BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES W. MICHAELS,
 
         
 
              Claimant,
 
                                                   File Nos. 766891
 
         vs.                                                 808331
 
         
 
         ROBERT J. ELLIOTT, INC.,                    A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying any 
 
         healing period, temporary or permanent disability benefits and 
 
         medical benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 12.  Both 
 
         parties filed briefs on appeal.
 
         
 
              The prehearing reports contain the following stipulations 
 
         that are relevant to this decision.
 
         
 
              1.  On May 22, 1984 claimant received an injury which arose 
 
         out of and in the course of his employment with defendant 
 
         employer.
 
         
 
              2.  The injury of May 22, 1984 was a cause of temporary 
 
         disability during a period of recovery but the extent of any such 
 
         disability remained an issue to be dealt with in this decision.
 
         
 
              3.  Claimant has received ninety weeks of workers' 
 
         compensation benefits prior to the hearing.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are:
 
         
 
              Whether claimant received an injury on February 2, 1984 
 
         that arose out of and in the course of his employment;
 
         
 
              Whether there is a causal relationship between any work 
 
         injury and temporary or permanent disability; and
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   2
 
         
 
         
 
              Whether claimant is entitled to expenses under Iowa Code 
 
         section 85.27.
 
         
 
         
 
                             REVIEW OF EVIDENCE
 
         
 
              Claimant began his employment with defendant employer on 
 
         January 9, 1984 as an over-the-road truck driver.  His duties 
 
         included driving a semi-tractor truck and unloading various types 
 
         of cargo.
 
         
 
              Claimant testified that he first injured himself on February 
 
         2, 1984 while unloading wooden reels weighing from 100 to 200 
 
         pounds.  He said that the injury felt like his neck "popped" and 
 
         sharp pain ensued in his neck, right shoulder and arm.  The pain 
 
         then subsided and he continued working.  After resting in his cab 
 
         while other persons were loading his truck later in the day, the 
 
         pain grew worse.  Claimant said that he then returned to the 
 
         terminal in Des Moines and reported the injury to two of 
 
         defendant employer's managers, See and Thorson, as well as the 
 
         night dispatcher.  Claimant said that he was told by them to go 
 
         to the hospital.  Claimant stated that he arrived in Des Moines 
 
         around 8:00 or 9:00 p.m.  Claimant returned home and reported the 
 
         next day to the emergency room at Illini Hospital.  The emergency 
 
         room physician diagnosed that claimant had probable cervical disc 
 
         disease.  Claimant said that following his visit to the hospital 
 
         he called Nancy Moore, the safety director at defendant employer, 
 
         and reported the injury.  He said she told him that since it had 
 
         been over 72 hours since the injury at the time he called it was 
 
         too late to file a claim for workers' compensation.
 
         
 
              Claimant testified that although his pain was continuing, at 
 
         the request of Moore he returned to duty a few days later to take 
 
         a load to the East Coast.  Claimant indicated that he could only 
 
         do this work because a friend of his, Richard Mercer, assisted 
 
         him with his driving on the trip.  Despite this assistance, 
 
         claimant stated that he suffered from great pain during the trip 
 
         and upon his return he requested Moore for time off.  Despite 
 
         being referred to a neurosurgeon, Harry Honda, M.D., by Illini 
 
         Hospital, claimant began treatment with a chiropractor following 
 
         the February 1984 onset of pain.  At the completion of this 
 
         chiropractic treatment, claimant returned to full duty on April 
 
         1, 1984.  A couple of weeks before May 22, 1984 claimant saw Dr. 
 
         Honda with similar complaints of pain in the right upper 
 
         extremity.
 
         
 
              Claimant said that on May 22, 1984 he injured himself again. 
 
          He said that following a fall from a truck in an attempt to 
 
         repair running lights on his trailer, he experienced pain in his 
 
         neck, right shoulder, and arm similar to the pain in February 
 
         1984.  Claimant stated that this incident occurred at a rest area 
 
         in Ohio where he stopped during a rainstorm.  Claimant returned 
 
         to his home in East Moline and reported the injury to Moore and 
 
         he then began to receive extensive treatment from Dr. Honda.
 
         
 
              Claimant denied any significant prior problems or injuries 
 
         to his neck or cervical spine before February 1984.  Claimant 
 
         only admitted to Dr. Honda in May 1984 that he had some pain in 
 
         his neck for one or two days approximately ten years earlier.
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   3
 
         
 
         
 
              Claimant revealed that his daily log for February 2, 1984 
 
         showed that he arrived in Des Moines at 12:30 p.m. although he 
 
         actually arrived at approximately 9:00 p.m.  He stated that the 
 
         log which he signed was false.  Claimant denied that he ever had 
 
         any accident or trauma to his neck prior to February 3, 1984.  
 
         Claimant denied that he had been injured driving a motorcycle.  
 
         He also denied that he told Nancy Moore or her receptionist he 
 
         had been injured while driving a motorcycle or that he had 
 
         physical problems.
 
         
 
              Nancy Moore, safety director for defendant Robert J. 
 
         Elliott, Inc., testified by deposition.  She testified that she 
 
         had a conversation with claimant on February 16, 1984 in which he 
 
         requested time off because his back and neck were hurting.  She 
 
         testified that claimant had said he was not claiming a work 
 
         injury and that he had been involved in a motorcycle accident 
 
         prior to working for defendant employer.  She testified that this 
 
         conversation took place in her office in Des Moines.  The doors 
 
         to the office were open and Barbara Baker, the receptionist, was 
 
         outside Moore's office door.  Moore testified that she talked 
 
         with Baker after claimant left because it was unusual that 
 
         claimant had talked of an injury but that he would not claim it 
 
         was work related.  Moore stated that Baker typed a statement of 
 
         what claimant had reported and Baker signed it.  Moore indicated 
 
         that she did not know where the statement was because the files 
 
         had been transferred and moved.  She also testified that she 
 
         heard claimant tell Baker the same thing he had told her.  She 
 
         denied that claimant had told her he had been hurt on February 2, 
 
         1984.
 
         
 
              Barbara Baker worked as switchboard operator and 
 
         receptionist for defendant employer from December 8, 1983 through 
 
         March 8, 1985.  She testified that her desk was ten feet from 
 
         Moore's work area.  She stated that she overheard the portion of 
 
         the conversation between claimant and Moore concerning the 
 
         motorcycle accident and claimant's request for time off because 
 
         his back was hurt would not be workers' compensation.  She 
 
         testified further that after claimant left Moore's office he told 
 
         her (Baker) that he had had a motorcycle accident and it would 
 
         not be workers' compensation because he had hurt his back before.  
 
         She also stated that she talked with Moore later that day after 
 
         claimant had left about what claimant had said and he had been 
 
         very honest in what he said.  She indicated that she made typed 
 
         notes of her conversation with claimant and what she had 
 
         overheard and signed the notes.  She testified that she filed the 
 
         notes in claimant's file in Moore's office.
 
         
 
              Claimant was treated as an outpatient at the Illini Hospital 
 
         on February 3, 1984.  The diagnosis or reason for examination was 
 
         given as pain right shoulder, unknown trauma.  The radiologist 
 
         report by B. Korosec, M.D., stated the following:
 
         
 
         
 
              CERVICAL SPINE:
 
         
 
              AP lateral and oblique views show reversal of cervical 
 
              curve.  Some arthritic changes are noted along the 
 
              anterior and posterior vertebral bodies of C5 and C6.  
 
              The relation of Cl to C2 shows no radiographic 
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   4
 
         
 
              abnormalities on AP view.  The odontoid however shows 
 
              slight posterior deviation on the lateral projection.  
 
              This could represent developemental [sic] variation or 
 
              condition following old trauma.
 
         
 
              IMPRESSION: Reversal of cervical curve with 
 
              degenerative arthritic spurring at C5-C6 levels as 
 
              described.
 
         
 
         (Jt. Ex. 4a)
 
         
 
              Claimant was examined by Harry Honda, M.D., a neurological 
 
         surgeon, on May 4, 1984.  Claimant gave a history which included 
 
         the events of February 2, 1984 which he testified to regarding 
 
         feeling something pop in his neck while unloading heavy reels.  
 
         Dr. Honda's impression was a herniated nucleus pulposus at the 
 
         C5-6 level with radiculopathy of C6.  He prescribed a cervical 
 
         collar and gave claimant some analgesics although he thought 
 
         these would not help and that claimant would require myelography 
 
         and anterior cervical interbody fusion.
 
         
 
              Claimant was treated as an outpatient by Illini Hospital on 
 
         May 23, 1984 and was given a cervical collar.  On May 31, 1984, 
 
         claimant was seen for physical therapy for an accident described 
 
         as "fell off tractor cab."  He was treated as an inpatient on 
 
         July 13, 1984.  The hospital record indicates an accident of 
 
         falling off tractor cab.  The principal diagnosis was cervical 
 
         disc herniation at C5-6 and C6-7 levels and on July 16, 1984 an 
 
         anterior cervical discectomy and fusion at C5-6 and C6-7 levels 
 
         was performed.  The discharge sumitiary dated July 27, 1984 which 
 
         was signed by Dr. Honda gave the final diagnosis as "cervical 
 
         radiculopathy of C6-7 due to degenerative disc disease at the 
 
         C5-6 and C6-7 levels."  On November 5, 1985, Dr. Honda released 
 
         claimant to go back to work with no restrictions.
 
         
 
              Claimant also underwent further diagnostic testing by Dr. 
 
         Honda to determine the cause of claimantOs continuing pain in 
 
         1986.  At the direction of Dr. Honda claimant also underwent 
 
         acupuncture treatment in 1986 by Dr. Koji Uemura following his 
 
         return to work as a truck driver.
 
         
 
              F. Dale Wilson, M.D., examined claimant on April 21, 1986 
 
         and opined that claimant's absences from work and a permanent 
 
         partial impairment to claimant's body as a whole were caused by 
 
         an injury sustained on February 2, 1984 and a further aggravation 
 
         and a most serious cause of injury on May 22, 1984.  Dr. Wilson 
 
         rated claimant's impairment at 42 percent.  Dr. Wilson's opinion 
 
         was based on the fact that claimant had no prior history of 
 
         injury to his neck or back except some treatment in 1972 when he 
 
         was off work for a day because of a stiff neck.
 
         
 
         
 
                                  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 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).
 
         
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   5
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Iowa Code section 85.27 provides that employers are to 
 
         furnish employees medical benefits when an injury arises out of 
 
         and in the course of employment.
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   6
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The deputy was correct when he determined that claimant was 
 
         not credible.  Claimant made statements against his own interests 
 
         that he was not going to file a workers' compensation claim 
 
         because of the February accident and that he had had a prior 
 
         motorcycle accident.  Those statements were made to two people in 
 
         separate conversations and were unusual enough that these two 
 
         people discussed the statements.  One of those persons even went 
 
         so far as to make a written report of the statements.  Claimant 
 
         at the hearing denies both making the statements and the 
 
         substance of the statements.  His denial of making the statements 
 
         is directly contradicted by two persons, one of which is no 
 
         longer an employee of the defendant employer.  The testimony of 
 
         each of these persons is corroborated by the testimony of the 
 
         other.  Claimant has been untruthful in a material aspect of his 
 
         testimony and therefore his testimony cannot be relied upon.
 
         
 
              The claimant argues on appeal that the evidence establishes 
 
         a February 2, 1984 accident.  The only evidence in the record of 
 
         the accident is claimant's testimony.  That testimony is directly 
 
         contradicted by statements he made on February 16, 1984.  
 
         Therefore, claimant has failed to prove by the greater weight of 
 
         the evidence that an injury occurred on February 2, 1984.
 
              The claimant next argues that he was disabled because of the 
 
         injury on May 22, 1984.  The parties stipulated that there was an 
 
         injury on May 22, 1984 that arose out of and in the course of 
 
         employment and that the injury is a cause of temporary disability 
 
         during a period of recovery.  The length of the temporary 
 
         disability is in dispute.  The evidence in this case indicates 
 
         that claimant was treated twice for a similar condition prior to 
 
         May 22, 1984 as he was treated for after May 22, 1984.  There is 
 
         no evidence that an event on May 22, 1984 resulted in a condition 
 
         different than what was present prior to that date.  Claimant had 
 
         a preexisting condition caused by a motorcycle accident.  There 
 
         is no evidence that his condition because of the accident was 
 
         aggravated by an event on May 22, 1984.  Claimant has been paid 
 
         ninety weeks of temporary disability.  The time period for 
 
         payments May 22, 1984 through December 15, 1985 is included in 
 
         the ninety weeks already paid.  It cannot be determined when the 
 
         stipulated temporary disability ended but it most certainly would 
 
         have ended before claimant had surgery in July 1984.  Claimant 
 
         has been greatly overpaid for his entitlement to temporary total 
 
         disability.
 
         
 
              Nowhere in the evidence does Dr. Honda express an opinion as 
 
         to the possible relationship of his treatment of claimant's neck, 
 
         shoulder and arm difficulties to the May 22 work injury.  Most of 
 
         Dr. Honda's reports appear to focus on the alleged February 
 
         incident as a precipitating factor.  Dr. Wilson opines that 
 
         claimant's absences from work and his permanent impairment to 
 
         claimant's body as a whole were caused by the work injury.  
 
         However, Dr. Wilson like Dr. Honda was not informed of any 
 
         problems prior to the injury except for some pain in 1972 and is 
 
         based on claimant's assertions which are less than credible.  Dr. 
 
         Wilson's opinion must therefore be rejected.  Claimant has failed 
 
         to prove by the greater weight of evidence that a permanent 
 
         change of condition was a result of the May work injury.
 
         
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   7
 
         
 
              Claimant also argues that he is entitled to be reimbursed 
 
         for medical expenses and mileage incurred in receiving treatment 
 
         of his injuries.  As discussed above, there was insufficient 
 
         evidence to determine precisely when the temporary aggravation 
 
         caused by the May 22 injury ended but that it ended before July 
 
         1984.  Claimant would be entitled only to medical benefits while 
 
         he was being treated for the injury received on May 22.  Any 
 
         medical expenses incurred after July 1984 would not be for 
 
         treatment of the injury and should not be allowed.  It is 
 
         impossible to tell when the other expenses (mileage) of claimant 
 
         were incurred, although it appears they were incurred after July 
 
         1984.  These other expenses should also not be allowed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is not a credible witness.
 
         
 
              2.  Claimant was in a motorcycle accident prior to beginning 
 
         work for defendant employer.
 
         
 
              3.  Claimant injured his back and shoulder in the motorcycle 
 
         accident.
 
         
 
              4.  Claimant's allegation of an injury on February 2, 1984 
 
         is not corroborated.
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   8
 
         
 
         
 
              5.  Claimant was not injured in a work accident on February 
 
         2, 1984.
 
         
 
              6.  Claimant was examined at Illini Hospital on February 3, 
 
         1984.
 
         
 
              7.  The radiologist who examined claimant on February 3, 
 
         1984 found that claimant's condition was a developmental 
 
         variation or was a condition following an old trauma.
 
         
 
              8.  On February 16, 1984 claimant told Nancy Moore and 
 
         Barbara Baker, employees of defendant, that he had been in a 
 
         motorcycle accident and would not be claiming workers' 
 
         compensation.
 
         
 
              9.  On May 4, 1984 claimant was examined by Dr. Honda, and 
 
         Dr. Honda's impression was a herniated nucleus pulposus at the 
 
         C5-6 level with radiculopathy of C6.
 
         
 
             10.  Claimant had an injury that arose out of and in the 
 
         course of his employment on May 22, 1984.
 
         
 
             11.  On July 16, 1984 claimant had an anterior cervical 
 
         discectomy and fusion at C5-6 and C6-7 levels.
 
         
 
             12.  The discharge summary dated July 27, 1984 which was 
 
         signed by Dr. Honda found claimant to have degenerative disc 
 
         disease.
 
         
 
             13.  Claimant has received temporary total disability 
 
         benefits for ninety weeks including the period May 22, 1984 
 
         through December 15, 1985.
 
         
 
             14.  Claimant had recovered from the injury caused on May 22, 
 
         1984 sometime prior to July 1984.
 
         
 
             15.  Claimant claimed medical expenses and mileage for 
 
         medical treatment after July 1984.
 
         
 
             16.  Claimant did not advise either Dr. Honda or Dr. Wilson 
 
         of his prior back problems.
 
         
 
             17.  Claimant's back condition and treatment in July 1984 and 
 
         thereafter were the results of a preexisting condition unrelated 
 
         to the injury of May 22, 1984.
 
         
 
             18. The parties stipulated that there was an injury that 
 
         arose out of and in the course of employment on May 22, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         that on February 2, 1984 he suffered an injury arising out of and 
 
         in the course of employment.
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         a causal relationship between an injury to his back on May 22, 
 
         1984 and temporary disability beyond July 1984.
 
         
 

 
         
 
         
 
         
 
         MICHAELS V. ROBERT J. ELLIOTT, INC.
 
         Page   9
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         a causal relationship between an injury to his back on May 22, 
 
         1984 and permanent disability.
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         a causal relationship between an injury on May 22, 1984 and the 
 
         claimed medical expenses.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from this proceeding.
 
         
 
              That claimant shall pay the costs of the arbitration 
 
         proceeding as well as the costs on appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 28th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINOUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Allan Hartsock
 
         Attorney at Law
 
         P.O. Box 428
 
         Fourth Floor, Rock Island Bank Bldg.
 
         Rock Island, Illinois 61210
 
         
 
         Mr. Michael Liebbe
 
         Attorney at Law
 
         P.O. Box 339
 
         116 East Sixth Street
 
         Davenport, Iowa 52805
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1402.20; 1402.40;
 
                                                      1801; 1804; 2505
 
                                                      Filed 1-28-88
 
                                                      David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES W. MICHAELS,
 
         
 
              Claimant,
 
                                                   File Nos.   766891
 
         VS.                                                   808331
 
         
 
         ROBERT J. ELLIOTT, INC.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20
 
         
 
              Claimant, who was not a credible witness, had no 
 
         corroborating evidence that an injury had occurred and had not 
 
         met his burden of proving an injury on February 2, 1984.
 
         
 
         1402.40; 1801; 1804
 
         
 
              Parties stipulated that there was an injury on May 22, 1984 
 
         that arose out of and in the course of employment.  However, 
 
         claimant had not proved a causal connection between the injury 
 
         and temporary disability beyond a particular date or a causal 
 
         connection between the injury and permanent disability.
 
         
 
         2505
 
         
 
               Claimant had not proved a causal connection between the 
 
         stipulated injury and the medical expenses claimed.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         CHRIS POULA,   :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 767411
 
         SIOUXLAND WALL & CEILING :
 
         INC.,     :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         IOWA MUTUAL INSURANCE CO.,    :
 
                   :
 
              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 
 
         August 9, 1990 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 August, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Emmit J. George, Jr.
 
         Attorney at Law
 
         500 S. Dubuque St.
 
         P.O. Box 3090
 
         Iowa City, Iowa 52244
 
         
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 IE Tower
 
         Cedar Rapids, Iowa 52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHRIS POULA,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 767411
 
            SIOUXLAND WALL & CEILING :
 
            INC.,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA MUTUAL INSURANCE CO.,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 9, 
 
            1990.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
CHRIS POULA,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 767411
 
SIOUXLAND WALL & CEILING, INC., 
 
                                           R E M A N D
 
     Employer,   
 
                                          D E C I S I O N
 
and         
 
            
 
IOWA MUTUAL INSURANCE CO.,      
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
This case is on remand from the Iowa Court of Appeals.  Poula v. 
 
Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994). The 
 
court of appeals affirmed a district court decision which held that a 
 
total rejection of Dr. Pontarelli's opinion was arbitrary and 
 
unreasonable.  The district court had remanded this matter for 
 
reconsideration of the issue of causation.  Only the facts and law 
 
relevant to the issue to be decided will be discussed.
 
 
 
                              ISSUE
 
 
 
The issue on remand is whether claimant has proved that there is a 
 
causal connection between his May 22, 1984 injury and the medical 
 
treatment he received in 1987 and 1988.
 
 
 
                         FINDINGS OF FACT
 
 
 
On May 24, 1984, claimant sustained an injury which arose out of and in 
 
the course of his employment when, as he was descending a scaffold, he 
 
fell 10 to 15 feet to the ground.  Webster B. Gelman, M.D., at the 
 
Steindler Orthopedic Clinic noted that a herniated disc at L4-5 on the 
 
left was revealed on a CT scan.  (Claimant's Exhibit 1)  Claimant 
 
underwent a laminectomy in November of 1984.  There is no preoperative 
 
nor postoperative medical record for the November 1984 surgery in 
 
evidence.  William R. Pontarelli, M.D., testified that there was no 
 
bulge at L4-L5 nor a massive disc herniation at L5-S1 after the surgery 
 
was performed by Dr. Gelman in 1984.  (Cl. Ex. 7, p. 17)  When Dr. 
 
Pontarelli reviewed Dr. Gelman's office notes, the discharge summary 
 
and the operative report, Dr. Pontarelli saw no mention of the status 
 
of the L5-S1 disc problem.  (Cl. Ex. 7, pp. 27-28)
 
 
 
From May of 1984 through April of 1985, claimant worked as a legal 
 
secretary for his father, in construction from April of 1985 until 
 
January of 1986 and subsequently was a self-employed contractor doing 
 
roofing, home improvements, landscaping, and demolition/remodeling 
 
work.
 
 
 

 
 
 
 
 
 
 
 
 
Claimant contacted Dr. Pontarelli in September 1987 complaining of back 
 
pain which he developed after stooping over and straightening up.  An 
 
appointment was scheduled for September 28, 1987 for which claimant 
 
failed to show.  Claimant advised the doctor that his back was better 
 
and he "forgot" his appointment.
 
 
 
In November of 1987, claimant sneezed and "knew" he hurt himself as he 
 
felt a "tingling sensation" like he felt in 1984.  Claimant contacted 
 
Dr. Pontarelli, of The Steindler Orthopedic Clinic, with whose partner, 
 
Dr. Gelman, now retired, claimant had treated for the 1984 injury.  Dr. 
 
Pontarelli had previously treated claimant beginning in January 1985.  
 
(Cl. Ex. 1)  Dr. Pontarelli's office notes of March 18, 1988 state:
 
 
 
Chris had reactivation of his sciatic pain like before and it 
 
originally started in his buttock....
 
 
 
CT shows a huge ruptured disc at L5-S1 with free fragments, 
 
responsible for the majority of his symptoms.  There is abnormalities 
 
at L4-5 which could suggest recurrent rupture there as well, but the 
 
majority of his problem is probably coming from the L5_S1 disc which is 
 
a new injury and not connected to his old.
 
 
 
(Cl. Ex. 1)
 
 
 
Dr. Pontarelli's April 15, 1988 office note reports:
 
   
 
Chris returned with improvement in his symptoms of leg 
 
pain....Reviewing his history once again to help determine causation, 
 
he feels that he has never regained the physical capacity that he had 
 
since his original injury, but once he recovered from the surgery he 
 
recovered well, playing basketball twice a week, working 70 hour weeks, 
 
self employed as a roofer working in prolonged bent over positions.  
 
The incident that Chris felt was the 2nd injury, so to speak, was in 
 
September, 1987 when he had a bad case of the flu, was coughing and 
 
felt a pop in his back.
 
 
 
(Cl. Ex. 1)
 
On June 23, 1988, Dr. Pontarelli advised:
 
 
 
Chris Poula returned to me with recurrent sciatic pain.  At the time 
 
that this started he had been home sick with a cold.  At the time he 
 
was self-employed refinishing the roofs on houses, working about 60 to 
 
70 hours a week.  He was laying down watching television when a severe 
 
coughing fit caught him and he started complaining of back pain.  The 
 
onset of this recurrent problem was in the middle part of September, to 
 
my recollection.  Prior to this, after he had recovered from his disc 
 
surgery performed by Dr. Gelman, he was not entirely normal.  He always 
 
felt that his physical capacity was markedly reduced prior to his 
 
status as such before his injury in 1984.
 
   
 
My last visit with him was on April 15, 1988.  He stated that there 
 
was improvement in the symptoms of his leg pain with only occasional 
 
numbness and tingling.  He seemed to be benefitting well from Naprosyn.
 
   
 
At this point in time it is difficult to assess or determine 
 
causations.  He felt that he never really regained the physical 
 
capacity he had prior to his original injury, but he does recognize his 
 
functioning was at quite a high level, playing basketball twice a week, 
 
working 70 hour weeks, self employed doing roofing, working in 
 
prolonged bent-over positions.  It is conceivable that his previous 
 
injury predisposed him to such minor trauma as a coughing fit.  He does 
 
have subtle changes once again at the previously injured level, but his 
 
predominent [sic] problem is at the level below where his previous 
 
injury was.  I cannot say that his problems right now are definitely 
 
related to his injuries received in 1984, although it is possible.
 
 
 
(Cl. Ex. 5)
 
 
 
Claimant's CT scans were reviewed August 12, 1988, and Dr. Pontarelli 
 
reported:  "The essential findings on the first CT was herniation L4-5 
 
to the left unequivocal, bulging disc at L5-S1. Because of his young 
 
age, probably related to injury, repeat CT scan shows recurrent 
 
herniation at L4-5, large herniation at L5_S1." (Cl. Ex. 1)  When Dr. 
 
Pontarelli saw claimant on September 23, 1988 claimant was in severe 
 

 
 
 
 
 
 
 
pain. (Cl. Ex. 7, p. 5)
 
 
 
Claimant underwent a repeat laminectomy and discectomy, L4_L5, L5-S1, 
 
on September 26, 1988, and on March 22, 1989, Dr. Pontarelli reported 
 
that claimant was feeling good with very little back pain on exertion.  
 
Claimant recalled he was released from Dr. Pontarelli's care in 
 
approximately May of 1989 with a 50 pound lifting restriction.
 
In an undated letter sent subsequent to his June 23, 1988 letter, Dr. 
 
Pontarelli opined:
 
 
 
On careful re-examination of Chris' previous study and with an 
 
opinion from my partner supporting this as well; Chris has suffered a 
 
recurrent herniation at L4_L5 which was originally injured in 1984.  
 
Also in 1984, on careful examination of the L5-S1 interval there seemed 
 
to be an abnormality which probably indicated an injury because of his 
 
young age.  I doubt if it was there because of a disease process.  So, 
 
I think as a consequence, that the injury at L5-S1 disc that he has 
 
suffered recently was probably established first in 1984 and such a 
 
minor trivial trauma as coughing this fall could have reinjured his 
 
back, aggravating a pre-existing condition.
 
 
 
I know this is somewhat more definitive than the previous statement 
 
by myself, but I feel that on closer re-examination of the case, that 
 
both levels in Chris' back were probably injured, L4-5, L5-S1 that is, 
 
in 1984 and that the symptoms that he is suffering now and the reinjury 
 
were actually an aggravation of the pre-existing condition.
 
 
 
(Cl. Ex. 6)
 
 
 
In his deposition taken on January 9, 1990, Dr. Pontarelli testified:
 
 
 
Q.  And do you recall what period of time you treated him?
 
 
 
A.  Um, when I first saw Chris for Dr. Gelman, who had treated him for 
 
his back injury in, I believe it was, 1984, Dr. Gelman had performed 
 
surgery and removed a herniated disc at L4-5, and this was, um, about a 
 
month before Dr. Gelman retired.
 
....
 
 
 
Q.  Did you take any history from him at that time?
 
 
 
A.  He was here in September of '88 for a preoperative physical that I 
 
was going to do for his back -- I was going to do an operation on his 
 
back.
 
....
 
 
 
Q.  And was there anything in his history that would explain those 
 
injuries or conditions?
 
A.  Um, Chris was a pretty active fella.  He did a lot of sports and he 
 
did a lot of heavy manual work.  This surgery, um, was a direct 
 
consequence of, uh, having been injured, um, I think, in, um, 1984, um, 
 
and the reason why I said that, the second surgery seemed to have 
 
resulted from a violent sneeze.
 
 
 
Uh, his history for the second surgery tracked back to, um, the 
 
fall of '87.  He had been self-employed at the time, re-roofing houses, 
 
working sixty, seventy hours a week.  Um, he was trying to do some 
 
sports as well.  In high school he was a basketball player and an avid 
 
weight lifter.  He never felt that his back was entirely right or 
 
normal since his first surgery.
 
 
 
In September of '87 he got the flu and was in a coughing fit 
 
watching TV when he got sudden back and leg pain....
 
 
 
I thought that the disc at L5-S1 had to have been injured in '84 
 
where he had, I believe, a fall while he was doing some construction 
 
work for -- as a setup to a herniation occurring from just a sneeze, 
 
and the other -- and that at 4-5 he had a significant herniation as 
 
 
 
well, and that was the disc that Dr. Gelman had operated on in 1984.
 
....
 
 
 
A.  Um, the earlier letter I was equivocating on causation.  Chris 
 
asked me to reconsider the matter, and I delved back into the history 
 
once again as it was recorded in our records and the Mercy Hospital 
 
records, and I got the original CT scan from 1984 instead of just 
 
relying on a copy of the report and Dr. Gelman's interpretation, and I 
 
had my partner, Ed Law, do a blind, blind review without explaining to 
 

 
 
 
 
 
 
 
him what the situation was of his CT, and I concluded on this second 
 
letter in August, my conclusions were more definite in the second 
 
letter, that he had an injury at L5-S1 in 1984.
 
 
 
So in essence I stopped equivocating and became more certain.
 
....
 
 
 
Q.  Would you briefly describe the injury that was suffered at L5-S1?
 
 
 
A.  Um, at what time?
 
 
 
Q.  The one that you saw him for or treated him for in '88, the fall of 
 
'88 --
 
 
 
A.  It was a very significant protrusion of the inner core of the disc 
 
into the spinal canal and was causing marked compression of the S-1 
 
nerve root.
 
....
 
 
 
Q.  You would consider Dr. Gelman to be a good surgeon, wouldn't you?
 
 
 
A.  Oh, he was excellent.
 
....
 
 
 
Q.  And he performed surgery on Chris Poula in 1984; is that correct?
 
....
 
 
 
Q.  Would you say that Dr. Gelman performed that surgery correctly, to 
 
the best of your knowledge?
 
 
 
A.  Right, correct.
 
....
 
 
 
Q.  Now you reviewed a CT scan that was taken of Chris' back in 1984, I 
 
believe, didn't you?
 
 
 
A.  Yes, I did.
 
 
 
Q.  And what did that CT scan show?
 
 
 
A.  Um, a herniated disc at L4-5 on the left and a bulging disc at 
 
L5-S1.
 
....
 
 
 
A.  I agree with you, there wasn't an indication that the L5-S1 disc 
 
required surgery.
 
 
 
Q.  Okay.  Do you believe that the incident that -- or is it your 
 
opinion, Doctor, that the incident that Chris Poula experienced while 
 
working for Siouxland Dry Wall caused the bulging disc at L5-S1?
 
 
 
A.  Uh, yes, it is.
 
....
 
    Another CT scan was performed on Chris, wasn't it, Doctor?
 
 
 
A.  Yes.
 
 
 
Q.  When was that second CT scan performed?
 
 
 
A.  March of 1988.
 
 
 
Q.  What did that CT scan show?
 
 
 
A.  Um, massive disc herniation of L5-S1.  Uh, subtle bulge of the 
 
annulus at L4-L5 with a compromise of the passing nerve on the left 
 
side.  Um, at the L5-S1 level there was gross compromise of the passing 
 
nerve and thecal sac on the left side.  So essentially a two-level 
 
problem.
 
 
 
Q.  I assume, Doctor, that there was not a bulge at L4_L5 immediately 
 
after Dr. Gelman performed surgery in 1984, was there?
 
 
 
A.  No.
 
....
 
 
 
Q.  And there certainly wasn't a massive disc herniation at L5-S1 at 
 
the time that Dr. Gelman performed surgery, was there?
 
 
 
A.  No.
 
 
 
Q.  That's a condition that developed after Dr. Gelman performed 
 
surgery in 1984, correct?
 
 
 
A.  Right. Yes.
 
....
 
Q.  And would Chris' employment between the time of Dr. Gelman's 
 
surgery and the time of the March, 1988 CT scan cause those types of 
 
changes?
 
 
 
A.  It could have.
 
 
 
Q.  Now if Chris testified that he began doing construction work in the 
 
fall of 1985,.... that kind of construction work caused the types of 
 
changes that you saw on the March, 1988 CT scan?
 
 
 
A.  It could have, but I kind of doubt that it did because I don't 
 
think he could have continued working.  It would have stopped him in 
 

 
 
 
 
 
 
 
his tracks.  I think the __ the sickness and the sneeze caused the 
 
final result in X-ray with such a massive herniation.  That kind of 
 
work can damage a disc in the back, though.
 
....
 
 
 
A.  No.  I would say what had happened, as far as what I can recollect, 
 
to lead to that massive herniation at L5-S1 was that he was sick and he 
 
sneezed and then he had some persistent pain.
 
 
 
People could have recurrent episodic pain that was self limiting.  
 
I have no way of telling exactly what happened, really, but as far as 
 
piecing it together, as far as what precipitated his surgery, from what 
 
my recollection was, that he had sneezed, and, you know, it all seemed 
 
to be, uh, related to that one event as far as creating a massive 
 
protrusion that just dropped him in his tracks.
 
....
 
 
 
Q.  Okay.  Would you say that the kind of work that Chris had been 
 
doing since the first surgery was primarily the cause of the 
 
reoccurrent [sic] bulges at L4-L5?
 
 
 
A.  Yes, it could have been.
 
 
 
Q.  Is that a probability?
 
 
 
A.  Yes.
 
....
 
 
 
Q.  .... would that kind of activity for a month leading up to the 
 
sneezing incident have had any effect upon weakening Chris' back?
 
 
 
A.  Yes, it could have.
 
 
 
Q.  And what kind of an effect would that have had on Chris' back?
 
 
 
A.  Put a lot of stress on that disc.
 
 
 
Q.  Which disc are we talking about?
 
 
 
A.  Both of them.  L4-5 and L5-S1.
 
 
 
Q.  Could that type of work have been the cause of the massive 
 
herniation that you found at L5-S1?
 
 
 
A.  It could have.
 
 
 
Q.  Okay.  Is that a possibility or a probability?
 
 
 
A.  Possibility.
 
 
 
(Dr. Pontarelli Deposition)
 
 
 
                           CONCLUSIONS OF LAW
 
 
 
The issue to be decided is whether claimant has proved that there is a 
 
causal connection between his May 22, 1984 injury and the medical 
 
treatment he received in 1988.
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 

 
 
 
 
 
 
 
 
 
Dr. Pontarelli is the only doctor in the record that offers an opinion 
 
on causal connection.  Dr. Pontarelli initially opined that the 
 
treatment in 1988 was not work related.  He later opined that both 
 
levels (L4-5, L5-S1) were injured in 1984 and that symptoms claimant 
 
had in 1988 were actually an aggravation of the preexisting condition.  
 
The opinion that there was a causal connection between the 1984 injury 
 
and the 1988 need for surgery must be rejected.  It is rejected for the 
 
following reasons.
 
 
 
Dr. Pontarelli's later opinion is contradicted by his earlier opinions 
 
which described a new injury and causes other than the 1984 injury.  
 
The later opinion is confusing and inconsistent.  At one point Dr. 
 
Pontarelli indicated that there was no bulge or herniation at either 
 
L4-L5, L5-S1 following the 1984 surgery but at another point indicated 
 
that there was a bulge at L5-S1 on the CT scan taken prior to the 1984 
 
surgery.  Dr. Gelman, who Dr. Pontarelli apparently held in high 
 
regard, made no note nor performed no surgery at L5-S1 in 1984.  Based 
 
on Dr. Pontarelli's description of the experience and expertise of Dr. 
 
Gelman, it is unlikely that a bulge or herniation was present after Dr. 
 
Gelman's surgery in 1984.
 
 
 
It was Dr. Pontarelli's assessment that a CT scan taken in 1984 
 
revealed a bulge at L5-S1.  The condition that claimant had requiring 
 
the surgery in 1988 was described as a massive disc herniation at 
 
L5-S1.  A massive protrusion would have "dropped him in his tracks."  
 
It is unlikely that claimant could have done the work he did and had 
 
the life style he had following the 1984 surgery, if the 1984 work 
 
injury was the cause of the disc herniation which required the 1988 
 
surgery.
 
 
 
Furthermore, Dr. Pontarelli began treating claimant in 1985.  He did 
 
not aggressively treat claimant for the back symptoms which eventually 
 
led to the 1988 surgery until 1987.  There is no adequate explanation 
 
why Dr. Pontarelli would treat claimant for three years but not 
 
discover a bulge allegedly revealed in a 1984 CT scan.
 
 
 
Dr. Pontarelli's decision to change his opinion to an opinion 
 
supporting a causal connection is not adequately explained by the 
 
record.  This agency and the court of appeals recognized a concern 
 
regarding the financial motivation for changing the opinion.
 
 
 
Dr. Pontarelli's opinion that there was a causal connection between the 
 
1984 injury and the need for surgery in 1988 is therefore rejected.  
 
Dr. Pontarelli's earlier opinions (March 18 and June 23, 1988) that the 
 
need for medical treatment in 1988 was caused by events such as work 
 
and personal activities after 1984 and a sneezing episode are more 
 
consistent with the other facts of this case.  These earlier opinions 
 
are more reliable.
 
 
 
When all the facts of this case are considered, claimant has not met 
 
his burden of proving that there is a causal connection between his May 
 
22, 1984 injury and the medical treatment he received in 1987 and 1988.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant shall take nothing from these proceedings.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
 
 
                                _______________________________
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
               
 
Copies To:
 
 
 
Mr. Emmit J. George
 
Attorney at Law
 
P.O. Box 3090
 
Iowa City, Iowa 52244
 
 
 
Mr. Marc B. Moen
 
Attorney at Law
 
123 North Linn St., Ste 300
 
Iowa City, 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Iowa 52245
 
 
 
Mr. Thomas B. Read
 
Attorney at Law
 
1710 IE Tower
 
Cedar Rapids, Iowa 52401
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  1108; 1402.30; 1402.60
 
                                  Filed December 30, 1994
 
                                  Byron K. Orton
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
CHRIS POULA,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 767411
 
SIOUXLAND WALL & CEILING, INC., 
 
                                         R E M A N D
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
IOWA MUTUAL INSURANCE CO.,      
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
1108; 1402.30; 1402.60
 
 
 
On remand it was determined that claimant failed to prove that a 1984 
 
work injury was causally connected to medical treatment in 1987 and 
 
1988.  There was only one doctor who offered opinion on causation.  
 
Initial opinions that the need for medical treatment was related to 
 
events other than the work injury were later changed to an opinion that 
 
there was a causal connection.  The later opinion was rejected as being 
 
inconsistent with the prior opinions, prior medical treatment, and the 
 
facts of the case.  The opinions that there was no causal connection 
 
were more reliable and consistent with the facts of the case.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRIS POULA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 767411
 
            vs.                           :
 
                                          :
 
            SIOUXLAND WALL & CEILING,     :         R E V I E W -
 
            INC.,                         :
 
                                          :       R E O P E N I N G
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE CO.,,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Chris Poula, claimant, against Siouxland Wall & Ceiling, 
 
            Inc., employer, and Iowa Mutual Insurance Company, insurance 
 
            carrier, to recover additional benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on May 22, 1984.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner January 24, 1990 
 
            and was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of the testimony 
 
            of claimant and claimant's Exhibits 1 through 3, inclusive, 
 
            and 5 through 11, inclusive.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved January 24, 1990, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant's claim is barred by Iowa Code 
 
            section 85.26 and/or Iowa Code section 85.23;
 
            
 
                 2.  Whether the settlement approved July 31, 1985 was a 
 
            full and final settlement for all claims arising out of the 
 
            injury of May 22, 1984 with the exception of medical 
 
            benefits;
 
            
 
                 3.  Whether claimant has had a change of condition that 
 
            is causally connected to the injury of May 22, 1984;
 
            
 
                 4.  The extent of claimant's entitlement to additional 
 
            weekly benefits, if any; and
 
            
 
                 5. Claimant's entitlement to benefits pursuant to Iowa 
 
            Code section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all the evidence, finds 
 
            that:
 
            On May 24, 1984, claimant sustained an injury which arose 
 
            out of and in the course of his employment when, as he was 
 
            descending a scaffold, he fell 10 to 15 feet to the ground.  
 
            A herniated disc at L4-5 on the left was revealed on a CT 
 
            scan.  Claimant underwent a laminectomy in November of 1984 
 
            and his healing period ended May 25, 1985.
 
            
 
                 On June 10, 1985, claimant and defendant insurance 
 
            carrier filed an "original notice and petition for partial 
 
            commutation and order for payment" which was approved by a 
 
            deputy industrial commissioner July 31, 1985.  The partial 
 
            commutation commuted all of claimant's weekly benefits based 
 
            on a 10 percent permanent partial disability (50 weeks).  
 
            Claimant's sworn statement attached to the original notice 
 
            and petition provides:
 
            
 
                    I, CHRIS POULA, being duly sworn on oath, 
 
                 depose and state that....I fully understand that 
 
                 approval of this application by the Iowa 
 
                 Industrial Commissioner will constitute a full, 
 
                 final and complete settlement of my temporary 
 
                 total and permanent partial disability under the 
 
                 Iowa Workers' Compensation Law, or otherwise, that 
 
                 I may have against Siouxland Wall and Ceiling, 
 
                 Inc., and Iowa Mutual Insurance Company growing 
 
                 out of or resulting from any injuries sustained by 
 
                 me on May 22, 1984.  It is expressly stated that 
 
                 this Agreement does not preclude or in any way 
 
                 affect any claim I may have for future medical 
 
                 treatment for injuries sustained by me on May 22, 
 
                 1984.
 
            
 
            (Partial Commutation Document)        
 
            
 
                 On July 19, 1985, the industrial commissioner's office 
 
            received a clarification from defendant insurance carrier 
 
            which stated:  "While it is not anticipated that this 
 
            employee would need further medical treatment, there was no 
 
            intention to preclude coverage for any further reasonable 
 
            necessary medical treatment as a result of this injury." 
 
            (Partial Commutation Document)
 
            
 
                 The final report (Form 2) submitted by defendant 
 
            insurance carrier on September 20, 1985 asserts that the 
 
            settlement approved by the industrial commissioner was a 
 
            full commutation.  The date of loss payment of weekly 
 
            benefits was August 13, 1985.  Claimant filed his petition 
 
            in the present action on September 12, 1988.
 
            
 
                 From May of 1984 through April of 1985, claimant worked 
 
            as a legal secretary for his father, in construction from 
 
            April of 1985 until January of 1986 and subsequently was a 
 
            self-employed contractor doing roofing, home improvements, 
 
            landscaping, and demolition/remodeling work.  In November of 
 
            1987, claimant sneezed and "knew" he hurt himself as he felt 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            a "tingling sensation" like he felt in 1984.  Claimant 
 
            contacted William R. Pontarelli, M.D., of The Steindler 
 
            Orthopedic Clinic, with whose partner, Dr. Gelman, now 
 
            retired, claimant had treated for the 1984 injury.  Dr. 
 
            Pontarelli's office notes of March 18, 1988 state:
 
            
 
                    Chris had reactivation of his sciatic pain like 
 
                 before and it originally started in his 
 
                 buttock....
 
            
 
                    Ct shows a huge ruptured disc at L5-S1 with 
 
                 free fragments, responsible for the majority of 
 
                 his symptoms.  There is abnormalities at L4-5 
 
                 which could suggest recurrent rupture there as 
 
                 well, but the majority of his problem is probably 
 
                 coming from the L5-S1 disc which is a new injury 
 
                 and not connected to his old.
 
            
 
            (Claimant's Exhibit 1)
 
            
 
                 Dr. Pontarelli's April 15, 1988 office note reports:
 
            
 
                    Chris returned with improvement in his symptoms 
 
                 of leg pain....Reviewing his history once again to 
 
                 help determine causation, he feels that he has 
 
                 never regained the physical capacity that he had 
 
                 since his original injury, but once he recovered 
 
                 from the surgery he recovered well, playing 
 
                 basketball twice a week, working 70 hour weeks, 
 
                 self employed as a roofer working in prolonged 
 
                 bent over positions.  The incident that Chris felt 
 
                 was the 2nd injury, so to speak, was in September, 
 
                 1987 when he had a bad case of the flu, was 
 
                 coughing and felt a pop in his back.
 
            
 
            (Cl. Ex. 1)
 
            
 
                 (Claimant had contacted Dr. Pontarelli in September 
 
            1987 complaining of back pain which he developed after 
 
            stooping over and straightening up.  An appointment was 
 
            scheduled for September 28, 1987 for which claimant failed 
 
            to show, advising the doctor that his back was better and he 
 
            "forgot" his appointment.)
 
            
 
                 Claimant's CT scans were reviewed August 12, 1988, and 
 
            Dr. Pontarelli reported:  "The essential findings on the 
 
            first CT was herniation L4-5 to the left unequivocal, 
 
            bulging disc at L5-S1. Because of his young age, probably 
 
            related to injury, repeat CT scan shows recurrent herniation 
 
            at L4-5, large herniation at L5-S1." (Cl. Ex. 1)
 
            
 
                 Claimant underwent a repeat laminectomy and discectomy, 
 
            L4-L5, L5-S1, on September 26, 1988, and on March 22, 1989, 
 
            Dr. Pontarelli reported that claimant was feeling good with 
 
            very little back pain on exertion.  Claimant recalled he was 
 
            released from Dr. Pontarelli's care in approximately May of 
 
            1989 with a 50 pound lifting restriction.  From June through 
 
            August of 1989, claimant was employed with an electrical 
 
            contractor and maintained he was discharged from that job 
 
            because of problems with his back in that he "could not make 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            it through the day."  Claimant, who graduated from high 
 
            school with a 3.87 grade point average, seventh out of 
 
            sixty-nine students, with one and one-half years of college 
 
            credits in an engineering program with approximately a 3.0 
 
            grade point average, has no specific plans for his future 
 
            right now.
 
            
 
                 On June 23, 1988, Dr. Pontarelli advised:
 
            
 
                    Chris Poula returned to me with recurrent 
 
                 sciatic pain.  At the time that this started he 
 
                 had been home sick with a cold.  At the time he 
 
                 was self-employed refinishing the roofs on houses, 
 
                 working about 60 to 70 hours a week.  He was 
 
                 laying down watching television when a severe 
 
                 coughing fit caught him and he started complaining 
 
                 of back pain.  The onset of this recurrent problem 
 
                 was in the middle part of September, to my 
 
                 recollection.  Prior to this, after he had 
 
                 recovered from his disc surgery performed by Dr. 
 
                 Gelman, he was not entirely normal.  He always 
 
                 felt that his physical capacity was markedly 
 
                 reduced prior to his status as such before his 
 
                 injury in 1984.
 
            
 
                   My last visit with him was on April 15, 1988.  
 
                 He stated that there was improvement in the 
 
                 symptoms of his leg pain with only occasional 
 
                 numbness and tingling.  He seemed to be 
 
                 benefitting well from Naprosyn.
 
            
 
                    At this point in time it is difficult to assess 
 
                 or determine causations.  He felt that he never 
 
                 really regained the physical capacity he had prior 
 
                 to his original injury, but he does recognize his 
 
                 functioning was at quite a high level, playing 
 
                 basketball twice a week, working 70 hour weeks, 
 
                 self employed doing roofing, working in prolonged 
 
                 bent-over positions.  It is conceivable that his 
 
                 previous injury predisposed him to such minor 
 
                 trauma as a coughing fit.  He does have subtle 
 
                 changes once again at the previously injured 
 
                 level, but his predominent [sic] problem is at the 
 
                 level below where his previous injury was.  I 
 
                 cannot say that his problems right now are 
 
                 definitely related to his injuries received in 
 
                 1984, although it is possible.
 
            
 
            (Cl. Ex. 5)
 
            
 
                 In an undated letter sent subsequent to the above 
 
            letter, Dr. Pontarelli opined:
 
            
 
                    On careful re-examination of Chris' previous 
 
                 study and with an opinion from my partner 
 
                 supporting this as well; Chris has suffered a 
 
                 recurrent herniation at L4-L5 which was originally 
 
                 injured in 1984.  Also in 1984, on careful 
 
                 examination of the L5-S1 interval there seemed to 
 
                 be an abnormality which probably indicated an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 injury because of his young age.  I doubt if it 
 
                 was there because of a disease process.  So, I 
 
                 think as a consequence, that the injury at L5-S1 
 
                 disc that he has suffered recently was probably 
 
                 established first in 1984 and such a minor trivial 
 
                 trauma as coughing this fall could have reinjured 
 
                 his back, aggravating a pre-existing condition.
 
            
 
                    I know this is somewhat more definitive than 
 
                 the previous statement by myself, but I feel that 
 
                 on closer re-examination of the case, that both 
 
                 levels in Chris' back were probably injured, L4-5, 
 
                 L5-S1 that is, in 1984 and that the symptoms that 
 
                 he is suffering now and the reinjury were actually 
 
                 an aggravation of the pre-existing condition.
 
            
 
            (Cl. Ex. 6)
 
            
 
                 With regard to his change in condition, Dr. Pontarelli 
 
            testified:
 
            
 
                 Q.  And after you wrote that letter I believe it's 
 
                 your testimony that Chris asked you to reconsider 
 
                 your opinion?
 
            
 
                 A.  Right.
 
            
 
                 Q.  What did he tell you or what did he ask you to 
 
                 do?
 
            
 
                 A.  Uh, think about it again in terms of could 
 
                 there possibly be a connection between his 
 
                 original injury and the surgery that he underwent 
 
                 in 1987?
 
            
 
                 Q.  Was that determination important to Chris at 
 
                 that time?
 
            
 
                 A.  I suppose so.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Q.  Do you know why it was important to him?
 
            
 
                 A.  Um, if I remember correctly, I think it was -- 
 
                 there was financial concerns for Chris, um, health 
 
                 insurance coverage and, uh, lost incomes.
 
            
 
                 Q.  One of the concerns was getting the bill for 
 
                 the 1988 surgery paid, correct?
 
            
 
                 A.  Yeah.  His grandmother paid his hospital -- 
 
                 his hospital bill, right?
 
            
 
                 Q.  And so Chris was concerned about trying to get 
 
                 your bill for the 1988 surgery paid, correct?
 
            
 
                 A.  Yes.  That, too.
 
            
 
                 Q.  Okay, and the other medical expenses, correct?
 
            
 
                 A.  Yes.  Sure.
 
            
 
                 Q.  And one way of doing that would be if the 
 
                 surgery in 1988 was related to the 1984 fall, then 
 
                 there would be the prospect of an insurance 
 
                 company paying those bills, correct?
 
            
 
                 A.  Um, I guess.  I don't really know.  I think I 
 
                 have enough experience to say yes.
 
            
 
            (Cl. Ex. 7, Pontarelli Dep., pp. 23-24)
 
            
 
                 Dr. Pontarelli also testified:
 
            
 
                 Q.  Okay.  Would you say that the kind of work 
 
                 that Chris had been doing since the first surgery 
 
                 was primarily the cause of the reoccurrent bulges 
 
                 at L4-L5?
 
            
 
                 A.  Yes, it could have been.
 
            
 
                 Q.  Is that a probability?
 
            
 
                 A.  Yes.
 
            
 
                 ....
 
            
 
                 Q.  Okay.  Would the fact that in mid-October of 
 
                 1987 Chris began work at the offices of Old Brick, 
 
                 tearing out the offices of Old Brick here in Iowa 
 
                 City, which involved tearing down Sheetrock and 
 
                 pulling out the walls, pulling up carpet, pulling 
 
                 up half the floor, and lifting fifty to sixty 
 
                 pounds, throwing the materials that they tore out, 
 
                 scooping them up and throwing them into a dumpster 
 
                 and pushing a wheelbarrow, would that kind of 
 
                 activity for a month leading up to the sneezing 
 
                 incident have had any effect upon weakening Chris' 
 
                 back?
 
            
 
                 A.  Yes, it could have.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Q.  And what kind of an effect would that have had 
 
                 on Chris' back?
 
            
 
                 A.  Put a lot of stress on that disc.
 
            
 
                 Q.  Which disc are we talking about?
 
            
 
                 A.  Both of them.  L4-5 and L5-S1.
 
            
 
                 Q.  Could that type of work have been the cause of 
 
                 the massive herniation that you found at L5-S1?
 
            
 
                 A.  It could have.
 
            
 
                 Q.  Okay.  Is that a possibility or a probability?
 
            
 
                 A.  Possibility.
 
            
 
                 Q.  At least it would be a significant 
 
                 contributing factor to his -- the problems that 
 
                 were found on the Ct scan in 1988, correct?
 
            
 
                 A.  Correct.
 
            
 
            (Cl. Ex. 7, Pontarelli Dep. pp. 23, 26, 27)
 
            
 
                        reasonings and conclusions of 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(1).
 
            
 
                 Of first concern is the significance of the partial 
 
            commutation which was approved on July 31, 1985.  Clearly, 
 
            all of claimant's weekly benefits were paid to him 
 
            thereunder.  Claimant's statement of awareness indicates 
 
            that he understood that this was a full, final and complete 
 
            settlement for all weekly benefits owed him as a result of 
 
            the injury.  However, defendants have remained liable for 
 
            future medical expenses incurred by claimant as a result of 
 
            the work injury.  Iowa Code section 85.48 provides:
 
            
 
                    When partial commutation is ordered, the 
 
                 industrial commissioner shall fix the lump sum to 
 
                 be paid at an amount which will equal the future 
 
                 payments for the period commuted, capitalized at 
 
                 their present value upon the basis of interest at 
 
                 the rate provided in section 535.3 for court 
 
                 judgments and decrees, with provisions for the 
 
                 payment of weekly compensation not included in the 
 
                 commutation, subject to the law applicable to such 
 
                 unpaid weekly payments; all remaining payments, if 
 
                 any, to be paid at the same time as though the 
 
                 commutation had not been made.
 
            
 
                 There were no weekly benefits left to be paid after the 
 
            partial commutation was approved.  However, Iowa Code 
 
            section 85.48 contemplates just such a situation since it 
 
            states all remaining benefits, if any, will be paid on a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            weekly basis as though there had not been a commutation.  
 
            Therefore, since the parties submitted for the industrial 
 
            commissioner's approval a partial commutation and not a full 
 
            commutation, since the parties acknowledge that defendants 
 
            were to remain liable for any medical expenses which were 
 
            causally connected to the injury of May 22, 1984, and since 
 
            weekly benefits need not remain left to be paid under a 
 
            partial commutation, it is concluded that a full commutation 
 
            was not approved and claimant's claim is not barred by 
 
            virtue of the prior settlement in this case as claimant has 
 
            not foreclosed his rights to either additional weekly or 
 
            medical benefits.
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or his representative shall 
 
                 have actual knowledge of the occurrence of an 
 
                 injury received within ninety days from the date 
 
                 of the occurrence of the injury, or unless the 
 
                 employee or someone on his behalf or a dependent 
 
                 or someone on his behalf shall give notice thereof 
 
                 to the employer within ninety days from the date 
 
                 of the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Defendants' assertion that claimant's claim for 
 
            benefits is barred due to lack of notice is without merit.  
 
            Clearly, claimant had an injury which arose out of and in 
 
            the course of his employment on May 22, 1984.  Just as 
 
            clearly, the employer had notice of this injury and has paid 
 
            benefits therefor.
 
            
 
                 The notice required by section 85.23 need only report 
 
            the occurrence of trauma.  It need not identify which parts 
 
            of the body were injured.  Further, there is no duty imposed 
 
            on claimant under the statute to give notice to the employer 
 
            of a recurrence of an injury.  See Beveridge v. Associated 
 
            Grocers of Iowa, IV Iowa Indus. Comm'r Rep. 32 
 
            (Review-Reopening Dec. filed March 2, 1984).
 
            
 
                 Therefore, so long as claimant gave notice of the 
 
            injury of May 22, 1984, which claimant clearly has, no 
 
            further notice need be given to defendants by claimant.
 
            
 
                 Iowa Code section 85.26 provides, in pertinent part:
 
            
 
                 1.  An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 2.  Any award for payments or agreement for 
 
                 settlement provided by section 86.13 for benefits 
 
                 under the workers' compensation or occupational 
 
                 disease law or the Iowa occupational hearing loss 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Act [chapter 85B] may, where the amount has not 
 
                 been commuted, be reviewed upon commencement of 
 
                 reopening proceedings by the employer or the 
 
                 employee within three years from the date of the 
 
                 last payment of weekly benefits made under such 
 
                 award or agreement.  Once an award for payments or 
 
                 agreement for settlement as provided by section 
 
                 86.13 for benefits under the workers' compensation 
 
                 or occupational disease law or the Iowa 
 
                 occupational hearing loss Act [chapter 85B] has 
 
                 been made where the amount has not been commuted, 
 
                 the commissioner may at any time upon proper 
 
                 application make a determination and appropriate 
 
                 order concerning the entitlement of an employee to 
 
                 benefits provided for in section 85.27.
 
            
 
                 The next issue for resolution is whether claimant's 
 
            claim is barred under the three year statute of limitations 
 
            cited above.
 
            Claimant's petition is in review-reopening, not arbitration.  
 
            Claimant has had one injury with defendant employer for 
 
            which he was last paid benefits on August 13, 1985.  
 
            Claimant alleges a change of condition as a result of the 
 
            injury with regard to the involvement of level L5-S1 of the 
 
            back.  Claimant must, therefore, bring his action within 
 
            three years from the date of last payment.  An arbitration 
 
            proceeding is not appropriate in this case.  As claimant did 
 
            not file his action until September 12, 1988 and he was last 
 
            paid August 13, 1985, claimant's claim is barred under Iowa 
 
            Code section 85.26.
 
            
 
                 However, claimant argues that the discovery rule is 
 
            applicable since claimant was not aware until told by Dr. 
 
            Pontarelli in approximately August 1988 that his injury of 
 
            May 22, 1984 also involved the L5-S1 level and that since 
 
            claimant filed his petition September 12, 1988, it should 
 
            not be barred under the period of limitations.
 
            
 
                 The matter of the discovery rule and its applicability 
 
            to the three year period of limitations was well settled in 
 
            Whitmer v. International Paper Company, 314 N.W.2d 411 
 
            (Iowa 1982).
 
            In Whitmer, claimant commenced an action for review-reopen
 
            ing seeking further benefits alleging that a 1972 injury had 
 
            caused an epileptic condition which could not be and was not 
 
            discovered until 1979, more than three years after the last 
 
            payment of weekly benefits.  The court, after reviewing the 
 
            appropriate statutory sections in Orr v. Lewis Cent. Sch. 
 
            Dist., 298 N.W.2d 256, wherein the court held the discovery 
 
            rule applicable to the two year period of limitations for 
 
            original workers' compensation actions, stated:
 
            
 
                    Under the rules of construction provided by the 
 
                 legislature, specifically sections 4.1(2), 
 
                 (36)(a), The Code 1981, we do not believe any 
 
                 ambiguity exists concerning the commencement of 
 
                 the limitations period for review-reopenings in 
 
                 this case:  Whitmer's action was filed more than 
 
                 three years after the last payment of 
 
                 compensation.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 The court clearly held that the discovery rule under 
 
            which accrual of a cause of action would be delayed until 
 
            the person discovered his injury or by exercise of 
 
            reasonable diligence should have discovered it, did not 
 
            apply to the three-year limitation period for a 
 
            review-reopening proceeding in workers' compensation cases.  
 
            Claimant's situation in the case at bar is governed by the 
 
            holding of Whitmer.  Accordingly, claimant's action for 
 
            additional weekly benefits is barred by the period of 
 
            limitation found in Iowa Code section 85.26 and the final 
 
            issue is claimant's entitlement since medical benefits which 
 
            are causally connected to the injury as medical benefits are 
 
            not subject to a period of limitation as are weekly 
 
            benefits.
 
            
 
                 Claimant must first establish that the medical 
 
            treatment was causally connected to his May 22, 1984 injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 22, 
 
            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 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). 
 
            
 
                 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).
 
            
 
                 The only practitioner who rendered an opinion on 
 
            causation was Dr. Pontarelli.
 
            
 
                 Dr. Pontarelli originally opined that claimant's 
 
            problems at the L5-S1 level were a new injury and not 
 
            connected to the old injury.  Dr. Pontarelli then opined 
 
            that a causal connection between claimant's problems in 1988 
 
            and his injury was only "possible."  Dr. Pontarelli later 
 
            changed his opinion to state that the injury at L5-S1 was 
 
            "probably established first in 1984."  Dr. Pontarelli's 
 
            equivocation on this issue causes his opinion to be suspect, 
 
            particularly because of the reason for his reconsideration:  
 
            that the claimant suggested he think about the surgery again 
 
            in terms of whether there could be a causal connection to 
 
            the original work injury due to financial concerns.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 It appears to the undersigned that based on Dr. 
 
            Pontarelli's previous office notes and his deposition, Dr. 
 
            Pontarelli had, prior to claimant's suggestion, considered 
 
            the possibility of causal connection to the injury and 
 
            rejected the same until claimant suggested he reconsider his 
 
            position.  Regardless of why Dr. Pontarelli changed his 
 
            position, the fact that financial concerns (for both himself 
 
            and claimant) played or may have played a part in his 
 
            reconsideration causes the undersigned to place no weight on 
 
            Dr. Pontarelli's opinion.  Rejecting this opinion, the 
 
            record is void of any other medical evidence on causal 
 
            connection and attention is thus turned to other evidence in 
 
            the record, namely, claimant's testimony.
 
            
 
                 Since his injury of May 22, 1984, and prior to the 1988 
 
            surgery, claimant engaged in some fairly heavy construction 
 
            work, including roofing, home improvements, demolition, 
 
            remodeling and landscaping.  Claimant played basketball 
 
            regularly and worked a 70 hour week in self-employment in 
 
            prolonged bent over positions.  It was claimant's sneeze 
 
            which precipitated the whole chain of events culminating in 
 
            surgery.  Claimant complained of back pain after stooping 
 
            over in September of 1987.  The undersigned must conclude 
 
            that the greater weight of evidence fails to establish that 
 
            any of the medical treatment which claimant has received is 
 
            causally connected to his injury of May 22, 1984.  There 
 
            exists in the record evidence of too many intervening causes 
 
            for the undersigned to conclude that the injury of May 22, 
 
            1984 was "probably" rather than "possibly" a cause for the 
 
            1988 problems.  Therefore, claimant shall take nothing as a 
 
            result of these proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant shall take nothing as a result of these 
 
            proceedings.
 
            Costs are assessed against defendants, pursuant to Division 
 
            of Industrial Services Rule 343-4.33.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Emmit J George
 
            Attorney at Law
 
            500 Dubuque St
 
            P O Box 3090
 
            Iowa City IA 52244
 
            
 
            Mr Thomas B Read
 
            Attorney at Law
 
            1710 IE Tower
 
            Cedar Rapids IA 52401
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ESTATE OF JEFFREY H. GREEN,
 
         Deceased, CURTIS H. GREEN,
 
         Administrator, CURTIS H. GREEN,
 
         and, PATRICIA GREEN,                         File No. 767463
 
         Individually,
 
         
 
               Claimants,
 
                                                         D E A T H
 
          VS.
 
          
 
          FAIRFIELD ALUMINUM CASTINGS CO.             B E N E F I T S
 
          (FALCO)
 
          
 
               Employer,                               D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding for death benefits under section 
 
         85.31(3) of the Code of Iowa.  The case was heard in Des Moines, 
 
         Iowa on May 5, 1987, and was fully submitted upon conclusion of 
 
         the hearing.   The only issue presented by the parties for 
 
         determination is the determination of whether or not Curtis and 
 
         Patricia Green, the parents of Jeffrey H. Green, deceased, were 
 
         partially dependent upon him.  The parties stipulated that, in 
 
         the event of an award, the applicable rate of compensation is 
 
         $30.04 per week.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Jeffrey H. Green died on June 19, 1984 as a result of 
 
         injuries which arose out of and in course of his employment with 
 
         Fairfield Aluminum Castings Company.  His parents, Curtis and 
 
         Patricia Green, seek to be compensated as persons partially 
 
         dependent upon him.  Curtis Green is employed at Ottumwa Ford 
 
         Lincoln Mercury, where he reconditions used cars.  He has held 
 
         that employment since 1963.  Mr. Green is 56 years of age, a 
 
         graduate of Boys Town High School and attended William Penn 
 
         College at Oskaloosa, Iowa, for one and one-half years.  His 
 
         normal earnings are in the range of $12,000 to $13,000 per year, 
 
         but in 1984 they were $11,269.79 due to an extended illness.
 
         
 
              Patricia Green is a 53 year-old high school graduate who 
 
         has a two-year associates degree from Ottumwa Heights College 
 
         and also attended three semesters at Parsons College in 
 
         Fairfield, Iowa, but never received a degree.  In 1984, she ran 
 
         the night
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   2
 
         
 
         
 
         chemistry department at the Ottumwa Hospital where she earned 
 
         $22,655.15.  Her income for 1984 was her highest and included a 
 
         large bonus.  Mrs. Green has had health problems with her 
 
         knees, resigned from her well-paid position, drew her pension 
 
         account and has now returned to work for the hospital in a 
 
         position where she earns $380 per month.
 
         
 
              Jeffrey Green was 24 years of age at the time of his 
 
         death.  After Jeffrey graduated from high school, he worked 
 
         part-time at a filling station for approximately one year and, 
 
         in approximately 1978, obtained a job at the John Deere Works 
 
         in Ottumwa.  Jeffrey resided in the Green family home until two 
 
         or three months after obtaining the John Deere job.  He then 
 
         moved into an apartment and eventually began purchasing his own 
 
         home.  When Jeffrey was living in the family home and working 
 
         at John Deere, he paid the family $50 per week.  Prior to that 
 
         time, he had contributed toward the family expenses.  After he 
 
         moved out of the family home, he continued to occasionally give 
 
         money to his parents.  After a few years, Jeffrey was laid off 
 
         from his job at the John Deere Works, was unable to keep up the 
 
         payments on his home and lost it.  In approximately October of 
 
         1983 Jeffrey resumed residing with his parents.  In December, 
 
         1983, he obtained the job with Fairfield Aluminum Castings 
 
         Company and at that time he resumed the practice of paying his 
 
         parents $50 weekly.  Prior to that time, while residing in the 
 
         family home, he made occasional contributions to his parents 
 
         from money he earned repairing automobiles and motorcycles.  
 
         Jeffrey also assisted in performing some of the household 
 
         tasks, particularly laundry, and made direct payment of some 
 
         household utility bills.
 
         
 
              At the time of his death, Jeffrey was earning 
 
         approximately $350 per week (exhibit 4).  His father, Curtis, 
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   3
 
         
 
         
 
         was earning approximately $216 weekly and his mother, Patricia, 
 
         was earning approximately $435 weekly.  The combined incomes of 
 
         Curtis and Patricia totalled approximately $650 per week.  When 
 
         Jeffrey's $50 contribution is included, that contribution is 
 
         seven per cent of the parents' total gross income.  The monthly 
 
         living expenses for the Green family, according to exhibit A, 
 
         were $1,657 per month, or approximately $415 per week.  Weekly 
 
         taxes from Curtis' income were approximately $50 per week, and 
 
         from Patricia's income they were approximately $130 per week.  
 
         Patricia's income was also reduced to repay a loan against her 
 
         pension plan by the amount of $180 per month or approximately 
 
         $45 weekly.  When taxes, loan repayment and living expenses are 
 
         combined, the total is $640 weekly.  The testimony that family 
 
         finances were tight appears correct since the expenses appear 
 
         to have been approximately equal to the incomes when Jeffrey's 
 
         contribution is not included.
 
         
 
              Curtis and Patricia both testified that, without the money 
 
         from Jeffrey, they would have been unable to meet their 
 
         financial obligations and that they relied upon the money from 
 
         Jeffrey as a means of meeting those obligations.  Jeffrey 
 
         bought his own clothing, gasoline for his car and occasionally 
 
         gave extra money to buy special food items which he desired.  
 
         They testified that they could not have maintained their 
 
         standard of living without the money they received from 
 
         Jeffrey.  They both expressed concern that they may have 
 
         defaulted on their obligations after Jeffrey's death if it were 
 
         not for the life insurance proceeds and Patricia's pension 
 
         fund.  While living in the family home, Jeffrey ate his morning 
 
         and evening meals in the home.  His laundry was done in the 
 
         home.
 
         
 
              Jacqueline Green, Jeffrey's sister and the daughter of 
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   4
 
         
 
         
 
         Curtis and Patricia, has resided in the Green family home at 
 
         various times since her graduation from high school in 1970.  
 
         Her two children have resided there with her.  At times during 
 
         1981 and 1982 she was not employed.  She testified that Jeffrey 
 
         also gave money to her occasionally.  Jacqueline testified that 
 
         she also gave money to her parents and paid their utility bills 
 
         when she was living with them.  Jacqueline testified that her 
 
         father was lousy at managing money, but that her mother tried 
 
         to do a good job of it.  Patricia and Curtis did not have a 
 
         savings account of any type at the time of Jeffrey's death and 
 
         it appears that they lived basically from paycheck to 
 
         paycheck.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The status of dependency is determined in  accordance  with 
 
         the facts that existed on the date of death. [Code section 85.44, 
 
         Kramer v. Tone Brothers, 198 Iowa 1140, 199 N.W.2d 985 (1924)]
 
         
 
              The issue of partial dependency of parents on their 
 
         emancipated adult child when the parents are not incapacitated 
 
         from being self supporting has not been frequently addressed by 
 
         the Iowa courts.  The only case on point found is Serrano v. 
 
         Cudahy Packing Company, 194 Iowa 689, 190 N.W.2d 132 (1922).  In 
 
         finding parents to not be dependent upon an adult child, the 
 
         court stated:
 
         
 
                 What is the meaning of dependency?  Clearly a person 
 
              cannot at the same time be dependent and self-sustaining.  
 
              The definition of 'dependent' as found in Webster's 
 
              Dictionary is: 'Relying on, or subject to, something else 
 
              for support; not able to exist, or sustain itself; not 
 
              selfsustaining.' This definition has found judicial approval 
 
              in many cases.  See Rock Island Bridge & Iron Works v. 
 
              Industrial Com. 287 Ill. 648 (122 N. E. 830).
 
         
 
                 No person can be regarded as a dependent 'whose financial 
 
              resources at his command or within his power to command by 
 
              the exercise of such efforts on his part as he reasonably 
 
              ought to exert in view of the existing conditions are 
 
              sufficient to sustain himself and family in a manner 
 
              befitting his class and position in life without being 
 
              supplemented by the outside assistance which has been 
 
              received or some measure of it.'  MacDonald v. Employers' 
 
              Liability Assur. Corpn.(Me.) 112 Atl. 719.  Unless the 
 
              commissioner has applied an illegal standard or found a fact 
 
              without evidence this court will not review his finding.  
 
              The mere fact that the parents used certain earnings of the 
 
              deceased son does not prove that they relied upon those 
 
              earnings as their means of support.  McDonald v. Great Atl. 
 
              & Pac. Tea Co. 95 Conn. 160 (111 Atl. 65).  No one is a 
 
              dependent within the meaning of our Compensation Act who has 
 
              sufficient means at hand to supply present necessities, 
 
     
 
         
 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   5
 
         
 
         
 
              rating them according to the dependent's class and position 
 
              in life.  Blanton v. Wheeler & Howes Co. 91 Conn. 226.
 
         
 
              In the more recent case of Murphy v. Franklin County, 259 
 
         Iowa 703, 145 N.W.2d 465 (1966), the court found parents to be 
 
         dependent upon their minor son and stated:
 
         
 
              [5]  'A showing of actual dependency does not require proof 
 
              that, without decedent's contributions, claimant would have 
 
              lacked the necessities of life.  The test is whether his 
 
              contributions were relied on by claimant to maintain 
 
              claimant's accustomed mode of living.
 
         
 
              'It follows that income from other sources is not 
 
              necessarily inconsistent with a state of actual dependency.' 
 
              Larson, Workmen's Compensation Law, Volume II, section 
 
              63.11, page 102, and cases cited.
 
         
 
              [6] ' 'Dependency' and 'support' under the workmen's 
 
              compensation law are not capable of certain definition.  The 
 
              definition and application of these words should not be too 
 
              severely restricted.  If a contribution is made to the 
 
              ordinary comforts and conveniences which are reasonably 
 
              appropriate to parties in their station in life, it should 
 
              be considers as support and the recipient regarded as a 
 
              dependent. (Emphasis in opinion) Lighthill v. McCurry, 175 
 
              Neb. 547, 552, 122 N.W.2d 468, 471.
 
         
 
              The treatise, Larson, Workmen's Compensation Law, covers 
 
         this topic beginning at section 63. 
 
         
 
              S 63.00 Dependency in fact must be established in order to 
 
              qualify for death benefits in all cases except those 
 
              involving a conclusive presumption of dependency.  Proof of 
 
              actual dependency
 
         
 
         
 
         
 
         
 
              does not require a showing that the claimant relied on the 
 
              deceased for the bare necessities of life and without his 
 
              contribution would have been reduced to destitution; it is 
 
              sufficient to show that the deceased's contributions were 
 
              looked to by claimant for the maintenance of claimant's 
 
              accustomed standard of living.  Hence a claimant may be 
 
              dependent although receiving other income from claimant's 
 
              own work, from property or from other persons on whom 
 
              claimant is also dependent.  Usually, actual contribution to 
 
              claimant's support is enough to establish dependency without 
 
              evidence of legal obligation to support.
 
         
 
              Evidence of the parent's expectation of future support is a 
 
         consideration as well as past actions, Larson S 63.11(a).
 
         
 
              Partial dependency may be found when, although the claimant 
 
              may have other substantial sources of support from his own 
 
              work, from property, or from other persons on whom claimant 
 
              is also dependent, the contributions made by the decedent 
 
              were looked to by the claimant for the maintenance of his 
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   6
 
         
 
         
 
              accustomed standard of living. [Larson S 63.12(a)]
 
         
 
              In cases dealing with adult children residing with the 
 
         parents, the child's contribution to the family may be viewed in 
 
         relation to the cost of the child's own support, the other 
 
         resources of the family and the economic needs of the family, 
 
         Larson S 63.12(b), which states:
 
         
 
              In other similar cases, it has been frequently held that, if 
 
              the decedent's contribution is offset by the value of the 
 
              board and room received, he is doing no more than to 'pull 
 
              his own weight'; he is merely supporting himself, with 
 
              nothing left over to represent support of dependents.
 
         
 
              Occasional gifts or contributions which are not relied upon 
 
         for support do not establish dependency [Larson S 63.12(d)].
 
         
 
              It is concluded that, in order to establish parents as 
 
         partial dependents of their adult child, it is necessary to show 
 
         that the economic contributions of the child were a substantial 
 
         factor in providing support to maintain the parents in their 
 
         accustomed standard of living.  Non-economic contributions toward 
 
         support such as performing repairs, maintenance and household 
 
         chores may be considered in determining dependency status.  The 
 
         same standard applies to direct economic support and household 
 
         service support, namely, whether the contributions exceeded the 
 
         additional burdens created by the child residing in the household 
 
         and whether the contributions were substantially relied upon for, 
 
         and necessary to maintenance of, the parents' accustomed standard 
 
         of living.
 
         
 
              Factors used in determining the extent of reliance on 
 
         contributions from the child include the relationship between the 
 
         amount of the contribution and the amount of other resources 
 
         available to the parents; the ability of the parents to provide 
 
         for themselves; the duration and regularity of the contributions; 
 
         the impact of the loss of the contributions; and changes in the 
 
         standard of living attributable to the contributions.  It is 
 
         important to distinguish between reliance on contributions and 
 
         mere use of contributions or finding them to be helpful.
 
         
 
              In the instant case Jeffrey's practice of regular 
 
         contributions was of relatively recent origin, having existed for 
 
         only approximately six months prior to his death.  The parents 
 
         did not receive regular contributions prior to that time and 
 
         therefore could not have relied on them during the period of 
 
         approximately five years when Jeffrey was living outside the 
 
         Green family home.  Many of the parents' monthly bills and 
 
         expenses were incurred prior to the time Jeffrey returned to the 
 
         family home and would not be affected by Jeffrey's place of 
 
         residence.  The impact of Jeffrey residing with his parents would 
 
         have been primarily in the area of food, but one would also 
 
         expect some impact on utilities and cleaning supplies.  It would 
 
         be expected that no less than one-half (and probably more) of 
 
         Jeffrey's regular $50 weekly contribution merely offset the 
 
         additional expense to the household which resulted from him 
 
         residing in it.  The net economic contribution from Jeffrey 
 
         toward the household expenses is found to be no more than $25 per 
 
         week after deducting the increase in expenses caused by his 
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   7
 
         
 
         
 
         presence.  While Jeffrey performed some services about the home, 
 
         they do not appear to have exceeded the increase in household 
 
         chores that have would have been caused by the fact that he was 
 
         residing in the home.
 
         
 
              In most families, any amount of economic contribution or 
 
         assistance with household chores that is provided to the family 
 
         is used and is helpful.  The Green family appears to be normal in 
 
         that regard.
 
         
 
             Curtis and Patricia had established their standard of living 
 
         during the years when Jeffrey was neither a member of the 
 
         household nor regularly contributing to the household.  Even 
 
         though they testified that they relied on Jeffrey's 
 
         contributions, the fact of the matter is that contributions from 
 
         Jeffrey were not relied on when the standard of living was 
 
         established since those contributions were not being received and 
 
         were not anticipated when the standard of living was established.  
 
         If there was any actual reliance on Jeffrey's contributions, it 
 
         would have arisen, necessarily, no sooner than December, 1983.  
 
         The evidence shows no substantial change in the parents, standard 
 
         of living that can be related to the commencement of Jeffrey 
 
         moving into the home or Jeffrey making the regular $50 weekly 
 
         payments.  It appears as though Jeffrey's parents had a problem 
 
         with debt management, but the debts were not incurred at a time 
 
         when contributions from Jeffrey were being made or could have 
 
         been anticipated as a source for paying those debts.  Jeffrey's 
 
         contributions to the family were clearly helpful to the process 
 
         of debt payment, but were not necessarily relied upon.
 
         
 
              Jeffrey's parents appear to have had a combined weekly net 
 
         income after taxes of approximately $470.00.  Jeffrey's net 
 
         contribution to them of approximately $25 per week is only five 
 
         per cent of that total.  Without Jeffrey's contributions, his 
 
         parents had what would be considered to be a normal middle-class 
 
         income.  The total adjusted gross income for them as shown on the 
 
         W-2 forms (exhibit 5) is $33,924.94.  It is difficult to conclude 
 
         that Curtis and Patricia could reasonably be expected to have 
 
         relied on a approximately $1,300 per year in net contributions 
 
         from Jeffrey for maintaining their accustomed standard of living. 
 
          The Green family was in the practice of spending all of its 
 
         income.  They had no savings despite the fact that they had a 
 
         reasonably adequate gross income for a family of only two 
 
         persons.  There is no evidence in the record that Curtis and 
 
         Patricia sustained any change in their standard of living when 
 
         Jeffrey moved out of the family home in 1978 and ceased making 
 
         regular payments to them.  There is no evidence in the record of 
 
         this case to indicate that any different result would occur in 
 
         1984 regardless of whether the lack of contributions from Jeffrey 
 
         residing in the family home arose from his death or from him 
 
         moving out into an apartment.
 
         
 
              IT IS THEREFORE FOUND that Curtis Green and Patricia Green 
 
         did not rely upon contributions from their son, Jeffrey Green, 
 
         for maintenance of their accustomed standard of living.
 
         
 
              IT IS THEREFORE CONCLUDED that Curtis Green and Patricia 
 
         Green were not partially dependent upon Jeffrey H. Green for 
 
         support at the time of his injury and death and are therefore not 
 

 
         
 
         
 
         
 
         GREEN V. FAIRFIELD ALUMINUM CASTINGS CO.
 
         Page   8
 
         
 
         
 
         his dependents within the meaning of sections 85.31 and 85.44 of 
 
         the Code of Iowa.
 
         
 
              IT IS THEREFORE ORDERED that claimants take nothing from 
 
         this proceeding.  The costs of this action are assessed against 
 
         claimants.
 
         
 
         
 
         
 
              Signed and filed this 10th day of June, 1987.
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dennis Emanuel
 
         Mr. Richard J. Gaumer
 
         Attorneys at Law
 
         112 North Court
 
         P.O. Box 601
 
         Ottumwa, Iowa 52501
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1805, 1902
 
                                                     Filed June 10, 1987
 
                                                     MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ESTATE OF JEFFREY H. GREEN,
 
         Deceased, CURTIS H. GREEN,
 
         Administrator, CURTIS H. GREEN,
 
         and, PATRICIA GREEN,                          File No. 767463
 
         Individually,
 
         
 
              Claimants,
 
                                                         D E A T H
 
          VS.
 
          
 
          FAIRFIELD ALUMINUM CASTINGS CO.             B E N E F I T S
 
          (FALCO)
 
          
 
               Employer,                              D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
         1805, 1902
 
         
 
              Parents, with a combined gross annual income of 
 
         approximately $33,000, failed to prove that they were partially 
 
         dependent upon a $50 weekly contribution paid to them from an 
 
         emancipated adult son who resided with them.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KATHLEEN (KIT) MERCER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 767561
 
         DOUGLAS & LOMASON,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         MICHIGAN MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a continuation of the proceeding in arbitration 
 
         which has been commenced by Kathleen Mercer.  A prior hearing was 
 
         held on January 9, 1986 and the decision which was entered on May 
 
         22, 1986 determined that Mercer was entitled to a running award 
 
         of temporary total disability compensation commencing from June 
 
         16, 1984 and running throughout the date of that hearing.  The 
 
         issues identified for determination in this hearing are the 
 
         nature and extent of the claimant's permanent disability, if any, 
 
         and the determination of the end of her recovery period, be it 
 
         temporary total disability or healing period.
 
         
 
              The case was heard and fully submitted at Council Bluffs, 
 
         Iowa on February 16, 1988.  The record in the proceeding consists 
 
         of testimony from Kathleen Mercer, joint exhibits A through Q 
 
         which were originally received into evidence at the hearing held 
 
         on January 9, 1986 and joint exhibits R and S which were received 
 
         into evidence for the first time at the hearing held February 16, 
 
         1988.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              The prior decision entered in this case on May 22, 1986 
 
         contains an adequate summarization of the evidence that was 
 
         available at that time.  That evidence and the transcript of that 
 
         hearing are part of the record considered in this decision.  It 
 
         is supplemented by exhibits R and S.  In view of the detailed 
 
         summarization of evidence contained in the prior decision, that 
 
         summarization is incorporated herein by reference as though it 
 
         were fully set forth.  Exhibit R is a report from William P. 
 
         Bryant, M.D., an orthopaedic surgeon, dated August 25, 1987.  The 
 
         report indicates that he last examined or treated claimant on 
 
         June 9, 1987.  He diagnosed her as having sacroillitis and 
 

 
        
 
        
 
        MERCER V. DOUGLAS & LOMASON 
 
        PAGE 2 
 
        
 
 
 
         recommended conservative treatment with occasional injections.  
 
         Dr. Bryant rated claimant as having a three percent impairment of 
 
         the whole person.  He indicated that she was likely to have 
 
         intermittent pain indefinitely in the future.
 
         
 
              Thomas A. Staner, M.D., a neurosurgeon, issued exhibit S, a 
 
         report dated June 1, 1987.  Dr. Staner indicated that a myelogram 
 
         and CT scan, which were administered under his direction, were 
 
         interpreted as being normal.  He opined that claimant had no 
 
         permanent disability from a neurological disorder, but that she 
 
         may have sacroiliac inflammation.
 
         
 
              Kathleen Mercer testified that she is a 1974 high school 
 
         graduate with some nurse's aide training.  She has worked as a 
 
         nurse's aide and a grocery store checkout clerk.  She has also 
 
         performed seasonal nursery work for Earl May and seasonal, truck 
 
         driving for United Parcel Service.  Claimant has two children, 
 
         one born in 1978 and another born in 1981.
 
         
 
              Claimant's employment with Douglas & Lomason started in 
 
         January of 1984 at its Red Oak, Iowa location.  Claimant stated 
 
         that she was earning $6.47 per hour on June 14, 1984.  Claimant 
 
         stated that she was injured while bending over and reaching into 
 
         a box to remove parts from the bottom of the box.
 
         
 
              Claimant testified that she has not returned to regular 
 
         employment since she was injured.at Douglas & Lomason.  Claimant 
 
         described pain in a location below and to the left of her belt 
 
         line which sometimes moves into her left hip and occasionally 
 
         extends down to her toes.  Claimant stated that her level of 
 
         activity affects her symptoms.
 
         
 
              Claimant testified that a typical day involves getting her 
 
         children off to school and then lying down after they leave.  
 
         Claimant stated that, if she is having a good day, she will do 
 
         some light housework such as cleaning counters, but that, if it 
 
         is not a good day, she goes to bed and stays there until the 
 
         children return home from school and that she will lie on the 
 
         couch rather than on the bed after they return.  Claimant 
 
         estimated that she has approximately ten bad days per month.
 
         
 
              Claimant stated that she is unable to vacuum, mop, make beds 
 
         or pick up laundry.  She stated that she does occasionally sweep 
 
         the kitchen floor and does some laundry.  Claimant testified that 
 
         she has tied cords around the laundry baskets so she can pull 
 
         them across the floor rather than carry them.  Claimant stated 
 
         that she is unable to do laundry and sweep the kitchen floor on 
 
         the same day.  She stated that, on one occasion when she tried to 
 
         do both, she spent the following three days in bed.
 
         
 
              Claimant testified that the longest she can stand in any one 
 
         place is 10 or 15 minutes.  Claimant stated that she would be 
 
         unable to stand long enough to work at a sales counter or to work 
 
         as a waitress.  She stated that she can sit for a couple of 
 
         hours, but has to get up and move frequently.  She related that 
 
         riding in an automobile is difficult.
 
         
 
              Claimant stated that, during the course of her treatment 
 
         with Dr. Bryant, she received a cortisone injection which 
 
         provided almost instant, complete relief for approximately 24 
 
         hours, but that it then wore off and the pain returned at a level 
 
         that was worse than it had been prior to the injection.
 
         
 
              Claimant testified that she now lives in  Michigan and is 
 
         not treating with any physician at that location.  She stated 
 
         that she does take thyroid medicine and 12 or 14 Anacin per day.
 
         
 
              Claimant testified that she would like to work, but does not 
 

 
         
 
         
 
         
 
         MERCER V. DOUGLAS & LOMASON
 
         PAGE   3
 
         
 
         
 
         feel that she is capable of working.  She did not know of any job 
 
         that she could perform in view of her condition.  Claimant stated 
 
         that she has not sought any employment in Michigan.  She did 
 
         inquire about employment when she lived in Alabama, but did not 
 
         actually apply for any positions. claimant testified that she has 
 
         not gone to vocational rehabilitation, filed for unemployment or 
 
         consulted with an employment counselor.  Claimant testified that 
 
         Dr. Bryant recommended she not return to work due to her 
 
         limitations.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The prior decision established that Kathleen Mercer 
 
         sustained an injury on June 14, 1984 which arose out of and in 
 
         the course of her employment and that she was in a recuperative 
 
         state, either healing period or temporary total disability, from 
 
         June 14, 1984 running to and through the date of the prior 
 
         hearing on January 9, 1986.
 
         
 
              Claimant has had continuing residual complaints he has been 
 
         rated by Dr. Bryant as having a three percent impairment.  Dr. 
 
         Bryant has diagnosed the condition as a sacroiliac inflammation, 
 
         a diagnosis with which Dr. Staner apparently does not disagree.  
 
         Dr. Bryant indicates that claimant is likely to have pain and 
 
         limitation in the future.  In view of the fact that claimant's 
 
         condition is of long-standing duration, the evidence from Dr. 
 
         Bryant is accepted as being correct, despite the lack of another 
 
         rating of permanent impairment from any other physician.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional 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).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity.of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 

 
         
 
         
 
         
 
         MERCER V. DOUGLAS & LOMASON
 
         PAGE   4
 
         
 
         
 
              Claimant's stated complaints and limitations are grossly out 
 
         of proportion to the impairment rated by Dr. Bryant.  The record 
 
         does not contain a rating of permanent impairment or disability 
 
         from any other physician.  The restrictions which claimant has 
 
         placed upon herself are not made in accordance with restrictions 
 
         recommended by any physician.  In fact, the record does not 
 
         contain any indication that any of the physicians have 
 
         recommended permanent activity restrictions.
 
         
 
              The trauma which claimant sustained is not the type of 
 
         incident which is normally expected to cause long-term, severe 
 
         disability.  While it is certainly possible that claimant may 
 
         have some continuing discomfort in the region of her low back or 
 
         sacroiliac, there is nothing in the record of this case which 
 
         corroborates the magnitude of her complaints.
 
         
 
              Nevertheless, even with mild or moderate symptoms, claimant 
 
         is likely precluded from activities such as driving a truck for 
 
         United Parcel Service or handling patients as is commonly 
 
         performed by a nurse's aide.  She is precluded from portions of 
 
         the labor market which were previously available to her.  When 
 
         all the appropriate factors of industrial disability are 
 
         considered, it is determined that she has sustained a 20% 
 
         permanent partial disability as a result of the injuries she 
 
         sustained on June 14, 1984.
 
         
 
              It is necessary to make a determination of the time when the 
 
         healing period ended.  Under Iowa Code section 85.34, the healing 
 
         period ends when the employee returns to work, when the employee 
 
         becomes medically capable of returning to employment 
 
         substantially similar to that in which the employee was engaged 
 
         at the time of injury, or when further significant improvement 
 
         from the injury is not anticipated by the medical practitioners. 
 
          It is determined that, in this case, exhibit R, the report from 
 
         Dr. Bryant dated August 25, 1987 provides evidence of the end of 
 
         the claimant's healing period.  Dr. Bryant indicates that he saw 
 
         the claimant on June 9, 1987 at which time the diagnosis of 
 
         sacroillitis was made, long-term conservative treatment with 
 
         injections was recommended, intermittent pain was projected and a 
 
         three percent impairment rating was assigned.  It is therefore 
 
         determined that June 9, 1987 is a clear medical indication that 
 
         further significant improvement was not anticipated and that the 
 
         claimant's condition had stabilized sufficiently to assign a 
 
         permanent impairment rating.  It is therefore determined that the 
 
         claimant's healing period ended June 9, 1987 and that the 
 
         compensation for permanent partial disability is payable 
 
         commencing June 10, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  As a result of the injury of June 14, 1984, Kathleen 
 
         Mercer was medically incapable of performing work in employment 
 
         substantially similar to that she performed at the time of injury 
 
         from June 14, 1984 until June 9, 1987 at which time it was 
 
         medically indicated that further significant improvement from the 
 
         injury was not anticipated.
 
         
 
              2.  Kathleen Mercer's physical complaints are out of 
 
         proportion to the objective findings of injury which have been 
 
         found by any of the medical practitioners.
 
         
 
              3.  Kathleen Mercer's self-imposed restrictions upon her 
 
         activities are not corroborated by any restrictions or 
 

 
         
 
         
 
         
 
         MERCER V. DOUGLAS & LOMASON
 
         PAGE   5
 
         
 
         
 
         indications from the medical practitioners who have treated or 
 
         evaluated her.
 
         
 
              4.  Kathleen Mercer is, however, limited her physical 
 
         capabilities due to the residual effects of the injury she 
 
         sustained on June 14, 1984.  The limitations preclude her from 
 
         employment such as a nurse's aide or truck driver, positions she 
 
         had held prior to the time of injury. 
 
         
 
              5.  Claimant has sustained a 20% permanent loss of earning 
 
         capacity as a result of the injuries she sustained on June 14, 
 
         1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant's healing period under the provisions of Iowa 
 
         Code section 85.34(l) commences on June 14, 1984 and ends on June 
 
         9, 1987.
 
         
 
              3.  Kathleen Mercer is entitled to receive 100 weeks of 
 
         compensation representing a 20% permanent partial industrial 
 
         disability under the provisions of Iowa Code section 85.34(2)(u) 
 
         payable commencing June 10, 1987.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred fifty-five and six-sevenths (155 6/7) weeks of 
 
         compensation for healing period at the stipulated rate of one 
 
         hundred sixty-nine and 30/100 dollars ($169.30) per week payable 
 
         commencing June 14, 1984.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of on hundred sixty-nine and 
 
         30/100 dollars ($169.30) per week payable commencing June 10, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for all 
 
         amounts previously paid and pay all past due, accrued amounts in 
 
         a lump sum together with interest from the date each payment came 
 
         due pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1..
 
         
 
              Signed and filed this 21st day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         MERCER V. DOUGLAS & LOMASON
 
         PAGE   6
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jacob John Peters
 
         Attorney at Law
 
         233 Pearl Street
 
         P.O. Box 1078
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Michael J. O'Bradovich
 
         Attorney at Law
 
         4535 Leavenworth, Suite 22
 
         Omaha, Nebraska 68106
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40, 1802, 1803
 
                                               Filed December 21, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KATHLEEN (KIT) MERCER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No.  767561
 
         DOUGLAS & LOMASON,
 
                                            A R B I T R A T I O N
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         MICHIGAN MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1802, 1803
 
         
 
              Claimant's healing period was terminated on the date a 
 
         physician provided a rating of permanent impairment and indicated 
 
         that she would likely have continuing future problems and 
 
         recommended continued conservative treatment.  That date was 
 
         approximately three years following the occurrence of what 
 
         appeared to have been a relatively minor injury.
 
         
 
              Claimant's complaints were greatly out of proportion to any 
 
         of the objective physical findings.  She was awarded 20% 
 
         permanent partial disability based upon what the objective 
 
         medical findings would support, despite her contention and 
 
         testimony that she was totally disabled and unable to engage in 
 
         any type of gainful employment.