BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        LAURIE SUMMERS,
 
        
 
            Claimant,                   File No. 770698
 
        
 
        vs.                                A P P E A L
 
        
 
        JOHN MORRELL & COMPANY,          D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding healing 
 
        period benefits and permanent partial disability benefits based 
 
        on an industrial disability of 25 percent resulting from an 
 
        injury on January 3, 1984.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits A through C; and 
 
        defendant's exhibits 1 through 5. Defendant filed a brief on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether claimant suffered an injury 
 
        which arose out of and in the course of her employment; whether 
 
        there is a causal connection between the alleged work injury and 
 
        the claimed disability; and the nature and extent of claimant's 
 
        alleged disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant was born September 11, 1964 and was 19 years old at the 
 
        time of the alleged injury. She attended school to the tenth 
 
        grade. After dropping out of school she held jobs as a nurse's 
 
        aide and a waitress prior to beginning work for defendant. She 
 
        testified that she had not had an injury or serious illness prior 
 
        to working for defendant. She started working for defendant on 
 
        September 23, 1983 at a rate of $6.50 per hour. Her pay increased 
 
        to $7.00 per hour on March 28, 1984. Claimant testified that on 
 
        January 3 or 4, 1984 she fell on some steps at work, landed on 
 
        her tailbone and felt pain that was not disabling. She also 
 
        testified that she told
 
        
 
        SUMMERS V. JOHN MORRELL & COMPANY
 
        Page 2
 
        
 
        
 
        her foreman of the fall on the day it occurred and that she was 
 
        not real sure of the date of the fall.
 
        
 
        Claimant was seen at the Estherville Medical Center on February 
 
        10, 1984 for a sore left thigh but claimant had no recall of 
 
        injury on that date. Claimant testified that she contacted the 
 

 
        
 
 
 
 
 
        company nurse on March 23, 1984. The defendant's injury report 
 
        card on March 23, 1984 reads, "Slipped down steps and bumbed 
 
        [sic] tailbone." Claimant stated that although the injury report 
 
        card was dated March 23, 1984 the fall was earlier than that 
 
        date.
 
        
 
        The weekend before the week of April 2, 1984 claimant was beaten 
 
        by her boyfriend. As a result of the beating claimant had bruises 
 
        on her face and neck. On April 5, 1984 claimant reported to the 
 
        company nurse that the claimant wanted an appointment with a 
 
        chiropractor because she had fallen down steps and hurt her back 
 
        at work. Claimant sought treatment from the Moreau Chiropractic 
 
        Clinic on April 5, 1984. The office notes from that clinic on 
 
        that date read: "Pt fell down 3 stairs @ work by the time clock 2 
 
        wks past (3-23-84). Her current complaints are of L lateral leg 
 
        (illegible)." Claimant testified that if Dr. Moreau's notes 
 
        reflected that she told him that she fell on March 23, 1984 the 
 
        notes would not be correct. She also testified that she did not 
 
        associate her leg pain with an injury until someone told her that 
 
        there was an association.
 
        
 
        On May 14, 1984 claimant returned to the Estherville Medical 
 
        Center for complaints of pain in her left thigh and in her lower 
 
        back which was noted to be the same backache she had in February 
 
        1984. Claimant was referred to Richard F. Nice, M.D., an 
 
        orthopaedic surgeon. An office note by Dr. Nice dated June 13, 
 
        1984 reads in part:
 
        
 
        Laurie is a 19 yr old female who fell down a flight of stairs at 
 
        Christmas time [sic] at work. She did not think much of this and 
 
        continued to work at Morrells in Estherville which requires her 
 
        to do some lifting. About 2 weeks later she developed pain in her 
 
        back. This was most severe with exertion and was predominantly on 
 
        the left side of her low back. She then developed pain in her 
 
        left buttock, behind her left knee and ankle and had persistent 
 
        numbness in the lateral aspect of her left calf....
 
        
 
        pronounced sciatic nerve tenderness in the sciatic nerve area in 
 
        the left buttock which radiates down the left leg....
 
        
 
        SUMMERS V. JOHN MORRELL & COMPANY
 
        Page 3
 
        
 
        
 
        We feel there is no question that Laurie has a disc herniation, 
 
        probably at L4-5.
 
        
 
        (Claimant's Exhibit B, page 4)
 
        
 
        Claimant received conservative care from Dr. Nice. Dr. Nice 
 
        opined that the accident claimant described to him was consistent 
 
        with her lower back condition. He also opined that claimant had 
 
        sustained a disc herniation and that claimant had a permanent 
 
        partial physical impairment of five percent of the whole body. He 
 
        testified that claimant would be best suited for jobs that did 
 
        not require heavy lifting and a lot of sitting but he did not 
 
        place any limitations on claimant. On cross-examination he 
 
        testified that it may be weeks to conceivably months or years 
 
        before pain occurs following an injury to a disc. He also 
 
        testified on cross-examination that he was unaware that claimant 
 
        had been beaten by her boyfriend but he could not recall anybody 
 
        that got a disc herniation in their lumbar spine as a result of 
 
        getting hit in the head and having their neck jerked around.
 
        
 
        Claimant testified that she subsequently became pregnant and 
 
        returned to school to obtain her GED diploma. She stated that she 
 

 
        
 
 
 
 
 
        had been employed part-time as a homemaker health aide but had 
 
        not otherwise sought employment. Claimant has started a course of 
 
        study toward a nursing degree.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The first issue to be resolved is whether claimant suffered an 
 
        injury which arose out of and in the course of her employment. 
 
        Defendant argues that the deputy's finding that the claimant fell 
 
        on steps at work on or about January 3, 1984 is unsupported by 
 
        the record. Defendant implies that claimant's back condition was 
 
        the result of the beating by claimant's boyfriend. While 
 
        claimant's case may have been buttressed if she had been a better 
 
        historian and if she had immediately recognized that her leg pain 
 
        was the result of an injury to her back, there is nonetheless 
 
        sufficient evidence to find that claimant's alleged injury was 
 
        the result of a fall at work. It is uncontroverted that claimant 
 
        reported the fall on or about January 3, 1984 to her foreman; 
 
        that claimant sought treatment for leg pain on February 10, 1984; 
 
        and that claimant did not associate her leg pain with a fall 
 
        until sometime after the fall. The history that claimant gave Dr. 
 
        Nice on June 13, 1984 is consistent with her actions in that she 
 
        had leg pain and little tenderness in her back. She had sought 
 
        treatment for her leg pain shortly after the date she alleges she 
 
        fell. It is entirely reasonable for a person who falls on the 
 
        tailbone not to recognize that
 
        
 
        SUMMERS V. JOHN MORRELL & COMPANY
 
        Page 4
 
        
 
        
 
        the fall is the cause of leg pain. Also, Dr. Nice testified that 
 
        there may be a period of time before pain occurs following an 
 
        injury to a disc.
 
        
 
        Defendant's implication that claimant's back condition was the 
 
        result of the beating by her boyfriend is not convincing. As 
 
        discussed above claimant has sought medical treatment for the 
 
        symptom of leg pain two months prior to the beating. She also 
 
        reported the fall on March 23, 1984 to the company nurse. Also, 
 
        importantly, Dr. Nice indicated that claimant's lumbar disc 
 
        injury is inconsistent with a beating to the head and neck. 
 
        Furthermore, Dr. Nice opined that claimant's condition was 
 
        consistent with the accident she described. Claimant has proved 
 
        that she suffered an injury on or about January 3, 1984 which 
 
        arose out of and in the course of her employment.
 
        
 
        The second issue to be resolved is whether there is a causal 
 
        connection between the alleged work injury and the claimed 
 
        disability. Claimant testified that she was in excellent health 
 
        prior to her fall. Dr. Nice indicated that claimant's condition 
 
        is consistent with the history of falling. Claimant had 
 
        complaints of pain in her leg in February 1984. The evidence just 
 
        given is uncontradicted. Dr. Nice indicated that claimant's 
 
        condition is inconsistent with a beating to the head and neck. He 
 
        also opined that claimant's condition is permanent. There is no 
 
        evidence to contradict the assertion that there is a causal 
 
        connection between the work injury and the claimed disability.
 
        
 
        The last issue to be resolved is the nature and extent of 
 
        claimant's alleged disability. It is Dr. Nice's uncontradicted 
 

 
        
 
 
 
 
 
        opinion that claimant's condition is permanent. Dr. Nice also 
 
        rated claimant's impairment of five percent of the body as a 
 
        whole. Claimant was nineteen years old at the time of the injury. 
 
        She has obtained her GED and is seeking retraining through 
 
        schooling to become a nurse. Given her age claimant should be 
 
        able to be retrained, and it should be noted that she has 
 
        attempted to do so. Her employment history since the date of the 
 
        injury which consists of occasional homemaker health aide does 
 
        not demonstrate that claimant is highly motivated to work. 
 
        Claimant's job at the time of her injury paid her $7 per hour. 
 
        Claimant cannot do the work she was doing before her injury, and 
 
        employment in jobs requiring lifting and prolonged sitting are 
 
        not advisable. When all factors are considered claimant has 
 
        sustained a 15 percent loss of her earning capacity.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On or about January 3, 1984, Laurie Summers was a resident of 
 
        the state of Iowa, employed by defendant at Estherville, Iowa.
 
        
 
        2. Claimant was injured on or about January 3, 1984 when she fell 
 
        on steps at the employer's place of business.
 
        
 
        SUMMERS V. JOHN MORRELL & COMPANY
 
        Page 5
 
        
 
        
 
        3. Following the injury, claimant continued to work, but 
 
        experienced increasing symptoms. She first sought medical care 
 
        for those symptoms on February 10, 1984 at the Estherville 
 
        Medical Center.
 
        
 
        4. On March 23, 1984, claimant reported the fall to her employer, 
 
        but the employer misinterpreted the incident as having occurred 
 
        on the date that it was reported rather than on the date that it 
 
        actually occurred.
 
        
 
        5. A similar error regarding the date of injury is found in the 
 
        treatment records of Dr. Moreau.
 
        
 
        6. Following the injury, claimant continued to work, whenever 
 
        work was available, until June 13, 1984, when Dr. Nice took her 
 
        off work. She remained medically incapable of performing work in 
 
        employment substantially similar to that she performed at the 
 
        time of injury until October 15, 1984, when claimant reached the 
 
        point that it was medically indicated that further significant 
 
        improvement from the injury was not anticipated and she was 
 
        released to return to light-duty work.
 
        
 
        7. The assessment of claimant's case as made by Dr. Nice is 
 
        accurate. Claimant's injury produced a herniated lumbar disc, but 
 
        due to her age and symptomatology, surgery is not recommended at 
 
        the present time. Claimant has a five percent permanent partial 
 
        physical impairment of the body as a whole and is impaired in her 
 
        ability to lift and in her ability to sit for prolonged periods 
 
        of time.
 
        
 
        8. Claimant gave the employer notice of her fall on March 23, 
 
        1984, a date within 90 days from the date of injury.
 
        
 
        9. Claimant has sustained a 15 percent loss of earning capacity 
 
        as a result of the injuries she sustained in the fall which 
 
        occurred on or about January 3, 1984.
 
        
 
        10. The fall that occurred on January 3, 1984 was a substantial 
 
        factor in producing claimant's herniated disc and the continuing 
 

 
        
 
 
 
 
 
        symptoms that she experiences in her low back and left leg.
 
        
 
        11. Claimant's lower back was not injured in the incident where 
 
        she was beaten up by her boyfriend in early April 1984.
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant sustained an injury which arose out of and in the course 
 
        of her employment with defendant on or about January 3, 1984.
 
        
 
        The claim is not barred by the provisions of section 85.23 of the 
 
        Code.
 
        
 
        SUMMERS V. JOHN MORRELL & COMPANY
 
        Page 6
 
        
 
        
 
        Claimant's work injury on or about January 3, 1984 was the cause 
 
        of claimant's permanent disability.
 
        
 
        Claimant's work injury on or about January 3, 1984 resulted in an 
 
        industrial disability of fifteen percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered: That the employer pay claimant 
 
        seventeen and five-sevenths (17 5/7) weeks of compensation for 
 
        healing period at the stipulated rate of one hundred forty-six 
 
        and 81/100 dollars ($146.81) per week payable commencing June 13, 
 
        1984.
 
        
 
        That the employer pay claimant seventy-five (75) weeks of 
 
        compensation for permanent partial disability at the stipulated 
 
        rate of one hundred forty-six and 81/100 dollars ($146.81) per 
 
        week payable commencing October 15, 1984.
 
        
 
        That all amounts awarded be paid in a lump sum together with 
 
        interest pursuant to section 85.30 computed from the date each 
 
        weekly payment came due until the date of actual payment.
 
        
 
        That defendant pay the costs of this action including the costs 
 
        of transcription of the arbitration hearing.
 
        
 
        That defendant file claim activity reports pursuant to Division 
 
        of Industrial Services Rule 343-3.1(2).
 
        
 
        
 
        Signed and filed this 22nd day of February 1989.
 
        
 
        
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LAURIE SUMMERS,
 
         
 
              Claimant,
 
                                                     File No. 770698
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         JOHN MORRELL & CO.,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Laurie 
 
         Summers, claimant, against John Morrell & Company, self-insured 
 
         employer, for the recovery of benefits as a result of an alleged 
 
         injury on January 3 or 4, 1984.  This matter was heard before the 
 
         undersigned on June 23, 1987 at the Courthouse in Storm Lake, 
 
         Iowa.  It was considered fully submitted at the conclusion of the 
 
         hearing.
 
         
 
              The record in the proceeding consists of the testimony of 
 
         Laurie Summers and Dennis Howrey, claimant's exhibits A, B & C 
 
         and defendant's exhibits 1, 2, 3, 4 and 5.  Official notice was 
 
         taken of the date upon which claimant filed her petition, namely 
 
         September 8, 1984.
 
         
 
                              STIPULATION AND ISSUES
 
         
 
              The parties, in their prehearing report, stipulated that 
 
         there was an employer-employee relationship between claimant and 
 
         the employer at the time of the alleged injury.  If the injury is 
 
         found to be a cause of permanent disability, the parties have 
 
         stipulated it to be an industrial disability to the body as a 
 
         whole.  The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded, was stipulated to be 
 
         October 15, 1984.  In the event of an award, the rate of 
 
         compensation was stipulated to be $146.81 per week.
 
         
 
              The following issues remain for determination:
 
         
 
              Whether claimant sustained an injury on January 1-4, 1984 
 
         which arose out of and in the course of her employment;
 
         
 
              Whether the alleged injury caused temporary disability 
 
         during a period of recovery;
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   2
 
         
 
         
 
              Whether the work injury was a cause of permanent 
 
         disability;
 
         
 
              The extent of the entitlement to weekly compensation for 
 
         temporary total disability or healing period;
 
         
 
              The extent of entitlement to weekly compensation for 
 
         permanent disability;
 
         
 
              Whether defendant received notice required by section 
 
         85.23; and,
 
         
 
              Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              Claimant, Laurie Summers, who is 22 years of age, testified 
 
         that she dropped out of school in the tenth grade and 
 
         subsequently worked as a nurse's aide, a cook and a waitress.
 
         
 
              Claimant testified that she had generally enjoyed good 
 
         health throughout her life, other than for the incident now at 
 
         issue.  She denied sustaining any injury to her back other than 
 
         the one which is the subject of this action.
 
         
 
              Claimant was first employed by John Morrell & Company in 
 
         September, 1983.  Claimant was unsure of the exact date, but she 
 
         testified that on or about the third or fourth of January, 1984, 
 
         she slipped and fell on a stairway at Morrell's Estherville, Iowa 
 
         plant, landing on her tailbone.  She testified that she felt 
 
         immediate pain, but that the pain was not disabling.  Claimant 
 
         further testified that she immediately advised her foreman, Jim 
 
         Koenecke, of the fall, but did not report it to the nurse at that 
 
         time because she did not think it was serious (Summers 
 
         deposition, pages 6-8).
 
         
 
              The medical records of the Estherville Medical Center 
 
         (claimant's exhibit B) reflect that claimant sought medical 
 
         treatment on February 10, 1984 when she complained that her left 
 
         thigh was sore, especially when she was sitting.  The records 
 
         indicate that she did not recall any injury.  Claimant testified 
 
         that she did not associate the pain in her thigh with the fall or 
 
         with any injury to her lower back.
 
         
 
              The first written record of the alleged injury being 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   3
 
         
 
         
 
         reported to the employer is found in claimant's exhibit A, an 
 
         entry dated March 23, 1984 which states "slipped down steps and 
 
         bumped tailbone.O  Claimant testified that what she reported on 
 
         that day was the fall that occurred in January.
 
         
 
              On April 2, 1984, when claimant reported for work, she met 
 
         with industrial nurse Trisha Merrill and told her that her 
 
         boyfriend had beat her up on the previous Saturday night, that he 
 
         had thrown her on the ground, sat on her and was beating her 
 
         about the face and that that's how she got the bruises and black 
 
         eye.  At that time, claimant exhibited a black eye and several 
 
         bruises up and down her neck (defendant's exhibit 1, pages 4 and 
 
         5). Claimant made no complaints concerning her back at that time 
 
         (defendant's exhibit 1, pages 16 and 17).
 
         
 
              On April 5, 1984, claimant returned to Nurse Merrill and 
 
         stated that she wanted a chiropractor appointment because she had 
 
         fallen down steps in the plant.  Merrill told her that workers' 
 
         compensation would probably not pay for it because she had just 
 
         been beaten up three days earlier.  At that time, Merrill was not 
 
         yet aware of the fall that had been reported on March 23, 1984 
 
         (defendant's exhibit 1, page 14).
 
         
 
              On April 5, 1984, claimant sought treatment from the Moreau 
 
         Chiropractic Clinic.  The clinical notes (defendant's exhibit 5), 
 
         contain a history that claimant fell down three stairs at work by 
 
         the clock which was two weeks past (March 23, 1984).  Her 
 
         complaints were then left lateral leg pain and over the posterior 
 
         left thigh and over the posterior lateral calf region.  She 
 
         returned for additional treatment for the same conditions on 
 
         April 9, 1984.  Claimant testified that Dr. Moreau was the first 
 
         person that told her there was an association between her back 
 
         injury and her leg pain.
 
         
 
              According to the clinical notes of the Estherville Medical 
 
         Center (defendant's exhibit 3), claimant returned for medical 
 
         care on May 14, 1984 complaining of pain in her left thigh and in 
 
         her lower back which was noted to be the same pain that she had 
 
         experienced back in February, 1984.  On May 15, 1984, an 
 
         appointment was made for claimant to see Richard Nice, M.D., of 
 
         Orthopaedic Associates in Sioux Falls, South Dakota, on June 13, 
 
         1984.
 
         
 
              Claimant appeared at Orthopaedic Associates on June 13, 
 
         1984, and gave a history of having fallen down a flight of stairs 
 
         at Christmas time, at work, but that she did not think much of it 
 
         and continued to work.  The history related that claimant began 
 
         to develop pain in her back approximately two weeks after the 
 
         fall.
 
         
 
              Examination by Dr. Nice revealed, among other things, 
 
         pronounced sciatic nerve tenderness in the sciatic nerve area in 
 
         her left buttock which radiates down the left leg.  He noted she 
 
         had significant weakness of the dorsiflexors of the left foot and 
 
         the left great toe.  He also reported she had contralateral 
 
         positive SLR (an abbreviation for "straight leg raising," a test 
 
         used to diagnose pinching of the sciatic nerve by a herniated 
 
         lumbar disc), and SLR on the left side was almost impossible.  
 
         Dr. Nice noted that there was no question that claimant had a 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   4
 
         
 
         
 
         disc herniation, probably at L4-5, and recommended that she be 
 
         off work in a corsett and resting for the next month (claimant's 
 
         exhibit B, page 4).  When that treatment was not effective, 
 
         claimant was hospitalized for further conservative care from July 
 
         16 through July 24, 1984 (claimant's exhibit B, page 8).
 
         
 
              On August 9, 1984, claimant was again hospitalized.  She 
 
         underwent a lumbar myelogram and CT scan which revealed an 
 
         abnormal central bulging disc at L5-Sl.  Claimant was discharged 
 
         on August 14, 1984 (claimant's exhibit B, page 9).
 
         
 
              On October 15, 1984, claimant returned for further care and 
 
         it was noted that she was improved, but still had some symptoms. 
 
          Dr. Nice reported that she could then return to light work, 
 
         provided that she was not required to sit for prolonged periods. 
 
          He also started her on an exercise program.  Dr. Nice indicated 
 
         that claimant was not a surgical candidate, but that she should 
 
         seek additional care, should the need arise (claimant's exhibit 
 
         B, page 5).
 
         
 
              Claimant's exhibit C is testimony of Richard Nice, M.D., a 
 
         board-certified orthopaedic surgeon.  Dr. Nice testified, at 
 
         pages 11 and 12, that claimant's history of falling and lifting 
 
         at work was consistent with her lower back condition, which was 
 
         diagnosed as a herniated lumbar disc.  Dr. Nice testified on 
 
         cross-examination that he could not recall anybody that he had 
 
         seen in his office that got a disc herniation in their lumbar 
 
         spine as a result of being hit in the head and having their neck 
 
         jerked around.  He indicated that claimant's condition was more 
 
         consistent with falling (claimant's exhibit C, pages 13 and 16).
 
         
 
              At page 12 of his deposition, Dr. Nice testified that, in 
 
         his opinion, the disc herniation created a permanent physical 
 
         impairment that amounts to a disability of five percent of the 
 
         loss of function of her body as a whole.  Dr. Nice testified that 
 
         claimant should avoid jobs that would require heavy lifting and a 
 
         lot of sitting, but did not impose any other limitations or 
 
         restrictions for her.
 
         
 
              The employer offered no testimony to contradict the 
 
         testimony of Dr. Nice regarding a causal connection between the 
 
         falling injury on the job and the subsequent disc herniation and 
 
         permanent physical disability.  The employer offered no evidence 
 
         to contradict Dr. Nice's testimony that claimant sustained a 
 
         functional permanent partial disability of five percent of the 
 
         body as a whole which will affect her ability to engage in 
 
         employment involving prolonged periods of sitting or heavy 
 
         lifting.
 
         
 
              Claimant testified that she subsequently became pregnant 
 
         and, during the course of her pregnancy, returned to school to 
 
         obtain her GED diploma.  Claimant testified that, since the birth 
 
         of her child, she has been employed on a part-time basis as a 
 
         homemaker health aid and that she has been able to do this type 
 
         of work, provided she does not do any significant lifting or 
 
         standing for prolonged periods.  Claimant has started a course of 
 
         study toward a nursing degree.
 
         
 
              Claimant testified that, at the present time, she performs 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   5
 
         
 
         
 
         exercises, which consist of lying on her back and pulling up her 
 
         legs, which provide some relief.  She stated that her physical 
 
         activity level has been reduced below what it had been prior to 
 
         the time she was injured.   She stated that she is unable to 
 
         perform situps because of pain.  She stated that, at times, due 
 
         to pain, she is unable to lift her two-year-old child, who weighs 
 
         30 pounds, but that, at other times, she can lift without pain.
 
         
 
              Claimant was last seen by Dr. Nice on June 23, 1986 
 
         (claimant's exhibit B, page 6).  Dr. Nice advised at that time 
 
         that claimant continue swimming, avoid prolonged sitting and do 
 
         no more lifting than was absolutely necessary.  At that time, she 
 
         reported few symptoms, but also indicated that her activity level 
 
         had been reduced.  Dr. Nice offered no additional treatment for 
 
         her condition.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               Claimant has the burden of proving by a preponderance of 
 
         the evidence that she received an injury on January 1-4, 1984 
 
         which arose out of and in the course of her employment.  McDowell 
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The record contains conflicts regarding the incident of 
 
         falling.  Claimant has testified that it occurred in early 
 
         January while records of the employer and Dr. Moreau record 
 
         falling on March 23, 1984.  Claimant has explained the apparent 
 
         conflict by stating that it was on March 23, 1984 when she 
 
         reported the fall that had occurred in January.  This would 
 
         adequately explain the employer's records, but it still leaves 
 
         some question regarding the history found in Dr. MoreauOs 
 
         records, defendant's exhibit 5. It should be noted, however, that 
 
         Dr. Moreau is indicated in the record to have been the authorized 
 
         chiropractor for the employer.  It also appears that the 
 
         employer's nurse made the appointment for claimant (defendant's 
 
         exhibit 1, page 6).  Claimant is found to be a credible witness, 
 
         but she is not particularly adept as an historian.  It is clear 
 
         that claimant did seek treatment at the Estherville Medical 
 
         Center on February 10, 1984, with complaints of pain in her 
 
         thigh, as shown in claimant's exhibit B, page 1 and in 
 
         defendant's exhibit 3.  Claimant apparently forgot about that 
 
         fact, which is quite favorable to her claim, when she was 
 
         deposed.  Her testimony of falling in early January, 1984, is 
 
         accepted as being correct.  Her testimony that she did not 
 
         realize that her leg pain was related to a condition in her back 
 
         until she was told of such by a physician is also accepted as 
 
         correct.  Claimant's testimony that she reported the January fall 
 
         on March 23, 1984 is likewise accepted as being correct.  It is 
 
         therefore concluded that claimant has established, by a 
 
         preponderance of the evidence, that she sustained injury in a 
 
         fall at her place of employment on January 3, 1984, as alleged in 
 
         her petition.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 4, 1984 is causally 
 
         related to the disability on which she now bases her claim.
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   6
 
         
 
         
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Dr. Nice indicated that claimant's condition is consistent 
 
         with the stated history of falling, which history has been found 
 
         to be correct.  His opinion is buttressed by claimant's unrefuted 
 
         testimony that she had enjoyed excellent health, free from back 
 
         difficulties, prior to the fall.  The employer's hypothetical 
 
         question asked of Dr. Nice at pages 15 and 16 of his deposition, 
 
         claimant's exhibit C, is inaccurate because the record clearly 
 
         shows that claimant had the complaints of pain in her leg as 
 
         early as February, well before the incident where she was beaten 
 
         up by her boyfriend.  It is therefore found and concluded that 
 
         the fall claimant sustained on the steps at the employer's place 
 
         of business on or about January 3, 1984 is a proximate cause of 
 
         the herniated disc in her lumbar spine and of her resulting 
 
         physical complaints and restrictions, all as indicated by her 
 
         testimony and by Dr. Nice.
 
         
 
              Code section 85.23 provides that an employee who does not 
 
         give notice to the employer within 90 days from the date of 
 
         injury is barred from recovering for the injury.  The discovery 
 
         rule applies to section 85.23.  Robinson v. Department of 
 
         Transp., 296 N.W.2d 809 (Iowa 1980).  In this case, it is 
 
         obvious that there was some confusion regarding whether claimant 
 
         fell on or about January 3, 1984 or on March 23, 1984.  In either 
 
         event, claimant did report the incident to the employer on March 
 
         23, 1984.  Claimant testified that she had no indication that her 
 
         condition resulting from the fall was serious until a couple of 
 
         weeks after it had occurred.  Such is accepted as true and 
 
         correct and claimant's report of March 23, 1984, as confirmed by 
 
         Nurse Merrill, was clearly within the 90-day limitation provided 
 
         by section 85.23.  Claimant's claim is therefore not barred for 
 
         lack of notice.
 
         
 
              Under the provisions of section 85.34(l), claimant is 
 
         entitled to recover compensation for healing period.  Dr. Nice 
 
         took claimant off work effective June 13, 1984 (claimant's 
 
         exhibit B, page 4).  He released her to return to work, in a 
 
         light-duty status, on October 15, 1984.  As stipulated by the 
 
         parties, this marks the end of the healing period and 
 
         commencement of claimant's entitlement to compensation for 
 
         permanent partial disability.
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   7
 
         
 
         
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              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).
 
         
 
              Claimant's educational background is somewhat lacking.  Her 
 
         work history is limited.  Dr. Nice has recommended that she avoid 
 
         lifting and also that she avoid prolonged sitting.  Most types of 
 
         employment which are unskilled require significant lifting while 
 
         most sedentary occupations, those which do not require 
 
         substantial lifting, are performed in a sitting position.  
 
         Claimant testified that she continues to have difficulties with 
 
         her back and, at times, is unable to lift her own small child.  
 
         Having observed her demeanor as she testified and viewing her 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   8
 
         
 
         
 
         statements in light of what Dr. Nice has indicated, she is found 
 
         to be a credible witness concerning her symptoms and complaints 
 
         which have continued up to the present time.  The record 
 
         indicates, in defendant's exhibit 4, that she was earning $7.00 
 
         per hour at the time her employment with John Morrell & Company 
 
         ended.  She will, in all likelihood, have difficulty obtaining a 
 
         similar level of earnings, even if she successfully completes a 
 
         substantial amount of further education.  Claimant's current 
 
         nursing course should provide her with many skills, but handling 
 
         and lifting patients is commonly a part of many nursing jobs.  
 
         Claimant's ability to handle patients is, at best, questionable.
 
         
 
              When all the applicable factors of industrial disability are 
 
         considered, it is found that claimant has sustained a 25% loss of 
 
         her earning capacity and that she is entitled to an award of 125 
 
         weeks of compensation for permanent partial disability under the 
 
         provisions of section 85.34(2)(u) of The Code.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On or about January 3, 1984, Laurie Summers was a 
 
         resident of the state of Iowa, employed by John Morrell & Company 
 
         at Estherville, Iowa.
 
         
 
              2.  Claimant was injured on or about January 3, 1984 when 
 
         she fell on steps at the employer's place of business.
 
         
 
              3.  Following the injury, claimant continued to work, but 
 
         experienced increasing symptoms.  She first sought medical care 
 
         for those symptoms on February 10, 1984 at the Estherville 
 
         Medical Center.
 
         
 
              4.  On March 23, 1984, claimant reported the fall to her 
 
         employer, but the employer misinterpreted the incident as having 
 
         occurred on the date that it was reported rather than on the date 
 
         that it actually occurred.
 
         
 
              5.  A similar error regarding the date of injury is found in 
 
         the treatment records of Dr. Moreau.
 
         
 
              6.  Following the injury, claimant continued to work, 
 
         whenever work was available, until June 13, 1984, when Dr. Nice 
 
         took her off work.  She remained medically incapable of 
 
         performing work in employment substantially similar to that she 
 
         performed at the time of injury until October 15, 1984, when 
 
         claimant reached the point that it was medically indicated that 
 
         further significant improvement from the injury was not 
 
         anticipated and she was released to return to light-duty work.
 
         
 
              7.  Claimant is a fully credible witness with regard to the 
 
         incident that produced her injury and her continuing complaints. 
 
          She is, however, a poor historian concerning the dates and 
 
         sequence of events dealing with her medical care.
 
         
 
              8.  The assessment of claimant's case as made by Dr. Nice is 
 
         accurate.  Claimant's injury produced a herniated lumbar disc, 
 
         but due to her age and symptomatology, surgery is not recommended 
 
         at the present time.  Claimant has a five percent permanent 
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page   9
 
         
 
         
 
         partial physical impairment of the body as a whole and is 
 
         impaired in her ability to lift and in her ability to sit for 
 
         prolonged periods of time.
 
         
 
              9.  Claimant gave the employer notice of her fall on March 
 
         23, 1984, a date within 90 days from the date of injury.
 
         
 
             10.  Claimant has sustained a 25% loss of earning capacity as 
 
         a result of the injuries she sustained in the fall which occurred 
 
         on or about January 3, 1984.
 
         
 
             11.  The fall that occurred on January 3, 1984 was a 
 
         substantial factor in producing claimant's herniated disc and the 
 
         continuing symptoms that she experiences in her low back and left 
 
         leg.
 
         
 
             12.  Claimant's lower back was not injured in the incident 
 
         where she was beaten up by her boyfriend in early April, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injury which arose out of and in the 
 
         course of her employment with John Morrell & Company on or about 
 
         January 3, 1984.
 
         
 
              3.  The claim is not barred by the provisions of section 
 
         85.23 of The Code.
 
         
 
              4.  Claimant is entitled to recover healing period 
 
         compensation running from June 13, 1984 through October 14, 1984, 
 
         a span of 17 5/7 weeks.
 
         
 
              5.  Claimant is entitled to receive 125 weeks of 
 
         compensation for permanent partial disability representing a 25% 
 
         disability of the body as a whole in industrial terms compensable 
 
         under section 85.34(2)(u) of The Code.
 
         
 
              6.  Claimant's injury, which arose out of and in the course 
 
         of her employment on or about January 3, 1984 was a proximate 
 
         cause of her healing period disability and of the permanent 
 
         partial disability with which she is afflicted.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer pay claimant 
 
         seventeen and five-sevenths (17 5/7) weeks of compensation for 
 
         healing period at the stipulated rate of one hundred forty-six 
 
         and 81/100 dollars ($146.81) per week payable commencing June 13, 
 
         1984.
 
         
 
              IT IS FURTHER ORDERED that the employer pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred 
 
         forty-six and 81/100 dollars ($146.81) per week payable 
 
         commencing October 15, 1984.
 
         
 

 
         
 
         
 
         
 
         SUMMERS V. JOHN MORRELL & CO.
 
         Page  10
 
         
 
         
 
              IT IS FURTHER ORDERED that all amounts awarded be paid in a 
 
         lump sum together with interest pursuant to section 85.30 
 
         computed from the date each weekly payment came due until the 
 
         date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the employer.
 
         
 
              Signed and filed this 20th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         108 North Seventh Street
 
         P.O. Box 496
 
         Estherville, Iowa 51334
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Building
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.20, 1803, 2401
 
                                                   Filed January 20, 1988
 
                                                   MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAURIE SUMMERS,
 
         
 
              Claimant,
 
                                                      File No. 770698
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         JOHN MORRELL & CO.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.20, 1803, 2401
 
         
 
              Claimant was found to be a credible witness in spite of some 
 
         apparent conflicts in the evidence.  The conflicting evidence was 
 
         attributed to claimant's lack of skill as an historian rather 
 
         than a lack of honesty.  The crucial elements of her case were 
 
         established by objective evidence in the form of medical records 
 
         and reports and the documentary evidence from the employer.
 
         
 
              Claimant gave the employer notice of her injury within 90 
 
         days from the date it occurred, but the employer misunderstood 
 
         the report and was under the impression that the date that the 
 
         report of injury was made was the date that the injury had 
 
         actually occurred.  Such was held, nevertheless, to satisfy the 
 
         notice provision of section 85.23.
 
         
 
              Claimant, 22 years of age, with a GED and with 
 
         recommendations from her physician to avoid prolonged sitting and 
 
         to avoid lifting whenever possible, was awarded 25% permanent 
 
         partial disability.  Claimant's injury was diagnosed as a 
 
         herniated lumbar disc, but due to claimant's age, her physician 
 
         declined to perform surgery.