home. Davis [sic] 
 
        also said that claimant was limping around the Mills County 
 
        office after this fall but no other person in the Mills County 
 
        office observed such symptoms. Also, Davis' [sic] testimony was 
 
        not impressive for the reason that she claimed that human 
 
        services had been unfair to her. She also professed a real 
 
        interest in her children in her testimony. However, her attorney 
 
        testified that he was forced to withdraw as her attorney after 
 
        the December 1983 hearing because she did not keep him informed 
 
        of her whereabouts and did not attend subsequent court hearings.
 
        
 
        Admittedly, two credible witnesses, Roland York and Esabelle 
 
        Garrison, the court-bailiff, who testified by way of deposition, 
 
        stated that claimant told them of a fall she experienced on the 
 
        courthouse stairs. However, neither of these witnesses could 
 
        state when this occurred except that York stated that it was 
 
        during her employment with human services. It is unclear from 
 
        York's testimony whether he meant before the last day of work in 
 
        February 1984 or her termination in June 1984. It is completely 
 
        therefore possible that claimant could have mentioned this fall 
 
        when she returned from Texas in March 1984 after her lawyer filed 
 
        the first report of injury. It is also possible that he could 
 

 
        
 
 
 
 
 
        have been referring to a fall at a much earlier time then [sic] 
 
        December 1983. Unfortunately, the testimony of these witnesses 
 
        were insufficient, given claimant's lack of credibility, to 
 
        establish that claimant suffered the fall in question or that the 
 
        fall was the beginning of her back difficulties.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 15
 
        
 
        
 
        The deputy correctly determined that claimant had not proved she 
 
        had fallen at work on December 6, 1983. Claimant admitted she was 
 
        confused during this time. The alleged fall coincided with the 
 
        testimony at the court hearing at which she was upset. She 
 
        perceived that her coworkers and supervisor were upset about the 
 
        testimony and this further upset her. The doctors who state that 
 
        her physical condition was a result of the fall base their 
 
        opinion upon a history that is not reliable and somewhat 
 
        inconsistent. Claimant related different symptoms at various 
 
        times. She stated that she limped and was in considerable pain at 
 
        work but also complained of neck and arm problems and later only 
 
        reported arm problems and still later reported neck and lower 
 
        back problems. The evidence is too inconsistent and unreliable to 
 
        conclude that claimant met her burden of proving a back injury 
 
        that arose out of and in the course of her employment with 
 
        defendants on December 6, 1983.
 
        
 
        Claimant raises two other matters on appeal that can be dealt 
 
        with summarily. First, claimant argues that the deputy erred in 
 
        limiting claimant's presentation of her case. That argument is at 
 
        odds with the circumstances of this case. Much of the testimony 
 
        was given by means of deposition and claimant was represented 
 
        when those depositions were taken. In addition, the Analysis of 
 
        Status/Certificate of Readiness for Pre-Hearing Conference dated 
 
        October 1, 1984 which was signed by claimant's representative 
 
        stated that the hearing would be three to four hours. The hearing 
 
        lasted from 8:30 a.m. until 4:20 p.m. on May 22, 1986 and it was 
 
        continued until June 27, 1986 when it commenced at 8:30 a.m. and 
 
        concluded at 5:00 p.m. Ten of the thirteen witnesses testifying 
 
        at the two days of hearing were called by claimant to testify. 
 
        Claimant's argument that the deputy erred in limiting 
 
        presentation of her case is simply not persuasive.
 
        
 
        Claimant also argues that the deputy erred in assessing the costs 
 
        of the proceedings to her. In support of the argument, claimant 
 
        points out that three-fourths of the costs incurred were for the 
 
        discovery depositions taken by defendants. Division of Industrial 
 
        Services Rule 343-4.33 provides in relevant part: "Costs are to 
 
        be assessed at the discretion of the deputy commissioner or 
 
        industrial commissioner hearing the case unless otherwise 
 
        required by the rules of civil procedure governing discovery." 
 
        While the costs of the proceeding may be in part due to the 
 
        depositions taken by defendants, there is no indication that the 
 
        discovery by defendants is excessive. Claimant's own actions, her 
 
        credibility and her candor, and the nature of this case are all 
 
        factors that contribute to the costs of this case. As ordered 
 
        below, claimant takes nothing from these proceedings. The deputy 
 
        did not abuse his discretion in assessing costs to the claimant 
 
        in this case.
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 16
 
        
 
        
 
                                 FINDINGS OF FACT
 
                                                
 

 
        
 
 
 
 
 
        1. The testimony of claimant was unreliable.
 
        
 
        2. Claimant was employed by defendants in Mills County, Iowa, 
 
        from December 8, 1980 to June 17, 1984, initially as a Clerk II 
 
        and later as a Secretary I.
 
        
 
        3. Claimant's employment history consists mainly of secretarial 
 
        and clerical work prior to December 1980.
 
        
 
        4. Prior to her employment with defendants, claimant suffered 
 
        from a psychiatric condition, a borderline personality disorder. 
 
        That condition is one in which environmental influences or 
 
        interpersonal conflict perceived by claimant as stressful 
 
        precipitates recurrent or chronic severe depression, anxiety, and 
 
        anger.
 
        
 
        5. Prior to claimant's hospitalization for emotional difficulties 
 
        in 1982 and 1984 and prior to her employment with defendants, she 
 
        was hospitalized for emotional difficulties on one occasion in 
 
        December 1976 while she was living in Texas following the burning 
 
        of her house.
 
        
 
        6. The defendant department underwent a reorganization in March 
 
        1982 and the Mills County office where claimant worked was 
 
        relocated shortly thereafter.
 
        
 
        7. After the office was relocated, the office space was small and 
 
        cramped for all the employees in the office.
 
        
 
        8. There was tension in the office when it was supervised by 
 
        Hallock. The tension was experienced by several employees 
 
        including claimant.
 
        
 
        9. The mental work stresses and tensions claimant experienced 
 
        during her employment with defendant between March 1982 and 
 
        February 1984 did not aggravate her preexisting mental condition.
 
        
 
        10. Claimant did not suffer a back injury as a result of a fall 
 
        at work on December 6, 1983.
 
        
 
        11. Claimant's mental condition is not the result of a physical 
 
        trauma.
 
        12. Claimant's job was not unusually stressful.
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant has failed to prove by a preponderance of the evidence 
 
        that she suffered a mental injury that arose out of and in the 
 
        course of her employment.
 
        
 
        Claimant has failed to prove by a preponderance of the
 
        
 
        DESGRANGES V. DEPARTMENT OF HUMAN SERVICES
 
        Page 17
 
        
 
        
 
        evidence that she suffered a physical injury on December 6, 1983 
 
        that arose out of and in the course of her employment.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered: That claimant take nothing from this 
 
        proceeding. That claimant pay all costs of this action including 
 
        the costs of the appeal and transcription of the arbitration 
 

 
        
 
 
 
 
 
        hearing.
 
        
 
        
 
        Signed and filed this 19th day of August, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN TADIN,
 
         
 
              Claimant,
 
                                                   File Nos. 761013
 
         VS.                                                  818247
 
         
 
         GLENWOOD STATE HOSPITAL-SCHOOL,:         A R B I T R A T I 0 N
 
         
 
               Employer,                           D E C I S I 0 N
 
          
 
          and
 
          
 
          STATEOF IOWA,
 
          
 
               Insurance Carrier,
 
               Defendant.
 
          
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by John Tadin, 
 
         claimant, against the State of Iowa, Glenwood State 
 
         Hospital-School, self-insured, employer.  The case was heard by 
 
         the undersigned in Council Bluffs, Iowa on January 23, 1989.
 
         
 
              The record consists of the testimony of claimant.  Also the 
 
         record consists of the testimony of Michael D. Bague, for 
 
         claimant, and Robert F. Wallace, Sr., for employer.  
 
         Additionally, the record consists of claimant's exhibits A 1-33 
 
         and defendant's exhibits A-J.  Claimant objected to the admission 
 
         of defendant's exhibits H, I and J. However, the undersigned 
 
         determines H, I and J are admissible, even though the exhibits 
 
         are hearsay evidence.  See: DeLong v. Highway Commission, 229 
 
         Iowa 700, 295 N.W. 91 (1940).
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         January 23, 1989, the issues presented by the parties are:
 
         
 
              1.  Whether claimant sustained injuries on March 9, 1984 or 
 
         March 13, 1984 and February 6, 1986, which arose out of and in 
 
         the course of employment with employer;
 
         
 
              2.   Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              3.   Whether claimant is entitled to permanent partial 
 
         disability benefits to the body as a whole; and,
 
         
 
              4.   Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant commenced his employment with defendant on December 
 
         7, 1979.  He was hired to work in the alternate living unit, and 
 
         in the behavior modification unit where residents were 
 
         experiencing severe physical problems.  Claimant's job title was 
 
         known as a resident treatment worker.  Resident treatment workers 
 
         were required to maintain constant contact with the residents and 
 
         to assist the residents in eliminating negative behavior.
 
         
 
              Claimant testified that resident treatment workers were 
 
         often attacked by the residents, or jumped from behind.  Claimant 
 
         indicated he had been attacked several times.  Claimant also 
 
         indicated he had filed prior accident reports for alleged back 
 
         injuries in 1981, 1983, 1984 and 1985.  Those injury dates are 
 
         not in dispute.
 
         
 
              Claimant testified that on either March 9, 1984 or on March 
 
         13, 1984, a resident attempted to jump from a restroom window.  
 
         The resident was hanging from the window and claimant pulled the 
 
         resident back into the building.  While claimant was pulling on 
 
         the resident, claimant felt a sharp pain in his back.  He 
 
         testified he took several days off work as a result of this 
 
         incident.  Claimant also testified this was the first occasion 
 
         where claimant had seen Behrouz Rassekh, M.D., a doctor retained 
 
         by defendant.
 
         
 
              With respect to the second alleged injury, claimant 
 
         testified he felt back strain from carrying and delivering 
 
         patient charts.  Then on that same evening, claimant, in his 
 
         deposition, testified he was teaching residents how to bowl and 
 
         he again felt a pain in his back.  At the hearing, claimant 
 
         testified he was not teaching residents how to bowl.  Rather, the 
 
         bowling incident took place while claimant was bowling on his own 
 
         league.  The bowling incident was a purely personal endeavor.
 
         
 
              Claimant testified he terminated his employment with 
 
         defendant on February 6, 1986, because his back was becoming more 
 
         painful.  He reported he requested a light duty position from Ms. 
 
         Jensen, but she indicated there were no light duty positions 
 
         available.  Claimant also testified he requested a light duty 
 
         position from Robert Wallace.  Claimant stated he informed Mr. 
 
         Wallace of the back pain but no light duty job was offered.
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
              Subsequent to his separation, claimant testified he was 
 
         denied unemployment compensation.  Claimant also indicated he 
 
         eventually started his own construction business in the fall of 
 
         1986.  According to claimant's testimony, he now lifts only light 
 
         objects and if he does any heavy labor, he suffers the 
 
         consequences.  Claimant, in his deposition, states he is engaged 
 
         in remodeling houses, building homes, weatherizing homes, 
 
         performing government contracts and building customized kitchen 
 
         cabinets.
 
         
 
              Claimant also testified that he is in the Army Reserves.  He 
 
         admitted in his deposition that he had not informed his superiors 
 
         of his back condition.  Likewise, claimant stated he never 
 
         intended to report his back condition to his superiors or else he 
 
         would be medically discharged.  Claimant reported he is required 
 
         to take an annual physical every year and he has successfully 
 
         completed every physical test.  Claimant also stated he is 
 
         required to attend summer camp each year.
 
         
 
              Michael D. Bague testified at the hearing.  He.stated he 
 
         worked with claimant at Glenwood.  Mr. Bague stated claimant, 
 
         subsequent to February 6, 1986, remodeled the home of Mrs. 
 
         Bague's grandmother.  Claimant roofed the house and built a new 
 
         deck.  Claimant, according to Mr. Bague, had no problems climbing 
 
         up and down ladders, drywalling, or painting and plastering.  
 
         Michael Bague testified that on two occasions only did claimant 
 
         complain about his back and claimant never indicated he left work 
 
         because he was unable to perform the job tasks.
 
         
 
              Robert F. Wallace, Sr., testified he was a supervisor at 
 
         Glenwood.  He indicated he supervised claimant and that for three 
 
         and one half years, he had observed claimant performing his 
 
         requisite job tasks.  Mr. Wallace reported he never observed 
 
         claimant experiencing difficulties when engaging in his job 
 
         performance.  Mr. Wallace additionally testified claimant only 
 
         complained once that he was in need of a light duty position.  
 
         When the request had been made, Mr. Wallace stated he arranged a 
 
         position as a vehicle driver for claimant.
 
         
 
              Mr. Wallace indicated he was not provided with a 
 
         satisfactory reason for claimant's termination.  Mr. Wallace 
 
         reported claimant did not state he was leaving because of his 
 
         back, and because claimant was not given a permanent light duty 
 
         position.  Mr. Wallace did report claimant had discussed mental 
 
         stress on the job, but the back condition was not discussed.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL 
 
         Pagp 4
 
         
 
         
 
              Claimant has the burden  of proving by a preponderance of 
 
         the evidence that he received injuries on March 9 or March 13, 
 
         1984 and February 6, 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 words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of March 9 or March 13, 1984 and 
 
         February 6, 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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 
         Page 5
 
         
 
         
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of an expert 
 
         based upon an incomplete history is not binding upon the 
 
         commissioner, but must be weighed together with the other 
 
         disclosed facts and circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In regard to medical 
 
         testimony, the commissioner is required to state the reasons on 
 
         which testimony is accepted or rejected.  Sondag, 220 N.W.2d 903 
 
         (1974).
 
         
 
              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, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is ' for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 
 
         ...(1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812,      (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 
 
         .....(1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber 
 
         Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555.(17)a..
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 
         Page 6
 
         
 
         
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620,.106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist. 
 
         Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 
 
         369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
         (1960).  See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
         Almquist,.. 218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. 
 
         Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada 
 
         Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 
         Page 7
 
         
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              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).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established that he has sustained an injury 
 
         which arose out of and in the course of his employment.  The 
 
         injury occurred while claimant was attempting to restrain a 
 
         resident from jumping out a restroom window.  The injury occurred 
 
         on March 13, 1984, while claimant was working the 6:00
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL 
 
         Page 8
 
         
 
         
 
         a.m. shift.  According to the in house accident report which was 
 
         completed on the same day, the injury occurred at approximately 
 
         7:00 a.m.
 
         
 
              Claimant has also established there is the requisite causal 
 
         connection between the March 13, 1984 injury and claimant's 
 
         claimed disability.  There is medical evidence to substantiate 
 
         the causal connection.
 
         
 
              After the incident on March 13, claimant sought medical 
 
         treatment.  Defendant sent claimant to its doctor,. I. J. 
 
         Hanssmann, M.D. Dr. Hanssmann, in turn referred claimant to a 
 
         neurosurgeonl Behrouz Rassekh, M.D. Dr. Rassekh saw claimant on 
 
         March 22, 1984.
 
         
 
              Dr. Rassekh in his letter of May 28, 1986 to claimant's 
 
         attorney determined:
 
         
 
              As stated.in my previous letter, this patient does have 
 
              lumbar spondylolisthesis which was pre-existing to his 
 
              injury; however, I do believe the injury in 1984 at work did 
 
              aggravate this pre-existing condition from which he had 
 
              improved in May, 1984.  Now he complained of recurrent back 
 
              pain and stated he has not had any other injury.  If he has 
 
              had no other injury in the intervening period of time, then 
 
              I do believe that some of this pain is due to lumbar 
 
              spondylolisthesis which makes people with that kind of 
 
              problem more susceptible to recurrent back problems and 
 
              discomforts.
 
              
 
              Claimant has not proven by a preponderance of the evidence 
 
         that he sustained an injury on August 23, 1985 which culminated 
 
         on February 6, 1986, in claimant terminating his employment.  
 
         Claimant, during his deposition, testified he was instructing 
 
         residents in the art of bowling and he felt a sharp pain in his 
 
         back.  Later, at the hearing, claimant changed his testimony.  He 
 
         indicated the bowling incident was not work related.  Rather, 
 
         claimant stated he was bowling on a recreational league when he 
 
         experienced a sharp pain in his back.  Exhibit 10 substantiates 
 
         claimant's later testimony.  In a memo dated August 22, 1985, 
 
         there is information to indicate claimant had not been bowling 
 
         with residents for a 1ong period of time.  Claimant's testimony 
 
         concerning this alleged injury is not credible.
 
         
 
              Claimant alleges he also injured his back carrying heavy 
 
         charts.  The accident report indicates this is only a minor 
 
         aggravation of the incident which occurred on March 13, 1984.  
 
         Mr. Wallace's testimony indicates the charts weighed an average 
 
         of five pounds.  The undersigned finds that lifting charts 
 
         weighing five pounds is not unduly strenuous.  Again, claimant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL 
 
         Page 9
 
         
 
         
 
         indicates this alleged injury resulted in claimant terminating 
 
         his employment on February 6, 1986.  Claimant alleges his 
 
         condition prevented him from performing his assigned duties.
 
         
 
              However, it is the determination of the undersigned that 
 
         claimant,left his employment for reasons other than his back 
 
         condition.  Mr. Wallace denied he was informed by claimant that 
 
         claimant's condition prevented him from working as a resident 
 
         treatment worker.  No physician had ever determined claimant was 
 
         unable to perform his job tasks.
 
         
 
              It appears claimant voluntarily terminated his employment 
 
         because claimant was dissatisfied with the general management of 
 
         the hospital school after there had been an evaluation by federal 
 
         officials.  All reports maintained by claimant's supervisor 
 
         indicate claimant left without notice and that claimant 
 
         terminated because of personal reasons.  There is nothing to 
 
         substantiate claimant's position he was physically incapable of 
 
         handling his job, and thus, forced to terminate his employment.
 
         
 
              The next issue to address is the issue  of  permanency.  The 
 
         primary treating physician, Dr. Rassekh, determined claimant had 
 
         a functional impairment of five percent to ten percent due to 
 
         claimant's injury on March 13, 1984.  Later the impairment was 
 
         modified to five percent.  This is uncontroverted medical 
 
         evidence.
 
         
 
              Claimant, on the other hand, maintains he has an industrial 
 
         disability of at least 40 percent.  Claimant asserts he has a 
 
         loss of earning capacity due to his back condition, and that he 
 
         has been forced to quit his job because he has not been given a 
 
         light duty position.  Again, it is the determination of the 
 
         undersigned that such is not the case.  Claimant's physician only 
 
         restricted claimant's work activities in 1984 as follows:
 
         
 
              Would recommend this patient be on program of William's 
 
              Exercise and as soon as the acute phase is over would be 
 
              advisable for him for four to six weeks to be on restricted 
 
              activity, not to do any lifting over 35 to 40 pounds or 
 
              repeated bending.
 
              
 
              The patient is to be re-evaluated at the office on May.03, 
 
              1984.
 
              
 
              Again, as far as restrictions are concerned, as of May 3, 
 
         1984, Dr. Rassekh writes:
 
         
 
              The patient is doing well; although,  he.still  will
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              have some pain after heavy lifting.
 
              
 
              
 
              
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL 
 
         Page 10
 
         
 
         
 
              For this reason the patient was advised he should not lift 
 
              over 50 pounds and to continue with the program of exercise.
 
         
 
              No other restrictions were placed on claimant prior to his 
 
         voluntary termination.  Claimant continued working for nearly two 
 
         years.  Only after his termination was he restricted by Dr. 
 
         Rassekh as follows:
 
         
 
              At the present time, in view of the nature of his diagnosis, 
 
              he will be better off not to return to any occupation which 
 
              requires heavy lifting,.bending or twisting, because 
 
              otherwise he will be more subject to recurrent back problems 
 
              due to the lumbar spondylolisthesis.
 
              
 
              Claimant maintains he was denied employment on several 
 
         occasions because of his back condition.  He reports he applied 
 
         in 1986 at Griffin Pipe but was denied a position once x-rays of 
 
         the back were reviewed.  Claimant reports the same events 
 
         transpired when he applied at Express Messenger and Deli Express.  
 
         Such is not the case with respect to claimant's application at 
 
         the Iowa School of the Deaf.  There claimant stated he was not 
 
         impaired in any fashion.  Consequently, his back condition could 
 
         not have been a factor in his hiring.  Furthermore, claimant, at 
 
         all times maintained his position with the Army Reserves.  He was 
 
         able to successfully complete and pass his annual physical.
 
         
 
              Claimant started his own construction business in the spring 
 
         of 1986.  He testified he incorporated the business in 1987.  At 
 
         first, the business was slow but claimant testified he received 
 
         $60,000.00 in government contracts in September of 1986.  
 
         Claimant's tax records reveal he grossed $16,913.80 in 1986 but 
 
         those records did not include any income earned from the U. S. 
 
         Department of the Army.  Claimant testified he grossed 
 
         $110,000.00 in 1987 and netted $38,000.00 for that year.  
 
         Claimant did not produce records to verify the sum.  Nor did 
 
         claimant provide information concerning income earned in 1988.
 
         
 
              Claimant has demonstrated he has a permanent partial 
 
         disability of seven percent.  This finding is based on: 1) the 
 
         aforementioned considerations; 2) based upon the permanent 
 
         functional impairment ratings assigned by Dr. Rassekh; 3) based 
 
         upon personal observation of claimant; 4) based upon claimant's 
 
         testimony at the hearing and during his deposition; and, 5) based 
 
         upon agency expertise, (Iowa Administrative Procedures Act 
 
         17A.14(s).
 
         
 
              Claimant is also entitled to unpaid medical expenses under 
 
         section 85.27. These include the following:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TADIN V. GLENW00D STATE HOSPITAL-SCHOOL
 
         Page 11
 
         
 
         
 
              Neurosurgical Associates of Council Bluffs      $ 75.00
 
              Jennie Edmundson Hospital                         84.00
 
         
 
                                                      $159.00
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1. Claimant sustained a back injury arising out of 
 
         and in the course of his employment on March 13, 1984.
 
         
 
              FINDING 2.  Claimant did not injure his back on August 23, 
 
         1985.
 
         
 
              FINDING 3.  Claimant did not sustain a gradual injury
 
         to his back as a result of an alleged injury date on February 6, 
 
         1986.
 
         
 
              FINDING 4.  Claimant did not terminate his employment on 
 
         February 6, 1986, because of his back condition.
 
         
 
              FINDING 5.  As a result of the injury on March 13, 1984, 
 
         claimant has an attributable functional impairment of five 
 
         percent to ten percent of the body as a whole.
 
         
 
              FINDING 6.  Claimant incurred medical expenses as a result 
 
         of his injury on March 13, 1984.
 
         
 
              CONCLUSION A.  Claimant has met his burden of proving he has 
 
         a seven percent permanent partial disability as a result of his 
 
         injury on March 13, 1984.
 
         
 
              CONCLUSION B.  The subsequent medical expenses are 
 
         compensable under section 85.27 as a result of the injury on 
 
         March 13, 1984:
 
          
 
                Neurological Associates of Council Bluffs  $   75.00
 
                Jennie Edmundson Hospital                      84.00
 
                                                        $159.00
 
         
 
              CONCLUSION C.  Claimant has not established by a 
 
         preponderance of the evidence that he is entitled to any benefits 
 
         under the Iowa Workers' Compensation laws as a result of an 
 
         alleged injury date of February 6, 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL
 
         Page 12
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant thirty-five 
 
         (35) weeks of permanent partial disability benefits at the rate 
 
         of three hundred and no/100 dollars ($300.00) per week as a 
 
         result of the injury on March 13, 1984.
 
         
 
              Defendant is to also pay medical expenses in the sum of one 
 
         hundred fifty-nine and no/100 dollars ($159.00) as a result of 
 
         the injury on March 13, 1984.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa.Code 
 
         section 85.30.
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of this action, including the following costs, are 
 
         assessed against the defendant pursuant to Division of Industrial 
 
         Services Rule 343-4.33:
 
         
 
                 2-26-88  medical report     Dr. Rassekh   $30.00
 
                 5-28-86  medical report     Dr. Rassekh   $40.00
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 24th day of May, 1989.
 
         
 
         
 
                                         MICHELLE A.McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave.
 
         P. 0. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General 
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                                   51803
 
                                                      Filed May 24, 1989
 
                                                      MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN TADIN,
 
          
 
               Claimant,
 
                                            File Nos. 761013
 
          VS.                                         818247
 
          
 
         GLENWOOD STATE HOSPITAL-SCHOOL,:   A R B I T R A T I 0 N
 
          
 
               Employer,                    D E C I S I 0 N
 
          
 
          and
 
          
 
          STATE OF IOWA,
 
          
 
               Insurance Carrier,
 
               Defendant.
 
         
 
         
 
         
 
         51803
 
         
 
              Claimant sustained a back injury on March 13, 1984 which 
 
         resulted in a seven percent permanent partial disability.  
 
         Claimant worked for nearly two years after the injury and then 
 
         claimant voluntarily terminated his employment.  Claimant failed 
 
         to establish his voluntary termination was the result of a second 
 
         gradual injury to his back.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         EMMA C. MC INTOSH,
 
         
 
              Claimant,
 
         VS.
 
                                                 File Nos. 761150
 
                                                           767189
 
         BLUE STAR FOODS, INC.,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because she failed to establish by a preponderance 
 
         of the evidence that she sustained a hernia on October 5, 1983 
 
         and a back injury on May 22, 1984 which arose out of and in the 
 
         course of her employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 11; and 
 
         defendants' exhibits A through W. Both parties filed briefs on 
 
         appeal.
 
         
 
                                  ISSUE
 
         
 
              The issue raised on appeal is whether claimant received 
 
         injuries arising out of and in the course of her employment.
 
         
 
                             REVIEW OF EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
                                                
 
                                                         
 
         
 
                            FINDINGS OF FACT
 
         
 
         File No. 761150
 
         
 
              1.  Claimant was aware of company policy regarding reporting 
 
         work injuries including the requirement that all injuries be 
 
         immediately reported to the company nurse.
 
         
 
              2.  Claimant reported an injury to her.right hand to the 
 
         nurse on October 5, 1983, but did not report another injury on or 
 
         about that date.
 
         
 
              3.  Claimant's foreman and department supervisor were 
 
         unaware of her alleged work injury.
 
         
 
              4.  Claimant did not lift weights of 40 pounds or more in 
 
         the course of her employment.
 
         
 
              5.  Claimant did not claim her condition was work related 
 
         when she sought leave of absence.
 
         
 
              6.  Dr. Bleicher's November 1984 medical note does not 
 
         specify the amount of weight claimant lifted.
 
         
 
              7.  Claimant had three prior hernias and repairs at the same 
 
         site.
 
         
 
              8.  The site of claimant's hernia and the minimal 
 
         surrounding tissue for repair resulted in hernia reoccurrences.
 
         
 
         File No. 767189
 
         
 
              1.  Claimant was aware of the company policy regarding 
 
         reporting of work injuries including the requirement that all 
 
         injuries be immediately reported to the company nurse.
 
         
 
              2.  Claimant did not report a back injury to the company 
 
         nurse until June 14, 1984.
 
         
 
              3.  Claimant did not claim her condition was work related 
 
         when she sought medical leave of absence on May 29, 1984.
 
         
 
              4.   Claimant's claim is of a May 22, 1984 work injury to 
 
         her back.
 
         
 
              5.  Claimant had only returned to work May 21, 1984.
 
         
 
              6.  Claimant's customary job was stenciling boxes.
 
         
 
              7.  Claimant was putting 50-ounce or less cans in boxes and 
 
         pushing them down the line on her May 1984 work return.
 
              
 
              8.  Claimant lifted empty cases.
 
         
 
              9.  Claimant's department supervisor and her foreman were 
 
                                                
 
                                                         
 
         not aware claimant had back complaints when she left work May 22, 
 
         1984.
 
         
 
              10.  Claimant is five feet three inches tall and weighs 250 
 
         pounds.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
         File No. 761150
 
         
 
              Claimant has not established an injury on October 5, 1983 
 
         which arose out of and in the course of her employment.
 
         
 
         File No. 767189
 
         
 
              Claimant has not established an injury on May 22, 1984 which 
 
         arose out of and in the course of her employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
         File No. 761150:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant is to pay the costs of the appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
         File No. 767189:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant is to pay the costs of the appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 31st day of December, 1987.
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Joseph B. Reedy
 
         Attorney at Law
 
         227 South Sixth Street
 
                                                
 
                                                         
 
         Council Bluffs, Iowa 51501
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50 - 1402.30
 
                                                 Filed December 31, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         EMMA C. MC INTOSH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File Nos. 761150
 
                                                           767189
 
         BLUE STAR FOODS, INC.,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1108.50 - 1402.30
 
         
 
              Claimant did not prove that a hernia or a back injury arose 
 
         out of and in the course of her employment.