BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VAN S. GARRETT,
 
                                                     FILE NO. 777583
 
              Claimant,
 
                                                  A R B I T R A T I 0 N
 
          VS.
 
                                                     D E C I S I O N
 
          CATERPILLAR TRACTOR COMPANY,
 
          
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Van S. 
 
         Garrett, claimant, against Caterpillar Tractor Company, employer 
 
         (hereinafter referred to as CAT), a self-insured defendant, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on October 3, 1984.  On October 5, 1987, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Malvin G. Hightower and Cora March.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $304.79 
 
         per week.
 
         
 
              2.  Claimant is only seeking temporary total disability or 
 
         healing period benefits from October 3, 1984 through January 20, 
 
         1985 and from November 3, 1985 through January 28, 1986 (a total 
 
         of 24 5/7 weeks) and defendant agrees that claimant was not 
 
         working during these periods of time.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  If permanent partial disability benefits are awarded 
 
         herein, they shall begin as of January 29, 1986.
 
         
 
              5.  The medical bills referred to in the prehearing report 
 
         for which claimant seeks reimbursement in this proceeding are 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which claimant's claim herein is based but that 
 
         the issue of their causal connection to any work injury remains 
 
         an issue to be decided herein.
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   2
 
         
 
         
 
                                    ISSUES
 
         
 
              The parties submit the following issues for determination in 
 
         this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
              II. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
               III.  The extent of weekly disability benefits to which
 
           claimant is entitled; and,
 
               
 
               IV.  The extent of claimant's entitlement to medical
 
           benefits  under Iowa Code section 85.27.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              Claimant testified that he worked for CAT from either 1978 
 
         or 1979 until he was laid off as a part of a plant wide economic 
 
         layoff on January 20, 1985.  During his CAT employment, claimant 
 
         was initially a machine operator but at the time of the work 
 
         injury, he was an assembler.  Claimant received $480.27 in gross 
 
         weekly earnings at the time of the alleged injury.
 
         
 
              The facts surrounding the work injury are in dispute.  
 
         Claimant testified that while bending over to remove a "yoke" 
 
         weighing approximately 60 to 65 pounds from a tub near his work 
 
         station he felt a snap in his low back and sharp pain "down his 
 
         legs."  Claimant said that he felt as if something stabbed him.  
 
         Claimant said that a fellow employee, Cora March, helped him sit 
 
         on the floor and he sat for 10 to 20 minutes until his foreman 
 
         came over.  Claimant then said that he reported the incident to 
 
         the staff at the plant medical department who told him to see his 
 
         own doctor.  However, Cora March testified that she could not 
 
         recall helping claimant but did recall claimant telling her at 
 
         some time that he had hurt his back picking up something and she 
 
         told him to see the company doctor, J. Donahue, M.D.  Claimant's 
 
         supervisor, Malvin Hightower, testified that he could not recall 
 
         any such incident as described by claimant and that he would 
 
         normally have remembered such an incident if it were reported to 
 
         him.  Hightower also testified that normally heavy "yokes" are 
 
         handled with a hoist available in the work area.  March testified 
 
         that CAT management frowned on the use of such hoists as such 
 
         activity would slow down production.  According to Dr. Donahue's 
 
         office notes in joint exhibit 1, the doctor stated that claimant 
 
         had not reported the injury to his foreman or to the medical 
 
         department until October 10, 1984.  However, in a company medical 
 
         report, joint exhibit 2(i) signed by Dr. Donahue and D. Haack, 
 
         R.N., which was dated October 3, 1984, the following is noted 
 
         with reference to claimant: "Bent over in tub to pick up piece 
 
         part hurt back."
 
         
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   3
 
         
 
         
 
              Following the alleged injury, claimant testified that the 
 
         medical records show that he was off work at the direction of 
 
         William Reinwein, M.D., claimant's orthopedic surgeon, from 
 
         October 3, 1984 until January 20, 1985.  Claimant first saw Dr. 
 
         Reinwein after the alleged work injury on October 5, 1984 when he 
 
         reported a "twisting injury while lifting heavy weight."  
 
         Claimant was treated conservatively at first with physical 
 
         therapy, rest and medication including "epidural flood 
 
         injections."  On January 20, 1985, Dr. Reinwein released claimant 
 
         to return to light duty work.  Claimant was then immediately laid 
 
         off by CAT as a result of a plant wide reduction in force.  
 
         Claimant has not returned to CAT and apparently remains on layoff 
 
         status at the present time.  Claimant testified that he began 
 
         working as a bookkeeper for his brother-in-law but continued 
 
         treating with Dr. Reinwein after being laid off.  This treatment 
 
         ended in March, 1985, but claimant testified his back problems 
 
         continued.  Claimant eventually returned to Dr. Reinwein in 
 
         October, 1985, and upon noting a persistence in claimant's 
 
         symptoms and the ineffectiveness of continued conservative care, 
 
         Dr. Reinwein ordered a myelogram test which to him revealed 
 
         sufficient evidence of herniated disc at the L4-5 and L5-Sl 
 
         levels of claimant's spine to warrant surgery.  Claimant was then 
 
         hospitalized and Dr. Reinwein performed surgery on November 4, 
 
         1985 called a discectomy and laminectomy.  By January, 1986, 
 
         claimant had improved and claimant was released for work by Dr. 
 
         Reinwein on January 28, 1986, with a permanent physical 
 
         restriction against lifting over 35 pounds.
 
         
 
              After Dr. Reinwein released claimant in January, 1986, 
 
         claimant found other work.  For six months he worked as a car 
 
         salesman and since March, 1987, he has been a full-time household 
 
         and electric appliance salesman.  No evidence was offered as to 
 
         claimant's current income.  Claimant testified that in his 
 
         current job he is unable to lift the heavier appliances or stock 
 
         shelves as other salesmen are expected to do.  Apparently, 
 
         claimant is able, at least at the present time, to make 
 
         accommodations in his current employment for his physical 
 
         limitations.
 
         
 
              Claimant said that he continues to have daily low back pain 
 
         in the area of the surgical incision but no leg pain.  Prolong 
 
         standing in his job precipitates severe back pain requiring him 
 
         to rest.  Claimant expresses difficulty in driving or riding long 
 
         distances in an automobile.  Claimant complained that his back 
 
         does not have the strength that it had before the alleged work 
 
         injury.  Claimant states that he has difficulty lifting over 25 
 
         pounds and with foreward bending.  Claimant continues to see Dr. 
 
         Reinwein on occasion but is not taking medication or receiving 
 
         constant treatment.  However, claimant states that his back is 
 
         getting worse.
 
         
 
              Claimant admitted at hearing to back difficulties prior to 
 
         the alleged work injury.  According to his medical records, 
 
         claimant has had low back difficulties as early as 1979 requiring 
 
         extended absences from work.  Also, in the year previous to the 
 
         alleged work injury, claimant had what he describes as muscle 
 
         spasms.  Claimant pointed out at hearing that the only physical 
 
         restrictions imposed by treating physicians when these muscle 
 
         spasms occurred were temporary and claimant was able to return to 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   4
 
         
 
         
 
         full duty at work after each episode.  Also, claimant testified 
 
         that his muscle spasms after October, 1984, were much more severe 
 
         than before.
 
         
 
              In an extensive written report dated March 25, 1986, Dr. 
 
         Reinwein only discusses his treatment of claimant but offered no 
 
         causal connection opinions or percentage ratings as to the extent 
 
         of claimant's permanent impairment.  However, in a brief report 
 
         to CAT dated November 13, 1985, Dr. Reinwein refers to claimant's 
 
         illness as a "herniated nucleus pulposus" requiring laminectomy 
 
         surgery.  In this report, Dr. Reinwein responded Oyes" to a form 
 
         question as to whether the patient's disability was caused by an 
 
         injury at work.  Also, on this same form the doctor notes the 
 
         date of the initial visit for this "illness" as October 5, 1984, 
 
         the first time he saw claimant following the alleged work 
 
         injury.
 
         
 
              Claimant has been examined on three occasions by Byron 
 
         Rovine, M.D., a neurosurgeon.  On October 16, 1984, Dr. Rovine 
 
         reported a history that claimant had no radiation of pain into 
 
         his legs or neurological symptoms when Dr. Reinwein first saw 
 
         claimant.  This is contrary to the reports of Dr. Reinwein.  On 
 
         November 12, 1984, Dr. Rovine notes claimant's continued pain but 
 
         attributes the pain to excessive exercising and opines that 
 
         claimant should be able to return to work after two weeks.  On 
 
         April 29, 1987, Dr. Rovine again evaluated claimant.  This time, 
 
         Dr. Rovine felt that claimant was malingering and faking the 
 
         extent of his impairment.  Dr. Rovine felt that claimant was 
 
         disabled but did not know whether this was functional or organic.  
 
         Dr. Rovine was very critical that conservative care was not first 
 
         attempted before surgery.  What is most notable about Dr. 
 
         Rovine's report is that he apparently became confused as to the
 
         actual injury date and felt that claimant was reinjured on 
 
         October 5, 1985, less than a month before the surgery.  In a 
 
         subsequent report, Dr. Rovine reported that he had overlooked 
 
         claimant's previous visits to him but insisted claimant reported 
 
         to him a new injury on October 3, 1985.  He did not indicate how 
 
         the change in injury dates would effect his evaluation 
 
         conclusions.
 
         
 
              In January, 1985, claimant was evaluated by a neurologist, 
 
         Daniel Johnson, M.D.  From his EMG tests and examination of 
 
         claimant, Dr. Johnson diagnosed that claimant suffers from low 
 
         back pain without clear evidence of radiculopathy.
 
         
 
              F. Dale Wilson, M.D., a general surgeon, examined claimant 
 
         in November, 1986.  Dr. Wilson causally connects a 14 percent 
 
         permanent partial impairment to the October 3, 1984 work injury 
 
         in his written report following the exam.  Dr. Wilson noted in 
 
         his report that claimant had previous back problems in March, 
 
         1983, while working for CAT.  Dr. Wilson also reports that 
 
         claimant was involved in an automobile accident in March, 1983, 
 
         requiring sutures to his lip.  He notes that claimant complained 
 
         of back pain within three weeks after this accident and was 
 
         treated by Dr. Reinwein.  The records of Dr. Reinwein do not 
 
         reflect any treatment of claimant in the spring of 1983.  
 
         According to the billing sheet of October 12, claimant was 
 
         treated by Dr. Reinwein for complaints of lumbar problems in 
 
         March, 1984 and May, 1984.  There is no record of any other 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   5
 
         
 
         
 
         treatment by Dr. Reinwein until October, 1984.  In his 
 
         deposition, Dr. Reinwein testified that his causal connection 
 
         opinions were based upon an assumption that claimant was pain 
 
         free in the year prior to the alleged work injury.
 
         
 
              Claimant testified that before working for CAT he was 
 
         employed in various jobs such as laborer, grinder, warehouseman 
 
         and assembler in a manufacturing environment.  Claimant also 
 
         worked for approximately 10 months as a meat packer.  All of this 
 
         work required heavy or repetitive lifting and bending.  For a 
 
         short time claimant was a manager/trainee at a McDonald's 
 
         hamburger franchise but claimant testified that this attempted 
 
         employment proved unsuccessful after two or three months.
 
         
 
              Claimant currently is in his early thirties and has a high 
 
         school education.  Claimant was articulate at the hearing and 
 
         appeared to possess at least average intelligence.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  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 employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              In the case sub judice, claimant's testimony was not really 
 
         controverted by the testimony of March and his supervisor.  
 
         Defendant's witnesses only testified that they could not remember 
 
         the specific events as described by claimant.  Due to the lapse 
 
         of time since the injury, a failure to recall the specific events 
 
         is not significant.  What is significant, however, is that March 
 
         did remember that claimant had informed her of the injury.  Also, 
 
         the medical department records verify claimant's story that he 
 
         reported to the medical department after the injury.  As claimant 
 
         is found to be credible, this deputy commissioner will accept 
 
         claimant's account of the incident.  Therefore, claimant has 
 
         established that he suffered a work injury to his low back on 
 
         October 3, 1984.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   6
 
         
 
         
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden  v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   7
 
         
 
         
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case at bar, the medical evidence certainly was 
 
         conflicting on the issue of the causal connection of claimant's 
 
         herniated disc problems and resultant surgery to the October 3, 
 
         1984 incident.  However, on the whole record, claimant must 
 
         prevail.
 
         
 
              First, the reports of Dr. Rovine are confusing and based 
 
         upon inaccurate information.  For that reason, his views cannot 
 
         be given much weight.  Likewise, the causal connection views of 
 
         Dr. Wilson cannot be given much weight.  Dr. Wilson is not a 
 
         specialist in back problems and appears to retreat from his 
 
         original causal connection opinion because claimant was not pain 
 
         free in the spring of 1984.  It also appears to the undersigned 
 
         that Dr. Wilson like Dr. Rovine simply got his facts confused.
 
         
 
              The only other causal connection opinion in the record is 
 
         the rather simple but straight forward opinions of Dr. Reinwein 
 
         in his November 13, 1985 form report in which he simply responded 
 
         to questions posed to him.  Dr. Reinwein's answers in this report 
 
         demonstrates that he believes that the symptoms he found on 
 
         October 5, 1984 constituted the same illness which he eventually 
 
         diagnosed as a herniated disc in claimant's lower spine requiring 
 
         surgery.  Dr. Reinwein also believes that the condition is work 
 
         related.  These opinions are uncontroverted in the record and 
 
         must be given considerable weight in light of the fact that Dr. 
 
         Reinwein is an orthopedic surgeon and the primary treating 
 
         physician. only Dr. Reinwein treated claimant both before and 
 
         after the October 3, 1984 incident.  Consequently, he is in the 
 
         best position to render a causal connection opinion.  Therefore, 
 
         the greater weight of the evidence submitted establishes that the 
 
         work injury of October 3, 1984 was a significant factor in 
 
         causing permanent impairment to claimant's lower spine and 
 
         precipitating the 35 pound weight restriction imposed by Dr. 
 
         Reinwein after the surgery.
 
         
 
              Dr. Wilson is the only doctor who has placed a percentage 
 
         rating on claimant's impairment and this rating should be given 
 
         weight as the rating is separate from his causal connection 
 
         views.  Dr. Wilson rates claimant as suffering from a 14 percent 
 
         permanent partial impairment due to his low back condition 
 
         following surgery.  This clearly is a body as a whole rating.
 
         
 
              Therefore, claimant has established that the work injury was 
 
         a cause of significant permanent partial impairment.  This, 
 
         however, does not automatically entitle claimant to permanent 
 
         disability benefits in an industrial disability case.  Claimant's 
 
         entitlement to such benefits is discussed below.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   8
 
         
 
         
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              In this case, claimant's medical condition before the work 
 
         injury was certainly not excellent but there is no medical 
 
         evidence that he suffered a permanent functional impairment 
 
         before October 3, 1984.  Claimant had recurrent back problems 
 
         requiring treatment and absences from work but claimant was 
 
         always able to return to full duty after each episode.  At the 
 
         time of the work injury, claimant was able to fully perform 
 
         physical tasks involving heavy lifting; repetitive lifting, 
 
         bending, twisting and stooping; and, prolonged standing and
 
         
 
         sitting.  Even if claimant had permanent impairment prior to 
 
         October 3, 1984, the evidence fails to show that claimant had a 
 
         loss of earning capacity or industrial disability before October 
 
         3, 1984.  Apportionment of disability between a preexisting 
 
         condition and an injury is proper only when there is some 
 
         ascertainable disability which existed independently before the 
 
         injury occurred.  Varied Enterprises Inc. v. Sumner, 353 N.W.2d 
 
         407 (Iowa 1984).
 
         
 
              Dr. Wilson has given claimant a 14 percent permanent 
 
         impairment rating and Dr. Reinwein has imposed permanent physical 
 
         restrictions against heavy lifting.  Claimant's credible 
 
         testimony establishes that despite a successful result from 
 
         surgery, he continues to experience difficulty with heavy 
 
         lifting, repetitive lifting, bending and prolonged sitting and 
 
         standing.  Claimant's current medical condition prevents him from 
 
         returning to most of the work he performed in the past for which 
 
         he is best suited.  Claimant's current medical condition also 
 
         limits his ability to perform his current job.
 
         
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page   9
 
         
 
         
 
              To the great dismay of the undersigned, the evidence was not 
 
         presented by claimant as to claimant's current earnings as a 
 
         salesman.  However, it is the experience of this agency and a 
 
         matter of common knowledge that appliance salesmen such as 
 
         claimant earn considerable less than $480 per week.  If defendant 
 
         disputes this aspect, this deputy commissioner will certainly 
 
         consider an application for rehearing on the matter.  However, a 
 
         showing that claimant had no loss of actual earnings does not 
 
         preclude a finding of industrial disability.  See Michael v. 
 
         Harrison County, Thirty-Fourth Biennial Report of the Iowa 
 
         Industrial Commissioner 218, 220 (1979).
 
         
 
              Claimant is relatively young, approximately 30 years of age.  
 
         His loss of future earnings from employment due to his disability 
 
         is not as severe as would be the case for an older individual.  
 
         See Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Report 426 (1981).
 
         
 
              Claimant has shown motivation to remain employed and so long 
 
         as his current employer is able to tolerate claimant's inability 
 
         to perform all of his assigned tasks, retraining is unnecessary.  
 
         Claimant complains that his condition is deteriorating and that 
 
         he will have to seek retraining in the future.  However, 
 
         disability award cannot be based upon what may happen in the 
 
         future.
 
         
 
         
 
              Claimant has a high school education and exhibited average 
 
         intelligence at the hearing.  However, little was shown to 
 
         indicate claimant's potential for vocational rehabilitation.
 
         
 
              Claimant raised the application of a so-called "odd-lot" 
 
         doctrine in this case.  This doctrine requires an award of 
 
         permanent total disability benefits if defendants fail to go
 
         forward with evidence as to the availability of suitable work to 
 
         claimant after claimant demonstrates a prima facie case that he 
 
         has "odd-lot" or a person incapable of securing suitable and 
 
         stable employment.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
         (Iowa 1985).  This doctrine is not applicable to this case as 
 
         claimant has shown that he is capable of finding suitable and 
 
         stable employment because he has done so.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent of loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         factual finding, claimant is entitled as a matter of law to 200 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 40 percent of the 500 weeks, the 
 
         maximum allowable number of weeks for an injury to the body as a 
 
         whole in the subsection.  The parties stipulated that these 
 
         benefits will begin as of January 29, 1986.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until claimant returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work he 
 
         was performing at the time of the injury; or, until it is 
 
         indicated that significant improvement from the injury is not 
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page  10
 
         
 
         
 
         anticipated, whichever occurs first.
 
         
 
              Claimant has established entitlement to healing period 
 
         benefits for the two periods of time set forth in the prehearing 
 
         report.  Claimant was not able to return to regular duty when he 
 
         was first released by Dr. Reinwein on January 20, 1985 and 
 
         clearly was not able to work during the hospitalization for 
 
         surgery and during his recovery time.  The parties stipulated 
 
         that these benefits would end as of January 28, 1986.
 
         
 
              IV.  Claimant is also entitled to reimbursement for medical 
 
         expenses incurred for treatment of a work injury under Iowa Code 
 
         section 85.27.  Defendant stipulated that the expenses requested 
 
         in the prehearing report are reasonable and causally connected to 
 
         claimant's low back condition.  Given the finding that the low 
 
         back condition is causally connected to the work injury found in 
 
         this case a finding that the medical expenses are causally 
 
         connected to the work injury is virtually automatic.
 
         
 
         
 
              Defendant contends that these expenses were not authorized 
 
         but they have denied the causal connection of the back condition 
 
         treated to a work injury.  This agency has held that it is 
 
         inconsistent to deny liability and the obligation to furnish care 
 
         on one hand and at the same tune claimant's right to choose the 
 
         care.  Kindhart v. Fort Des Moines Hotel, (Appeal Decision 1985); 
 
         Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 1 
 
         (1981).  Therefore, claimant shall be awarded all the expenses 
 
         requested in the prehearing report.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of CAT at all times material 
 
         
 
         
 
              3.  On October 3, 1984, claimant suffered an injury to his 
 
         low back which arose out of and in the course of his employment 
 
         with CAT.  The injury consisted of a herniated disc at two levels 
 
         in claimant's lower spine which was not accurately fully 
 
         diagnosed until November, 1985, at which time disectomy surgery 
 
         was deemed necessary to treat the injury.
 
         
 
              4.  The work injury of October 3, 1984, was a cause of a 
 
         period of disability from work beginning on October 3, 1984 
 
         through January 20, 1985 and again from November 3, 1985 through 
 
         January 28, 1986, at which time claimant reached maximum healing 
 
         following the surgery.
 
         
 
              5.  The work injury of October 3, 1984 was a cause of a 14 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 35 pounds and no repetitive lifting 
 
         or bending or prolonged sitting or standing.  Claimant had no 
 
         permanent physical impairments before October 3, 1984 despite 
 
         recurrent episodes of back pain.
 
         
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page  11
 
         
 
         
 
              6.  The work injury of October 3, 1984 and the resulting 
 
         permanent partial impairment was a cause of a 40 percent loss of 
 
         earning capacity.  Claimant is a little over 30 years of age and 
 
         has a high school education with average intelligence.  Claimant 
 
         is unable to return to most types of physical labor employment he 
 
         has held in the past.  Claimant has suffered a loss of earnings 
 
         from his inability to return to manufacturing labor type work.  
 
         Claimant is currently working as a salesman of household and 
 
         electrical appliances but cannot fully perform many of the 
 
         physical tasks of the job such as lifting appliances and stocking 
 
         shelves.  Claimant had no loss of earning capacity before October 
 
         3, 1984.
 
         
 
         
 
         
 
              7.   The medical expenses requested by claimant in the 
 
         prehearing report (Exhibit 12) totaling $3,712.50 are fair and 
 
         reasonable and were incurred by claimant for reasonable and 
 
         necessary treatment of the work injury of October 3, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent martial disability, healing period and 
 
         medical benefits as awarded below.
 
         
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page  12
 
         
 
         
 
         
 
              1.  Defendant shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of three 
 
         hundred four and 79/100 dollars ($304.79) per week from January 
 
         29, 1986.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from October 3, 1984 through January 20, 1985 and from November 
 
         3, 1985 through January 28, 1986 at the rate of three hundred 
 
         four and 79/100 dollars ($304.79) per week.
 
         
 
              3.  Defendant shall pay to claimant the sum of three 
 
         thousand seven hundred twelve and 50/100 dollars ($3,712.50) as 
 
         reimbursement for medical expenses.
 
         
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid as set forth in the prehearing report.
 
         
 
              5.  Defendant shall receive credit for previous payments of 
 
         benefits under a non-occupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2) as 
 
         set forth in the prehearing report.
 
         
 
              6.  Defendant shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30.
 
         
 
              7.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              8.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 8th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Allan Hartsock
 

 
         
 
         
 
         
 
         GARRETT V. CATERPILLAR TRACTOR COMPANY
 
         Page  13
 
         
 
         
 
         Attorney at Law
 
         4th Floor Rock Island Bank Bldg.
 
         P. 0. Box 428
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VAN S. GARRETT,
 
         
 
              Claimant,
 
                                                 File No. 777583
 
         vs.
 
                                                   A P P E A L
 
         CATERPILLAR TRACTOR COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,                          F I L E D
 
              Defendant.
 
                                                    OCT 31 1989
 
         
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
                        
 
                        
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         medical benefits, healing period benefits, and permanent partial 
 
         disability benefits based on an industrial disability of 40 
 
         percent.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 13; and defendant's 
 
         exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states in its appeal brief that the issues on 
 
         appeal are whether:
 
         
 
               I.  The deputy erred in concluding that claimant satisfied 
 
              his burden to establish an injury arising out of and in the 
 
              course of the employment.
 
         
 
              II.  The deputy erred in ruling that claimant sustained his 
 
              medical burden of proof to establish a causal connection 
 
              between the alleged injury and claimant's need for low back 
 
              surgery.
 
         
 
         Claimant discussed these issues in his appeal brief.  No other 
 
         issues were preserved on appeal by discussion of the issues in 
 
         the appeal brief of either party.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated December 8, 1987 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to be resolved is whether claimant suffered 
 
         an injury that arose out of and in the course of his employment. 
 
         Claimant described the incident as follows.  He was working in an 
 
         area where he was assigned to work and he was lifting a part that 
 
         weighed approximately 60 pounds.  He was lifting a part from a 
 
         tub that was approximately 32-48 inches high.  This account was 
 
         verified by claimant's foreman who was called as a witness for 
 
         defendant.  Some aspects of claimant's description of other 
 
         events at the time of the incident are not fully corroborated by 
 
         other witnesses.  Claimant testified that a co-employee, Cora 
 
         Marsh, helped him and that he sat on the floor.  Marsh said she 
 
         did not recall helping.  However, she did recall that claimant 
 
         had stated that he had been injured and that she told him to go 
 
         see the company doctor.  Claimant's foreman, Malvin Hightower, 
 
         testified that he did not recall helping claimant.  However, 
 
         Hightower did indicate that normally a worker could not leave the 
 
         work area to go see the company doctor without Hightower's 
 
         permission. Hightower also indicated that a hoist would be used 
 
         to lift parts over 50 pounds.  Both claimant and Marsh indicated 
 
         that workers were discouraged from taking the time to use the 
 
         hoist.  Hightower admitted that he had not reviewed any records 
 
         prior to his testimony.  The discrepancies of testimony are 
 
         discussed here because defendant in its appeal brief relies 
 
         heavily on the alleged discrepancies and claimant's credibility.  
 
         The medical reports verify claimant's assertions on how and when 
 
         the injury occurred.  The defendant's medical report recorded a 
 
         date of injury on October 3, 1984.  Claimant sought care from 
 
         William Reinwein, M.D., who recommended that claimant be off work 
 
         beginning October 4, 1984.  Claimant was also evaluated by Byron 
 
         W. Rovine, M.D., who had not had an opportunity to see claimant's 
 
         x-rays but recommended claimant begin a remedial exercise 
 
         program.
 
         
 
              When all the evidence is considered claimant has 
 
         demonstrated that he suffered an injury that arose out of and in 
 
         the course of his employment.  Claimant was at work doing an 
 
         activity that was work related.  He was doing an activity that 
 
         would cause an injury to his lower back.  His account was 
 
         corroborated, particularly by the medical reports.  Claimant has 
 
         proved that on October 3, 1984 he suffered an injury that arose 
 
         out of and in the course of his employment.
 
         
 
              The next issue to be resolved is whether there is a causal 
 
         connection between the work injury and claimant's medical 
 
         treatment.  Defendant relies upon the medical evaluations of Dr. 
 
         Rovine and upon attempts to discredit the medical reports of Dr. 
 
         Reinwein.  Dr. Rovine's medical reports should be discarded on 
 
         the basis of those reports alone.  On October 16, 1984 Dr. Rovine 
 
         reports that he had not seen x-rays.  On April 29, 1987 he was 
 
         critical of the fact that claimant had surgery without a real 
 
         trial of conservative treatment but had erroneously thought 
 
         claimant was injured only one month before the surgery.  On May 
 
         1, 1987 he indicates he had then located his own records and 
 
         discovered the date of the work injury was October 3, 1984.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant's attempts to discredit the medical reports of Dr. 
 
         Reinwein are based upon the assertion that certain of the medical 
 
         records were not signed by Dr. Reinwein.  Merely because the 
 
         medical reports may not have been signed by him does not mean 
 
         that the medical record, which is from his records, is not 
 
         reflective of his opinion.  Furthermore, the form in question was 
 
         dated November 13, 1985 and a letter by Dr. Reinwein dated March 
 
         25, 1986 gives no indication that the form incorrectly reflects 
 
         Dr. Reinwein's opinion.  As claimant correctly notes in his 
 
         appeal brief, defendant could have deposed Dr. Reinwein but did 
 
         not do so.  Dr. Reinwein is an orthopedic surgeon and was the 
 
         primary treating physician who treated claimant for a period of a 
 
         year. His medical records indicate claimant's disability was 
 
         caused by an injury at work.  That opinion was directly supported 
 
         by F. Dale Wilson, M.D.  Dr. Reinwein's medical evidence will be 
 
         given the most weight.
 
         
 
              After Dr. Reinwein's conservative treatment proved 
 
         unsuccessful, he recommended surgery which was performed. 
 
         According to Dr. Reinwein the surgery improved claimant's 
 
         condition.  Claimant has proved by the greater weight of evidence 
 
         that his work injury on October 3, 1984 was causally connected to 
 
         his back surgery.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On October 3, 1984 claimant was lifting a part out of a 
 
         tub that was approximately 32-48 inches high while working for 
 
         defendant.  The part weighed approximately 60 pounds.
 
         
 
              2.  Claimant injured his lower back when lifting the part.
 
         
 
              3.  Claimant sought care from the company doctor on October 
 
         3, 1984.
 
         
 
              4.  Claimant also sought care from Dr. Reinwein.
 
              
 
              5.  Dr. Reinwein, an orthopedic surgeon, was the primary 
 
         treating physician.
 
              
 
              6.  Dr. Reinwein's opinions are the most reliable.
 
              
 
              7.  Medical records of Dr. Reinwein indicate that claimant's 
 
         injury was work related.
 
         
 
              8.  The injury consisted of a herniated disc at two levels 
 
         in claimant's lower spine which was not accurately, fully 
 
         diagnosed until November 1985.
 
         
 
              9.  Claimant underwent conservative treatment from October 
 
         1984 through November 1985.
 
              
 
              10.  Dr. Reinwein recommended surgery which was performed in 
 
         November 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              11.  The medical expenses requested by claimant in the 
 
         prehearing report (Exhibit 12) totaling $3,712.50 are fair and 
 
         reasonable and were incurred by claimant for reasonable and 
 
         necessary treatment of the work injury of October 3, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proved that he suffered an injury on October 3, 
 
         1984 that arose out of and in the course of his employment with 
 
         defendant.
 
         
 
              Claimant has proved that there is a causal connection 
 
         between the work injury and the medical expenses incurred.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant two hundred (200) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred four and 79/100 dollars ($304.79) per week from January 
 
         29, 1986.
 
         
 
              That defendant pay claimant healing period benefits from 
 
         October 3, 1984 through January 20, 1985 and from November 3, 
 
         1985 through January 28, 1986 at the rate of three hundred four 
 
         and 79/100 dollars ($304.79) per week.
 
         
 
              That defendant pay claimant the sum of three thousand seven 
 
         hundred twelve and 50/100 dollars ($3,712.50) as reimbursement 
 
         for medical expenses.
 
         
 
              That defendant pay accrued weekly benefits in a lump sum and 
 
         shall receive a credit against this award for all benefits 
 
         previously paid as set forth in the prehearing report.
 
         
 
              That defendant receive credit for previous payments of 
 
         benefits under a nonoccupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2) as 
 
         set forth in the prehearing report.
 
         
 
              That defendant pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              That defendant pay the costs of this action including the 
 
         costs of transcribing the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file activity reports on the payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Signed and filed this 31st day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Allan Hartsock
 
         Attorney at Law
 
         4th Floor Rock Island Bldg.
 
         P.O. Box 4298
 
         Rock Island, IL  61204
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Ste. 102
 
         400 Main St.
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1100; 1800
 
                                                  Filed December 8, 1987
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         VAN S. GARRETT,
 
                                                      FILE NO. 777583
 
              Claimant,
 
                                                    A R B I T R A T I 0 N
 
         
 
         vs.
 
                                                      D E C I S I 0 N
 
         CATERPILLAR TRACTOR COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         
 
         1100; 1800
 
         
 
              Claimant awarded 40 percent permanent partial impairment as 
 
         a result of a work injury to his low back and an inability to 
 
         return to the type of work that he had performed in the past.
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1100;5-1108;5-1402-60
 
                                       Filed October 31, 1989
 
                                      DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VAN S. GARRETT,
 
         
 
              Claimant,
 
                                                 File No. 777583
 
         vs.
 
                                                   A P P E A L
 
         CATERPILLAR TRACTOR COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1100
 
         
 
              Claimant proved that injury arose out of and in the course 
 
         of his employment.  Claimant was performing assigned task of 
 
         lifting 60 pound parts when the alleged injury occurred.  Medical 
 
         records corroborated the incident.  Claimant's description of 
 
         events at time of incident were not fully corroborated by other 
 
         witnesses.
 
         
 
         5-1108; 5-1402.60
 
         
 
              Claimant proved causal connection between work injury and 
 
         medical treatment.  Medical evidence of treating physician whose 
 
         office records gave opinion that claimant's condition was a work 
 
         injury was accepted.  Surgery was performed after conservative 
 
         treatment proved unsuccessful.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BETTY HAYNES, Widow of 
 
         CARROLL HAYNES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        File No. 777622
 
         
 
         WITCO CHEMICAL,
 
                                                          R U L I N G
 
              Employer,
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Claimant applies for an assessment and taxation of the cost 
 
         of a copy of the transcript which was to be used in preparing her 
 
         brief and argument on appeal.  Claimant had ordered the 
 
         transcript copy after receiving a notice of appeal by defendants 
 
         from an arbitration decision of the deputy commissioner.  The 
 
         appeal was subsequently dismissed by defendants.  Although the 
 
         deputy commissioner assessed the costs of the arbitration 
 
         proceeding against the defendant, the taxation of costs on appeal 
 
         is at the discretion of the industrial commissioner.
 
         
 
              The ordering of a copy of a transcript filed by appellant 
 
         with the commissioner is available to all parties.  Claimant's 
 
         application is denied.
 
         
 
         
 
              Signed and filed this 15th day of April, 1987.
 
         
 
         
 
         
 
                                                   ROBERT C. LANDESS
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         HAYNES V. WITCO CHEMICAL
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         Mr. James P. Richmond
 
         Attorney at Law
 
         900 Sixth Avenue
 
         P.O. Box 148
 
         DeWitt, Iowa 52742
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
 
 
 
            
 
           
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            PATRICIA TERWILLIGER,           :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :     File Nos. 
 
                                                         777628/791749
 
                                                         862946/877065
 
            SNAP-ON TOOLS CORPORATION,      :
 
                                            :            R E M A N D
 
                 Employer,                  :
 
                                            :          D E C I S I O N
 
            and                             :
 
                                            :
 
            ROYAL INSURANCE COMPANY,        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
           
 
                 This matter is on remand from the Iowa Court of 
 
            Appeals.  In a decision filed February 23, 1993, No. 
 
            2-533/92-162 the court of appeals affirmed the district 
 
            court.  The district court had remanded this matter to the 
 
            agency for purposes of determining the extent of claimant's 
 
            disability of her hands and wrists in file number 862946.  
 
            The remand decision of the district court directed that lay 
 
            testimony and all germane impairment evidence including a 
 
            possible preexisting psychological condition be considered.
 
            
 
                                      ISSUE
 
            
 
                 The issue on remand is the extent of claimant's 
 
            disability to her hands.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The evidence presented in this case was reviewed.  The 
 
            following findings are based upon the evidence and are 
 
            limited to the issue on remand.
 
            
 
                 Claimant sought care from Ronald S. Bergman, M.D., in 
 
            September 1987.  She was treated conservatively for 
 
            bilateral carpal tunnel syndrome without improvement.  
 
            Carpal tunnel releases were performed on the left on October 
 
            30, 1987 and on the right on January 8, 1988.  Dr. Bergman 
 
            performed the surgeries and returned claimant to work with 
 
            restrictions on February 8, 1988.  Claimant underwent a work 
 
            hardening program and on May 31, 1988 Dr. Bergman gave 
 
            permanent restrictions of five-day work week; eight-hour 
 
            work days and a 20 pound weight restriction.  On June 13, 
 
            1988 he modified the lifting restriction to occasionally 
 
            lifting more than 20 pounds but not more than 35 to 40 
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
            pounds.  Dr. Bergman gave claimant a one percent rating to 
 
            the left hand and two percent of the right hand.  
 
            
 
                 On July 5, 1988 Michael W. Crane, M.D., rated claimant 
 
            as having a three percent "permanent partial disability" of 
 
            each the right and left hand.  He noted that claimant was 
 
            becoming functionally disabled in regard to her job in spite 
 
            of the lack of objective or physical evidence.  (Defendants' 
 
            Exhibit 8, page 9)  Dr. Crane testified that he agreed with 
 
            Dr. Socarras and Dr. Kitchell's notation of functional 
 
            overlay and symptom magnification.  (Def. Ex. 18, p. 23)  He 
 
            also testified he felt a psychiatric referral wasn't 
 
            necessary.  (Def. Ex. 18, p. 48)
 
            
 
                 Claimant was examined by Alfredo D. Socarras, M.D., on 
 
            March 18, 1988.  In his report dated March 20, 1988 he noted 
 
            that there was a great disproportion between claimant's 
 
            complaints and the lack of objective findings.  The 
 
            electromyogram of both upper extremities with nerve 
 
            conduction studies of the median and ulnar nerves were 
 
            normal.  Dr. Socarras was unable to explain the 
 
            constellation of claimant's symptoms on the basis of carpal 
 
            tunnel syndrome.  (Def. Ex. 7)
 
            
 
                 In April 1985 claimant was seen by Michael J. Kitchell, 
 
            M.D., and a Minnesota Multiphasic Personality Inventory test 
 
            (MMPI) was done by Jack L. Dodd, M.D.  Dr. Kitchell noted 
 
            that the MMPI was very abnormal, consistent with a 
 
            conversion reaction.  Individuals with this profile develop 
 
            physical symptoms as a reaction to mental or environmental 
 
            stress.  (Def. Ex. 9)
 
            
 
                 Claimant testified that after her return to work she 
 
            had some problems occasionally trying to pick up small 
 
            pieces, turning and twisting things.  She said she had 
 
            trouble holding things and would drop things and had fair 
 
            strength.  (Def. Ex. 19, p. 73)  She also testified that she 
 
            had sought counseling on Dr. Bergman's recommendation so 
 
            that she could deal with the pain. (Def. Ex. 19, p. 44 and 
 
            Transcript, p. 31)  She had no other counseling (Tr. p. 35) 
 
            and wasn't depressed from the pain. (Tr., p. 73)  She has 
 
            pain in her hands and sometimes her fingers will not move 
 
            correctly.
 
            
 
                 Claimant's witnesses, Diane Bunkofske, Diane Hansen, 
 
            Allen Vaske, Jeanne Householder, Holly Miller, and Janet 
 
            Woodyard testified that claimant's hands were swollen when 
 
            claimant returned to work after surgery, her hands and 
 
            fingers wouldn't work or bend, and that claimant could not 
 
            perform tasks after surgery that she had before.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
            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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 24, 
 
            1987 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 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).
 
            
 
                 In this case claimant has received impairment ratings 
 
            from two doctors.  Dr. Bergman's ratings were two percent of 
 
            the right hand and one percent of the left hand.  Dr. Crane 
 
            rated claimant has having a three percent "disability" of 
 
            each hand.  The lay testimony in this case does not 
 
            contradict nor outweigh the impairment ratings of the 
 
            doctors.  It was recognized in 1985 that claimant may 
 
            magnify her symptoms.  The symptom magnification would make 
 
            the subjective lay testimony suspect.  The medical testimony 
 
            is more reliable.  The impairment evaluations by Drs. Crane 
 
            and Bergman are very similar.  There is insufficient 
 
            reliable evidence in the record to find that the extent of 
 
            claimant's disability exceeds the medical evaluations.  Dr. 
 
            Crane had extensive contact with claimant and evaluated her 
 
            impairment after her surgery and subsequent return to work 
 
            following work hardening.  When all the evidence is given 
 
            the proper weight and consideration, it is found that 
 
            claimant suffered a three percent disability to each hand 
 
            from her bilateral carpal tunnel syndrome.
 
            
 
                 Using tables 2 and 3 and the combined values chart of 
 
            the AMA Guides to the Evaluation of Permanent Impairment, 
 
            3rd Edition, three percent impairment of the hand converts 
 
            to three percent impairment of the arm; three percent 
 
            impairment of the arm is two percent of the whole person; 
 
            and 2 two percent impairments of whole person converts to 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            four percent of the whole person.  Four percent of 500 weeks 
 
            is 20 weeks.  Claimant is entitled to 20 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 It should be noted that while there is some indication 
 
            that claimant had a conversion reaction, i.e., that she was 
 
            a symptom magnifier, there is insufficient evidence, medical 
 
            and otherwise, to conclude that claimant had a preexisting 
 
            psychological condition prior to her August 24, 1987 injury.  
 
            Also, the record is insufficient to conclude that if 
 
            claimant had a psychological condition, it was caused or 
 
            aggravated by a scheduled injury.  Therefore, the holding in 
 
            Mortimer v. Fruehauf Corp, No. 200/92-1143, Iowa Supreme 
 
            Court filed June 16, 1993 is not applicable.  The extent of 
 
            claimant's disability should be determined using Iowa Code 
 
            section 85.34(2)(s).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay unto claimant twenty (20) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred fifty-three  and 05/100 dollars ($253.05) per 
 
            week from February 22, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That defendants are to be given credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 That claimant shall pay any costs of this matter not 
 
            previously ordered paid by this agency or the district court 
 
            or the court of appeals.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
          
 
            
 
            
 
                                                 5-1808
 
                                                 Filed July 16, 1993
 
                                                 Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            PATRICIA TERWILLIGER,           :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :   File Nos. 
 
                                                         777628/791749
 
                                                         862946/877065
 
            SNAP-ON TOOLS CORPORATION,      :
 
                                            :            R E M A N D
 
                 Employer,                  :
 
                                            :          D E C I S I O N
 
            and                             :
 
                                            :
 
            ROYAL INSURANCE COMPANY,        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
               
 
            5-1808
 
            On remand it was determined that claimant had suffered a 
 
            three percent impairment to each hand from bilateral carpal 
 
            tunnel syndrome.  A treating doctor's opinion of impairment 
 
            was accepted over subjective lay testimony.  The subjective 
 
            lay testimony was suspect because of claimant's possible 
 
            symptom magnification.
 
            
 
            It was noted that the Supreme Court decision of Mortimer v. 
 
            Fruehauf, June 16, 1993 was not applicable because there was 
 
            insufficient evidence to determine that claimant had a 
 
            preexisting psychological condition or that the scheduled 
 
            injury aggravated the psychological condition if claimant 
 
            had one.