1108.10; 2202
 
                           Filed October 29, 1991
 
                           BYRON K. ORTON
 
                           DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MICHAEL WEINZWEIG,        :
 
                      		      :
 
                 Claimant, 	      :
 
 		                      :
 
 		            vs.       :
 
                 		      :         File No. 785837
 
            WEINZWEIG FOOD PRODUCTS, INC.,:
 
                     		      :           A P P E A L
 
                 Employer, 	      :
 
 		                      :         D E C I S I O N
 
  		            and       :
 
                  		      :
 
            ALLIED INSURANCE GROUP,   :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            1108.10; 2202
 
            Deputy affirmed.  Forty-three-year-old, 165-pound male with 
 
            preexisting heart disease sustained myocardial infarction in 
 
            process of lifting and carrying two containers weighing 90 
 
            pounds.  Found carrying of one-half or more of one's body 
 
            weight represents an unusual exertion regardless of actual 
 
            poundage lifted and carried.
 
            
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL WEINZWEIG,
 
         
 
              Claimant,                               File No. 785837
 
         
 
         vs.                                       A R B I T R A T I O N
 
                                                 
 
         WEINZWEIG FOOD PRODUCTS, INC.,               D E C I S I O N
 
              
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 18 1990
 
         ALLIED INSURANCE GROUP,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Michael Weinzweig against defendant employer Weinzweig Food 
 
         Products, Inc., and defendant insurance carrier Allied Insurance 
 
         Group to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury sustained on December 10, 1984.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Davenport, Iowa, on January 30, 1989. 
 
         The matter was considered fully submitted at the close of 
 
         hearing, although both parties subsequently submitted briefs.
 
         
 
              The record in this proceeding consists of claimant's 
 
         exhibits 1 through 54, inclusive, and defendants' exhibits A 
 
         through D, inclusive.  Judy Flax also testified at the hearing.
 
         
 
              Pursuant to a professional statement presented by claimant's 
 
         attorney, claimant was unable to attend the hearing due to 
 
         undergoing coronary bypass surgery on that very date.  However, 
 
         claimant's deposition, a transcript of an interview, and a 
 
         recorded interview were received into evidence.
 
         
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated:  That an employment relationship existed between 
 
         claimant and employer at the time of the injury; that claimant 
 
         seeks healing period benefits from December 10, 1984 through 
 
         October 15, 1985; that if claimant be found to have suffered 
 
         compensable permanent disability, he has suffered industrial 
 
         disability to the body as a whole; that medical expenses were 
 
         authorized by defendants.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Issues presented for determination include:  Whether 
 
         claimant sustained an injury on December 10, 1984, arising out of 
 
         and in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary and 
 
         permanent disability and the commencement date of permanent 
 
         disability; the rate of weekly compensation, although it is 
 
         stipulated that claimant was single and entitled to one exemption 
 
         at the time of injury; claimant's entitlement to medical 
 
         benefits; taxation of costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant seeks to recover for disability caused by a heart 
 
         attack or myocardial infarction that occurred while he was 
 
         lifting boxes of salt and pickles for delivery.  Claimant is the 
 
         president and sole officer of defendant Weinzweig Food Products, 
 
         Inc.  He typically has one employee only, handling delivery and 
 
         heavy lifting.
 
         
 
              The record is altogether undisputed that claimant had an 
 
         extensive history of preexisting heart disease.  Claimant's 
 
         history was well-summarized in the October 27, 1987 report of 
 
         Peter S. Jerome, M.D.:
 
         
 
              . . . Mr. Weinzweig was in reasonably good health until 1976 
 
              when he developed symptoms of dizziness associated with 
 
              slurred speech, weakness of the left thumb and left toes, 
 
              diplopia and scotomas.  Despite extensive neurological 
 
              workup, no etiology was found and,it was felt that these 
 
              problems occurred on the basis of vascular disease.  In 
 
              September, 1977, he was hospitalized at St. Luke's Hospital 
 
              in Davenport, Iowa for evaluation of chest pain.  He was 
 
              found to have sustained an acute inferior wall myocardial 
 
              infarction documented by electrocardiographic changes and 
 
              elevations in CPK levels and elevated CPK isoenzyme levels. 
 
              He was found to have an elevated serum cholesterol level at 
 
              287.  He did well until November, 1981 when he developed 
 
              symptoms of chest pain, weakness and diaphoresis after 
 
              lifting an electrical generator.  He was hospitalized at St. 
 
              Luke's Hospital for evaluation of unstable angina.  His EKG 
 
              and serum CPK levels demonstrated no acute myocardial 
 
              infarction pattern and it was felt the patient's symptoms 
 
              were on the basis of angina.  A treadmill cardiac stress 
 
              test was performed and was reportedly normal.  He was 
 
              evaluated at the University of Iowa Medical Center in May, 
 
              1983 for recurrent episodes of chest discomfort.  A repeat 
 
              treadmill cardiac stress test was performed and was markedly 
 
              positive with patient demonstrating no symptoms of chest 
 
              discomfort during the test.  Because of his past history of 
 
              myocardial infarction, and a positive treadmill test, 
 
              cardiac catheterization was performed and demonstrated 
 
              diffuse three vessel coronary artery disease.  He was 
 
              evaluated by Dr. Ehrenhaft, a cardiothoracic surgery 
 
              consultant, who felt that the patient would not benefit from 
 
              coronary artery bypass grafting.  The patient was 
 
              re-evaluated at the Cleveland Clinics in April, 1984 for a 
 
              second opinion regarding management of his coronary artery 
 
              disease.  A repeat serum cholesterol level was noted to be 
 
              elevated and the lipoprotein electrophoresis demonstrated a 
 
              type II-A pattern with increased beta lipoproteins after a 
 
              16 hour fast.  A graded bicycle cardiac stress test was 
 
              performed measuring baseline resting and exercise isotope 
 
              ventriculograms.  The patient again had a markedly positive 
 
              stress test with a baseline left ventricular ejection 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              fraction of 41% (Normal: greater than 50%) which increased 
 
              to 43% with exercise.  The Cleveland Clinics cardiology 
 
              consultant felt that the patient had severe coronary artery 
 
              disease "not amenable to coronary artery surgery."  He was 
 
              then evaluated at the University of Iowa Medical Center 
 
              Lipid Clinic in April, 1984.  It was felt that his 
 
              hyper-cholesteremia remained refractory to dietary 
 
              restriction and he was subsequently prescribed 
 
              cholestyramine, a lipid lowering agent.  He was seen in 
 
              followup at the University of Iowa on June 19, 1984, June 
 
              22, 1984, and November 20, 1984.  During those clinic 
 
              visits, the patient reported only occasional anginal-type 
 
              chest discomforts relieved with rest.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Exhibit 46, pages 1 and 2)
 
         
 
              Claimant's deposition was taken on September 14, 1987.  His 
 
         recorded interview was taken on January 30, 1985.
 
         
 
              Claimant indicated that defendant employer was incorporated 
 
         in 1978.  The business was originally established by his father 
 
         as primarily.a retail meat market.  Claimant inherited the 
 
         business and had been working for some 22 years at the time of 
 
         his deposition.  Claimant changed the focus of the business from 
 
         a retail to a wholesale enterprise and as of the date of his 
 
         coronary event, the business primarily supplied motels, nursing 
 
         homes and other businesses with meat, seafood and some other 
 
         products.
 
         
 
              Claimant indicated that he maintained a small storage area 
 
         at his home apart from the normal business address.  On December 
 
         10, 1984, a Monday, at about 11:00 or 11:15 a.m., claimant 
 
         prepared to deliver merchandise needed by a customer for a noon 
 
         meal.  He testified that he proceeded to pick up two cases, one 
 
         of pickles and one of salt, at the same time at his home storage 
 
         area to load his delivery vehicle.  About halfway to the truck 
 
         (in the history given to Dr. Jerome, claimant indicated that he 
 
         had some eight feet to travel) he felt a "tremendously sharp, 
 
         debilitating pain right down the center of my chest.  So sharp 
 
         that I just dropped what I had in my hand and almost hit my foot 
 
         and I just was, like, in a daze for a few seconds and tried to 
 
         get hold of my emotions, I suppose you could say."  (Weinzweig 
 
         deposition, page 39, line 22 through page 40, line 3).
 
         
 
              Claimant called his physician, E. A. Motto, M.D., and was 
 
         eventually hospitalized.  He had experienced an anterior wall 
 
         myocardial infarction.
 
         
 
              Claimant testified that on the morning of December 10 before 
 
         his cardiac event he was answering telephones, making out orders, 
 
         and perhaps went to the post office and the bank.  The salt and 
 
         pickles were the only two items on that particular order.  In his 
 
         deposition, claimant testified that the two boxes weighed 
 
         approximately 80-85 pounds, which he broke down as approximately 
 
         50 pounds for the pickles and 30-35 pounds for the salt.  
 
         However, he also testified that the salt was packaged in 24 
 
         26-ounce packages.  Simple arithmetic shows that this totals 39 
 
         pounds, exclusive of packaging.
 
         
 
              Claimant was more specific in giving his history to Dr. 
 
         Jerome on July 13, 1987.  He advised Dr. Jerome that the pickles 
 
         weighed 50 pounds and measured 18 inches by 13 inches by 7 1/2 
 
         inches, while the salt weighed 39 pounds and measured 14 inches 
 
         by 10 inches by 11 1/2 inches.
 
         
 
              When asked how common or uncommon it would be for claimant 
 
         to lift 80-85 pounds in his work prior to his heart attack, he 
 
         testified perhaps twice or three times per month.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In his recorded interview with a representative of defendant 
 
         Allied Insurance Group, claimant testified that the two boxes 
 
         weighed 80/90 pounds.  In that interview, claimant was asked to 
 
         express an opinion as to how much of his work was "light work" 
 
         and how much was "heavy work."  He testified that it was probably 
 
         on a 50/50 basis, but specifically corrected that statement in 
 
         his deposition to state that light work was approximately 85 
 
         percent of his total duties.
 
         
 
              Edwin A. Motto, M.D., testified by deposition taken March 6, 
 
         1987.  Dr. Motto is an internist, a Diplomate of the American 
 
         Board of Internal Medicine and Fellow of American College of 
 
         Physicians.  He has treated claimant since 1959 when claimant was 
 
         18 years old.
 
         
 
              Dr. Motto relied exclusively on his records in testifying 
 
         rather than on independent recollection.  His notes of December 
 
         10, 1984 indicate that claimant had been doing well, but had an 
 
         uncomfortable feeling, right shoulder and mid-chest on December 8 
 
         and December 9.  Claimant gave history of a heavy sensation 
 
         mid-sternal area that has persisted as of December 10.
 
         
 
              Dr. Motto testified that he did not:write down that claimant 
 
         suffered chest pain while doing heavy lifting:
 
         
 
              . . .Whether he had initially told me that -- I think we are 
 
              dealing with someone who you suspect as having an acute 
 
              coronary, and you don't always sit down and say exactly what 
 
              incidents specifically you were doing at the moment.
 
         
 
              Here was a man who came in with severe coronary artery 
 
              disease.  He was having pain.  The electrocardiogram showed 
 
              some changes.  My records at that time do not indicate that 
 
              he was loading meat in a truck.  But certainly to have 
 
              written it in a letter, he must have told me that at a later 
 
              time.
 
         
 
              Q.  Now, Doctor, let me tell you, first, I am not seeking to 
 
              be critical of your notes, and I want you to understand 
 
              that.
 
         
 
              A.  I am indicating that when I wrote one thing I didn't 
 
              have here, I must have gotten other history, but I don't 
 
              have it anywhere in my records.
 
         
 
         
 
         (Dr. Motto deposition, page 15, line 15 through page 16, line 8)
 
         
 
              * * *
 
         
 
              . . . Doctor, let me ask you this.  Is it possible that it 
 
              was some time well subsequent to 12-10-84 when this history 
 
              of having been engaged in heavy lifting was given to you?
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A.  I think anything is possible, but I  don't believe it 
 
              was very probable.
 
         
 
         (Dr. Motto deposition, page 17, line 7 through line 12)
 
         
 
              With respect to claimant's complaints of the two days 
 
         preceding his heart attack, Dr. Motto testified:
 
         
 
              Q.  Doctor, with regard to the history that you obtained, 
 
              you received, as I understand it, a history of onset of 
 
              symptomatology prior to December 10, 1984.  Is that right? 
 
              And I apologize to you.  I was trying to listen to you and 
 
              make notes, and I didn't get everything down relative to --
 
         
 
              A.  He had had some discomfort 12-8 and 12-9, but he 
 
              described it as a sort of uncomfortable feeling in his right 
 
              shoulder and mid chest.  And I make note that he did not 
 
              take nitroglycerin, which indicates that, to me, at that 
 
              time that he did not recognize it as his coronary pain.
 
         
 
              Q.  In your opinion, was that discomfort that he described 
 
              to you as having experienced on 12-8 and 12-9 cardiovascular 
 
              in origin, most likely?
 
         
 
              A.  It may well have been.
 
         
 
              Q.  And would that have been the onset of the problems which 
 
              presented themselves at the time of his office visit to you 
 
              on 12-10-84?
 
         
 
              A.  That is an unanswerable question.  People will have 
 
              angina or chest pain for days, weeks or months before they 
 
              have a coronary.
 
         
 
              Q.  Doctor, with regard to --
 
              
 
              A.  I do know that in all probability, that heart attack 
 
              occurred on the 10th.  It did not occur on April 8th or 9th. 
 
              It occurred on the 10th, because his enzymes showed a 
 
              progressive rise being from 54, which was normal on the 10th 
 
              -- and these enzymes rise very rapidly.  They went up into 
 
              the thousands after that.  So that heart attack occurred 
 
              that day; it had not occurred the 8th or the 9th.
 
         
 
         (Dr. Motto deposition, page 19, line 23 through page 21, line 4)
 
         
 
              Dr. Motto testified at great length as to whether there 
 
         existed any causal relationship between claimant's exertion and 
 
         his myocardial infarction.  He first testified:
 
         
 
              Q.  . . . The interruption of the blood supply, would that 
 
              have most likely been due to the final constrictions of 
 
              one or more of his coronary arteries due to sclerotic 
 
              buildup, or would it have been some other physiological 
 
              phenomenon? Could you tell me what that would have been, 
 
              most likely?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  Certainly it was due to his progressive coronary artery 
 
              disease.  I can't tell you what the precipitating incident 
 
              was, what caused it to close at that particular time.
 
         
 
         (Dr. Motto deposition, page 21, line 14 through line 23)
 
         
 
              Dr. Motto testified further:
 
         
 
              Doctor, as you sit here today, can.you tell me what you feel 
 
              is the relevant history that brought on the heart attack on 
 
              December 10th, 1984?
 
         
 
              * * *
 
         
 
                   I do want you to testify in regard to a reasonable 
 
              degree of medical probability.  But my question relates to 
 
              the relevant medical history that he gave you that brought 
 
              on the onset of the heart attack on December 10th, 1984.
 
         
 
              A.  As I indicated, Mr. Weinzweig felt he was doing well.  
 
              He did not have any pain in which he recognized as coronary 
 
              artery pain, although he did have pain of a sort, different 
 
              sort, on 12-8 and 12-9.  He indicated to me that while 
 
              working, he had heavy chest pain which he recognized as his 
 
              coronary pain.  The degree of probability is difficult to 
 
              assess.
 
         
 
              I am merely stating the fact that this pain -- he related 
 
              that this pain occurred while working.  I cannot nor do I 
 
              believe anyone else can reasonably determine what factor 
 
              aggravates or precipitates a myocardial infarction.  It is 
 
              similar to asking me as to what straw broke the camel's 
 
              back.
 
         
 
              He had severe coronary artery disease that was 
 
              well-documented.  Nevertheless, he continued with a degree 
 
              of activity that he felt was adequate and did not cause pain 
 
              until this episode.
 
         
 
              Q.  When you say "this episode," what are you --
 
              
 
              A.  Of chest pain that he had while working.
 
         
 
         (Dr. Motto deposition, page 26, line 16 through page 27, line 25)
 
         
 
              Dr. Motto testified further:
 
         
 
              Q.  Is it recognized that heavy exertion or lifting can 
 
              bring on a myocardial infarction?
 
         
 
              * * *
 
         
 
              A.  I think there is a great deal of question as to the 
 
              precipitating factors in a myocardial infarction.  I do 
 
              believe that undue exertion can be considered a 
 
              precipitating factor.  The problem is the determination of 
 
              what is undue exertion.  For one it may be very minimal if 
 
              coupled with other stresses; and for others, it may take a 
 
              great deal of exertion.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Dr. Motto deposition, page 30, line 5 through line 21)
 
         
 
              And further:
 
         
 
              Q.  And can you state -- is it your opinion to a reasonable 
 
              degree of medical probability that this incident that 
 
              occurred was an aggravating or precipitating factor in 
 
              bringing about his heart attack?
 
         
 
              * * *
 
         
 
              A.  I believe I have answered that.  Nevertheless, I think 
 
              that, again, one is justified in saying -- in assuming that 
 
              the exertion was a precipitating factor or aggravating 
 
              factor, more than one is justified in saying that it had 
 
              nothing to do with it.
 
         
 
              Q.  Can you state that to a reasonable degree of medical 
 
              probability?
 
         
 
              A.  No.
 
         
 
         (Dr. Motto deposition, page 31, line 7 through page 32, line 4)
 
         
 
              And further:
 
         
 
              . . . But what I am interested in is whether you can state 
 
              to a reasonable degree of medical certainty whether the 
 
              amount of work that he was doing on December 10th, 1984, was 
 
              an aggravating factor in bringing about his myocardial 
 
              infarction.
 
         
 
              * * *
 
         
 
              A.  I can only answer that as I have before, that Mr. 
 
              Weinzweig indicated to me that while doing whatever amount 
 
              of work he was doing, he had the onset of chest pain which 
 
              proved to be the time that he sustained an acute myocardial 
 
              infarction.  And I assume that this was an aggravating or a 
 
              precipitating circumstance.
 
         
 
              Q.  And is that --
 
              
 
              A.  And I really can't say anything more.
 
              
 
         (Dr. Motto deposition, page 33, line 24 through page 34, line 16)
 
         
 
              With respect to a subsequent episode of congestive heart 
 
         failure for which claimant was hospitalized in March, 1985, Dr. 
 
         Motto testified:
 
         
 
              Q.  Can you tell me, Doctor, to a reasonable degree of 
 
              medical certainty whether the congestive heart failure for 
 
              which he was hospitalized from March 7th, 1985, to March 
 
              13th of 1985 was caused by the myocardial infarction he 
 
              suffered on December 10th, 1984?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  I feel that you are putting too much emphasis on one 
 
              problem which is a continuum of his entire problems since 
 
              his initial heart attack in 1977.  Now, certainly this added 
 
              amount of damage that he had with his heart attack in '84 
 
              contributed to his congestive heart failure.  Prior to this 
 
              time, he had no history of having congestive heart failure. 
 
              Prior to this time, his heart was acting, as an efficient 
 
              pump.  After this time, with the added insult of more heart 
 
              damage, he did have an episode of congestive heart failure 
 
              which responded very readily to treatment, by the way.  But, 
 
              again, to say that this episode caused it, it is like saying 
 
              does one match make a bundle.
 
         
 
              Q.  I'm not requiring you necessarily to say the cause.  Was 
 
              it an aggravating -- can you state within a reasonable 
 
              degree of medical certainty, was the myocardial infarct of 
 
              December 10th, 1984, an aggravating factor that contributed, 
 
              materially contributed, to the congestive heart failure for 
 
              which he was hospitalized in March,of 1985?
 
         
 
              A.  Yes.
 
         
 
         (Dr. Motto deposition, page 35, line 6 through page 36, line 8)
 
         
 
              With respect to claimant's healing period, Dr. Motto 
 
         testified:
 
         
 
              Q.  Can you tell me, Doctor, within a reasonable degree of 
 
              medical certainty, at what point you felt that Mike 
 
              Weinzweig had reached a plateau of healing following his 
 
              myocardial infarct of December 10th, 1984?
 
         
 
              A.  We have a note in our records on July 16th, 1985, Mr. 
 
              Weinzweig was feeling quite well.  The past couple of days, 
 
              he had had some chest pain.  At that time his blood pressure 
 
              was 100/74, his lungs were clear, his heart rate was 
 
              regular. We made a note that he will plan to go back to work 
 
              mid-September with very limited activities, no lifting, et 
 
              cetera.
 
         
 
              Q.  Is that the -- can you state within a reasonable degree 
 
              of medical certainty whether mid-September was the time at 
 
              which you believe that Mike Weinzweig could return to work 
 
              in the job he was doing prior to the myocardial infarct of 
 
              December 10th, 1984?
 
         
 
              A.  Not at all.  We had told Mr. Weinzweig he could never 
 
              return to that type of work.
 
         
 
              Q.  Was it your opinion to a reasonable degree of medical 
 
              certainty that the healing that would have been accomplished 
 
              by mid-September of 1985 would have been the maximum 
 
              recovery you would have expected from Mike Weinzweig as a 
 
              result of the condition of the myocardial infarct of 
 
              December 10th, 1984?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              MR. BICKEL:  To the exclusion of his condition that would be 
 
              unrelatable to it, if I understand the question correctly?
 
         
 
              MR. LEVIEN:  That's correct.
 
         
 
              A.  That's what I was going to answer.  You have to remember 
 
              he has severe coronary heart disease which is probably a 
 
              continuing process.  I felt that in September he could 
 
              attempt to return to some degree of employment, limited, and 
 
              that further determination would be made on how well he 
 
              tolerated it.
 
         
 
         (Dr. Motto deposition, page 36, line 18 through page 38, line 6)
 
         
 
              Dr. Motto testified further that while basic muscle healing 
 
         from the myocardial infarction might have occurred in an 8-10 
 
         week period, there was also a continuing process by which 
 
         claimant eventually reached a level of activity commensurate with 
 
         doing any work, which the doctor pegged to mid-September, 1985.
 
         
 
              With respect to claimant's current level of impairment, Dr. 
 
         Motto testified:
 
         
 
              A.  I last saw Mr. Weinzweig on August 27th, 1986.
 
              
 
              Q.  Do you, Doctor, have a medical opinion as to his present 
 
              condition and present level of functioning, or would it be 
 
              necessary for you to again examine and evaluate him?
 
         
 
              A.  I would think he would need further testing.  But I 
 
              would certainly classify him as a class 3 at that time which 
 
              would require rather marked limitation of his activities.
 
         
 
         (Dr. Motto deposition, page 22, line 2 through line 11)
 
         
 
              Dr. Motto wrote to claimant's attorney on September 18, 1985 
 
         with more specific limitations:  That claimant not attempt to put 
 
         in a full eight hours of work based on his current status and 
 
         that he limit his lifting to a maximum of 25 pounds.  "I believe 
 
         that Mr. Weinzweig is considerably limited since his most recent 
 
         infarction.:"
 
         
 
              Claimant was also seen for consultation by cardiologist 
 
         Philip A. Habak, M.D.  In a letter to claimant's attorney of 
 
         January 21, 1988, Dr. Habak stated:
 
         
 
              It appears that Mr. Weinzweig, suffered from a heart attack 
 
              while performing regular duties at work.  Although 
 
              underlying coronary disease has been present for quite some 
 
              time, it appears that the heart attack started during some 
 
              form of heavy exertion at work.  Based on the patient's 
 
              description, it appears that this was an unusual and 
 
              excessive physical strain while performing work that was 
 
              considered part of his employment duties.  Accordingly, I 
 
              believe that this activity has most likely precipitated the 
 
              patient's heart attack or at least hastened its occurrence.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had been seen by William A. Schiavone, D.O., at the 
 
         Cleveland Clinic Foundation on April 9-11, 1984.  Dr. Schiavone 
 
         wrote on April 12 that claimant had severe coronary artery 
 
         disease which was not amenable to coronary artery surgery.  Dr. 
 
         Schiavone wrote to claimant's counsel, on April 7, 1987:
 
         
 
              Your question is whether the lifting of heavy boxes was a 
 
              substantial contributing factor to bringing on a myocardial 
 
              infarction in this patient in December 1984.  My answer is 
 
              that this man has severe coronary atherosclerosis and had 
 
              previously sustained a myocardial infarction.  His 
 
              myocardial infarction is due to insufficienct [sic] blood 
 
              supply to the heart and that is due to coronary 
 
              atherosclerosis.  Knowing this man's coronary anatomy from 
 
              April 1984, it is no surprise to me that his coronary 
 
              disease would progress and that a myocardial infarction 
 
              would be inevitable.
 
         
 
              Claimant was also seen for evaluation by E. 0. Theilan, M.D. 
 
         Dr. Theilan is a Professor of Medicine, Cardiovascular Division 
 
         of the University of Iowa Hospitals and Clinics, Department of 
 
         Internal Medicine.  Dr. Theilan wrote an attorney representing 
 
         defendants on June 9, 1986:
 
         
 
              I have reviewed the records which you sent to me on Michael 
 
              Weinzweig including the records of Dr. Motto, records from 
 
              the University Hospitals in Iowa City, a report from the 
 
              Cleveland clinic, records from St. Luke's Hospital in 
 
              Davenport and an interview with Mr. Weinzweig.
 
         
 
              The history indicates that this man had significant risk 
 
              factors including a strong family history as well as 
 
              documented hypercholesterolemia.  The episode of near 
 
              syncope and weakness which he suffered in 1976 and which was 
 
              associated with weakness in his left thumb and with slurred 
 
              speech could have been from brain embolization from an 
 
              ulcerated plaque in the arterial blood supply to his brain 
 
              or could have been a transient ischemic attack occurring on 
 
              some other basis.  The significance of the episode is that 
 
              it could have been an indicator of associated cardiac 
 
              problems as well because of the known association and high 
 
              correlation between carotid artery disease and coronary 
 
              artery disease. The acute myocardial infarction in 1977 is 
 
              an established fact.  The fact that he had a negative 
 
              thallium scan in 1978 does not contradict this.  It is more 
 
              likely that the thallium scan was a false negative because 
 
              of lack of sensitivity of the test.
 
         
 
              The history indicates that he had recurrent angina in 1981. 
 
              In 1983 he had coronary angiography at the University of 
 
              Iowa and at that time also was started on medication in an 
 
              attempt to decrease his hypercholesterolemia.  The records 
 
              indicate that in April of 1984 he visited the Cleveland 
 
              clinic.  The report indicates that he had "severe coronary 
 
              artery disease not amenable to coronary artery surgery."
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              There was therefore a long history fully documenting the 
 
              severity of this man's arterial disease and the fact that it 
 
              had expressed itself clinically on a number of occasions.
 
         
 
              The record indicates that Mr. Weinzweig had some symptoms at 
 
              least two days before the myocardial infarction which was 
 
              diagnosed on December 10, 1984.  On 12/8 and 12/9 he had 
 
              some right shoulder and mid chest discomfort, not further 
 
              elaborated upon.
 
         
 
              The interview with Mr. Weinzweig indicates that the whole 
 
              shipment which he anticipated loading into his van and 
 
              delivering would have weighed approximately 80-90 pounds. 
 
              This task was not accomplished however.  On page 4 of the 
 
              interview Mr. Weinzweig stated, "I had just started, just 
 
              started."  He was in the process of lifting a case of 
 
              pickles and salt weighing an estimated 25-35 pounds when the 
 
              chest pain began.  He did not complete loading the shipment. 
 
              Inasmuch as symptoms began after beginning to load the first 
 
              case only, the duration of the physical effort was short.
 
         
 
              My conclusion is that there is a reasonable medical 
 
              probability that loading the pickles and salt was not the 
 
              precipitating factor in Mr. Weinzweig's reinfarction.  He 
 
              had well-documented severe coronary artery disease which had 
 
              been clinically manifest.  Furthermore the symptoms which he 
 
              experienced on 12/8 and 12/9 may have been premonitory 
 
              symptoms.  The amount of effort which he actually expended 
 
              (not the anticipated total effort) was well within the 
 
              limits of his usually [sic] activity.
 
         
 
              Dr. Jerome also expressed a view as to whether claimant's 
 
         infarction was causally related to his exertion on December 10, 
 
         1984:
 
         
 
              DISCUSSION:  The patient's well documented medical records 
 
              demonstrate clear-cut diffuse coronary artery disease, 
 
              hypercholesteremia, history of acute inferior wall 
 
              myocardial infarction in September, 1977 and and (sic) 
 
              history of an acute anteroseptal wall myocardial infarction 
 
              in December, 1984.  It is my feeling that the patient's 
 
              acute myocardial infarction which occurred December 10, 1984 
 
              appeared in the setting of pre-existing diffuse coronary 
 
              artery disease but was precipitated by his exertional 
 
              effort.  It is clear from three previous treadmill cardiac 
 
              stress tests that the patient had limited exercise reserve 
 
              and positive stress test at relatively low levels of 
 
              exercise.  It is very feasible that intense isometric 
 
              activity such as lifting a 90 lb. work load with cold air 
 
              exposure (as the said lifting occurred in an open garage on 
 
              a cool December day) more than likely precipitated the 
 
              event.  Contrary to Dr. Ernest Theilen's comments dated June 
 
              9, 1986, patient deadlifted 2 cases simultaneously with a 
 
              weight load of 89-90 lbs.  Dr. Theilen makes the assumption 
 
              that "this task was not accomplished" and patient merely 
 
              lifted a single "case of pickles and salt weighing an 
 
              estimated 25-35 lbs."  In a slightly built man, such 
 
              exertional effort was certainly above his safety threshold.  
 
              It is my hypothesis that sudden exertional intense effort in 
 
              the setting of cold air exposure precipitated an acute 
 
              myocardial infarction.  Clinical data is clear that all 
 
              myocardial infarctions are not result of primary coronary 
 
              thrombosis.  In an autopsy study of 100 consecutive hearts, 
 
              an occlusive thrombosis was found in the vessel supplying 
 
              the infarct site in only 44% of cases. Furthermore, an 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              angiographic study performed within 12 hours of infarction, 
 
              6 of 15 patients (40%) were found to have reversible 
 
              coronary artery spasm at the site of the obstruction.  It is 
 
              well known that emotional stress, exposure to cold, and 
 
              isometric hand grip exercise (similar to other isometric 
 
              activities) can lower the anginal threshold or even evoke 
 
              pain de novo in coronary artery disease patients.  Data 
 
              indicates that these events can lead to acute myocardial 
 
              infarction.  It appears that coronary artery spasm plays a 
 
              major role in classic and variant angina as well as in acute 
 
              myocardial infarctions., Although coronary artery spasm may 
 
              occlude a vessel without any associated vascular 
 
              pathological conditions, most often the spasm occurs in the 
 
              setting of coronary artery disease.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Likewise, other mechanism in the setting of intense activity 
 
              can occur such as artherosclerotic plaque rupture.
 
         
 
              For exercise prescription for coronary artery disease 
 
              patients, it is generally believed that exercise intensity 
 
              in such patients should be set well below the anginal 
 
              threshold. Usual warmup periods and cool down periods are 
 
              prescribed as well.  Although the patient had been involved 
 
              with a regular mild to moderate exercise regimen including 
 
              stationary bicycling and vigorous walking, the type of acute 
 
              intense isometric activity accompanied with 90 lb. weight 
 
              lift in an unconditioned male with coronary artery disease 
 
              was excessive, and certainly exceeded this patient's 
 
              threshold of safety. . . . [Citations omitted.]
 
         
 
         (Exhibit 46, pages 3 and 4)
 
         
 
              Judy Flax testified at hearing that she is president of an 
 
         enterprise known as Management Support Services.  This business 
 
         performs accounting and tax functions for small businesses. 
 
         Claimant and his business had been a client for ten years and had 
 
         been seen on at least a monthly basis, more often in "tax 
 
         season."
 
         
 
              Ms. Flax testified that claimant had gross wages of $44,159 
 
         during calendar year 1984 based on his individual tax return. 
 
         However, claimant was paying himself through the corporation on a 
 
         weekly basis, actually paying $780.38 per week on the date of 
 
         injury.
 
         
 
              Ms. Flax wrote claimant's attorney on August 12, 1985 to 
 
         state specifically that claimant's compensation for each of the 
 
         15 weeks preceding December 10,,1984 remained constant at 
 
         $780.38.
 
         
 
              Ms. Flax generally described the business as a wholesale 
 
         meat operation involving truck sales with a refrigerated truck. 
 
         Claimant was described as the exclusive income producer for the 
 
         business, which otherwise employed only one delivery person.
 
         
 
              Ms. Flax described the business as gradually rising in 
 
         profitability from 1978 through 1984,,but as contracting through 
 
         1987 because claimant was unable to pay as much attention to his 
 
         accounts, working only approximately 20 hours per week following 
 
         his coronary accident.
 
         
 
              Defining gross sales as total receipts from operations and 
 
         gross profits on sales as those receipts minus the cost of 
 
         products and labor, Ms. Flax set forth the following figures from 
 
         1982 through 1987:
 
         
 
            Year      Gross Sales      Profits on Sales      Percentage
 
                                                               Change
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            1982       $387,407           $  92,898
 
            1983        335,781             107,751
 
            1984        325,565             101,286
 
            1985        179,355              57,096             -44%
 
            1986        173,413              51,326             -50%
 
            1987        226,062              70,106             -30%
 
         
 
              Claimant testified in his deposition that after he returned 
 
         to business, he was unable to handle the stress that he had 
 
         before and that he voluntarily cut down the business.  He gave up 
 
         some customers and did not go after new accounts.  He generally 
 
         testified that he had stopped soliciting any type of business, 
 
         did not have truck sales any longer, eliminated accounts, and 
 
         generally tried to cut the stress by going to a much lower-key 
 
         workload than before the heart attack.  He testified that he has 
 
         had to cut his hours to perhaps 10-20 per week.  He further 
 
         testified that prior to the 1984 heart attack he worked an 
 
         average of perhaps 40 hours per week, working six days per week.  
 
         Further, claimant testified that he did not notice any difference 
 
         in the way he did things physically and the way he felt after his 
 
         1977 coronary, but did after the 1984 coronary:
 
         
 
              A.  I'm not able to do as much work anymore without getting 
 
              tired.  If I walk, for example, after I've eaten, I get 
 
              heavy chest pains.  I'm not able to lift as much anymore.  I 
 
              have a weight limit of approximately 25 pounds and various 
 
              changes that I can feel.
 
         
 
         (Weinzweig deposition, page 31, lines 1 through 6)
 
         
 
              Exhibit 51 is a list of assorted medical bills totalling 
 
         $18,470.86.  Attached is a statement of Dr. Motto to the effect 
 
         that the fees charged in the exhibit for medical services and 
 
         supplies are fair and reasonable, that the expenses were incurred 
 
         for reasonable and necessary medical treatment, and that the 
 
         expenses were causally connected to claimant's heart attack of 
 
         December 10, 1984.
 
         
 
              Also in evidence is a statement of mileage expenses .showing 
 
         5 trips to St. Luke's at 2 miles each, 8 trips to Dr. Motto at 2 
 
         miles each, and apparently 4 trips to the University of Iowa at 
 
         65 miles apiece.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 10, 1984 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury   The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial
 
              incapacity of the functions of the human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 10, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish v. Fischer, Inc., supra.  The expert 
 
         medical evidence must be considered with all other evidence 
 
         introduced bearing on the causal connection between the injury 
 
         and the disability.  Burt v. John Deere Waterloo Tractor Works, 
 
         supra. in regard to medical testimony, the commissioner is 
 
         required to,state the reasons on which testimony is accepted or 
 
         rejected. Sondag v. Ferris Hardware, supra.
 
         
 
              The essential issue in this case is whether claimant's 
 
         myocardial infarction of December 10, 1984 was caused by his 
 
         lifting exertions and thereby arose out of his employment.  But 
 
         for this causal nexus issue, there appears no other evidence or 
 
         suggestion that claimant was not.stricken while in the course of 
 
         his employment.
 
         
 
              Quoting 1A [sic] Larson Workmen's Compensation Law, section 
 
         38.83, the Iowa Court in Briarcliff College v. Campolo, 360 
 
         N.W.2d 91 (Iowa 1984) noted that a compensable injury may result 
 
         when heavy exertions ordinarily required by work are superimposed 
 
         upon a defective heart, aggravating or accelerating the 
 
         preexisting condition or "when the medical testimony shows an 
 
         instance of unusually strenuous employment exertion, imposed upon 
 
         a preexisting diseased condition."  As Professor Larson put it:
 
         
 
              If there is some personal causal contribution in the form of 
 
              a previously weakened or diseased heart, the employment 
 
              contribution must take the form of an exertion greater than 
 
              that of nonemployment life.  Note that the comparison is not 
 
              with this employee's usual exertion in his employment, but 
 
              with the exertions of normal nonemployment life of this or 
 
              any other person.
 
         
 
              Claimant must prove by a probability, not a possibility that 
 
         some employment incident or activity caused his coronary 
 
         accident. Because he had a preexisting heart condition, he must 
 
         prove that he suffered an aggravation to his already impaired 
 
         physical condition.  Briarcliff College, id.
 
         
 
              There is a wide gamut of medical opinion on this crucial 
 
         issue.
 
         
 
              Dr. Motto made comments in his deposition that both parties 
 
         cite as supportive of the respective positions.  However, a fair 
 
         reading of the totality of his testimony would appear to indicate 
 
         that it was his opinion that the lifting incident was a 
 
         precipitating or aggravating factor in causing claimant's heart 
 
         attack, but that he cannot state that opinion to a reasonable 
 
         degree of medical probability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Consulting cardiologist Philip Habak noted that claimant's 
 
         heart attack started during a form of heavy exertion at work, "an 
 
         unusual and excessive physical strain."  Based on that scenario 
 
         he believed that the activity had most likely precipitated the 
 
         coronary event, or at least hastened its occurrence.
 
         
 
              Professor E. 0. Theilan noted claimant's long history of 
 
         heart disease and opined to a reasonable degree of medical 
 
         certainty that the lifting incident was not the precipitating 
 
         factor in causing the myocardial infarction.  He noted that the 
 
         amount of effort which claimant actually expended was well within 
 
         the limits of his usual activity.  However, Dr. Theilan's opinion 
 
         was based on a history that claimant was in the process of 
 
         lifting a case of pickles and salt weighing an estimated 25-35 
 
         pounds and that claimant did not complete loading the shipment.
 
         
 
              Dr. Jerome also noted that claimant's infarction appeared in 
 
         the setting of preexisting diffuse coronary artery disease, but 
 
         opined that it was precipitated by the exertional effort.  He 
 
         felt that intense isometric activity such as lifting a 90-pound 
 
         workload with cold air exposure "more than likely" precipitated 
 
         the event.  Dr. Jerome also cited evidence that in at least one 
 
         study, 40 percent of infarction patients were found to have 
 
         reversible coronary artery spasm at the site of the obstruction. 
 
         coronary artery spasm, although most often in a setting of 
 
         coronary artery disease, was cited as itself sufficient to 
 
         occlude a blood vessel without any associated vascular 
 
         pathological conditions.
 
         
 
              Thus, the opinions of these physicians are very much 
 
         dependent upon how much weight claimant was actually lifting when 
 
         he suffered his coronary.  Except for Dr. Theilan's history, all 
 
         physicians who saw claimant after his infarction believed that he 
 
         was lifting in the range of 80-90 pounds.  Claimant did not 
 
         testify personally, so the undersigned did not have an 
 
         opportunity to observe his demeanor.  However, claimant can 
 
         scarcely be blamed for his nonattendance at the hearing while 
 
         undergoing bypass surgery.  Claimant is the only known witness to 
 
         this event.  His testimony under oath is consistent with the 
 
         history he gave other physicians, except Dr. Theilan.  But for 
 
         this single history, which can be as easily explained as an error 
 
         on the part of Dr. Theilan as by deceit on the part of claimant, 
 
         there appears nothing else of record to challenge claimant's 
 
         credibility. Claimant has also given specific detail as to what 
 
         he lifted, particularly with respect to the carton of pickles, 
 
         which weighed 39 pounds exclusive of packaging.  The pickles and 
 
         salt were in different containers.  Dr. Theilan apparently was in 
 
         error in believing that it was one carton containing two 
 
         products.  The pickles alone weighed more than the estimated 
 
         25-35 pounds cited by Dr. Theilan.  It appears to the undersigned 
 
         and is so held that the veracity of claimant's testimony is more 
 
         consistent with the rest of the record, particularly including 
 
         specifics as to the two products claimant lifted.  Claimant was 
 
         lifting two cases weighing a total of approximately 90 pounds at 
 
         the time of his infarction. Because Dr. Theilan's opinion is 
 
         based upon a critical misunderstanding of claimant's history, it 
 
         lacks persuasiveness. The opinions of Drs. Habak and Jerome are 
 
         consistent with the facts as herein found and are persuasive.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Schiavone saw claimant well before the subject 
 
         infarction, but expressed an opinion based on his findings in 
 
         April, 1984.  He apparently was specifically asked whether the 
 
         lifting of heavy boxes was a substantial contributing factor to 
 
         bringing on claimant's myocardial infarction.  Dr. Schiavone's 
 
         answer does not directly address the question.  He states his 
 
         belief that the coronary disease would progress and that a 
 
         myocardial infarction would be inevitable, but this does not 
 
         indicate whether such inevitability would have been brought on at 
 
         as early a date as proved to be the case.  That is to say, if the 
 
         exertion triggered the coronary event, even though the eventual 
 
         occurrence of that event may be inevitable, it would be 
 
         speculative to an extreme degree to attempt to guess at how much 
 
         more time claimant might have had before being similarly 
 
         disabled. Therefore, while Dr. Schiavone's opinion is of value, 
 
         it is not necessarily inconsistent with a determination that the 
 
         work exertion precipitated the myocardial infarction.
 
         
 
              Based on the foregoing, it is held that the most persuasive 
 
         medical evidence establishes that claimant's myocardial 
 
         infarction was precipitated by his work exertion on December 10, 
 
         1984.  As has been seen, however, that alone does not establish 
 
         claimant's entitlement to benefits.  The key is a finding that 
 
         the employment exertion must be greater than the exertions of 
 
         normal nonemployment life "of the employee or of any other 
 
         person." Briarcliff College v. Campolo, 360 N.W.2d 91 (Iowa 
 
         1984); Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).
 
         
 
              The meaning of "normal nonemployment life of the employee or 
 
         of any other person" is unclear to this observer.  The exertions 
 
         of normal nonemployment life of the employee may vary widely with 
 
         different claimants, and the exertions of normal nonemployment 
 
         life of "any other person" obviously vary to an extreme degree.  
 
         It would be ridiculous to compare claimant's exertions to the 
 
         exertions of any other person, using the extremes as a test, 
 
         since obviously only the most extremely active claimants engage 
 
         in exertion beyond the normal everyday exertion of at least some 
 
         physical fitness devotees.  This is no test at all.  In Neil v. 
 
         John Deere Component Works, file number 756209 (Arb. Decn. May 
 
         10, 1989), another deputy explored at some length the concept 
 
         that the exertions of normal nonemployment life vary tremendously 
 
         among individuals.  It was noted that some individuals are 
 
         extremely sedentary, while others engage in hard physical labor 
 
         on the hottest days of summer and in sub-freezing temperatures in 
 
         winter. The decision held that normal nonemployment covers a wide 
 
         range of activities and exertions, but that the pace or rate at 
 
         which an activity is performed is an important consideration.  
 
         This reasoning is adopted here, but the nature of the actual test 
 
         to be employed deserves some further consideration.
 
         
 
              Is this a two-pronged test?  Is it appropriate that claimant 
 
         recover if his work exertion is greater than his own normal 
 
         nonemployment level of exertion?  It seems unreasonable to peg 
 
         compensability for a heart attack suffered at work to the same 
 
         individual's normal level of exertion in nonemployment life.  
 
         That is to say, if this alone is the test, a sedentary claimant 
 
         would be allowed benefits that might be denied to a more active 
 
         individual if both suffered coronaries performing the same job in 
 
         otherwise undistinguishable circumstances.  This appears far too 
 
         arbitrary to constitute an appropriate test for compensability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Based on the foregoing, it appears that the only workable 
 
         test for determining the exertions of normal nonemployment life 
 
         of the employee or of any other person is a common-sense "normal 
 
         range" analysis.  As noted, Neil v. John Deere Component Works 
 
         points out that the normal range of nonemployment exertion is 
 
         wide indeed.  Accord, 1B Larson Workmen's Compensation Law, 
 
         section 38.83(b).
 
         
 
              However, there are many exertions still within the wide 
 
         normal range that most fair minded people would agree are unusual 
 
         to the average person.  For example, a weight lifting hobbyist 
 
         might believe that a 200-pound dead lift is not unusually 
 
         strenuous for a weight lifter, but that the same lift is 
 
         unusually strenuous for an average person.  Just as an average 
 
         citizen is deemed capable of determining the nature of community 
 
         standards in an obscenity case, the finder of fact in a workers' 
 
         compensation case should be qualified to determine what is an 
 
         unusual exertion for an average person.
 
         
 
              In this case, claimant suffered his infarction while lifting 
 
         approximately 90 pounds, the first lifting he had done that day. 
 
         The undersigned considers a lift of that weight to be close to 
 
         the borderline of what is unusual to the average person, but 
 
         still over the line; that is to say, the lift was sufficiently 
 
         "unusual" to constitute an exertion greater than that of 
 
         nonemployment life of the employee or any other person.  
 
         Therefore, it is held that claimant's myocardial infarction of 
 
         December 10, 1984 arose out of and in the course of his 
 
         employment and was causally connected thereto.  As a result, 
 
         claimant suffered temporary and permanent disability and incurred 
 
         medical expenses.
 
         
 
              Under Iowa Code section 85.34(1), healing period is payable 
 
         beginning on the date of injury and until the employee has 
 
         returned to work, it is medically indicated that significant 
 
         improvement is not anticipated, or until the employee is 
 
         medically capable of returning to substantially similar 
 
         employment, whichever first occurs.  In this case, claimant 
 
         suffered an episode of congestive heart failure requiring his 
 
         hospitalization in March, 1985.  The only physician to express an 
 
         opinion on the issue, Dr. Motto, stated within a reasonable 
 
         degree of medical certainty that the myocardial infarction of 
 
         December was an aggravating factor that materially contributed to 
 
         the congestive heart failure episode.  Healing period may be 
 
         interrupted or intermittent.  Riesselman v. Carroll Health 
 
         Center, III Iowa Industrial Commissioner Report 209 (1982); Teel 
 
         v. McCord, 394 N.W.2d 405 (Iowa 1986).  There is no evidence that 
 
         claimant's healing period had ended prior to the congestive heart 
 
         failure episode.  Because the undisputed evidence is that the 
 
         congestive heart failure was causally related to the original 
 
         heart attack, it is held that this merely extended the healing 
 
         period.  Dr. Motto did not believe that claimant could ever 
 
         return to the type of work he was doing before his infarct.  
 
         However, he felt that in mid-September, 1985, claimant could 
 
         attempt to return to some degree of limited employment and that 
 
         further determination could be made on how well he tolerated it.  
 
         Apparently, claimant has continued to tolerate his return to 
 
         employment, even though his hours are substantially less.  
 
         Claimant's healing period is held to have extended through 
 
         September 15, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that.indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability.to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant is in a fairly unusual status as the long-term 
 
         owner of a family business.  The business has remained profitable 
 
         even though claimant is physically able to devote only 10-20 
 
         hours per week to its nurture.  Claimant had been working for the 
 
         business some 22 years at the time of his deposition in 
 
         September, 1987. Unless the business fails or he becomes even 
 
         more disabled at some future time, it seems apparent that he is 
 
         most unlikely to seek other employment.  Even if claimant were 
 
         able to do so given his limitations, it is unclear how employable 
 
         he might be with his lack of employment history and experience 
 
         limited to a single business.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant Weinzweig Food Products, Inc., appears to be 
 
         essentially the alter-ego of claimant.  He is the president, sole 
 
         officer and only significant employee.  It is almost exclusively 
 
         claimant's efforts that determine how profitable the business 
 
         will be.  Therefore, in this case, it seems reasonable to suppose 
 
         that the future profitability of defendant employer will be by 
 
         far the most important determinant of claimant's future earnings, 
 
         and thus his degree of industrial disability.
 
         
 
              Dr. Motto is the only physician to have imposed 
 
         restrictions: That claimant limit his lifting to a maximum of 25 
 
         pounds and not attempt to put in a full eight hours of work.  
 
         These limitations alone would disqualify him for much employment 
 
         for which he might otherwise be suited.  Most significantly, the 
 
         limitation on working hours has caused claimant to reduce the 
 
         time he devotes to his business and has dramatically lowered the 
 
         profitability of Weinzweig Food Products.  In the three years 
 
         prior to claimant's coronary (although he was disabled the last 
 
         three weeks of 1984) the business had average gross sales of 
 
         $349,584 and average profits on those sales of $100,645.  While 
 
         1985 might be unrepresentative because claimant did not return to 
 
         his work until September, 1986 and 1987 show average gross sales 
 
         of $199,736.50 and average profits on sales of $60,716.  
 
         Therefore, it seems that the profitability of the business upon 
 
         which claimant's potential wages directly depend has decreased on 
 
         the order of 40 percent. While some of that decrease may arguably 
 
         be due to unrelated business conditions, it seems evident that 
 
         the lack of hours claimant is now able to devote to the business 
 
         is the key factor in that reduction of profitability.
 
         
 
              Based on the foregoing factors in particular, the record in 
 
         general, and on the specific understanding for purposes of any 
 
         later review-reopening proceeding that the ability of claimant to 
 
         perform services for Weinzweig Food Products, Inc., will be 
 
         similar to that of 1986 and 1987, it is held that claimant has 
 
         sustained an industrial disability to his body as a whole of 40 
 
         percent, or 200 weeks.
 
         
 
              The undisputed evidence of Judy Flax establishes that 
 
         claimant was paying himself on a weekly basis of $780.38 per week 
 
         for the 15 weeks before the myocardial infarction.  The business 
 
         was profitable enough to justify wages considerably in excess of 
 
         $780.38.  If profits on sales be divided by 52, a weekly sum of 
 
         $1,947.81 is obtained.  Since claimant's corporation has already 
 
         been discussed as being in the nature of an alter-ego, it might 
 
         be argued that claimant's rate of compensation should be based on 
 
         profitability of the business, rather than on what claimant was 
 
         paying himself at the time of his coronary event.  However, the 
 
         undersigned does not find that argument persuasive.  Corporate 
 
         profits need not be paid out in salary to the sole officer, but 
 
         might be paid as stock distributions or retained by the 
 
         corporation for such purposes as expansion, capital purchases, 
 
         diversification, or any number of other possibilities.  In 
 
         addition, it is obvious that the profitability of a business for 
 
         tax purposes is subject to a certain degree of manipulation where 
 
         accounting decisions are made with taxes in mind.  (For example, 
 
         by completing or delaying transactions by the first of any tax 
 
         year.)  Thus, while profitability of the business is an important 
 
         factor in determining claimant's long-term industrial disability, 
 
         it is most unreliable as a determinant of his rate of 
 
         compensation, and, of course, is not among the statutory choices 
 
         in Iowa Code section 85.36.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At the time of his injury claimant was paid on a weekly 
 
         basis.  Pursuant to Iowa Code section 85.36(1), the weekly gross 
 
         earnings rounded to the nearest dollar are used to determine the 
 
         weekly earnings of an individual paid on a weekly pay period 
 
         basis.  Thus, claimant's average gross weekly wage at the time of 
 
         his coronary event was $780.00.
 
         
 
              The parties have stipulated that claimant was single and 
 
         entitled to one exemption on the date of injury.  The workers' 
 
         compensation benefit schedule published by this office and 
 
         effective July 1, 1984 discloses that an individual so situated 
 
         and with gross weekly wages of $780.00 is entitled to a 
 
         compensation rate of $398.80.
 
         
 
              Claimant's medical expenses are set forth in exhibit 51 and 
 
         total $18,470.86.  Dr. Motto has asserted that the fees charged 
 
         for medical services and supplies are fair and reasonable, the 
 
         expenses were incurred for reasonable and necessary medical 
 
         treatment, and that the expenses were causally related to 
 
         claimant's heart attack of December 10, 1984.  This evidence 
 
         stands unrefuted and is accepted as establishing claimant's right 
 
         to compensation for the medical expenses set forth in exhibit 51. 
 
         Similarly, claimant shall be awarded his mileage expenses to St. 
 
         Luke's Hospital, Dr. Motto's office and the University of Iowa 
 
         Hospitals and Clinics.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was employed by Weinzweig Food 
 
         Products, Inc., on December 10, 1984.  Claimant was president, 
 
         sole corporate officer, and exclusively responsible for the 
 
         profitability of that business.
 
         
 
              2.  Claimant had a long history of preexisting coronary 
 
         artery disease prior to December 10, 1984.
 
         
 
              3.  While lifting a case of pickles and a case of salt 
 
         weighing a total of approximately 90 pounds on December 10, 1984, 
 
         claimant suffered a myocardial infarction.
 
         
 
              4.  By reason of claimant's myocardial infarction and a 
 
         subsequent episode of congestive heart failure, which was itself 
 
         caused by the infarction, claimant was unable to return to work 
 
         until September 15, 1985, and then on a limited basis.
 
         
 
              5.  Because of his myocardial infarction, claimant has been 
 
         given medical restrictions against lifting in excess of 25 pounds 
 
         or working a full eight hours.  Claimant now devotes perhaps 
 
         10-20 hours per week to his business.
 
         
 
              6.  The reduction in claimant's ability to work a full week 
 
         has directly contributed to a lack of profitability on the part 
 
         of Weinzweig Food Products on the order of 40 percent.  This has 
 
         resulted in a severe diminution of claimant's potential future 
 
         earnings, which are directly dependent upon the profitability of 
 
         the business.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              7.  Claimant's average gross weekly wage for the 13 weeks 
 
         prior to his myocardial infarction is $780.38.
 
         
 
              8.  Claimant's medical expenses as set forth in exhibit 51 
 
         total $18,470.86 and have been shown to be fair and reasonable 
 
         fees for medical services and supplies, incurred for reasonable 
 
         and necessary medical treatment and causally related to 
 
         claimant's myocardial infarction.
 
         
 
              9.  Claimant has sustained mileage expenses totalling 286 
 
         miles which have not been reimbursed by defendants.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on December 10, 1984:  A myocardial 
 
         infarction.
 
         
 
              2.  Claimant's work injury directly caused a healing period 
 
         from December 10, 1984 through September 15, 1985 (40 weeks).
 
         
 
              3.  Claimant's work injury has caused an industrial 
 
         disability of 40 percent of the body as a whole (200 weeks).
 
         
 
              4.  Claimant's work injury has caused medical expenses of 
 
         $18,470.86 which have not been reimbursed by defendants.
 
         
 
              5.  Claimant's work injury has caused him medically related 
 
         mileage expenses of 286 miles.
 
         
 
              6.  Claimant's rate of compensation is $398.80 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant forty (40) weeks of 
 
         healing period benefits at the rate of three hundred ninety-eight 
 
         and 80/100 dollars ($398.80) per week commencing December 10, 
 
         1984 and totalling fifteen thousand nine hundred fifty-two and 
 
         00/100 dollars ($15,952.00).
 
         
 
              Defendants are to pay unto claimant two hundred (200) weeks 
 
         of permanent partial disability at the rate of three hundred 
 
         ninety-eight and 80/100 dollars ($398.80) per week commencing 
 
         September 16, 1985, and totalling seventy-nine thousand seven 
 
         hundred sixty and 00/100 dollars ($79,760.00).
 
         
 
              Defendants shall pay the medical expenses set forth in 
 
         exhibit 51 and totalling eighteen thousand four hundred seventy 
 
         and 86/100 dollars ($18,470.86).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay to claimant sixty and 06/100 dollars 
 
         ($60.06) as mileage expenses.
 
         
 
              As all benefits ordered herein have accrued they shall be 
 
         paid to claimant as a lump sum together with statutory interest 
 
         on healing period and permanent partial disability (but not 
 
         medical) benefits pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 18th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 
         Mr. John M. Bickel
 
         Mr. Ralph W. Gearhart
 
         Attorneys at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10, 1802, 1803, 3000
 
                                            Filed January 18, 1990
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL WEINZWEIG,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 785837
 
         WEINZWEIG FOOD PRODUCTS, INC.,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         ALLIED INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.10
 
         
 
              Claimant with substantial prior history of coronary artery 
 
         disease suffered myocardial infarction while lifting cases of 
 
         pickles and salt weighing approximately 90 pounds.
 
         
 
              It was held that this exertion was "unusual" compared to the 
 
         nonemployment range of exertion of the average person.  Healing 
 
         period and permanent partial disability benefits were awarded.
 
         
 
         1802
 
         
 
              Healing period after myocardial infarction was extended by 
 
         subsequent episode of congestive heart failure which was itself 
 
         causally related to original infarction.
 
         
 
         3000
 
         
 
              Rate of owner of one-person corporation was based on actual 
 
         salary paid, not profitability of business.
 
         
 
         1803
 
         
 
              A major factor in determining industrial disability of heart 
 
         attack victim was profitability of employer corporation, which 
 
         was essentially an alter ego of entrepreneur claimant.  Claimant 
 
         was restricted from working full time, but was the only income 
 
         producer for corporation.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAUDE SEIDEL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 785932
 
            vs.                           :
 
                                          :          R E V I E W -
 
            WOODLAND, INC.,               :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            U. S. INSURANCE GROUP,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a review-reopening proceeding upon the petition 
 
            of claimant, Claude Seidel, against his employer, Woodland, 
 
            Inc., and its insurance carrier, U. S. Insurance Group.  The 
 
            case was heard on April 4, 1991, at the Des Moines County 
 
            Courthouse in Burlington, Iowa.  The record consists of the 
 
            stipulated record of the parties.
 
            
 
                                 stipulated facts
 
            
 
                 The issue before this party is whether defendants are 
 
            entitled to a credit against the balance of the judgment 
 
            which claimant received against a third party defendant.
 
            
 
                                      issues
 
            
 
                 The parties stipulated to the following:
 
            
 
                 In a third party action in the Iowa District Court, the 
 
            claimant obtained a judgment in his favor and against a 
 
            third party defendant in the amount of $150,000.00.  Out of 
 
            the $150,000.00 judgment, claimant paid his then attorney, 
 
            fees in the sum of $50,000.00.  Claimant also paid to this 
 
            defendant insurance carrier $31,256.43.  The balance from 
 
            the judgment is $68,743.57.
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Section 85.22 of the Iowa Code provides in relevant 
 
            portion:
 
            
 
                 When an employee receives an injury or incurs an 
 
                 occupational disease or an occupational hearing 
 
                 loss for which compensation is payable under this 
 
                 chapter, chapter 85A or chapter 85B, and which 
 
                 injury or occupational disease or occupational 
 
                 hearing loss is caused under circumstances 
 
                 creating a legal liability against some person, 
 
                 other than the employee's employer or any employee 
 
                 of such employer as provided in section 85.20 to 
 
                 pay damages, the employee, or the employee's depen
 
                 dent, or the trustee of such dependent, may take 
 
                 proceedings against the employer for compensation, 
 
                 and the employee or, in case of death, the 
 
                 employee's legal representative may also maintain 
 
                 an action against such third party for damages.  
 
                 when an injured employee or the employee's legal 
 
                 representative brings an action against such third 
 
                 party, a copy of the original notice shall be 
 
                 served upon the employer by the plaintiff, not 
 
                 less than ten days before the trial of the case, 
 
                 but a failure to give such notice shall not 
 
                 prejudice the rights of the employer, and the 
 
                 following rights and duties shall ensue:
 
            
 
                   1.  If compensation is paid the employee or 
 
                 dependent or the trustee of such dependent under 
 
                 this chapter, the employer by whom the same was 
 
                 paid, or the employer's insurer which paid it, 
 
                 shall be indemnified out of the recovery of 
 
                 damages to the extent of the payment so made, with 
 
                 legal interest, except for such attorney fees as 
 
                 may be allowed, by the district court, to the 
 
                 injured employee's attorney or the attorney of the 
 
                 employee's personal representative, and shall have 
 
                 a lien on the claim for such recovery and the 
 
                 judgment thereon for the compensation for which 
 
                 the employer or insurer is liable.  In order to 
 
                 continue and preserve the lien, the employer or 
 
                 insurer shall, within thirty days after receiving 
 
                 notice of such suit from the employee, file, in 
 
                 the office of the clerk of the court where the 
 
                 action is brought, notice of the lien.
 
            
 
                 Indemnity and subrogation are topics which are 
 
            discussed in Lawyer and Higgs, Iowa Workers' Compensation 
 
            Law and Practice, Chapter 29, p. 239-241.  Indemnity is 
 
            discussed in section 29-1.  The authors write:
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            If the claimant recovers from a third party, the 
 
            employer/insurer is entitled to be repaid from the 
 
            recovery for workers' compensation paid(1) less 
 
            attorney fees(2) as allowed by the district court.(3)
 
            
 
                 In the case of Higgins v. Peterson, II Iowa Indus. 
 
            Comm'r Rep. 199 (Appeal Dec. 1982), claimant appealed a 
 
            proposed review-reopening proceeding in which defendants 
 
            were allowed a credit against benefits due claimant from a 
 
            settlement of a third party action.  The commissioner held 
 
            there was no agreement reached by the parties negating a 
 
            credit against future medical payments, and that since there 
 
            was no agreement negating a credit applied against future 
 
            medical benefits, section 85.22 must be applied.  Under 
 
            section 85.22, a credit was in effect.
 
            
 
                 In the case at hand, there has been no agreement 
 
            negating a credit applied to future benefits.  Therefore, 
 
            section 85.22(1) is the applicable statute.  Under section 
 
            85.22(l) defendants are entitled to a credit against 
 
            benefits, including medical benefits in the amount of 
 
            $68,743.57.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are allowed credit for sixty-eight thousand 
 
            seven hundred forty-three and 57/l00 dollars ($68,743.57) 
 
            against benefit amounts due claimant from its third party 
 
            action.
 
            
 
                 Interest shall accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            (1).  The employer is entitled to legal interest on the 
 
            amounts expended but this is routinely waived.
 
            (2).  Attorney fees also include costs. See Higgins v. 
 
            Peterson, 2 Iowa Indus. Comm'r Rep. 199, 202 
 
            (appeal dec. 1982); Alexander v. Iowa Public 
 
            Serv., I Iowa Indus. Comm'r Rep. 3, 4 (declaratory 
 
            ruling 1981).
 
            (3).  Iowa Code  85.22(1). Although the employer is not 
 
            bound by the contract between the employee and the 
 
            attorney, it is customary that the employer pay 
 
            the same percentage attorney fee as the employee 
 
            if the case is handled by the attorney on a 
 
            contingent fee basis.  See Kirkpatrick v. 
 
            Patterson, 172 N.W.2d 259 (Iowa 1969).
 
            Usually, the employee/insurer's portion of the 
 
            attorney fees is agreed to without the necessity 
 
            of the district court resolving the matter.
 
            
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. George E. Wright
 
            Attorney at Law
 
            607 Eighth St
 
            Marquette Bldg
 
            Ft Madison  IA  52627
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3400
 
                           Filed April 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAUDE SEIDEL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 785932
 
            vs.                           :
 
                                          :          R E V I E W -
 
            WOODLAND, INC.,               :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            U. S. INSURANCE GROUP,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            3400
 
            Defendants were entitled to a credit against benefits, 
 
            including medical benefits for a judgment which claimant 
 
            received against a third party defendant.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                                          1800, 1803
 
                                          Filed July 27, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROLLAND L. ALLEN,
 
        
 
            Claimant,                              File No. 786303
 
        
 
        vs                                            A P P E A L
 
        
 
        HYMAN FREIGHTWAYS,                          D E C I S I O N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        TRANSPORT INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
             
 
             
 
        1800, 1803
 
        
 
        
 
             Claimant's award of 15 percent permanent partial disability 
 
             benefits for a shoulder injury was affirmed on appeal.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            KENNETH HARTZER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 786164
 
            SWIFT INDEPENDENT PACKING CO.,
 
                                                  A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE INS.,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 31, 1990 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Joseph Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed June 30, 1992
 
                                              Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            KENNETH HARTZER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 786164
 
            SWIFT INDEPENDENT PACKING CO.,
 
                                                   A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE INS.,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            31, 1990.
 
            
 
 
                                                                     
 
 
 
 
 
 
 
 
 
 
 
                                                                     
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH HARTZER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No.  786164
 
         SWIFT INDEPENDENT PACKING CO.,
 
                                         A R B I T R A T I 0 N
 
                Employer,
 
                                         D E C I S I 0 N
 
          and
 
          
 
          NATIONAL UNION FIRE INS.,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Kenneth 
 
         Hartzer, claimant, against Swift Independent Packing Company 
 
         employer, and National Union Fire Insurance Company, insurance 
 
         carrier, defendants for benefits as the result of an alleged 
 
         injury that occurred on December 11, 1984.  A hearing was held in 
 
         Des Moines, Iowa, on November 7, 1988, and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by David D. Drake.  Defendants were represented by Joseph S. 
 
         Cortese, II.  The record consists of the testimony of Kenneth 
 
         Hartzer, claimant; and joint exhibits A through L and claimant's 
 
         exhibits 1 through 3, which all have a number of subparts.  Both 
 
         attorneys submitted excellent briefs.  The deputy ordered a 
 
         transcript of the hearing.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the alleged injury was the cause of temporary 
 
         disability and claimant was voluntarily paid temporary disability 
 
         benefits from December 13, 1984 to December 17, 1984; January 1, 
 
         1985 to January 30, 1985; and August 19, 1985 to October 15, 
 
         1985, and
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 2
 
         
 
         
 
         that temporary disability benefits are no longer a disputed issue 
 
         in the case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is October 16, 
 
         1985.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $169.30 per week.
 
         
 
              That the provider of medical services or supplies would 
 
         testify that the amounts charged are fair and reasonable and that 
 
         defendants are not offering contrary evidence.
 
         
 
              That the causal connection of these expenses to treatment 
 
         for a medical condition upon which claimant is now basing his 
 
         claim is admitted, but the causal connection to a work injury 
 
         remains a disputed issue in this case.
 
         
 
              That defendants make no claim for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan or as 
 
         workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on December 11, 1984, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether claimant is entitled to certain medical expenses.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born September 17, 1961, was 23 years old at the 
 
         time of the injury and 27 years old at the time of the hearing.  
 
         He is married and has two dependant children.  He did not com-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 3
 
         
 
         
 
         plete high school.  He completed ninth grade, started tenth grade 
 
         and dropped out of school.  He has not obtained a GED or pursued 
 
         any additional formal schooling.  He did receive training on how 
 
         to run a fork lift.  Previously, claimant has trimmed, inspected, 
 
         packed and shipped special meats to restaurants for about a year.  
 
         He has worked for his father.  He has drawn unemployment 
 
         compensation.  All of his past employments involved light work; 
 
         he was not injured; he had no physical complaints and he had no 
 
         trouble performing his previous jobs.
 
         
 
              Claimant's father was in the roofing business.  Claimant 
 
         tore off old roof and cleaned up yards off and on for three or 
 
         four months.  It was dirty work, but not hard work.  When his 
 
         brother left the business his father closed the business.  
 
         Claimant worked for a motel as a bellman and in the dining room 
 
         setting up for banquets for about a year and nine months.  He 
 
         received minor injuries three times in this job: (1) he was 
 
         sprayed in the face with mace; (2) he dropped a table and hurt 
 
         his leg; and (3) he hurt his hand.  None of these incidents 
 
         resulted in a permanent injury.  None related to his back.  
 
         Claimant then drew unemployment compensation for about a year 
 
         until it ran out.  Then he worked loading semi's at night with a 
 
         fork lift for about a year until he was laid off and then drew 
 
         unemployment compensation again.  He had no problem doing this 
 
         job and he was not injured in this employment.
 
         
 
              Claimant started to work for employer in September of 1984.  
 
         He still had suffered no back injuries and passed a physical 
 
         examination before starting to work.  A pre-employment x-ray on 
 
         August 10, 1984, showed a normal lumbar spine (exhibit 1, page 
 
         37).  He loaded meat on trucks with a hand-operated fork lift 
 
         called an electric mule.  Occasionally he might hand load boxes 
 
         weighing 50 or 75 pounds and he could do it without any trouble.  
 
         He also worked on the chuck line boning chucks, trimming tenders, 
 
         pulling clods and watching the fat machine in the fatroom.  He 
 
         started at $5.53 per hour and his last wage was $10.10 per hour.  
 
         He also ground bones and boned arms, the front leg of the cow.
 
         
 
              On December 11, 1984, near the end of the shift, at 
 
         approximately 12:30 a.m., claimant was loading a truck with an 
 
         electric mule.  He was walking behind it.  The floor of the truck 
 
         was icy because it had just been washed.  Claimant slipped and 
 
         fell.  The mule went forward and hit the front of the truck.  
 
         Claimant testified, " ... as soon as I hit the ground, I felt 
 
         something in my back, felt like it tore or something.  As soon as 
 
         I got up, I went straight to the office and told Mel that I had 
 
         fell and hurt my.back." (transcript page 24).  Mel was the lead 
 
         supervisor of the night shift.  Later that shift he was required 
 
         to throw 150 boxes weighing 75 pounds each over his head into a 
 
         truck.  He asked for help, but no one was available to help so he 
 
         performed this task alone.  He felt pain in his lower left back 
 
         and down
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 4
 
         
 
         
 
         his left leg.  He was real stiff and felt tingling in his lower 
 
         left back.
 
         
 
              Claimant said he saw J.W. Hatchitt, D.O., after four or five 
 
         days.  Dr. Hatchitt's notes show that he saw claimant on December 
 
         13, 1984, for a fall at work when he landed on his buttocks.  He 
 
         diagnosed sacroiliac strain, gave an osteopathic manipulation, 
 
         prescribed a medication and took claimant off work from December 
 
         12, 1984 until December 17, 1984 (ex. 1, pp. 27 & 29).
 
         
 
              The company then sent claimant to see R. W. Hoffmann, M.D.  
 
         An undated report of Dr. Hoffmann's seems to reflect the fall in 
 
         the truck, but said it occurred in January 1985.  It continues 
 
         that claimant was then placed on the chuck line for three weeks 
 
         and had developed a slow gradual problem while lifting heavy 
 
         meat.  He was diagnosed as having chronic recurrent lumbosacral 
 
         and thoracic lumbar strain pattern.  Medication and physical 
 
         therapy were prescribed (ex. 1, p. 22).  Other reports of Dr. 
 
         Hoffmann show that he saw claimant on January 1, 1985, at Mercy 
 
         Hospital in the emergency room for acute lower back pain which he 
 
         diagnosed as acute myofacial strain.  He referred claimant to 
 
         Peter Wirtz, M.D., an orthopedic surgeon (ex. 1, pp. 19, 20 & 51; 
 
         tr. p. 27).  Dr. Hoffmann was under the impression that claimant 
 
         fell twice on the floor of an icy truck and that Dr. Hatchitt had 
 
         manipulated his back more than once (ex. 1, pp. 53 & 59).  Dr. 
 
         Hoffmann recorded a tentative diagnosis of, "Possibly extruded 
 
         disc L5-Sl," (ex. 1, p. 55).  However, x-rays, ordered by Dr. 
 
         Hoffmann, of the lumbosacral spine on January 2, 1985, were 
 
         normal.  "The alignment of the lumbosacral spine is good in all 
 
         projections.  No evidence of recent injury or other bone 
 
         pathology is seen.  Impression: normal lumboscral (sic] spine."  
 
         (ex. p. 57).  A bone imaging on January 3, 1985, produced a 
 
         normal result (ex. 1, p. 53).  Dr. Hoffmann reported on March 13, 
 
         1985 and cleared up some confusing matters in his notes.  He said 
 
         there was only one fall on or about December 12, 1984.  He saw 
 
         claimant on January 1, 1985, after he awakened from sleep with 
 
         severe pain in the left groin area radiating around to his back.  
 
         Claimant went to the emergency room on his own on January 1, 1985 
 
         and was hospitalized by a resident.  He knew of no prior existing 
 
         condition.  X-rays and CAT scan were normal.  He felt claimant's 
 
         condition would be temporary, but it would warrant medical care 
 
         and some lost time (ex. B).
 
         
 
              Claimant was hospitalized from January 1, 1985 to January 4, 
 
         1985, by Dr. Wirtz and was taken off work from January 1, 1985 
 
         until January 31, 1985.  He was treated with medications and 
 
         physical therapy.  Dr. Wirtz diagnosed low back pain with 
 
         radicular symptomatology, left leg (ex. C, pp. 1 & 8).  On 
 
         January 21, 1985, he said his condition was temporary in nature, 
 
         but severe enough to warrant his lost time and medical care (ex. 
 
         C, p. 9).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 5
 
         
 
         
 
         He said on January 31, 1985, claimant was released to return to 
 
         work with a full range of motion and no neurological deficits.  
 
         Dr. Wirtz stated, "This musculoskeletal strain to the back area 
 
         has not left him with any permanent impairment as related to this 
 
         accident that occurred in December of 84.11 (ex. C, p. 10).
 
         
 
              Claimant related that when he returned to work on or about 
 
         February 1, 1985, he was placed on the chuck line.  It did not 
 
         hurt at first.  He could pull and flip 100 pounds.  Then in 
 
         August of 1985, he developed pain in his left lower back and 
 
         numbness in his left leg and returned to Dr. Wirtz.
 
         
 
              Dr. Wirtz saw claimant again on August 22, 1985, and 
 
         diagnosed, "Musculoskeletal strain, lower back, with radicular 
 
         symptoms, left leg." (ex.  C, p. 2).  He reported to the 
 
         insurance carrier that he had, " ... temporary aggravation of his 
 
         back condition and will require medical management." (ex.  C, p. 
 
         12).  A new CT scan was done on September 26, 1985, by Stephen 
 
         Cooper, M.D., with this result.
 
         
 
              IMPRESSION:  1. Bulging annulus at L4-L5, centrally into the 
 
              left, 
 
                              but epidural fat and nerve roots are 
 
              preserved.
 
              
 
                           2. minimal bulging annulus at L5-Sl with no 
 
              evidence of
 
                              disc herniation at either level.
 
              
 
                           3. No bone hypertrophy or other abnormalities 
 
              are 
 
                              identified.
 
         
 
         (ex. C, p. 15)
 
         
 
              Dr. Wirtz then wrote to the insurance company as follows on 
 
         October 2, 1985:
 
         
 
              This patient has undergone a CAT scan which shows him to 
 
              have disc degeneration at L4-5.
 
              
 
              This may be symptomatic with heavy lifting over weights of 
 
              30 lbs., as well as twisting and pulling of this same weight 
 
              limit.
 
              
 
              Enclosed is a copy of the interpretation of the CAT scan.
 
         
 
         (ex. C, p. 16)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was released to return to work by Dr. Wirtz on 
 
         October 14, 1985:
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 6
 
         
 
         
 
              This patient continues to be symptomatic in the same manner.
 
              
 
              He has been given a slip to return to work with limitation 
 
              of weight lifting of 30 lbs.  He may return to work on 
 
              10/15/85.
 
         
 
         (ex. C, p. 17).
 
         
 
              On October 30, 1985, Dr. Wirtz reported continuing lower 
 
         back ache with radicular symptoms on occasion from the bulging 
 
         disc.  He also reported interscapular pain that comes around to 
 
         the front of the chest.  He prescribed a back brace and 
 
         Darvocet-N 100 for pain relief  (ex. C, pp. 3 & 18).  On December 
 
         6, 1985, claimant continued to have pain in the lower back area 
 
         up to the interscapular area from pulling, lifting and throwing 
 
         things over shoulder height without specific neurological or bony 
 
         etiology.  Dr. Wirtz said his activity is an overuse syndrome 
 
         causing his symptoms.  Dr. Wirtz recommended a job change so 
 
         claimant doesn't have to do heavy lifting.  He said he gave him a 
 
         slip to continue to work with a job change and a 30 pound limit.  
 
         He predicted that if he continues to lift, push and pull 150 
 
         pounds intermittently it will aggravate his condition (ex. C, pp. 
 
         3 & 19).  On January 13, 1986, he was doing well with the back 
 
         brace, but a new lower back brace was ordered because the first 
 
         one caused blisters on the upper rib cage (ex. C, pp. 3 & 20).  
 
         Symptoms were treated on March 19, 1986; April 21, 1986; May 14, 
 
         1986; June 2, 1986 (ex C, pp. 4, 5, 21 & 25).
 
         
 
              Claimant injured his back again on July 21, 1986 reaching 
 
         for a piece of meat that started to fall off the table (tr. pp. 
 
         32 & 33).  This was diagnosed as acute musculoskeletal strain of 
 
         the lower back which called for medications and physical therapy 
 
         again (ex. C, pp. 4, 5, 27 & 28).  He was released to return to 
 
         work on August 4, 1986, with restrictions of no bending, 
 
         twisting, lifting, pushing or pulling of the back area (ex. C., 
 
         pp. 5, 29 & 30).
 
         
 
              After the incident on July 21, 1986, when claimant 
 
         aggravated his back condition reaching for a piece of meat 
 
         falling of the table, claimant also saw William R. Boulden, M.D., 
 
         an orthopedic surgeon, on August 7, 1986.  There is an indication 
 
         in defendants' brief that claimant wanted a change of care at 
 
         this time.  Dr. Boulden diagnosed chronic low back pain, source 
 
         unknown.  He prescribed a back exercise program and a TENS (ex. 
 
         1, p. 4).  On August 19, 1986, he reviewed old CAT scans and saw 
 
         no evidence of midline disc or other disc problem (ex. 1, p. 5).  
 
         In another letter on August 19, 1986, Dr. Boulden said he could 
 
         not determine if the July 21, 1986 incident was related to the 
 
         December 1984 incident or whether it was totally and completely a 
 
         new injury (ex. 1, p. 6).  On August 28, 1986, he said discograms
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 7
 
         
 
         
 
         of the lower lumbar spine indicated mechanical back pain that 
 
         should be treated by physical therapy.  Claimant did not have an 
 
         operative lesion (ex. 1, p. 7).
 
         
 
              Pursuant to Dr. Boulden's orders, claimant saw Judith 
 
         Halverson, L.P.T., on August 8, 1986 and was set up with a TENS 
 
         unit and instructed in a program of exercise.  Claimant failed to 
 
         keep his scheduled physical therapy appointment on August 21, 
 
         1986.  A new appointment was scheduled for August 29, 1986.  He 
 
         did not show up for that appointment either.  Since Halverson had 
 
         not heard from claimant, she said she was discontinuing his 
 
         physical therapy (ex. 1, p. 13; Ex.  A, p. 14).
 
         
 
              On September 30, 1986, Dr. Boulden said the discograms were 
 
         normal, but since claimant was still having symptoms, he 
 
         recommended an NMRI (ex. 1, p. 8).  On October 21, 1986, he said 
 
         the NMRI was normal.  There was nothing from the structural point 
 
         of view to keep claimant from working.  The real key to his back 
 
         is lifting properly with the proper biomechanic technique   He 
 
         concluded, "I have not found any type of physical impairment 
 
         problems to be addressed to his issue." (Ex. 1, p. 9).  On 
 
         December 11, 1986, Dr. Boulden said claimant could benefit from a 
 
         TENS for at least a month or two.  After that, it would depend on 
 
         his symptoms and be between claimant and the insurance company 
 
         (ex. 1, p. 10).  On December 17, 1986, Dr. Boulden said claimant 
 
         was doing better at work, but having trouble at home sleeping at 
 
         night due to his back.  He reexamined him and, " ... came up with 
 
         nothing clinical."  Claimant, " ... had an extensive workup with 
 
         negative findings."  He ended this letter as follows:
 
         
 
              At this point in time, I really can't state whether he has 
 
              had an aggravation of a pre-existing condition since there 
 
              is no structural abnormalities found in our workups.  
 
              Therefore I really don't know where his pain is coming from.  
 
              Therefore it is hard for me to make recommendations on cause 
 
              and effect here.
 
              
 
         (ex. 1, p. 11)
 
         
 
              On February 2, 1987, Dr. Boulden reported, " I do not feel 
 
         that there has been any type of permanency because of the 
 
         injury."  (Ex. 1, p. 12).
 
         
 
              Dr. Boulden gave a deposition on June 18, 1987.  His very 
 
         respectable curriculum vitae is attached as deposition exhibit 1. 
 
         It shows that he is a board certified orthopedic surgeon with 
 
         staff privileges at Lutheran, Mercy, Charter, Methodist and 
 
         Broadlawns Hospitals.  Dr. Boulden described the discogram he 
 
         took in these words:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q. What is the discogram?
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 8
 
         
 
         
 
              A. Discogram is where we put a needle inside the disk under 
 
              x-ray control and we put dye into the disk.  The idea is to 
 
              see if a disk will cause the patient to have pain and if 
 
              it's the same pain that he's been living with.  A normal 
 
              disk will not cause discomfort but an abnormal disk should 
 
              cause discomfort and also reproduce the patient's pain if 
 
              that's the source of his pain.
 
              
 
              ***
 
              
 
              Q. What did you conclude from the discogram?
 
              
 
              A. We were able to do discograms at L3-4 and 4-5 which did 
 
              not cause the patient to have any pain at all.  We were 
 
              unable to get a needle into the L5-SI disk space because of 
 
              the position of his disk in his spine.
 
              
 
                 We did, however, note that during the attempt to try and 
 
              inject the disk at L5-Sl we kept hitting his facet joint 
 
              that kept causing him to have the pain he was having.  In 
 
              other words, we felt after checking this out that his pain 
 
              was probably coming from the facet joints in his back and 
 
              felt that his pain was probably more to a mechanical type of 
 
              pain, in other words, a stress-induced type of situation 
 
              rather than a structurally abnormal problem.
 
         
 
         (ex. A, pp. 8, 9, 11 & 12)
 
         
 
              The MRI performed on October 17, 1986 completely ruled out 
 
         any structural problem in claimant's lumbar spine including L5, 
 
         S1 which could not be discogrammed (tr. pp. 14-17).
 
         
 
              Dr. Boulden concluded, "Basically my feeling was that his 
 
         back was weak and that he probably used it abnormally."  The 
 
         doctor recommended a good exercise rehabilitation program and 
 
         possibly a work hardening program.  The only restrictions would 
 
         be to use his back properly by which he meant no, "...bending, 
 
         lifting or twisting with his back either repetitively or for 
 
         heavy unnatural loads as well as prolonged sitting. " (ex. A, pp. 
 
         17 & 18).  For back relief while sleeping, he advised claimant to 
 
         sleep in the prenatal position on a firm mattress (ex. A, p. 20; 
 
         Ex. 1, p. 11).  Dr. Boulden than ordered laboratory tests to 
 
         determine if claimant had some kind of underlying systemic 
 
         disease, in particular, rheumatoid arthritis.  All of these 
 
         several laboratory tests were within normal limits (ex. A, pp. 
 
         19-23).  Dr. Boulden opined that claimant had not sustained any 
 
         permanent injury or disability as a result of his employment with 
 
         employer because nothing could be found objectively either 
 
         clinically or through diagnostic testing (ex. A, p. 23).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 9
 
         
 
         
 
              The MRI done on October 17, 1986 showed, "normal appearance 
 
         of lumbar spine .... No evidence of disc degeneration.  The 
 
         neural foramina appear normal.  Impression: Normal MRI of the 
 
         lumbar spine."  (ex. A, deposition ex. 10; ex. 1, p. 43).  Dr. 
 
         Boulden said his final diagnosis would be low back pain, etiology 
 
         undetermined (ex. A, p. 25).  Dr. Boulden granted that the 
 
         incident in December 1984 or the incident in July 1986, might 
 
         weaken or aggravate his back condition (ex. A, p. 25).  However, 
 
         objective tests disclosed no altered structure pathology (ex. A, 
 
         pp. 26-29).  His work could cause him to have irritation if its 
 
         abnormal stress (ex. A, p. 29).  Dr. Boulden said, "Once again, 
 
         use the term weakened back.  I guess it's a back that I'd say 
 
         that is aggravated easily.  Especially if you do abnormal things 
 
         to it."  (ex. A, p. 30).  The doctor acknowledged that if 
 
         claimant had no symptom complex and no complaints until December 
 
         1984, then that could, " ... play a role into the fact of his 
 
         system complex at this point." (ex. A, p. 30).  Claimant last saw 
 
         Dr. Boulden in the fall of 1986 (tr. p. 39).
 
         
 
              Claimant reported, by his own choice, to Iowa Methodist 
 
         Neighborhood Clinic on April 16, 1986, with complaints of low 
 
         back pain and was diagnosed by Matthew A. Manning, M.D., as 
 
         having low back syndrome (ex. 1, pp. 34 & 35).
 
         
 
              On December 8, 1986, claimant was seen at the Iowa Methodist 
 
         Neighborhood Clinic, by his own choice, for complaints of low 
 
         back which he stated originated in December of 1984.  He was 
 
         examined by Thomas Evans, M.D., and diagnosed as chronic back 
 
         pain (ex. D; Ex. 1, p. 36).
 
         
 
              Claimant was next seen on February 13, 1987, and diagnosed 
 
         by Dr. Wirtz for: (1) continued lumbar disc degeneration, low 
 
         back pain and (2) radicular symptoms, left leg intermittent.  He 
 
         was to continue to work, but restricted from heavy strenuous 
 
         twisting and pulling activities (ex. C, p. 5).
 
         
 
              On August 12, 1987, Dr. Wirtz reported that claimant 
 
         exacerbated his lumbar disc degeneration doing light work without 
 
         heavy strain and ordered medication and physical therapy again 
 
         for him (ex. C, pp. 6 & 31).  He had continued muscular strain, 
 
         lower back, possible disc degeneration reported by Dr. Wirtz on 
 
         August 19, 1987.  An x-ray showed narrowing of L4, L5 (ex. C, p. 
 
         6). on September 2, 1987, Dr. Wirtz said:
 
         
 
              This patient's history 8/12/87 is noted to be symptomatic in 
 
              the last month indicating as early as 7/l/87.
 
              
 
              This patient's back condition which is intermittently 
 
              symptomatic is related to those incidents at the time of the 
 
              development of the symptoms.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 10
 
         
 
         
 
              After an extended period of time without symptoms it would 
 
              be said that any one initiation would be cleared.
 
              
 
              Repeated episodes in the distant future will cause symptom 
 
              producing conditions unrelated to present conditions.
 
         
 
         (ex. C, p. 32)
 
         
 
              The final report from Dr. Wirtz dated September 22, 1987, 
 
         reads as follows:
 
         
 
              It is noted that the symptoms recurred in July, 1987 and the 
 
              resulting physical findings showed limitation of back 
 
              flexion whereas his neurological exam continued to be 
 
              normal.
 
              
 
              Similar findings 8/19/87 as to limitation of motion of his 
 
              back and x-ray showed narrowing at the L4/5 disc space.
 
              
 
              This patient's diagnosis continues to be lumbar disc 
 
              degeneration with an acute musculoskeletal strain 
 
              superimposed.
 
              
 
              It is anticipated that this will require further 
 
              conservative management to alleviate these symptoms.
 
         
 
         (ex. c, P. 33)
 
         
 
              Claimant was seen at Orthopedic Associates on December 23., 
 
         1985, for a second opinion.  No examining physician's name is 
 
         indicated on the report or the exhibit list.  That office note 
 
         concludes as follows:
 
         
 
              X-RAYS: Lateral lumbosacral spine is essentially within 
 
              normal, do not see much in the way of narrowing of disc 
 
              interspaces.
 
              
 
              DX: By history and examination, it appears that this man has 
 
              back pain and a left sciatica probably secondary to mild 
 
              disc herniation at L4-5, certainly not a rupture.
 
              
 
              PLAN: We discussed that as long as he's able to manage 
 
              without surgery this would be the route to go.  Should there 
 
              be increasing amount of pain radiating down into the leg, 
 
              then I think it would be advisable to maybe repeat the 
 
              myelogram and CAT scan and think about the
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 11
 
         
 
         
 
              laminectomy and diskectomy.
 
         
 
         (ex. 1, p. 3)
 
         
 
              Claimant was examined and evaluated by Martin S. Rosenfeld, 
 
         D.O., an orthopedic surgeon, on January 12, 1988, who traced 
 
         claimant's treatment history.  Claimant complained of, "...back 
 
         pain with radiation to the left lower extremity down into the 
 
         foot, mostly into the medial big and second tows .... He, 
 
         especially, has difficultly [sic] sleeping at night because of 
 
         pain and tingling."  Dr. Rosenfeld made the following findings:
 
         
 
              Films of the lumbar spine are reviewed.  These are 
 
              essentially normal.  There is noted a question of disc 
 
              degeneration on office notes supplied with the patient from 
 
              Drs. Wirtz and Boulden, but no gross abnormalities are noted 
 
              at this time.
 
              
 
              Impression: Acute and chronic facet syndrome of the left 
 
              with myofacial strain.
 
              
 
              At the present time his restrictions include a twenty (20) 
 
              pound weight lifting limit, no prolonged standing, no 
 
              prolonged sitting, and no pushing or pulling.  He is 
 
              restricted to a job where he can sit or stand and move about 
 
              freely as necessary being able to use proper body mechanics.
 
              
 
              I feel that he does have a permanent impairment in view of a 
 
              lower lumbar sprain with spasm, some rigidity, and pain 
 
              without marked lipping or arthritic change on his x-rays.  
 
              This would rate him at a five (5) percent permanent physical 
 
              impairment to the body as a whole.  The Guide I used for 
 
              evaluation is the Manual for Orthopaedic Surgeons in 
 
              Evaluating Permanent Physical Impairment published by the 
 
              American Academy of Orthopaedic Surgeons.
 
              
 
              Further treatment would include facet joint injection and/or 
 
              epidural steroid injection to relieve the spasm in the low 
 
              back area as well as continued exercise program to 
 
              strengthen and straighten the low back.
 
         
 
         (ex. 1, p. 2)
 
         
 
              Claimant testified that after the July 1986 episode, his 
 
         symptoms have not changed (tr. p. 33).  Claimant testified that 
 
         the incident of July 21, 1986, of grabbing for the falling meat, 
 
         was just a continuation of the pain that occurred in December of 
 
         1984 (tr. p. 34).  Claimant testified (tr. pp. 36-39) and the 
 
         records show that claimant was discharged by employer on January
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 12
 
         
 
         
 
         22, 1987, for three unexcused absences (exs. E-L).  The last day 
 
         he worked was January 8, 1987.
 
         
 
              Claimant related that he tried to work after that at Oscar 
 
         Mayer for one week and Iowa Pack for two weeks, but was unable to 
 
         do the work due to his back (tr. p. 40).  He tried a job 
 
         unloading paper products and he could not do that 18 hours a day 
 
         because he got too tired.  Claimant was self-employed at the time 
 
         of the hearing as a window installer in apartment buildings (tr. 
 
         pp. 41 & 42).  His left lower back still gets stiff now and then 
 
         (tr. p. 42).  He can no longer play sports such as basketball or 
 
         baseball, he cannot fish, to run makes his back hurt.  Claimant 
 
         said that his biggest problem is that he cannot sleep at night.  
 
         The other thing is inability to be active or be physical with his 
 
         children.  He only sleeps two or three hours per night and then 
 
         wakes up.  He put pillows behind his back, and keeps changing 
 
         from the couch to the floor to the chair (tr. p. 46).
 
         
 
              Claimant identified the Mercy Hospital bill, in the amount 
 
         of $172.31, for a visit to the emergency room on July 21, 19861 
 
         when he felt pain after reaching for the piece of meat that fell 
 
         off the table (ex. 2, p. 1).  The hospital was going to admit him 
 
         because he was in such severe pain, but when they called Dr. 
 
         Wirtz, the doctor insisted that they send him home.  He saw Dr. 
 
         Wirtz the next day.  This hospital bill has never been paid (tr. 
 
         pp. 47 & 48).
 
         
 
              Claimant identified a bill from Methodist Hospital, in the 
 
         amount of $67.90, for being seen in the emergency room, at 12:08 
 
         p.m. on September 8, 1987, after he woke up with low back pain 
 
         radiating down his left leg (ex. 1, pp. 32 & 33; ex. 2, p. 2; tr. 
 
         pp. 48 & 49).
 
         
 
              Claimant identified a bill from Wilden Hospital, in the 
 
         amount of $20, as an occasion when he walked into their emergency 
 
         room on August 14, 1986 on his own just to see what they would 
 
         say.  He paid that bill himself (ex. 2, p. 3; tr. p. 49).
 
         
 
              Claimant identified a bill from Dr. Hatchitt, his family 
 
         physician, for December 13, 1984, in the amount of $21.  Claimant 
 
         said he just went there on his own because he was having back 
 
         pain (ex. 2, p. 4; tr. pp. 49 & 50).
 
         
 
              Claimant identified a bill from  Mid-Central Medical Limited 
 
         in the amount of $101.92 as a charge for a TENS unit, ordered by 
 
         Dr. Boulden, that L.P.T. Halverson instructed him how to use (tr.
 
         p. 50; ex. 2, p. 5).
 
         
 
              All of these expenses are itemized on one sheet of paper 
 
         (ex. 2, p. 6).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 13
 
         
 
         
 
              Claimant presented a correctly calculated statement of his 
 
         mileage expenses in the actual amount of $171.30.  He testified 
 
         he had never been reimbursed for these expenses even though he 
 
         had presented the statement for payment to the insurance carrier 
 
         (ex. 2, pp. 7 & 8).  Back up support for these trips was also 
 
         introduced into evidence (ex. 2, pp. 9-11).
 
         
 
              Claimant admitted that he knew that Dr. Hoffmann, Dr. Wirtz 
 
         and Dr. Boulden were the employer authorized doctors.  He 
 
         conceded that he did not ask for permission to see Dr. Hatchitt 
 
         or to go to the emergency rooms at Mercy, Methodist and Wilden.  
 
         He admitted that he did not get authorization to see Dr. Hatchitt 
 
         through employer.  Claimant granted that after he was terminated 
 
         by Swift, he applied for unemployment compensation and that he 
 
         was required to certify that he was ready, willing and able to 
 
         work.
 
         
 
              Claimant acknowledged that there were no witnesses to his 
 
         accident on December 11, 1984, but that was because he worked 
 
         alone.  Claimant agreed that since he was terminated by employer, 
 
         in January 1987, he has had discomfort, but has not found it 
 
         necessary to seek medical treatment for it (tr. pp. 54-59).  
 
         Claimant testified that this is because he has not been required 
 
         to do real hard work (tr. p. 39).  Also, he has not had any 
 
         flare-ups like he had when he was still working (tr. p. 41).  
 
         Claimant denied that he was currently authorized to see Dr. Wirtz 
 
         or Dr. Boulden.  He was refused permission by the insurance 
 
         carrier to see Dr. Wirtz just eight months ago, but he did not 
 
         have it in writing (tr. pp. 60-62).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 11, 1984, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol Sch. Dist., 246 Iowa 402, 
 
         68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa 
 
         Report.  See also Sister Mary Benedict v. St. Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 
 
         Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 11, 1984, is causally
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 14
 
         
 
         
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 
 
         128 (1967) .
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on December 11, 1984, 
 
         which arose out of and in the course of employment with employer.  
 
         Claimant described a slip and fall on the icy floor of a truck 
 
         that had just been washed.  He related, " ... as soon as I hit 
 
         the ground, I felt something in my back, felt like it tore or 
 
         something.  As soon as I got up, I went straight to the office 
 
         and told Mel that I had fell and hurt my back."  (tr. p. 24).  
 
         Defendants assert that the accident was not witnessed.  Claimant 
 
         replied that he worked alone, by himself, on this job and there 
 
         were no witnesses available to see the accident.  Claimant 
 
         testified that he reported the accident immediately to Mel.  
 
         Defendants introduced no testimony from Mel to contradict or 
 
         controvert claimant's sworn testimony at hearing either by way of 
 
         a statement (sworn or unsworn) taken by an accident investigator, 
 
         by deposition, or by live testimony.  Nor did defendants offer 
 
         any explanation for not offering such testimony.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 15
 
         
 
         
 
              Claimant further testified that later in this same shift he 
 
         was required to throw 150 boxes of meat weighing 75 pounds each 
 
         overhead and that he was unable to get any assistance from his 
 
         supervisor, Mel.  This testimony is not controverted.
 
         
 
              Claimant saw Dr. Hatchitt his personal physician, two days 
 
         later on December 13, 1984, giving this accident as the history 
 
         for his back and leg complaints and claimant was taken off work 
 
         from December 12, 1984 until December 17, 1984 (ex. 1, pp. 27 & 
 
         29).  Dr. Hatchitt reported, "Fell at work in Semi - landed on 
 
         buttocks [sic]." (ex. 1, p. 27).
 
         
 
              Employer sent claimant to see Dr. Hoffmann on January 1, 
 
         1985.  Claimant gave the same history for his complaints.  
 
         Although Dr. Hoffmann's records are confusing, he cleared up 
 
         matters by stating on March 14, 1985, that there was only one 
 
         fall on or about December 12, 1984.  Dr. Hoffmann referred 
 
         claimant to Dr. Wirtz, who proceeded to treat, and continued to 
 
         treat claimant for two years, based on the history of this 
 
         accident as the initial precipitating factor for claimant's 
 
         complaints.   Dr. Wirtz' first office note states, "A 
 
         twenty-three year old injured at work."  (ex. C, p. 1).  Claimant 
 
         denied any previous injuries or back problems and this testimony 
 
         was not controverted.  An x-ray for claimant's pre-employment 
 
         physical examination on August 10, 1984, just three months prior 
 
         to this injury, showed a normal lumbar spine (ex. 1, p. 37).  
 
         Claimant consistently gave this accident as the history to all of 
 
         the physicians that saw him at different times over the course of 
 
         his treatment, i.e., Dr. Hatchitt, Dr. Hoffmann, Dr. Wirtz, 
 
         Orthopedic Associates, Dr. Boulden, Dr. Manning, Dr. Evans, and 
 
         Dr. Rosenfeld.  Claimant's testimony is not controverted, 
 
         contradicted, rebutted or refuted by any evidence or any argument 
 
         on the part of defendants, except for the immaterial assertion 
 
         that the accident was not witnessed.  Claimant afforded 
 
         defendants the opportunity to controvert his testimony by calling 
 
         Mel, his supervisor, as a witness, but defendants did not 
 
         capitalize on this opportunity, nor did they attempt to explain 
 
         why they did not or could not.
 
         
 
              Therefore, it is determined that claimant did sustain the 
 
         burden of proof by a preponderance of the evidence that he 
 
         sustained an injury on December 11, 1984, that arose out of and 
 
         in the course of his employment.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance that he sustained a permanent injury caused by the 
 
         accident on December 11, 1984.  Dr. Hatchitt did not express an 
 
         opinion on this point, which is understandable, since he only saw 
 
         him briefly and he is not a specialist in orthopedic surgery or 
 
         neurosurgery (ex. 1, p. 27).  Dr. Hoffmann's x-ray of the 
 
         lumbosacral spine was good in all projections with no evidence
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 16
 
         
 
         
 
         recent injury or other bone pathology seen (ex, 1, p. 57).  The 
 
         bone imaging was also normal (ex. 1, p. 53).  Dr. Hoffmann 
 
         stated, "...this injury will probably be temporary in nature, and 
 
         in any case, it would warrant medical care and some lost time."  
 
         (ex. B, p. 2).
 
         
 
              Dr. Wirtz examined and treated claimant extensively over a 
 
         two year period and appeared to be very sensitive and responsive 
 
         to claimant's complaints of pain in his back and down his left 
 
         leg.  He prescribed a 30 pound weight lifting restriction (ex. c, 
 
         pp. 16 & 17), recommended a job change to lighter work (ex. C, 
 
         pp. 3 & 19), and restricted him from strenuous twisting and 
 
         pulling activities (ex. C, p. 5).  He provided claimant with 
 
         extensive physical therapy and two back braces.  Nevertheless, on 
 
         the point of permanent impairment, Dr. Wirtz stated on January 
 
         21, 1985, that his condition was temporary in nature (ex. C, p. 
 
         9).
 
         
 
              On January 31, 1985, claimant was released to return to work 
 
         with a full range of motion and no neurologic deficits.  He said 
 
         the fall caused an injury that was temporary in nature (ex. C, p. 
 
         9).  On January 31, 1985, Dr. Wirtz stated that, "This 
 
         musculoskeletal strain to the back area has not left him with any 
 
         permanent impairment as related to this accident that occurred in 
 
         December of 84.11 (ex. C, p. 10).  Claimant returned to work and 
 
         could pull and flip 100 pounds.
 
         
 
              When claimant had a flare-up on August 22, 1985, Dr. Wirtz 
 
         called it a, "temporary aggravation" (ex. C, p. 12).  Dr. Wirtz 
 
         believed that claimant had lumbar disc degeneration that had been 
 
         and would continue to be intermittently symptomatic, but related 
 
         to those incidents at the time of development of the symptoms 
 
         (ex. C, pp. 32 & 33).  Dr. Wirtz never did say or imply that 
 
         claimant had sustained a permanent impairment from this injury.  
 
         He did impose a weight lifting restriction and work activity 
 
         restrictions, but Dr. Wirtz never did say that these restrictions 
 
         or limitations were caused by the injury of December 11, 19841, 
 
         but on the contrary he indicated they were due to claimant's 
 
         degenerative lumbar disc condition (ex. C, pp. 32 & 33).
 
         
 
              Although claimant had a one time visit to Orthopedic 
 
         Associates, Dr. Manning and Dr. Evans, none of them found a 
 
         permanent impairment.  This is understandable with Dr. Evans and 
 
         Dr. Manning because they only saw him one time on an emergency 
 
         basis for flare-ups.  However, Orthopedic Associates was an 
 
         evaluation and their x-rays were essentially normal and that 
 
         doctor, whoever he was, did not, " ... see much in the way of 
 
         narrowing of disc interspaces." (ex. 1, p. 3).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant asked for alternative care after the incident on 
 
         July 21, 1986 where he grabbed for a piece of falling meat and
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 17
 
         
 
         
 
         suffered increased symptoms in his back and left leg.  Dr. 
 
         Boulden examined old CAT scans and found no evidence of disc 
 
         problems (ex. 1, p. 5).  Claimant did not have an operative 
 
         lesion (ex. 1, p. 7).  He prescribed a TENS unit and physical 
 
         therapy.  Claimant accepted the TENS unit, but according to 
 
         L.P.T. Halverson, he failed to show up for the physical therapy 
 
         (ex. 1, p. 13; Ex.  A, p. 14).
 
         
 
              Dr. Boulden took discograms and an MRI which were all normal 
 
         (ex. 1, p. 8 & 9).  Dr. Boulden said he did not know where 
 
         claimant's pain was coming from; there were no structural 
 
         abnormalities in his workups; he said it was hard to make 
 
         recommendations on cause and effect in this case (ex. 1, p. 11).  
 
         On February 2, 1987, he said, "I do not feel that there has been 
 
         any type of permanency because of the injury." (Ex. 1, p. 12).  
 
         The MRI on October 17, 1986, ruled out any structural problem 
 
         including the L5, Sl interspace which could not be discogrammed 
 
         (tr. pp. 14-17).  Dr. Boulden did agree with claimant's counsel 
 
         that the injury of December 11, 1984, could play a role in his 
 
         current symptom complex at this point, but basically he said it 
 
         was his feeling that, "his back was weak and that he probably 
 
         used it abnormally." (ex. A, p. 17).  All of claimant's 
 
         laboratory tests were within normal limits (ex. A, pp. 19 & 23).
 
         
 
              Dr. Boulden did agree that claimant should be restricted to 
 
         no repetitive bending, lifting, or twisting and no prolonged 
 
         sitting, but he definitely did not say or even imply that these 
 
         restrictions were caused by the injury of December 11, 1984.  On 
 
         the contrary, he indicated that the etiology of claimant's back 
 
         and leg pains was undetermined or unknown and he was unable to 
 
         testify on a cause and effect relationship, but if pressed for an 
 
         opinion, he believed claimant had a weak back and he used it 
 
         abnormally.
 
         
 
              Dr. Rosenfeld diagnosed acute and chronic facet syndrome on 
 
         the left with myofacial strain.  He said that using the Manual 
 
         for Orthopedic Surgeons, he found 5 percent permanent impairment 
 
         in view of the lumbar sprain with spasm, some rigidity, and pain 
 
         without marked lipping or arthritic changes on his x-rays.  He 
 
         imposed a 20 pound weight lifting restriction and no prolonged 
 
         standing or sitting and no pushing or pulling.  Dr. Rosenfeld, 
 
         however, did not make a specific statement on  whether the acute 
 
         and chronic facet syndrome and myofacial strain was caused by the 
 
         injury of December 11, 1984, or whether it was due to some other 
 
         cause or whether he, like Dr. Boulden, did not know what caused 
 
         it.  His evaluation was made over three years after the initial 
 
         injury based on one examination.  Dr. Wirtz had returned claimant 
 
         to work on January 31, 1985, with a full range of motion and no 
 
         neurologic deficits (ex.  C, p. 10).  Claimant testified that he 
 
         returned to work and could pull and flip 100 pounds until August 
 
         of 1985 (tr. pp. 28 & 29).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 18
 
         
 
         
 
              Consequently, after reviewing all of the doctors who treated 
 
         or examined claimant, Dr. Hatchitt, Dr. Hoffmann, Dr. Wirtz, Dr. 
 
         Evans, Dr. Manning, Dr. Boulden, not one can be found who stated 
 
         that the injury of December 11, 1984, was the cause of any 
 
         permanent impairment.  Dr. Wirtz and Dr. Boulden did not even 
 
         find any permanent impairment from this injury or from any other 
 
         cause.
 
         
 
              Furthermore, if Dr. Rosenfeld had used the Guides to 
 
         Evaluation of Impairment, published by the American Medical 
 
         Association, it is questionable whether any permanent impairment 
 
         could be found for sprain with spasm, rigidity, and pain without 
 
         marked lipping or arthritic changes.  Even though all of the 
 
         doctors, orthopedic surgeons, recommended restrictions none of 
 
         the doctors stated that the restrictions were caused by the 
 
         injury of December 11, 1984.
 
         
 
              Claimant has not sustained the burden of proof by a 
 
         preponderance of the evidence that the injury of December 11, 
 
         1984 was the cause of permanent impairment.  None of the doctors 
 
         questioned that claimant had pain, especially at night, that 
 
         disturbed his sleep, but none of the doctors said it was caused 
 
         by the injury of December 11, 1984.
 
         
 
              Iowa Code section 85.27 provides that employers shall 
 
         provide "reasonable" medical care and have the "right to choose 
 
         the care." However, defendants refused to pay for the office call 
 
         of Dr. Hatchitt on December 13, 1984, two days after the injury 
 
         in the amount of $21 (ex. 2, p. 4; ex.  A, p. 27).  Defendants 
 
         denied liability for the injury in the answer filed June 18, 
 
         1986.  Defendants specified that liability for an injury was 
 
         disputed at the time of the prehearing conference on April 27, 
 
         1988.  Liability for injury is designated as a hearing issue on 
 
         the hearing assignment order dated April 29, 1988.  Liability for 
 
         the injury is designated as a.disputed issue on the prehearing 
 
         report dated November 7 1988.  The long-standing precedent of 
 
         this agency is that defendants cannot dispute liability for the 
 
         injury and at the same time be entitled to choose the medical 
 
         care.  Barnhart v. MAQ,. Inc., I Iowa Industrial Commissioner 
 
         Report 16, (Appeal Decision 1981); Kindert v. Ft. Des Moines 
 
         Hotel, Vol. I, No. 3 State of Iowa Industrial Commissioner 
 
         Decisions, 611 (Appeal Decision 1985); Hameister v. Park View 
 
         Manor, file no. 721585 (Appeal Decision October 31, 1986); Mason 
 
         v. Thermo-Gas, file nos. 819978 & 816116, (Appeal Decision filed 
 
         July 28, 1989).
 
         
 
              Defendants argue that they are entitled to deny liability, 
 
         but still retain the right to choose the care if they voluntarily 
 
         authorize care.  Defendants contend they only loose the right to 
 
         choose the care if they both deny liability and do not authorize 
 
         care.  This is incorrect and is clearly wrong in view of 
 
         Barnhart, Kindert, Hameister and Mason cited above.  The purpose
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 19
 
         
 
         
 
         of allowing defendants to choose the care is because they are 
 
         responsible for the outcome of the care.  If they choose good 
 
         care, then their ultimate liability for disability is possibly 
 
         reduced.  If they choose poor care, their ultimate liability for 
 
         disability may well be increased.
 
         
 
              In this case, defendants wanted the best of both worlds for 
 
         various reasons.  Admittedly they chose good doctors and claimant 
 
         received good care.  At the same time, defendants, without any 
 
         liability exposure, tried to control and did control what care 
 
         claimant received and what care he did not receive.  For 
 
         instance, when claimant went to the emergency room at Mercy 
 
         Hospital after the incident on July 21, 1986, the emergency room 
 
         personnel were ready to admit him to the hospital for treatment, 
 
         but the company selected doctor, Dr. Wirtz, told them to send him 
 
         home.
 
         
 
              In addition, defendants, since they are paying the doctors, 
 
         retain a measure of control over them.  In litigated and 
 
         controverted matters, doctors and other forensic expert witnesses 
 
         tend to favor the side that retains them.  Accordingly, in an 
 
         area that is subject to an opinion that is not clearly black and 
 
         white, defendants are in a position to direct the doctor to 
 
         render the opinion that most favors their side of the case.  
 
         There are a number of other matters that medical specialists can 
 
         do or not do, say or not say, that can influence the outcome of a 
 
         case.  Also, even though they are not legally entitled to do so, 
 
         (Pote v. Mickow Corporation, file no. 694639 filed June 17, 1986) 
 
         employers and insurance carriers do control what tests or 
 
         treatment are administered to the employee-patient and what tests 
 
         or treatment are denied to the employee-patient.  For instance, 
 
         in this case, Dr. Boulden wanted an MRI, which was his decision 
 
         to make as the treating physician, but he felt that he was unable 
 
         to do so until he received permission from the insurance company.  
 
         Therefore, the actions of Dr. Wirtz and Dr. Boulden described 
 
         above clearly show why the industrial commissioner has determined 
 
         and continues to determine that it is not logical, or fair and 
 
         just, that defendants can deny liability on the one hand and 
 
         guide the course of treatment on the other.  Barnhart, Kindert, 
 
         Hameister, and Mason.
 
         
 
              Claimant's only obligation after defendants denied 
 
         liability, which goes back to when they refused to pay for Dr. 
 
         Hatchitt's office visit on December 13, 1984, was to seek only 
 
         reasonable care and care for conditions caused by the injury 
 
         which occurred on December 11, 1984.
 
         
 
              The appeal decisions in Barnhart, Kindert, Hameister, and 
 
         Mason, are further supported by the provisions of Iowa Code 
 
         section 86.13, first unnumbered paragraph, which provides that 
 
         weekly compensation payments, "do not constitute an admission of
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 20
 
         
 
         
 
         liability".  Even though the statute does not specifically refer 
 
         to medical payments, it has been the position of this agency that 
 
         the payment of medical expenses on the part of the employer is 
 
         not an admission of liability in order that the humanitarian 
 
         goals of the workers' compensation statute can be carried out, 
 
         i.e., claimant can receive needed medical care, at the expense of 
 
         the employer, and the employer does not forfeit the right to 
 
         dispute the liability issue.
 
         
 
              If the employer has not admitted liability then employer is 
 
         not entitled to choose the care.  Refusing to pay for medical 
 
         expenses clearly related to the alleged injury constitutes a 
 
         denial of liability for the injury.  The first evidence of this 
 
         denial of liability was the refusal of defendants to pay for Dr. 
 
         Hatchitt's office visit on December 13, 1984.
 
         
 
              The burden is on claimant to show that medical expenses are 
 
         reasonable and necessary and to show that they are causally 
 
         connected to the injury.  Poindexter v. Grant's Carpet 
 
         Service, Vol. 1, No. 1 State of Iowa Industrial Commissioner 
 
         Decisions 195, 196 (Appeal Decision August 10, 1984); Auxier 
 
         v..Woodward State Hospital School, 266 N.W.2d 139, 144 (Iowa 
 
         1978).
 
         
 
              It is determined that claimant is entitled to be paid for 
 
         his office visit to Dr. Hatchitt two days after the injury 
 
         occurred in the amount of $21, giving a history of this fall as 
 
         the reason for the visit.  Dr. Hatchitt told him to see the 
 
         company doctor.  Furthermore, even though defendants were paying 
 
         Dr. Wirtz, and Dr. Wirtz was providing excellent care, it was not 
 
         unreasonable for claimant to seek care for his continued sleep 
 
         disturbance from his personal and family physician on January 17, 
 
         1986, when he continued to have back pain and severe sleep 
 
         disturbance, in spite of Dr. Wirtz' care.  Claimant's choice of 
 
         one office visit to his personal physician when he was still 
 
         having trouble over one year after the accident was reasonable.  
 
         Dr. Wirtz was not claimant's choice of physician.  If defendants 
 
         had chosen to admit liability, Dr. Hatchitt would be unauthorized 
 
         care.  But since they chose not to admit liability, then 
 
         reasonableness is the standard, and claimant's action in this 
 
         instance was more reasonable than unreasonable.  Claimant is 
 
         entitled to payment of $16 for the office visit to Dr. Hatchitt 
 
         on January 17, 1986 (ex. 2, p. 4).
 
         
 
              Claimant reached for a falling piece of meat at work on July 
 
         21, 1987 and strained his back again at 5:30 p.m. At 7:08 p.m., 
 
         he reported to the Mercy Hospital Emergency Room with his wife 
 
         and mother with acute pain.  He told emergency room personnel 
 
         this problem originated in January 1985.  Claimant's trip to the 
 
         emergency room under these conditions was reasonable.   
 
         Defendants did not oppose the payment of this expense in their 
 
         brief.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 21
 
         
 
         
 
         Claimant is entitled to the payment of the Mercy Hospital bill in 
 
         the amount of $172.31 (ex. 2, p. 1).
 
         
 
              Claimant identified a bill from Methodist Hospital in the 
 
         amount of $67.90 for a trip to the emergency room at 12:15 p.m. 
 
         for chronic low back pain.  However, claimant gave no explanation 
 
         for why a trip to a hospital emergency room was reasonable nor 
 
         does the examination of the hospital documents reveal why a trip 
 
         to a hospital emergency room was reasonable on that occasion (ex. 
 
         1, pp. 32 & 33; ex. 2, p. 2).  This bill is, therefore, denied.
 
         
 
              Claimant presented a bill from Wilden Hospital in the amount 
 
         of $20.  Claimant said he went there on his own and paid the bill 
 
         himself.  He just wanted to hear what that doctor would say.  
 
         This bill then was not for treatment or care, but rather 
 
         evaluation, and an Iowa Code section 85.39 examination is not an 
 
         issue designated as a hearing issue in this case (ex. 2, p. 3; 
 
         tr. pp. 48 & 49).  The payment of this bill is then denied for 
 
         the foregoing reason.
 
         
 
              Claimant identified a bill from MCML (Mid-Central Medical 
 
         Limited) in the amount of $101.92 for a TENS unit dated August 
 
         14. Claimant said this was prescribed by Dr. Boulden.  It was the 
 
         unit he was instructed to use by L.P.T. Halverson.  Claimant did 
 
         see Dr. Boulden on August 7, 1986, and Dr. Boulden said he 
 
         ordered a TENS unit (ex. 1, p[. 4).  L.P.T. Halverson said she 
 
         instructed claimant on the unit as Dr. Boulden directed (ex. 1, 
 
         p. 13).  Defendants gave no explanation for not paying this 
 
         expense and did not oppose the payment of it in their brief.  
 
         Defendants are ordered to pay MCML in the amount of $101.92.
 
         
 
              Claimant established the reasonableness of his medical 
 
         mileage by his testimony and the calculation of it in the 
 
         exhibits in the amount of $171.30 (ex. 2, pp. 7-11; tr. pp. 
 
         5053).  Defendants agreed in their brief that claimant was 
 
         entitled to this payment and indicated that the mileage has 
 
         already been paid.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant began employment with employer in September 
 
         1984.
 
         
 
              That on December 11, 1984, claimant slipped on the icy floor 
 
         of a truck he was loading with a hand-operated fork lift and fell 
 
         and injured his lower back and felt pain down his left leg.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 22
 
         
 
         
 
              That claimant consistently gave this history to all of the 
 
         doctors who saw him and that claimant's testimony to this effect 
 
         at the hearing was not controverted, contradicted, rebutted or 
 
         refuted by any other evidence.
 
         
 
              That claimant's pre-employment physical examination lumbar 
 
         x-ray in September 1984 showed a normal spine.
 
         
 
              That claimant denied any other prior accidents or problems 
 
         that affected his back and none were proven by defendants.
 
         
 
              That claimant performed a job where he worked alone and 
 
         therefore, it was not possible or likely to have witnesses to the 
 
         accident.
 
         
 
              That claimant reported the injury to Mel, his supervisor, 
 
         immediately after the accident occurred.
 
         
 
              That claimant sustained an injury on December 11, 1984, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That there is evidence from Dr. Hatchitt, Dr. Hoffmann, Dr. 
 
         Wirtz, Dr. Evans, Dr. Manning, Dr. Boulden, Dr. Rosenfeld and an 
 
         unknown doctor with Orthopedics Associates, and that not one of 
 
         these doctors testified that this injury was the cause of any 
 
         permanent impairment.
 
         
 
              That one orthopedic surgeon, Dr. Rosenfeld, did find 5 
 
         percent permanent impairment of the body as a whole based on the 
 
         Orthopedic Surgeons Guide, but that he did not say what, if 
 
         anything, was the cause of this impairment.
 
         
 
              That Dr. Hoffmann, Dr. Wirtz and Dr. Boulden testified that 
 
         claimant's disability was temporary in nature only.
 
         
 
              That claimant presented medical bills which were reasonable 
 
         treatment for this injury as follows:
 
         
 
          Dr. Hatchitt                   $  37.00
 
          Mercy Hospital                    172.31
 
          MCML                                           101.92
 
              Total                      $  311.23
 
         
 
              That defendants' refusal to pay Dr. Hatchitt's bill was the 
 
         first indication that defendants had denied liability for the 
 
         injury.
 
         
 
              That claimant incurred medical mileage expense in the amount 
 
         of $171.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 23
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant sustained an injury on December 11, 1984, 
 
         which arose out of and in the course of employment for employer.
 
         
 
              That the injury was not the cause of any permanent 
 
         impairment or permanent disability.
 
         
 
              That the voluntary payment of certain medical expenses by 
 
         defendants while otherwise denying liability for the injury and 
 
         denying other medical expenses incurred by claimant does not 
 
         entitle defendants to choose the care as provided by Iowa Code 
 
         section 85.27, and is not an admission of liability (Iowa Code 
 
         section 86.13).
 
         
 
              That after defendants have denied an injury arising out of 
 
         and in the course of employment by employer, then claimant is 
 
         entitled to seek medical care of his own choice and defendants 
 
         are then liable for reasonable care which is caused by the 
 
         injury.
 
         
 
              That claimant is entitled to medical expenses as shown in 
 
         the findings as facts in the amount of $311.23.
 
         
 
              That claimant is entitled to $171.30 in medical mileage.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services Three Hundred Eleven and 23/100 Dollars ($311.23) for 
 
         the medical as expense designated above.
 
         
 
              That defendants pay to claimant One Hundred Seventy-one and 
 
         30/100 Dollars ($171.30) in medical mileage.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including the costs of the transcript.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 24
 
         
 
         
 
              Signed and filed this 31st day of January, 1990.
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         1200 35th St. STE 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106, 51108.50, 51401, 
 
         51402.20, 
 
                                         51402.30, 51402.40, 51402.60, 
 
                                         52206, 51803, 1403.10, 2501,          2503, 
 
                                         2700
 
                                         Filed January 31, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH HARTZER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.   786164
 
         SWIFT INDEPENDENT  PACKING  CO.,:
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INS.,
 
         
 
              Insurance Carrier, 
 
              Defendants.
 
         
 
         
 
         51106; 51108-50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 
 
         52206
 
         
 
              Claimant described a fall, reported it immediately to his 
 
         supervisor, saw his own doctor two days later, and consistently 
 
         gave the same history to all of the doctors.  Defendants did not 
 
         contradict, rebut or refute claimant's testimony.  They 
 
         introduced no evidence from the supervisor and did not explain 
 
         why not.  Defendants introduced no exhibits and called no 
 
         witnesses.  Claimant was determined to have sustained an injury 
 
         arising out of and in the course of employment with employer.
 
         
 
         51803
 
         
 
              Claimant did not prove the injury was the cause of permanent 
 
         impairment or disability.  Claimant saw seven doctors and not one 
 
         of them found any permanent impairment caused by this injury.  
 
         Three doctors said the effects were only temporary.  Two of those 
 
         three doctors said there was no permanent impairment.  Claimant's 
 
         evaluator found some permanent impairment on some rather thin 
 
         grounds, but failed to say it was caused by this injury, 
 
         claimant's degenerative condition, or some other reason.  No 
 
         award was made for permanent partial disability.  Claimant's 
 
         evaluator gave no etiology, reasons or cause for the 5 percent 
 
         permanent impairment that he found or the restrictions that he 
 
         issued.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARTZER VS. SWIFT INDEPENDENT PACKING CO.
 
         Page 2
 
         
 
         
 
         1403.10; 2501; 2503; 2700
 
         
 
              Defendants were not correct in their contention that if they 
 
         deny liability, but voluntarily provide medical care that they 
 
         have the right to choose the care.  Liability was considered 
 
         denied when defendants refused to pay the first medical bill when 
 
         claimant saw his own doctor for what was obviously treatment for 
 
         this fall two days after it occurred.  Agency precedent is that 
 
         it is not logical, fair or just, for defendants to deny liability 
 
         and at the same time choose the care citing, Barnhart, Kindert, 
 
         Hameister, and Mason.  When defendants deny liability, claimant's 
 
         only obligation is to seek reasonable care caused by the injury.  
 
         Some of claimant's bills were allowed and some were not allowed 
 
         as reasonable care. one bill was an evaluation and section 85.39 
 
         was not a designated hearing issue and so no determination was 
 
         made for the evaluation.