BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY COY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File Nos. 788164
 
         ARCHER DANIEL MIDLAND COMPANY,                    806976
 
         
 
              Employer,                       A R B I T R A T I O N
 
         
 
         and                                     D E C I S I O N
 
         
 
         NORTHWESTERN NATIONAL/
 
         OLD REPUBLIC INSURANCE,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         Larry Coy against defendant employer Archer Daniel Midland 
 
         Company and defendant insurance carriers Northwestern National 
 
         and Old Republic Insurance to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of injuries allegedly 
 
         sustained on February 5, 1985 (788164) and October 10, 1985 
 
         (806976).  These matters came on for hearing before the 
 
         undersigned in Davenport, Iowa, on December 1, 1988.  The case 
 
         was fully submitted upon receipt of five depositions subsequent 
 
         to hearing.
 
         
 
              The record in this proceeding consists of joint exhibits A 
 
         through I, employer's exhibits J through N, and claimant's 
 
         exhibits O through R.  Claimant testified at hearing, while the 
 
         following witnesses testified by deposition:  Dale Soenksen, 
 
         Pamela Sue Wait, Barbara Coy, Juergen Holl, M.D., and Gerald I. 
 
         Fein, M.D.
 
         
 
              The undersigned also agreed to rule on objections interposed 
 
         in the deposition of Dr. Holl, identified in the record as 
 
         exhibit Q (in an attachment to the prehearing report).  However, 
 
         a review of the transcript of that deposition discloses that no 
 
         objections were interposed by either counsel.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         at hearing, the following issues have been stipulated:  That an 
 
         employment relationship existed between claimant and employer at 
 
         the time of each alleged injury; that if it be determined that 
 
         claimant is entitled to compensation for temporary total 
 
         disability or healing period, defendants are liable from February 
 
         12, 1985 through March 18, 1985 (788164) and/or October 11, 1985 
 
         through November 11, 1985 (806976); that if claimant has 
 
         sustained a permanent disability, it is an industrial disability 
 

 
         to the body as a whole; that claimant's appropriate rate of 
 
         weekly compensation is $355.72 (788164) and either $252.16 or 
 
         $320.59 (806976), depending upon whether the three weeks during 
 
         which claimant was on leave of absence are used to calculate his 
 
         rate; that affirmative defenses are waived; that all medical 
 
         expenses incurred to date have been paid; that prior to hearing, 
 
         defendants paid claimant a total of $1,892.68 voluntarily.
 
         
 
              Identified as issues are:  Whether claimant sustained an 
 
         injury on February 5, 1985 (788164) and/or October 10, 1985 
 
         (806976) arising out of and in the course of his employment; 
 
         whether either alleged injury caused temporary or permanent 
 
         disability; the extent of claimant's entitlement to permanent 
 
         disability and the commencement date thereof; whether three 
 
         weeks that claimant was on leave of absence should be used to 
 
         calculate his rate (806976); the extent of claimant's 
 
         entitlement to medical benefits; taxation of costs.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant, who was observed by the undersigned to be capable 
 
         of remaining seated without fidgeting during testimony in excess 
 
         of two hours, testified that he is 39 years of age and a high 
 
         school graduate.  Claimant finished an 11-month program in auto 
 
         mechanics with Universal Trade Schools in September, 1967, and 
 
         worked in auto mechanics and heavy equipment repair for the 
 
         United States Marine Corps for three and one-half years, 
 
         commencing June, 1968.
 
         
 
              Claimant indicated that his pre-injury work history included 
 
         one year as a laborer and working foreman with B & L Hydraulic 
 
         Hoist, farming with his father, performing maintenance chores at 
 
         Freemont Company Coop from May, 1974 through July, 1980, and 
 
         thereafter employment in the maintenance department of defendant 
 
         Archer Daniel Midland and two predecessor companies, Daniel 
 
         Construction Company and Nabisco Brands.  This work included 
 
         equipment repair, motor work, welding, and included heavy 
 
         physical work such as carrying up to 40 pounds of tools, lifting 
 
         a maximum of 110 pounds, and substantial climbing.  Defendant, 
 
         which took over the plant where claimant was employed in June, 
 
         1983, was described as manufacturing products such as alcohol, 
 
         starch, sugar and gluten.  Claimant's work involved substantial 
 
         stooping, bending and squatting on a daily basis.
 
              
 
              Claimant testified that he had suffered no back problems 
 
         prior to his alleged injury of February 5, 1985.  He described 
 
         that injury as occurring when he was cleaning barrel halves 
 
         weighing approximately 150 pounds each.  Claimant testified that 
 
         one such barrel fell on him while he was washing it on one knee, 
 
         and that when he tried to stand and push the barrel away, he felt 
 
         a pop in his back, like a pulled muscle.
 
         
 
              Claimant described suffering a sharp pain which then 
 
         remained constant.  He worked until the end of his shift, but 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   3
 
         
 
         
 
         became progressively stiffer.  He reportedly notified the 
 
         security department of the injury, and then worked approximately 
 
         one more hour.
 
         
 
              Claimant testified that he missed work at least the next day 
 
         and could not get a physician's appointment for two days 
 
         thereafter, so he called in sick.  He did not believe his malady 
 
         was serious at that time, although he suffered pain bilaterally 
 
         to the center and lower portions of his back.  Claimant described 
 
         himself as unable to rise from bed on February 6.
 
         
 
              Claimant was first seen at the Bluff Medical Center by Peter 
 
         G. Roode, M.D., on February 12, 1985.  Claimant testified that he 
 
         suffered severe sharp and constant pain in his back with "some 
 
         numbness" in one leg between February 5 and February 12.
 
         
 
              After treatment with bed rest and pain medications, claimant 
 
         agreed that he made slow progress until being returned to work 
 
         without restrictions.  Claimant also saw Jay P. Ginther, M.D., of 
 
         the Bluff Medical Center before his return to work.  Joint 
 
         exhibit E-3 shows that Dr. Roode released claimant to his regular 
 
         duty effective March 19, 1985.
 
         
 
              Although Dr. Roode's records reflect that claimant reported 
 
         a possible reinjury when he tripped and fell on a trailer chain 
 
         on March 14, 1985, claimant indicated that he did not recall this 
 
         incident.
 
         
 
              Claimant testified that defendant employer made no special 
 
         provision for him upon his return to work  He made special 
 
         arrangements with coworker Dale Soenksen, who carried claimant's 
 
         tools . During the months thereafter, claimant testified that he 
 
         tried to take care and avoid reinjury because he still felt 
 
         continuing pain.  Throughout the summer of 1985 claimant 
 
         testified that his back continued to bother him perhaps two to 
 
         three times per week, progressively less often.
 
         
 
              Claimant testified further to a second work injury on 
 
         October 10, 1985.  While he and Dale Soenksen walked through a 
 
         slippery, new construction area containing angle iron 
 
         crossbraces, claimant put one leg over an obstruction when his 
 
         tool bag slipped from the shoulder; when claimant twisted to 
 
         catch the back, his back "went out" causing sharp pain similar to 
 
         the incident of February 5. The sharp, direct pain continued 
 
         bothering him for the entire afternoon, so claimant returned to 
 
         Dr. Roode on the following day. He was treated with heat, pain 
 
         medications and advised to sleep on a spring mattress.  Dr. 
 
         Ginther eventually provided claimant a return to work effective 
 
         November 12, 1985, limiting claimant to lifting 5-10 pounds.
 
         
 
              Claimant thereafter resigned his employment on November 12, 
 
         1985.  He was of the understanding that defendant did not provide 
 
         light-duty work, although he did not make application to give the 
 
         employer that opportunity.  Dale Soenksen also understood that 
 
         defendant does not have light-duty work available.
 
         
 
              In any event, although claimant does not recall making 
 
         application for employment with B & L Hydraulics in September, 
 
         1985, there is persuasive evidence in the record that he did make 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   4
 
         
 
         
 
         such application and that a job offer had been extended.  
 
         Business records of B & L Hydraulics contain an employment 
 
         application dated September 17, 1985 (at a time payroll records 
 
         contained in exhibit J show that claimant was on leave of 
 
         absence) showing claimant available for work September 18, 1985.  
 
         The application shows that claimant had filed an earlier 
 
         application "question mark March 85."  Exhibit K-2 is a memo of 
 
         October 7, 1985 to B & L from its insurance agent advising that 
 
         claimant would not be acceptable as a driver until such time as 
 
         he obtained a California driver's license.
 
         
 
              Claimant subsequently began work as a working foreman with B 
 
         & L Hydraulics in late November, 1985.  The work included 
 
         installing truck and car hoists and underground tanks.  Claimant 
 
         indicated that laborers performed the heavy work while he 
 
         primarily checked to see that work was performed in the proper 
 
         location.  He testified that he suffered during this time from 
 
         continuing lower back pain and had problems with stooping, 
 
         climbing and driving.
 
         
 
              Claimant testified that after employment with B & L 
 
         Hydraulics for some 8-10 months, he was hired away by Falcon 
 
         Industries as a project engineer responsible for removing old gas 
 
         tanks, cleaning the soil and like duties.  He received further 
 
         training from Falcon Industries and was hired at an annual salary 
 
         of $38,000 plus an automobile allowance of $325 per month.
 
         
 
              Claimant underwent a physical examination to take employment 
 
         with Falcon Industries.  He failed to check a box contained on a 
 
         history form to show that he suffered from numbness.  Claimant 
 
         testified that he was unsure why he had failed to do so, except 
 
         that he did not think of it at the time.  Similarly, claimant did 
 
         not recall giving C. Brian Tang, M.D., information that he had 
 
         fractured his back four years before and his leg sixteen years 
 
         before, although these notations are contained in Dr. Tang's 
 
         records.
 
         
 
              While employed with Falcon Industries from June, 1986, until 
 
         October, 1987, claimant suffered back pain on a daily basis.  He 
 
         constantly suffered dull pain, but sometimes the pain was 
 
         sharper. Claimant testified that he found driving to be hard on 
 
         his back and that he missed several days' work because of back 
 
         pain.  On one occasion, he suffered sharp pain when he alighted 
 
         from a truck, and stayed home the following day.  However, he did 
 
         not seek medical attention.
 
         
 
              Claimant also testified to seeing Dr. Boston while employed 
 
         at Falcon Industries.  He did complain of numbness at that time, 
 
         having suffered an incident when the ski came off his foot. 
 
         Claimant testified that the numbness was similar to that he had 
 
         suffered following his first alleged work injury, and also after 
 
         an incident when he stepped down from his truck.
 
         
 
              While employed with Falcon Industries, claimant had further 
 
         training in Texas and in-house on the topic of hazardous waste 
 
         handling and disposal.
 
         
 
              Claimant next accepted employment with an enterprise known 
 
         as Rohr Aerospace.  Claimant considered this job better because 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   5
 
         
 
         
 
         of a greater salary, no manual labor being involved, and less 
 
         driving. The job involves some walking, some climbing and much 
 
         sitting. Claimant continues suffering from left leg numbness and 
 
         dull pain. He also complains of problems walking, bending or 
 
         stooping at the present time.
 
         
 
               Claimant agreed that he has had several incidents since his 
 
         original injury of increased pain.  He specified one such 
 
         incident when he hurt his back getting out of a swimming pool and 
 
         suffered pain for approximately one hour.
 
         
 
              On cross-examination, claimant conceded that he did not seek 
 
         medical assistance between his two claimed injuries, except for 
 
         obtaining prescriptions.  However, he indicated that he had 
 
         complained of pain on several occasions to Dale Soenksen. 
 
         Claimant indicated that Soenksen would be wrong if he testified 
 
         otherwise.
 
         
 
              Claimant also testified on cross-examination that his only 
 
         pain during this interim was intermittent, if he moved too much 
 
         or sat too long, and was characterized as "dull, fist-sized, in 
 
         the low back below belt."  Claimant agreed further that he 
 
         suffered no numbness in his foot or elsewhere during that time.
 
         
 
              Claimant also reiterated that despite the contents of B & L 
 
         Hydraulics' file, he did not contact them prior to Thanksgiving, 
 
         1985.
 
              Claimant testified further that he suffered leg pain and 
 
         numbness following the October 10, 1985 incident.  He was unsure 
 
         when the numbness problems began, although testifying it was 
 
         "shortly after that."  Although the testimony was unclear, the 
 
         undersigned interpreted this statement as meaning shortly after 
 
         the October 10, 1985 injury.  Claimant agreed that his sharp pain 
 
         had subsided by November 11, 1985, and that his only symptom at 
 
         that time was dull pain.  Claimant testified further that he had 
 
         suffered from worse numbness before seeing Dr. Boston, although 
 
         no specific incident caused it.  Nonetheless, he agreed on 
 
         cross-examination that he had testified at his deposition that 
 
         numbness occurred when he twisted his back stepping out of a 
 
         truck, and that the numbness remained for several weeks.  At 
 
         hearing, claimant indicated further that he had suffered periodic 
 
         numbness prior to the truck incident, especially when sitting for 
 
         long periods of time.  Claimant indicated he saw Dr. Fein only 
 
         for the reasons that he wanted to learn what caused his numbness 
 
         and what his lifetime prognosis might be.
 
         
 
              Barbara Coy testified by deposition taken November 23, 1988. 
 
         She is claimant's wife.  She testified that claimant came home 
 
         from work on February 5, 1985, complaining that he had hurt his 
 
         back.  Claimant was very stiff and hunched over and had 
 
         difficulty moving freely or straightening up.
 
         
 
              Ms. Coy also remembered claimant returning from work on 
 
         October 10, 1985, complaining of another injury.  Claimant was 
 
         stiff, tense and unable to straighten his back.
 
         
 
              Ms. Coy also testified that claimant had suffered no back 
 
         problems prior to February 5, 1985.
 
         
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   6
 
         
 
         
 
              Although Ms. Coy testified that claimant saw Dr. Boston 
 
         because when he twisted getting out of a truck he suffered from 
 
         numbness, she was unable to recall when she first became aware of 
 
         claimant's complaint of numbness of the leg.
 
         
 
              Dale Soenksen testified by deposition taken November 29, 
 
         1988.  He was not present when claimant suffered the February 
 
         work incident.  He testified that he and claimant basically did 
 
         the same work after that incident as prior thereto.
 
         
 
              As to the October 10, 1985 work incident, Mr. Soenksen 
 
         testified that claimant was walking behind him at the time he 
 
         indicated he had been injured.  He heard nothing when the 
 
         incident occurred, and claimant said nothing at that time, but 
 
         did complain somewhat later that his tool bag had slipped of his 
 
         shoulder and that he had hurt his back.
 
         
 
              Mr. Soenksen testified that claimant "never really 
 
         complained too much" between the first and second work incidents, 
 
         in fact, that he failed to recall claimant complaining at all of 
 
         pain between the work incidents.  He did agree that they had 
 
         split up the work a little differently after the first incident, 
 
         both carrying tools instead of one or the other and using more 
 
         rigging instead of picking up heavy objects.
 
         
 
              Pamela Sue Wait testified by deposition taken November 29, 
 
         1988.  She is bookkeeper and office manager with B & L Hydraulic 
 
         Hoist.  She testified that the September 17, 1985 application for 
 
         employment is a regular business record of B & L Hydraulic Hoist. 
 
         She further testified that the October 7, 1985 memo from B & L's 
 
         insurance agent was a business record and would have been in 
 
         response to an inquiry by B & L.  She agreed that it would not be 
 
         standard procedure to run a motor vehicle record check on a 
 
         prospective employee before the person was actually hired.
 
         
 
              Lloyd Bill testified by deposition taken November 29, 1988. 
 
         He is vice president of B & L Hydraulics.  Those duties included 
 
         supervising claimant in his employment after leaving defendant 
 
         Archer Daniel Midland.  Claimant's duties included such heavy 
 
         work as sawing and removing concrete, jackhammering, hand 
 
         digging, pouring concrete and manipulating heavy tanks and 
 
         hydraulic cylinders.  He testified that claimant actually 
 
         performed this work rather than acting primarily as a supervisor.  
 
         He specifically testified to observing claimant doing the variety 
 
         of heavy jobs he described in testimony.
 
         
 
              Juergen Holl, M.D., testified by deposition taken November 
 
         29, 1988.  Dr. Holl is a self-employed radiologist operating 
 
         primarily from Mercy Hospital in Clinton, Iowa.  Dr. Holl is 
 
         board certified and a diplomat of the American Board of Radiology 
 
         and the American Board of Nuclear Medicine.  He and his staff 
 
         obtained x-rays of claimant both in February and October, 1985, 
 
         following each alleged work incident.  Altogether, ten pictures 
 
         were taken.
 
         
 
              Dr. Holl has never met claimant, but has read his x-rays.
 
         
 
              A number of spine examinations were taken on February 12, 
 
         1985.  Dr. Holl indicated that they indicated a narrowing of the 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   7
 
         
 
         
 
         third lumbar interspace and an avulsion fracture of the anterior 
 
         superior aspect of L4.  He believed the avulsion fracture was the 
 
         result-of trauma as opposed to a disease process.  The February 
 
         12 x-rays indicated that the avulsion fracture was healing and 
 
         demonstrated some callus formation.  The fracture was not "fresh" 
 
         and the healing fracture could have been the result of trauma 
 
         occurring to claimant on or about February 5, 1985.
 
         
 
              Dr. Holl testified:
 
         
 
              Q.  What in terms of time does a fresh fracture mean?  
 
              If it were a fresh fracture what's the most time that 
 
              could have intervened between the point of the actual 
 
              fracture and the point at which it was x-rayed?
 
         
 
              A.  Oh, you see the reaction sometimes within a week.  
 
              In a week to ten days you see quite a difference.
 
         
 
              Q.  Would you consider a fracture that you saw, say, a 
 
              week after it had occurred as being a fresh fracture?
 
         
 
              A.  No.
 
         
 
              Q.  Pardon me?
 
         
 
              A.  No. You would see some early callus already.
 
         
 
              Q.  So a week-old fracture to you would not be a fresh 
 
     
 
         
 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   8
 
         
 
         
 
              fracture?
 
         
 
              A.  That's correct.
 
         
 
              Q.  Do fractures heal at different rates in different 
 
              people?
 
         
 
              A.  Oh, I'm sure.
 
         
 
              Q.  In your years of experience in reading x-rays and 
 
              seeing follow-up x-rays and so on do you have any rule 
 
              of thumb about how long it takes for the healing 
 
              process to become apparent on an x-ray?
 
         
 
              A.  Well, if you would have a fracture today and you 
 
              have a younger person then you would see some early 
 
              callus, I'd say what I said, a week to ten days.  And 
 
              before the fracture is completely healed four to six 
 
              weeks have passed.
 
         
 
         (Dr. Holl deposition, page 10, line 3 through page 11, line 6)
 
         
 
         As to the October x-rays, Dr. Holl testified:
 
         
 
              Q.  On the second set of x-ray studies taken in October what 
 
              was the condition of that fracture?
 
         
 
              A.  To me it appears more solid, it appears what I call 
 
              adhered, and I thought also the interspace was a little more 
 
              narrow.  So it looks a little different.
 
         
 
              Q.  When you talk about healed, am I correct in 
 
              understanding that the bone had completely healed back 
 
              together?
 
         
 
              A.  Yeah, this is what you usually assume with that, that's 
 
              correct.
 
         
 
         (Dr. Holl deposition, page 12, line 1 through line 11)
 
         
 
         And:
 
         
 
              Q.  Okay. Thank you, Doctor.  Now, in your testimony you 
 
              said -- and your report you said that the fracture was 
 
              healed when you observed it in those studies taken in 
 
              October.
 
         
 
              A.  Yes.
 
         
 
              Q.  And by "healed" do we mean that the bone had all 
 
              reconnected?
 
         
 
              A.  Not in its entirety.  You never expect that.  But the 
 
              bone density was increased and it looked more solid.
 
         
 
              Q.  And there was no fresh fracture when you viewed those 
 
              films in October of '85?
 
         
 
              A.  No.
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Q.  Pardon me?
 
         
 
              A.  Not in October.
 
         
 
         (Dr. Holl deposition, page 17, line 13 through page 18, line 2)
 
         
 
              Dr. Holl also testified that the avulsion fracture he 
 
         observed on x-ray examination was consistent with an individual 
 
         who on February 5, 1985, stood up and pushed against a barrel 
 
         starting to tip towards him as claimant described in his 
 
         testimony.
 
         
 
              Gerald I. Fein, M.D., testified by deposition taken August 
 
         15, 1988. Dr. Fein is a board-certified orthopaedic surgeon and a 
 
         diplomat of the American Board of Orthopaedic Surgery and the 
 
         American Academy of Orthopaedic Surgery.  Dr. Fein examined 
 
         claimant for evaluation on January 20, 1987.  He also testified 
 
         that he had access to voluminous medical reports.  Dr. Fein did 
 
         not take x-rays of claimant, but had an x-ray available to him as 
 
         a part of his evaluation.
 
         
 
              Claimant complained of pain in the lumbar spine with 
 
         radiation of pain and numbness down the left leg.  He complained 
 
         of increases of the pain level with repeated bending, stooping 
 
         and lifting-type activities.
 
         
 
              As to the history of claimant's first injury, Dr. Fein 
 
         testified:
 
         
 
              Q.  Doctor, did you obtain a history from Mr. Coy as to how 
 
              it was he believed that he injured his back?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  And briefly, what did he indicate to you?
 
         
 
              A.  He indicated that in February of 1985, while working on 
 
              his hands and knees in the course of scrubbing out barrels, 
 
              he stood up and felt a loud pop in his lumbar spine.  Over 
 
              the ensuing days he developed lumbosacral back pain for 
 
              which he was seen by a Dr. Roode.
 
         
 
         (Dr. Fein deposition, page 13, line 1 through line 12)
 
         
 
              As to the October injury, Dr. Fein testified that claimant 
 
         stated he had been carrying some tools and slipped on a wet 
 
         floor.
 
         
 
              As to claimant's physical examination, Dr. Fein testified:
 
         
 
              A.  I examined his back, I demonstrated the mobility of his 
 
              spine, and did a neurologic evaluation of his lower 
 
              extremities.
 
         
 
              Q.  What was the result of that?
 
         
 
              A.  The result of that was that the patient demonstrated 
 
              decreased sensation to pin in his left leg, and his left 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  10
 
         
 
         
 
              Achilles flexion was absent.  Combined, this tells me that 
 
              there's compression of a nerve root in his lumbar spine 
 
              which may well occur with a herniated lumbar disk.
 
         
 
              I did not take any new X rays, but I did have the 
 
              opportunity to review some old X rays which demonstrated a 
 
              large bone spur with an old avulsion fracture of the 
 
              anterior vertebral body of L4.  This fracture had healed in 
 
              a good position and was of no consequence at this time.
 
         
 
              Q.  The indications that you received, the decreased 
 
              sensation and the lack of Achilles flexion, is that 
 
              something that in your experience an individual could feign 
 
              or fool you during the course of the evaluation?
 
         
 
              A.  They certainly can fake me with the sensation to pin; 
 
              however, when they do this, they usually do not correspond 
 
              to an anatomic distribution.  Mr. Coy's diminished sensation 
 
              to pin corresponded to an anatomic distribution, and I find 
 
              it unlikely that he would know what this distribution should 
 
              be. Consequently, I do not feel that he was feigning loss of 
 
              feeling.  As far as loss of flexion, it would be impossible 
 
              to obliterate that voluntarily.
 
         
 
              Q.  Did you make a determination from the history that you 
 
              obtained and from your examination as to whether or not Mr. 
 
              Coy, the deficiencies that Mr. Coy displayed, were related 
 
              to the work-related incidents he described to you in 
 
              February and October of 1985?
 
         
 
              A.  Unfortunately, in physical examination there's no way 
 
              that I can tell you what caused these abnormalities.  I can 
 
              only go by the history, and he relates the radiating pain, 
 
              accompanied by the numbness of his left leg to the injuries 
 
              that occurred.  I could not, from him, determine whether it 
 
              was from the February or the October episode, but from one 
 
              of those two.
 
         
 
              Q.  Would the types of deficiencies that Mr. Coy displayed 
 
              in this evaluation be consistent with the type of injury one 
 
              could incur in those circumstances as Mr. Coy described 
 
              either in February or October of '85?
 
         
 
              A.  That is correct.
 
         
 
         (Dr. Fein deposition, page 14, line 15 through page 16, line 15)
 
         
 
         As to claimant's functional impairment, Dr. Fein testified:
 
         
 
              Q.  Let me go on, then, Doctor because we have your 
 
              evaluation, and ask you, you indicated that you believed 
 
              that Mr. Coy had sustained a permanent disability; is that 
 
              correct?
 
         
 
              A.  That is correct.
 
         
 
              Q.  Would you give us some understanding of that as to why 
 
              you believe he sustained a permanent disability, and how you 
 
              believe that disability may affect him?
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  11
 
         
 
         
 
         
 
              A.  I feel that the patient has compression of a nerve root 
 
              of his lumbar spine, probably secondary to a herniated 
 
              lumbar disk.  I feel that this patient is at risk with 
 
              activities such as bending and lifting because he may 
 
              further herniate this disk.
 
         
 
              The patient, in spite of the neurologic loss of his left 
 
              leg, seems to be tolerating the problem fairly well, and 
 
              surgery does not appear to be currently indicated.  But with 
 
              further stress on his back he certainly can herniate this 
 
              disk to a greater degree, and he may eventually require an 
 
              operation if that were to occur.  Consequentially, I feel he 
 
              does have a permanent disability with a permanent work 
 
              restriction.
 
         
 
              Q.  What restrictions, if any, would you impose upon Mr. 
 
              Coy?
 
         
 
              A.  I feel that the patient should limit the amount of 
 
              bending, stooping, and lifting activities that he performs. 
 
              He should not lift objects weighing greater than 25 pounds.
 
         
 
              Q.  Would you believe that he should not engage in, for lack 
 
              of a better term, construction-related labor?
 
         
 
              A.  That is correct.
 
         
 
              Q.  Is he, in your opinion, limited to the point that he 
 
              should have a sedentary type position?
 
         
 
              A.  No, I think that as long as he avoids heavy work he 
 
              certainly can be working in an upright position.  He 
 
              certainly can be walking about and carrying some light 
 
              things weighing less than 25 pounds.  I don't think that 
 
              he's disabled to the point of being sedentary.
 
         
 
         (Dr. Fein deposition, page 16, line 16 through page 18, line 7)
 
         
 
              Dr. Fein also testified to his having assigned a 25 percent 
 
         disability rating to claimant.  This took into account claimant's 
 
         neurological deficit and work limitations, plus how the doctor 
 
         felt that might affect him in the workplace.  Dr. Fein's 
 
         assignment of a numerical rating was based on the Schedule for 
 
         Rating Permanent Disabilities published by the California 
 
         Division of Industrial Accidents that is in evidence as exhibit 
 
         I.  Dr. Fein did not rely upon the American Medical Association 
 
         Guides to the Evaluation of Permanent Impairment.
 
         
 
              Dr. Fein also testified to his review of the x-rays received 
 
         from Dr. Holl:
 
         
 
              Q.  Is it correct that you indicate that you believe that by 
 
              looking at the X rays in February, that is, the X ray report 
 
              of Dr. Holl, dated February 14, 1985, I believe, that in all 
 
              likelihood he would not have sustained the fracture the week 
 
              or so prior?
 
         
 
              A.  That is correct.
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  12
 
         
 
         
 
         
 
              Q.  If you made a determination, how much time would have 
 
              had to have passed between the injury and the occurrence of 
 
              the X ray to have the body begin to show that healing 
 
              process that you referred to?
 
         
 
              A.  I would say six months or longer.  It may even be six 
 
              years or ten years, but a minimum of six months.
 
         
 
              Q.  Do you know if that L4 that is discussed, that fracture, 
 
              is that a congenital situation, or did it look to you like 
 
              it was a trauma-related fracture?
 
         
 
              A.  I thought it was a trauma-related fracture.
 
         
 
              Q.  Is that playing a part at all in his present 
 
              difficulties?
 
         
 
              A. I do not believe so.
 
         
 
         (Dr. Fein deposition, page 19, line 13 through page 20, line 11)
 
         
 
         As to physical manifestations of claimant's impairment, Dr. Fein 
 
         testified:
 
         
 
              Q.  Now, you have indicated today that in your opinion there 
 
              is a disk protrusion present that may be creating some 
 
              compression on a nerve root; is that correct?
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  13
 
         
 
         
 
         
 
              A.  That's correct.
 
         
 
              Q.  Have you identified at what level this disk protrusion 
 
              is in existence?
 
         
 
              A.  I would say from physical examination it's probably 
 
              between the L5 and Sl vertebral bodies.  However, I have not 
 
              done a scan to specifically identify the location of the 
 
              disk herniation.  From an anatomic standpoint, the 
 
              neurologic loss combined with the loss of his flexion is 
 
              consistent with an L5-S1 disk herniation.
 
         
 
              Q.  Is it possible, Dr. Fein, that the same physical 
 
              symptoms that are reported could be related to a protrusion 
 
              at the L4-L5 level?
 
         
 
              A.  It is certainly possible, yes.
 
         
 
              Q.  And would additional tests be needed in order to make a 
 
              definite determination of whether or not such a protrusion 
 
              is present and its level?
 
         
 
              A.  That is correct.
 
         
 
              Q.  Now, in your report of January 20th of 1987, you 
 
              indicate an impression on page 2 of that report in two 
 
              parts.  First, resolved muscular ligament as strain; and 
 
              two, old avulsion fracture of L4 healed.
 
         
 
              Is this finding with respect to disk protrusion a new 
 
              finding not reflected in your earlier report?
 
         
 
              A.  I think my report of that date was not complete, and it 
 
              should have had a reference to the disk herniation.  It did 
 
              not.
 
         
 
              Q.  Can you indicate, with respect to your finding in the 
 
              January 20th, 1987 report of resolved muscular ligament as 
 
              strain, as to what condition you were referring in 
 
              connection with that diagnosis?
 
         
 
              A.  Well, much of the localized pain in his lumbar spine had 
 
              resolved.  He still had some pain and radiation of pain down 
 
              his leg.  I think that the injury involved lumbar muscular 
 
              strain involving the muscles and ligaments, and also a disk 
 
              herniation.  I think that the muscular aspect of this injury 
 
              healed, and the problem was resolved.  However, the 
 
              radiating pain down his leg accompanied by the neurologic 
 
              loss of his leg is probably secondary to a disk herniation.
 
         
 
         (Dr. Fein deposition, page 22, line 1 through page 23, line 25)
 
         
 
         Dr. Fein specified:
 
         
 
              Q.  So in expressing that opinion, you're relying entirely 
 
              on the patient's statement of the history that he had 
 
              radiated numbness and pain into the left lower extremity, 
 
              starting, was it, immediately after these work incident?
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  14
 
         
 
         
 
         
 
              A.  That is correct.
 
         
 
         (Dr. Fein deposition, page 24, line 23 through page 25, line 3)
 
         
 
              Dr. Fein took some issue with the opinion of Dr. Tang:
 
         
 
              Q.  Now, in the report of July 10th of 1986, Dr. Brian Tang 
 
              indicated that he would impose restrictions of no repeated 
 
              bending or stooping, and a limitation of a 25-pound weight 
 
              lifting restriction in connection with the presence of this 
 
              avulsion fracture.  Do you disagree with Dr. Tang's 
 
              recommendations?
 
         
 
              MR. McGEE:  I'm going to object.  I think that's a 
 
              misstatement of the -- I don't have Dr. Tang's letter in 
 
              front of me, but my recollection is that's a misstatement or 
 
              an over-generalization of Dr. Tang's letter.
 
         
 
                  BY MR. BRANDES:
 
         
 
              Q.  You can go ahead and answer the question, Dr. Fein.
 
         
 
              A.  Well, I agree with his conclusion that he should avoid 
 
              continuously over 25 pounds of lifting and occupations that 
 
              require repeated bending, stooping and squatting.  However, 
 
              my agreeing with that is for a different reason.  He states 
 
              that he should have these restrictions because of an 
 
              avulsion fracture of L4.  I feel that he should have these 
 
              restrictions because of a probable disk herniation, and that 
 
              the fracture has long since healed and probably is 
 
              inconsequential at this time.
 
         
 
              Q.  So in essence, you agree with the restrictions, but 
 
              disagree with Dr. Tang's opinions with respect to why they 
 
              should be imposed?
 
         
 
              A.  That is correct.
 
         
 
         (Dr. Fein deposition, page 25, line 22 through page 27, line 1)
 
         
 
              Medical records of Bluff Medical Center reflect that 
 
         claimant was seen on February 12, 1985 by Dr. Roode.  Claimant 
 
         reported that he felt a "pop" as he stood up after about an hour 
 
         scrubbing out barrels.  Dr. Roode noted claimant's report that 
 
         this did not immediately hurt him, but over the last 2-3 days 
 
         claimant had become aware of increasingly severe lower back pain.  
 
         Dr. Roode specifically noted that the pain did not radiate and 
 
         was located in the midline.  Straight leg raising was positive 
 
         only at 90 degrees, and only for low back pain.  Dr. Roode noted 
 
         radiological evidence of an anterior lip compression fracture, 
 
         "which looks old to me."  Claimant denied previous history of 
 
         back injury.
 
         
 
              Dr. Roode's notes indicate that he saw claimant again on 
 
         February 14, February 20, February 27, March 7, March 14, and 
 
         March 18, 1985.  There is no indication on any of those visits 
 
         that claimant complained of numbness or radiating pain.  Dr. 
 
         Roode specifically noted on March 14, 1985 that neurological 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  15
 
         
 
         
 
         examination was negative.  As of March 18, claimant complained of 
 
         no further pain and had good range of motion in the back.
 
         
 
              Dr. Roode also saw claimant after the second work incident. 
 
         His notes of October 11, 1985 reflect that claimant had twisted 
 
         his back:
 
         
 
         Didn't hurt initially at first.  It hurt a little bit last night 
 
         after he went home from work, but this morning his back was sore 
 
         and stiff.  He comes in today with tenderness, stiffness and loss 
 
         of mobility of the low back.  The straight leg raising test is 
 
         positive on the patient's right, but only for low back pain.  The 
 
         DTRs are equal bilaterally.
 
         
 
         Dr. Roode had an impression of reaggravation of chronic low back 
 
         sprain.
 
         
 
              Dr. Roode reported seeing claimant on October 15 and October 
 
         22, 1985.  On October 22, pain radiated from the back into the 
 
         area of the right hip.  Straight leg raising was positive on the 
 
         right for radicular back pain.
 
         
 
              Dr. Ginther's notes reflect that claimant was seen on 
 
         October 24, 1985.  He found claimant with tenderness at the 
 
         lumbosacral junction, more on the right than left.  Claimant had 
 
         stiffness, tightness and swelling, also more on the right.  Range 
 
         of motion of the lumbar spine was decreased.  Straight leg 
 
         raising was positive at about 60 degrees bilaterally for tight 
 
         hamstrings, but there was no popliteal fossa tenderness.  Dr. 
 
         Ginther also reviewed x-rays, noting the "old abnormality" of the 
 
         superior anterior aspect of L4.  Dr. Ginther believed it to be a 
 
         flexion injury from at least several years before claimant 
 
         finished growing.  Dr. Ginther's impression was of acute lumbar 
 
         strain.
 
         
 
              Dr. Ginther saw claimant again on November 4 and November 
 
         11, 1985.  No notation was made of any loss of sensation.
 
         
 
              Dr. Ginther wrote claimant's attorney on October 23, 1987. 
 
         He reiterated his view that the L4 fracture predated the February 
 
         work incident, and probably by a number of years.  He also 
 
         reiterated that his finding of positive straight leg raising was 
 
         indicative of tight hamstrings, not of a back problem other than 
 
         muscular strain.  Dr. Ginther expected claimant's muscular and 
 
         ligamentous strain to continue to improve over the course of six 
 
         months to a year, but could not confirm that recovery has 
 
         occurred since he had not seen claimant.
 
         
 
              Medical records of Long Beach Medical Center (exhibit B) 
 
         show that claimant was seen on June 23, 1986 by Ralph E. Alway, 
 
         M.D., apparently in connection with a preemployment physical for 
 
         Falcon Disposal Service. As to claimant's history of back 
 
         problems, Dr. Alway noted:
 
         
 
              Back X-Rays:  previous injury about 4 yrs ago
 
              slipped and fell.  Now has avulsion [illegible]
 
         Area body of L-4.
 
         
 
              In connection with the preemployment physical, claimant also 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  16
 
         
 
         
 
         filled out a history sheet which requested a yes/no answer to 
 
         whether various symptoms had ever been manifested.  Claimant 
 
         denied symptoms of numbness, paralysis or polio.
 
         
 
              C. Brian Tang, M.D., medical director of Long Beach Medical 
 
         Clinic, Inc., wrote to General Counsel for Falcon Disposal 
 
         Service on July 10, 1986.  Dr. Tang opined that claimant should 
 
         not be involved in any occupation lifting continuously over 25 
 
         pounds or requiring repetitive bending, stooping or squatting 
 
         because of the avulsion fracture of L4 which, "[A]ccording to Mr. 
 
         Coy, this injury apparently occurred approximately four years ago 
 
         from a slip and fall episode."
 
         
 
         Eugene Boston, M.D., saw claimant on September 12, 1986. Claimant 
 
         complained of pulling a muscle in the calf of his left leg after 
 
         he stepped off a van at work five days before. Claimant's muscle 
 
         pull went from the back of the leg up to his thigh and claimant 
 
         complained of "some numbness" to the left heel. This notation is 
 
         significant because it constitutes the first medical 
 
         documentation of any complaint of numbness.
 
         
 
              Dr. Fein's medical records include several items of 
 
         correspondence with claimant's attorney.  On February 27, 1987, 
 
         Dr. Fein reported his disagreement with the findings of Dr. Holl 
 
         concerning the healing lumbar fracture at L4, noting that he had 
 
         reviewed the February 14 radiographic report:
 
         
 
              The healing of a fracture is not radiographically apparent 
 
         in one week.  This patient had an injury which occurred on 
 
         February 5, 1985, and an x-ray taken nine days later on February 
 
         14, 1985 is described as showing a healing fracture. If there 
 
         really is evidence of a healing fracture, I would venture to say 
 
         that the injury had to predate February 5, 1985.  I agree with 
 
         Dr. Holl's statement that it would be wise to repeat the x-ray in 
 
         six weeks, because it takes about six weeks before there is 
 
         significant radiographic evidence of fracture healing . If 
 
         fracture healing is apparent at nine days I would assume that the 
 
         fracture predated the described date of injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on or about February 5, 1985 
 
         and October 10, 1985 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).
 
         
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  17
 
         
 
         
 
              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 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  18
 
         
 
         
 
         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 injuries of February 5, 1985 and October 
 
         10, 1985 are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 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 v. Central Telephone 
 
         Co., 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).
 
         
 
              Defendants have been at pains to challenge claimant's 
 
         credibility as a witness and as a medical historian.  As it 
 
         happens, that skepticism is well justified by the record.
 
         
 
              Problems with the consistency of claimant's testimony with 
 
         the other evidence begin with the claimed work incident of 
 
         February 5, 1985.  As claimant described this incident, a rather 
 
         traumatic event occurred.  While kneeling to clean a heavy barrel 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  19
 
         
 
         
 
         half, the barrel fell on him, and when he tried to stand and push 
 
         it away, claimant testified to feeling a "pop" in his back with a 
 
         sharp pain which then remained constant.  Claimant described 
 
         working until the end of his shift, but becoming progressively 
 
         stiffer.  However, this is not at all consistent with what 
 
         claimant reported to Dr. Roode only seven days later, on February 
 
         12, 1985.  Dr. Roode noted that the "pop" did not immediately 
 
         hurt claimant, but became gradually more severe over the last 2-3 
 
         days. Of course, a traumatic incident such as wrestling with a 
 
         heavy barrel half would obviously be more consistent with a later 
 
         claim that the avulsion fracture at L4 was caused by the work 
 
         incident, and not by the slip and fall incident of four years 
 
         before June, 1986, as reported by Drs. Alway and Tang.  It might 
 
         also be noted at this time that there is no explanation in the 
 
         record as to how Dr. Alway could possibly have understood that 
 
         the then-four-year-old fracture occurred from a slip and fall 
 
         incident, other than being so informed by claimant.
 
         
 
              Perhaps the most serious discrepancy in this record relates 
 
         to claimant's symptomatology at the time of the initial work 
 
         incident.  Claimant's testimony was confusing and, to this 
 
         observer, self-contradictory as to when he first suffered 
 
         numbness radiating to the left leg.  However, it seems clear that 
 
         claimant did mean to convey that he suffered at least "some 
 
         numbness" at the time of the first incident, and more 
 
         specifically between February 5 and the first visit to Dr. Roode.  
 
         It is also clear that claimant gave such a history of numbness to 
 
         Dr. Fein; in fact, it was this history of numbness as related by 
 
         claimant that caused Dr. Fein to opine that a causal connection 
 
         existed between the work injury and what the doctor believed was 
 
         a herniated disc 
 
         
 
              In order for claimant to recover permanent partial 
 
         disability benefits, he must establish a permanent disability 
 
         causally connected to the claimed work injury.  On the present 
 
         record, claimant must therefore establish either that the 
 
         avulsion or flexion fracture to L4 or the disc injury diagnosed 
 
         by Dr. Fein arose from one of the claimed incidents.  Because Dr. 
 
         Fein specifically relied upon claimant's reported history of 
 
         numbness arising after the first injury, and since Dr. Fein is 
 
         the only physician to have diagnosed disability resulting from a 
 
         herniated disc, the time of onset of this symptom is of crucial 
 
         importance. Yet, the very first indication in the medical records 
 
         of any complaint of numbness is when claimant saw Dr. Boston on 
 
         September 12, 1986.  On June 23, 1986, claimant specifically 
 
         denied a history of numbness during his visit to Drs. Alway and 
 
         Tang. Treating physicians Roode and Ginther make no mention of 
 
         any complaint of numbness.  Dr. Roode noted on February 12, 1985, 
 
         claimant's first visit to a physician after his claimed injury, 
 
         that claimant's pain does not radiate and is located in the 
 
         midline; further, that straight leg raising was positive only for 
 
         low back pain.  After repeated visits, during which Dr. Roode 
 
         failed utterly to make any notation of complaints of numbness, 
 
         the doctor noted on March 14, 1985 that neurological examination 
 
         was negative.  Similarly, Dr. Ginther makes no mention of any 
 
         radiating pain to the left leg or numbness of any kind.  However, 
 
         Dr. Ginther made note on October 22, 1985 that straight leg 
 
         raising was positive on the right for radicular back pain.
 
         
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  20
 
         
 
         
 
              To suggest that an injured worker would repeatedly see 
 
         treating physicians, including a physician to whom he was 
 
         referred for back pain, without mentioning a symptom such as 
 
         numbness defies belief.  Claimant gave every indication in his 
 
         testimony of being at least of average intelligence.  It further 
 
         defies belief to suggest that he might have repeatedly seen 
 
         physicians for his claimed back injury without recognizing the 
 
         potential importance of numbness following a claimed industrial 
 
         accident.  It even further defies belief to suggest that either 
 
         Dr. Roode or Dr. Ginther would fail to make note of such a 
 
         complaint if once made. Therefore, the undersigned must conclude 
 
         that claimant's testimony is completely without credibility with 
 
         respect to the onset of radiating numbness to the left leg as a 
 
         symptom.  By the same token, it is concluded that claimant's 
 
         credibility is suspect with respect to the rest of his 
 
         testimony.
 
         
 
              It should further be noted that the record abounds with 
 
         other serious issues as to claimant's credibility.  For example, 
 
         claimant testified that he did not make application for 
 
         employment with B & L Hydraulics until after leaving employment 
 
         with defendant Archer Daniel Midland.  This question is not 
 
         entirely insignificant, since it might well be felt that leaving 
 
         employment with defendant because of defendant's unwillingness to 
 
         provide light-duty work would be a factor tending to show 
 
         increased industrial disability.  Yet, the documentary evidence 
 
         is convincing that claimant made application with B & L 
 
         Hydraulics on September 17, 1985, before the second claimed work 
 
         injury.  An employment application in claimant's admitted hand is 
 
         dated September 17, 1985.  Claimant was on leave of absence on 
 
         that date.  Claimant had spoken on several occasions to coworker 
 
         Soenksen concerning the possibility that he might return to that 
 
         previous employer.  B & L Hydraulics' insurance agent wrote on 
 
         October 7, 1985 concerning claimant's insurability as a driver in 
 
         California.  Pamela Wait testified that such an inquiry would not 
 
         normally have been made unless such an individual had already 
 
         been hired.  The conclusion seems inescapable that claimant had 
 
         applied for and probably accepted a new job with B & L Hydraulics 
 
         (with whom he started on November 18, 1985) well before the 
 
         claimed work injury of October 10, 1985, and greatly before 
 
         claimant's testimony that he sought that job only after quitting 
 
         his employment with defendant on November 12, 1985.
 
         
 
              Claimant's testimony was directly contradictory to that of 
 
         Lloyd Bill concerning whether or not claimant performed heavy 
 
         manual labor during his tenure with B & L Hydraulics in 1985 and 
 
         1986.  This is not insignificant because an inability to perform 
 
         heavy manual labor such as described by Mr. Bill would be 
 
         indicative of increased industrial disability, and also because 
 
         actually performing such heavy labor over an extended period 
 
         would tend to support defendants' position that any disability 
 
         claimant now actually has is related to subsequent and unknown 
 
         incidents, rather than the claimed work injuries.  Although the 
 
         undersigned did not have the opportunity to observe Mr. Bill 
 
         testify, there seems no reason why he would, as a disinterested 
 
         party, perjure himself with respect to whether he personally 
 
         observed claimant performing heavy manual labor.
 
         
 
              There were also inconsistencies between the testimony of 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  21
 
         
 
         
 
         claimant and Dale Soenksen.  At least one significant 
 
         inconsistency involves whether or not claimant made complaint of 
 
         back pain between his first and second claimed work injuries. 
 
         Soenksen does not recall claimant making such complaints, while 
 
         claimant testified that Soenksen is in error in that respect.
 
         
 
              There is also a completely objective test of claimant's 
 
         credibility in this record.  As has been seen, Dr. Roode reported 
 
         a negative neurological examination after the first incident.  
 
         Dr. Fein found pin prick evidence of a neurological problem. 
 
         Therefore, either one of these physicians is completely in error, 
 
         or claimant has misrepresented the onset of his neurological 
 
         problems.  It seems evident on the entire record that the latter 
 
         possibility is actually the case.
 
         
 
              Notwithstanding the foregoing, the finder of fact is not 
 
         required to completely disregard all of claimant's testimony. 
 
         There is reason to believe that claimant suffered some nature of 
 
         work incident on the dates alleged.  After all, claimant sought 
 
         medical treatment and did have observable symptoms.  Dr. Roode 
 
         reported on February 12, 1985 that claimant moved with difficulty 
 
         and was stiff, and that spinal x-rays revealed complete loss of 
 
         the lordotic curve.  Straight leg raising was positive for low 
 
         back pain.  Claimant's spine series also showed a fracture on L4, 
 
         although the fracture looked old to Dr. Roode (and, of course, 
 
         was subsequently reported by claimant on June 23, 1986 to have 
 
         occurred four years prior in a slip and fall).  Dr. Roode 
 
         reported on October 11, 1985 that claimant came in with 
 
         tenderness, stiffness and loss of mobility of the lower back, and 
 
         showed a positive straight leg raising test on the right, but 
 
         only for low back pain.  Dr. Ginther reported on October 24 that 
 
         claimant showed stiffness, tightness and swelling at the 
 
         lumbosacral juncture, more on the right with decreased range of 
 
         motion of the lumbar spine in all directions.
 
         
 
              Apparently, something happened to claimant on or close to 
 
         the two dates alleged.  Although it is a close question due to 
 
         his lack of credibility, the undersigned concludes that claimant 
 
         did suffer either a temporary sprain or a temporary aggravation 
 
         of his fracture at L4.  As discussed below, claimant has failed 
 
         to meet his burden of proof in establishing permanent disability 
 
         resulting from either injury.  However, either a temporary strain 
 
         or a temporary aggravation of a preexisting condition is 
 
         compensable. The parties have stipulated to temporary total 
 
         disability from February 12 through March 18 and October 11 
 
         through November 11, 1985.  Temporary total disability benefits 
 
         shall be awarded for each of those intervals.
 
         
 
              The parties have stipulated that claimant's appropriate rate 
 
         of compensation is $355.72 for the first period of temporary 
 
         disability.  They differ as to the appropriate compensation rate 
 
         for the October incident.  However, they have stipulated to 
 
         either of two specified rates, depending upon whether the three 
 
         weeks during which claimant was on leave of absence are used to 
 
         calculate his rate.  It is a longstanding agency practice to 
 
         exclude such nontypical weeks since they are not representative 
 
         of claimant's earnings.  Lewis v. Aalfs Mfg. Co., I Iowa 
 
         Industrial Commissioner Report 206 (App. Decn. 1980).  Since 
 
         those three weeks must be excluded, it is held that claimant's 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  22
 
         
 
         
 
         rate for the October 11, 1985 injury is $320.59.
 
         
 
              Claimant has failed to establish that any causal nexus 
 
         exists between either work injury and any permanent disability.  
 
         Permanent disability may be either by reason of his avulsion or 
 
         flexion fracture at L4 or because of the disc herniation 
 
         diagnosed by Dr. Fein.
 
         
 
              The avulsion or flexion fracture will be discussed first. 
 
         The fracture could not have been caused by the October 11, 1985 
 
         injury, since the February x-rays showed the fracture to be 
 
         healing or healed eight months earlier.  Has claimant established 
 
         that the fracture was caused by the February 5, 1985 incident? 
 
         Drs. Roode, Ginther and Fein were of the view that the fracture 
 
         had to have predated the injury because it already appeared to be 
 
         healing or healed when x-rays were taken on February 12, 1985. 
 
         Dr. Holl believed that the "healing" status of the fracture at 
 
         that time was consistent with such a recent injury.  Of course, 
 
         Dr. Holl is a board-certified radiologist and his opinion is 
 
         entitled to substantial weight.  Nonetheless, the fact that 
 
         claimant's history given to Dr. Roode shows no such traumatic 
 
         episode as was discussed in Dr. Holl's deposition, given further 
 
         the fact that claimant reported to Dr. Alway that he had suffered 
 
         the fracture in a slip and fall four years before June, 1986, and 
 
         giving appropriate deference to the views of Dr. Fein (a 
 
         board-certified orthopaedic surgeon), that the injury was still 
 
         too fresh to have shown healing on February 12, it is concluded 
 
         that claimant has failed to establish that his avulsion or 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  23
 
         
 
         
 
         flexion fracture at L4 is causally related to the work incident 
 
         of February 5, 1985.
 
         
 
              Because it is held that claimant has failed to establish a 
 
         causal connection between the fracture and either work injury, it 
 
         is unnecessary to resolve the conflict between Drs. Tang and Fein 
 
         as to whether the fracture itself constitutes a permanent 
 
         impairment.
 
         
 
              Dr. Fein has opined that claimant should be under work 
 
         restrictions by reason of what he diagnosed as a herniated disc. 
 
         If the herniated disc is shown to be causally related to either 
 
         work incident, claimant has suffered a compensable permanent 
 
         disability.  As has been seen, the question of causality is 
 
         normally within the sphere of expert testimony.  Only one expert 
 
         has testified as to a causal relationship between either work 
 
         injury and the diagnosed herniated disc:  Dr. Fein. However, Dr. 
 
         Fein's opinion on that issue is not entitled to weight in this 
 
         case because it was based upon a faulty history.  Dr. Fein 
 
         specified on more than one occasion in his testimony that his 
 
         view as to causation was based in large part upon claimant having 
 
         suffered numbness radiating to the left leg after one or both of 
 
         the 1985 work incidents.  It has already been held that 
 
         claimant's testimony with respect to when he developed numbness 
 
         is without credibility.  As late as June 23, 1986, claimant 
 
         specifically denied numbness in his preemployment physical . The 
 
         first medical indication of numbness occurred on September 12, 
 
         1986, after claimant stepped from a van at work.  That van 
 
         incident was reported to American Home Assurance Company (exhibit 
 
         F-9) as having occurred on September 9, 1986.  Given that there 
 
         is absolutely no evidence whatsoever, with the sole exception of 
 
         claimant's incredible testimony, that numbness was a symptom 
 
         associated with either claimed work injury, it must be concluded 
 
         that claimant has failed to meet his burden of proof in 
 
         establishing any causal connection between either work injury and 
 
         his current herniated disc diagnosis.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was employed by defendant Archer 
 
         Daniel Midland Company on February 5, 1985 and October 10, 1985.
 
         
 
              2.  Claimant established either a temporary disability 
 
         (sprain or strain) or temporary exacerbation of a preexisting 
 
         condition (fracture) by reason of a work injury on February 5, 
 
         1985.
 
         
 
              3.  Claimant was off work by reason of his February 5, 1985 
 
         injury from February 12 through March 18, 1985 (788164) as 
 
         stipulated.
 
         
 
              4.  Claimant established either a temporary disability 
 
         (sprain or strain) or temporary exacerbation of a preexisting 
 
         condition (fracture) by reason of a work injury on October 10, 
 
         1985.
 
         
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  24
 
         
 
         
 
              5.  Claimant was off work by reason of his October 10, 1985 
 
         injury from October 11 through November 11, 1985 (806976) as 
 
         stipulated.
 
         
 
              6.  Claimant has failed to establish any causal relationship 
 
         between his work injuries of February 5 and October 10, 1985 and 
 
         any subsequent disability.
 
         
 
              7.  As stipulated, claimant's rate of compensation in case 
 
         number 788164 is $355.72.
 
         
 
              8.  The parties stipulated that claimant's rate in case 
 
         number 806976 should be either $252.16 or $320.59, depending upon 
 
         whether three weeks during which claimant was on leave of absence 
 
         are used to calculate rate.
 
         
 
              9.  Claimant was not a credible witness.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
         1.  Claimant has established by his burden of proof that he 
 
         sustained an injury arising out of and in the course of his 
 
         employment with Archer Daniel Midland Company on February 5, 1985 
 
         (788164).
 
         
 
              2.  Claimant has established that his injury caused 
 
         temporary total disability from February 12 through March 18, 
 
         1985 (5 weeks). 
 
         
 
              3.  Claimant has failed to establish entitlement to 
 
         permanent disability resulting from his work injury of February 
 
         5, 1985.
 
         
 
              4.  Claimant has established by his burden of proof that he 
 
         sustained an injury arising out of and in the course of his 
 
         employment with Archer Daniel Midland Company on October 10, 1985 
 
         (806976).
 
         
 
              5.  Claimant has established entitlement to temporary total 
 
         disability benefits by reason of that injury from October 11 
 
         through November 11, 1985 (4.571 weeks).
 
         
 
              6.  Claimant has failed to establish permanent partial 
 
         disability resulting from his work injury of October 10, 1985.
 
         
 
              7  Because nontypical weeks should be excluded in 
 
         calculating rate, claimant's rate in file number 806976 is 
 
         $320.59.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant five (5) weeks of 
 
         temporary total disability in file number 788164 at the 
 
         stipulated rate of three hundred fifty-five and 72/100 dollars 
 

 
         
 
         
 
         
 
         COY V. ARCHER DANIEL MIDLAND COMPANY
 
         Page  25
 
         
 
         
 
         ($355.72) per week, totalling one thousand seven hundred 
 
         seventy-eight and 60/100 dollars ($1,778.60).
 
         
 
              Defendants shall pay unto claimant four point five seven one 
 
         (4.571) weeks of temporary total disability in file number 
 
         806976 at the rate of three hundred twenty and 59/100 dollars 
 
         ($320.59) per week, totalling one thousand four hundred 
 
         sixty-five and 42/100 dollars ($1,465.42).
 
         
 
              Defendants shall be entitled to credit for all benefits paid 
 
         to claimant voluntarily prior to hearing in the sum of one 
 
         thousand eight hundred ninety-two and 68/100 dollars 
 
         ($1,892.68).
 
              As all unpaid benefits have accrued as of the date of this 
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs in each file are 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 1st day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DAVID RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert J. McGee
 
         Attorney at Law
 
         230 4th Avenue South
 
         Clinton, Iowa  52732
 
         
 
         Mr. Matthew J. Brandes
 
         Ms. Carolyn M. Hinz
 
         Attorneys at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                         51402.40, 1801, 1803, 3002
 
                                         Filed December 1, 1989
 
                                         DAVID RASEY
 
        
 
        
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LARRY COY,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                File Nos. 788164
 
        ARCHER DANIEL MIDLAND COMPANY,                    806976
 
        
 
            Employer,                      A R B I T R A T I O N
 
        
 
        and                                    D E C I S I O N
 
        
 
        NORTHWESTERN NATIONAL/
 
        OLD REPUBLIC INSURANCE,
 
        
 
             Insurance Carriers,
 
             Defendants.
 
             
 
             
 
        51402.40, 1801, 1803
 
        
 
             Claimant lacked credibility for numerous reasons discussed 
 
             in decision. Because physician's opinion as to permanent 
 
             disability was based on an unbelievable history, permanency was 
 
             not awarded. However, there was objective proof of temporary 
 
             total disability following each of two work incidents, so those 
 
             benefits were awarded, notwithstanding claimant's lack of 
 
             credibility.
 
        
 
        3002
 
        
 
             Non-typical weeks (claimant was on leave of absence) were 
 
             excluded from rate computation.
 
             
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSION
 
        
 
        
 
        LARRY COY,
 
        
 
             Claimant,
 
                                                           File Nos. 
 
        788164
 
        vs.                                                          
 
        806976
 
        
 
        ARCHER DANIEL MIDLAND COMPANY,.                    O R D E R
 
        
 
            Employer,                                     N U N C
 
        
 
        and                                                P R O
 
        
 
        NORTHWESTERN NATIONAL/                             T U N C
 
        OLD REPUBLIC INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
             Defendants filed an unresisted Motion to Amend Arbitration 
 
             Decision on December 11, 1989. The motion correctly sets forth 
 
             that the parties stipulated prior to hearing that defendants 
 
             voluntarily paid 5 weeks of compensation at the rate of $315.44 
 
             and 4 weeks, 4 days of compensation at the rate of $315.48, or a 
 
             total of $3,020.56. The undersigned issued an Arbitration 
 
             Decision on December 1, 1989, erroneously granting credit in the 
 
             sum of $1,892.68.
 
        
 
            Defendants are clearly entitled to credit for all benefits 
 
        voluntarily paid prior to hearing. The motion shall be granted.
 
        
 
            IT IS THEREFORE ORDERED that the Arbitration Decision filed 
 
        herein on December 1, 1989 should be and is hereby modified as to 
 
        the third unnumbered paragraph of the "Order" division thereof by 
 
        striking the sum of one thousand eight hundred ninety-two and 
 
        68/100 dollars ($1,892.68) and substituting therefore the sum of 
 
        three thousand twenty and 56/100 dollars ($3,020.56).
 
        
 
            Signed and filed this 5th day of March, 1990.
 
        
 
                                                
 
        
 
        
 
        
 
                                        DAVID RASEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
        Copies To:
 
        
 
        Mr. Robert J. McGee
 
        Attorney at Law
 
        230 4th Avenue South
 
        Clinton, Iowa 52722
 
        
 
        Mr. Matthew J. Brandes
 
        Ms. Carolyn M. Hinz
 

 
        
 
 
 
 
 
        Attorneys at Law
 
        1200 MNB Building
 
        Cedar Rapids, Iowa 52401
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                                
 
                                                
 
        
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD ONSTOT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 788177
 
            RALSTON PURINA COMPANY,       :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 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.
 
 
 
                                    ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issue raised on appeal is:
 
               What is the appropriate award of industrial disability 
 
            when a Claimant, as a result of a work-related injury, has a 
 
            10 pound weight lifting limit with no overhead work, is 
 
            fired by his employer, has done heavy manual labor all of 
 
            his life and is unable to do heavy manual labor in the 
 
            future, and his earnings are decreased by 75 percent?
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 8, 1991 are adopted as final agency 
 
            action.
 
            
 
                              CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed October 8, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury on March 13, 1984, which arose out of and in the 
 
            course of employment with employer and that such injury is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the cause of temporary disability.  Defendants dispute that 
 
            claimant's injury caused permanent disability.  However, the 
 
            parties agree that if claimant has sustained permanent 
 
            disability, it is industrial disability to the body as a 
 
            whole.  The commencement date for payment of permanent 
 
            partial disability, in the event such benefits are awarded, 
 
            is stipulated to be February 13, 1986.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 13, 
 
            1984, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant testified that prior to March 13, 1984, he was 
 
            asymptomatic and had no previous history of neck pain or 
 
            left arm pain.  The onset of his symptoms is traced 
 
            medically by Drs. Chamany, Rasmus, Ripperger and Chesser to 
 
            the work-related injury on March 13, 1984.  Physicians who 
 
            have treated and/or examined claimant have rendered opinions 
 
            on impairment ranging from 16 to 20 percent and have imposed 
 
            restrictions on his employability.  Therefore, claimant has 
 
            demonstrated that he sustained a permanent impairment as a 
 
            result of his March 13, 1984 injury.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            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, expe
 
            rience 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  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 dis
 
            ability 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 dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            After carefully considering the factors of industrial 
 
            disability, including claimant's age (43); education (high 
 
            school graduate); past relevant work (heavy manual labor); 
 
            claimant's medical condition prior to and immediately after 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his injury, and presently; the absence of medical treatment 
 
            since 1985; earnings prior and subsequent to the injury; 
 
            loss of earnings caused by a refusal of employer to retain 
 
            claimant; loss of earning capacity; the absence of surgical 
 
            intervention and claimant's choice to treat conservatively; 
 
            claimant's inability to engage in employment for which he is 
 
            suited; his potential for rehabilitation; and his 
 
            qualifications intellectually and emotionally, it is 
 
            determined that claimant has sustained a ***** [55] percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to ***** [275] weeks of permanent partial disability 
 
            benefits.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant two hundred 
 
            seventy-five (275) weeks of permanent partial disability 
 
            benefits at the rate of two hundred seventy-three and 88/100 
 
            dollars ($273.88) per week commencing February 13, 1986.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendants file an activity report upon payment of 
 
            this award as required by this agency, pursuant to rule 343 
 
            IAC 3.1.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport, IA 52801
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport, IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                              1803; 1804
 
                                              Filed November 19, 1992
 
                                              Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD ONSTOT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 788177
 
            RALSTON PURINA COMPANY,       :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803, 1804
 
            Claimant, age 43, high school education, history of manual 
 
            labor,  with a 10 pound lifting restriction, discharged by 
 
            employer, with a decrease in earnings of 75 percent, awarded 
 
            55 percent industrial disability.  This raised the deputy's 
 
            award of 30 percent.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD ONSTOT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 788177
 
            RALSTON PURINA COMPANY,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Onstot, claimant, against Ralston Purina Company, employer, 
 
            and Aetna Casualty & Surety Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on March 13, 1984.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 26, 1991, in Davenport, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            claimant's testimony and testimony from Don Joseph Dugan; 
 
            joint exhibits 1-6, claimant's exhibits 1-2, and defendants' 
 
            exhibits A-B.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 26, 1991, the issues presented for resolution 
 
            include:
 
            
 
                 1.  Whether claimant's injury is the cause of permanent 
 
            disability; and
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on March 6, 1948, and completed the 
 
            twelfth grade of school.  He was married at the time of his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury but is now divorced.  Claimant has no dependent 
 
            children.  He was in the United States Marine Corp from 1967 
 
            through 1969.  Upon his discharge from the service, he 
 
            worked in manual labor jobs.  He worked at Ralston Purina 
 
            from August 1972 until he was terminated on August 16, 1985.  
 
            He worked primarily as a heavy manual laborer.  He was paid 
 
            $11.60 per hour and worked a 40 hour week when he was 
 
            injured on March 13, 1984.  He was earning $13 per hour when 
 
            he was discharged.  In addition, claimant received health 
 
            and accident benefits and participated in a pension plan 
 
            during his tenure with the company.
 
            
 
                 On March 13, 1984, claimant injured his back while 
 
            taking 50 pound bags off the assembly line and setting them 
 
            on pallets.  He was sent by the company to the Davenport 
 
            Clinic.  A notation dated March 13, 1984 indicates, "Injured 
 
            back and arm throwing 50# back [sic] at work....throwing 50# 
 
            bags and developed pain in left shoulder - neck and 
 
            periscapula area....over left trapezius and rhomboid 
 
            muscles." (Exhibit 5, page 6)  Claimant was treated by Dr. 
 
            Ahmad Chamany at Davenport Clinic.  His complaints persisted 
 
            and Dr. Chamany referred him to Stephen C. Rasmus, M.D., for 
 
            evaluation on February 19, 1985.
 
            
 
                 Claimant presented Dr. Rasmus with complaints of severe 
 
            pain in the left shoulder, left side of his neck and left 
 
            posterior arm down to the elbow.  On examination, his neck 
 
            was painful with rotation to the left.  His cervical spine 
 
            x-rays were reviewed and showed a disc based narrowing at 
 
            the C5-C6 level.  Dr. Rasmus' impression was a left C6 
 
            radiculopathy secondary to herniated disc.  He prescribed 
 
            Motrin and a soft cervical collar in addition to physical 
 
            therapy.  Claimant's pain persisted on re-examination on 
 
            March 12, 1985, and EMG studies were performed on March 19, 
 
            1985.  The findings were consistent with a left C6 
 
            radiculopathy.  Dr. Rasmus last saw claimant on April 25, 
 
            1985, and released him for restricted duty with 25 pound 
 
            weight lifting limitation on May 13, 1985, and full duty in 
 
            the early part of June, if he suffered no exacerbations 
 
            (Exs. 3 and 6).
 
            
 
                 Claimant was referred by Dr. Rasmus to Richard R. 
 
            Ripperger, M.D., orthopedic surgeon, for evaluation on June 
 
            17, 1985.  His impression was a left C6 radiculopathy.  He 
 
            reported that:
 
            
 
                    Mr. Onstot has had appropriate nonoperative 
 
                 treatment to which he has failed to completely 
 
                 respond.  I told the patient that he needed to 
 
                 make a decision whether he was going to accept the 
 
                 amount of pain he is currently having or whether 
 
                 to have surgical treatment in the form of C5,C6 
 
                 disectomy [sic] and probably C5-C6 arthrodesis.  I 
 
                 don't think it is reasonable for him to return to 
 
                 a laboring type of occupation.
 
            
 
            (Ex. 1, p. 5)
 
            
 
                 On August 5, 1985, Dr. Ripperger gave claimant a 20 
 
            percent permanent impairment rating (Ex. 1, p.1).  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            restricted claimant to lifting, carrying, pushing and 
 
            pulling no more than ten pounds (Ex. 1, p. 7).
 
            
 
                 Claimant testified that he returned to work with these 
 
            restrictions and employer accommodated his limitations.  He 
 
            was assigned to light duty work cleaning overhead pipes with 
 
            an extension-type broom and pushing a floor broom.  Claimant 
 
            testified that this job aggravated his symptoms.  He worked 
 
            in this capacity from May 1985 until August 16, 1985, when 
 
            he received a termination notice (Cl. Ex. 1).
 
            
 
                 On October 4, 1985, claimant was seen by Richard 
 
            McCluhan to discuss possible employment alternatives.  He 
 
            was referred for comprehensive vocational assessment and 
 
            evaluation.  Test results revealed that claimant functions 
 
            at Grade 5.9 in mathematics and Grade 7.1 in vocabulary and 
 
            reading comprehension (Ex. 2, p. 14).  On February 14, 1986, 
 
            Mr. McCluhan discontinued active rehabilitation efforts on 
 
            behalf of claimant because he felt that claimant had options 
 
            available to him which he can pursue successfully once he 
 
            joined the ranks of the employed (Ex. 2, p. 26).
 
            
 
                 Claimant testified that he relocated to the state of 
 
            Georgia in 1986 where he remained for two and a half years.  
 
            During that time he held various jobs including cook, manual 
 
            laborer, convenience store cashier, and dishwasher.  He 
 
            returned to Davenport, Iowa in September 1989.  He had a 
 
            variety of short-term jobs until March 1991, when he 
 
            obtained a position as a convenience store clerk/cashier 
 
            with Iowa Oil Company.  He works between 32-36 hours per 
 
            week and earns $4.25 per hour.  He receives no other 
 
            benefits.
 
            
 
                 Scott Michael Deters, claimant's store manager, 
 
            testified that he hired claimant despite his physical 
 
            restrictions because he needed someone to run the register 
 
            and take care of the store at night.  He does not require 
 
            claimant to lift cases of bottles and has provided a stool 
 
            for him to sit on during slow periods.  He described him as 
 
            an excellent employee who is very good with customers.
 
            
 
                 Claimant was referred by his attorney to Robert J. 
 
            Chesser, M.D., for evaluation in May 1991.  Using the AMA 
 
            Guidelines, Dr. Chesser reached the following conclusion:
 
            
 
                    There is a total of an 8% impairment related to 
 
                 the restricted range of motion.
 
            
 
                    In addition, using the AMA Guidelines, there is 
 
                 a 4% impairment due to an unoperated cervical 
 
                 disc.
 
            
 
                    Finally, there is an impairment based on the 
 
                 loss of strength in the left arm in a C6 
 
                 distribution.  This is felt to represent a 20% 
 
                 loss of the maximal 35% attributed to the C6 
 
                 distribution which would equal a 7% loss to the 
 
                 left upper extremity or a 4% whole person loss.
 
            
 
            (Ex. 4, p. 2)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Chesser opined as follows:
 
            
 
                 Based on today's evaluation, there is evidence of 
 
                 residual impairment using the AMA Guidelines which 
 
                 would equal a 16% whole person impairment.  This 
 
                 would be related to the C6 injury he sustained in 
 
                 1985, and I do feel that the job that he described 
 
                 would be consistent with this type of injury and 
 
                 was the contributing cause of the injury due to 
 
                 the fact that he was asymptomatic prior to this.
 
            
 
            (Ex. 4, p. 2)
 
            
 
                 As to work restrictions, Dr. Chesser recommended no 
 
            overhead reaching with either upper extremity and no lifting 
 
            in excess of 20 pounds or repetitive lifting with the left 
 
            upper extremity (Ex. 4, p. 2).
 
            
 
                 Dr. Chesser's assessment was sent to Aetna Insurance 
 
            Company and at their request, an initial vocationally 
 
            assessment was performed by Randy Harding, Rehabilitation 
 
            Specialist, on August 14, 1991.  Based on claimant's medical 
 
            release for light duty and his employment background, Mr. 
 
            Harding concluded that jobs exist in the Quad Cities area 
 
            which he would be able to perform (Defendants' Exhibit B).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury on March 13, 1984, which arose out of and in the 
 
            course of employment with employer and that such injury is 
 
            the cause of temporary disability.  Defendants dispute that 
 
            claimant's injury caused permanent disability.  However, the 
 
            parties agree that if claimant has sustained permanent 
 
            disability, it is industrial disability to the body as a 
 
            whole.  The commencement date for payment of permanent 
 
            partial disability, in the event such benefits are awarded, 
 
            is stipulated to be February 13, 1986.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 13, 
 
            1984, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant testified that prior to March 13, 1984, he was 
 
            asymptomatic and had no previous history of neck pain or 
 
            left arm pain.  The onset of his symptoms is traced 
 
            medically by Drs. Chamany, Rasmus, Ripperger and Chesser to 
 
            the work-related injury on March 13, 1984.  Physicians who 
 
            have treated and/or examined claimant have rendered opinions 
 
            on impairment ranging from 16 to 20 percent and have imposed 
 
            restrictions on his employability.  Therefore, claimant has 
 
            demonstrated that he sustained a permanent impairment as a 
 
            result of his March 13, 1984 injury.
 
            
 
                 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, expe
 
            rience 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  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 dis
 
            ability 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 After carefully considering the factors of industrial 
 
            disability, including claimant's age (43); education (high 
 
            school graduate); past relevant work (heavy manual labor); 
 
            claimant's medical condition prior to and immediately after 
 
            his injury, and presently; the absence of medical treatment 
 
            since 1985; earnings prior and subsequent to the injury; 
 
            loss of earnings caused by a refusal of employer to retain 
 
            claimant; loss of earning capacity; the absence of surgical 
 
            intervention and claimant's choice to treat conservatively; 
 
            claimant's inability to engage in employment for which he is 
 
            suited; his potential for rehabilitation; and his 
 
            qualifications intellectually and emotionally, it is 
 
            determined that claimant has sustained a 30 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 150 weeks of permanent partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred seventy-three and 88/100 dollars ($273.88) 
 
            per week commencing February 13, 1986.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants file an activity report upon payment of 
 
            this award as required by this agency, pursuant to rule 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
 
         
 
 
 
 
 
                   5-1803
 
                   Filed October 8, 1991
 
                   Jean M. Ingrassia
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RICHARD ONSTOT,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 788177
 
         RALSTON PURINA COMPANY,       :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1803
 
         The only issue to be determined in this case is whether 
 
         claimant's work injury is the cause of permanent disability and 
 
         if so, the extent thereof.  On March 13, 1984, claimant was 
 
         throwing 50 pound bags and stacking them on pallets when he 
 
         developed left-sided neck and arm pain.  He was diagnosed with 
 
         degenerative disc disease, weakness in the C6 distribution and 
 
         reduction of the left triceps.  Surgical intervention was 
 
         recommended but claimant refused.  Claimant returned to work 
 
         after a three month layoff and was put on light duty.  He was 
 
         assigned to cleaning overhead pipes with an extension-type broom 
 
         and as a floor sweeper.  This aggravated his symptoms and he was 
 
         re-evaluated by another physician after discovering he could not 
 
         perform this work.  Overhead work restrictions were imposed and 
 
         claimant was terminated.
 
         
 
              After carefully considering the factors of industrial 
 
         disability, including claimant's age (43); education (high school 
 
         graduate); past relevant work (heavy manual labor); claimant's 
 
         medical condition prior to and immediately after his injury, and 
 
         presently; the absence of medical treatment since 1985; earnings 
 
         prior and subsequent to the injury; loss of earnings caused by a 
 
         refusal of employer to retain claimant; loss of earning capacity; 
 
         the absence of surgical intervention and claimant's choice to 
 
         treat conservatively; claimant's inability to engage in employ
 
         ment for which he is suited; his potential for rehabilitation; 
 
         and his qualifications intellectually and emotionally, it is 
 
         determined that claimant has sustained a 30 percent industrial 
 
         disability to the body as a whole and is entitled to 150 weeks of 
 
         permanent partial disability benefits.
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENISE GRELK,
 
         
 
              Claimant,                            File No. 788371
 
         
 
         vs.                                        R E V I E W -
 
         
 
         DALE JONES d/b/a WESTERN BAR,            R E O P E N I N G
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and                                          F I L E D
 
         
 
         OHIO CASUALTY GROUP OF                      OCT 30 1989
 
         INSURANCE COMPANIES,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Denise 
 
         Grelk, claimant, against Dale Jones d/b/a Western Bar, employer, 
 
         and Ohio Casualty Group of Insurance Companies, insurance 
 
         carrier, defendants, for the recovery of further worker's 
 
         compensation benefits as a result of a work injury on February 
 
         15, 1985.  A prior Iowa Code section 86.13 settlement for this 
 
         injury was filed on and approved by this agency on April 1, 1987.  
 
         Official notice was taken of this settlement as requested by the 
 
         parties.  On May 3, 1989, a hearing was held on claimant's 
 
         petition for review-reopening and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits.were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  If a change of condition is found in this proceeding, 
 
         claimant is entitled to healing period benefits extending from 
 
         February 3, 1987 through March 30, 1987, a total of eight weeks.
 
         
 
              2.  If a change of condition is found, claimant is entitled 
 
         to weekly benefits for an additional 10 percent permanent partial 
 
         disability to the lower extremity.
 
         
 
              3.  If permanent disability benefits are awarded, they shall 
 
         begin as of March 31, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $100.00.
 
         
 
              5.  The issue of medical benefits was no longer in dispute.
 
         
 
                                      ISSUES
 
         
 
              The only issues submitted by the parties for determination 
 
         in this proceeding is whether or not claimant has suffered a 
 
         change of condition since the settlement causally connected to 
 
         the injury of February 15, 1985.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant initially injured her left knee from a fall on her 
 
         employer's premises on February 15, 1985.  In this incident 
 
         claimant suffered an irreparable torn cruciate ligament and a 
 
         torn medial meniscus in the left knee.  The torn meniscus was 
 
         partially removed by arthroscopic surgery.
 
         
 
              On January 7, 1987, a hearing was scheduled on claimant's 
 
         original arbitration proceeding and the parties appeared for 
 
         hearing.  According to claimant's testimony, during the course of 
 
         this hearing the parties orally reached a compromise settlement 
 
         agreement and the hearing was cancelled.  On march 2, 1987, the 
 
         parties signed a written settlement agreement embodying the terms 
 
         of the oral agreement reached on January 7, 1987.  On April 1, 
 
         1987, the settlement was filed with this agency and was approved 
 
         by a deputy Iowa industrial commissioner.
 
         
 
              The settlement agreement was made under Iowa Code section 
 
         86.13 wherein claimant was paid medical and weekly benefits for a 
 
         35 percent permanent partial disability to the left leg.  The 
 
         written settlement agreement was in a pleading form and the 
 
         terminology was in the form of an application for approval of the 
 
         agreement for settlement.  In this pleading, the parties set 
 
         forth the prior care and treatment by Drs. Glenn Barbrelson, 
 
         Donald MacKenzie and James Puhl.  The payment of permanent 
 
         partial disability benefits was based upon the ratings of 
 
         impairment by Dr. Puhl.  No mention was made of any treatment or 
 
         examination by a Keith Riggins, M.D.  The agreement specifically 
 
         set forth that claimant retained her right to review-reopening 
 
         for a three year period but,that "said agreement and the 
 
         reference narrative medical reports accurately reflect claimant's 
 
         disability rating and history to date."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that prior to January 7, 1987 and her 
 
         attendance at the hearing, she had seen Dr. Riggins, another 
 
         board certified orthopedic surgeon as a result of a fall at home 
 
         in the latter part of December and the onset of left knee pain.  
 
         According to Dr. Riggins' testimony and office notes, this office 
 
         visit occurred on December 30, 1986.  Dr. Riggins' impression at 
 
         that time was "sprained knee" and he recommended straight leg 
 
         raising exercise program and continued use of a "knee immobilizer 
 
         with crutches as required."  However, on January 9, 1987, Dr.  
 
         Riggins reexamined claimant and at that time diagnosed a 
 
         "probable meniscus tear" in the left knee and recommended another 
 
         arthroscopic surgery for diagnoses and treatment.  After a second 
 
         opinion by another orthopedic surgeon which agreed with Dr. 
 
         Riggins' assessment, claimant underwent a second meniscectomy or 
 
         removal of the lateral meniscus.  After a period of recovery, Dr. 
 
         Riggins opined that claimant suffered an additional 10 percent 
 
         permanent partial impairment to the leg as a result of this 
 
         second surgery on claimant's left knee.
 
         
 
              In his deposition, Dr. Riggins also opined that the second 
 
         surgery was causally connected to the original injury because the 
 
         ligament problems caused by the original injury resulted in 
 
         chronic instability of the leg and susceptibility to falls.  The 
 
         fall on the latter part of December occurred as a result of this 
 
         instability.  Therefore, the fall was causally related to the 
 
         original injury and, likewise, the need to remove the torn 
 
         meniscus as a result of this fall was causally related to the 
 
         original injury.  Dr. Riggins explained that the surgery to 
 
         remove the meniscus was only needed to relieve pain and not to 
 
         increase stability.  Dr. Riggins also suggested additional 
 
         surgery to the torn ligament as the only possibility of improving 
 
         claimant's knee stability in the future.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              According to Iowa Code section 86.14(2), review-reopening 
 
         proceedings under Iowa Code section 86.13 involve an inquiry into 
 
         whether or not the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation so awarded or agreed 
 
         upon.  In review-reopening, the claimant has the burden of 
 
         establishing by a preponderance of the evidence that he or she 
 
         suffered an additional impairment as a proximate result of the 
 
         original injury.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 
 
         457 (Iowa 1969).  A redetermination of the condition of claimant 
 
         as it was at the time of the prior award of settlement is 
 
         inappropriate in such proceedings.  Stice v. Consolidated Ind. 
 
         Coal Co., 228 Iowa 1031, 1038; 291 N.W. 452, 456 (1940).
 
         
 
              The parties present an interesting and certainly not an easy 
 
         question as to what time should be utilized in determining the 
 
         periods of time that should be used in determining changes of 
 
         condition from settlement agreements.  The question presented is 
 
         whether the prior condition should be the date of the oral 
 
         agreement of settlement, the date when the oral agreement is 
 
         reduced to writing and signed, or the date when this agency 
 
         approves the settlement.  Relying upon Iowa Code section 86.13, 
 
         defendants state that the settlement and the condition settled is 
 
         the time when the settlement papers are signed or the date when 
 
         the approval of the agency is given.  Prior to that time the 
 
         settlement agreement is not valid by statute.  Also, in the facts 
 
         of this case, claimant was aware of the need for the second 
 
         surgery to her knee when she signed the settlement.  This surgery 
 
         was to remove the lateral meniscus to reduce claimant's pain.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants certainly have a reasonable argument.  According 
 
         to Dr. Riggins, it was the removal of the meniscus, a clearly 
 
         expected result of successful surgery, that resulted in the 
 
         additional impairment.  Had the surgery not gone well or had not 
 
         gone as expected, claimant would certainly be in a better 
 
         position to argue that the impairment was not anticipated at the 
 
         time of signing the agreement.
 
         
 
              On the other hand, claimant cites Dilton v. City of 
 
         Davenport, 366 N.W.2d 918 (Iowa 1985), for the proposition that 
 
         despite the language in Iowa Code section 86.13, an oral 
 
         settlement agreement not yet approved by this agency is binding 
 
         on the parties and subject to enforcement in equity by the Iowa 
 
         District Court.  Claimant urges that she could not have backed 
 
         out of the settlement deal made on January 7, 1987 and this is 
 
         the time that this agency should use in assessing changes of 
 
         condition.  Claimant further argues that at that time she was not 
 
         aware that she would have to undergo a second surgery.  Dr. 
 
         Riggins clearly testified that he did not inform claimant of the 
 
         need for surgery prior to January 9, 1987.
 
         
 
              The undersigned believes that claimant has the better 
 
         argument in this case.  This agency should use the time when the 
 
         deal was made, not when it was reduced to writing or when it was 
 
         eventually approved by this agency.  This is especially true when 
 
         the written agreement is no different than the oral agreement 
 
         made.  Claimant is correct in that she could be forced to sign 
 
         the agreement by the district court.  Also, it was only after the 
 
         January 9, 1987 date, two days after the oral agreement, that she 
 
         became aware of the need for additional surgery and the 
 
         possibility of further impairment.  She was only aware on January 
 
         7, 1987, that she had "knee sprain."  In other words, the need 
 
         for additional surgery and additional impairment was not one of 
 
         "the cards on the table" so to speak when the deal was struck.  
 
         This is clear even according to the medical histories contained 
 
         in the settlement papers themselves.  It is simply unfair to hold 
 
         claimant to a change of condition that she could not anticipate.
 
         
 
              This decision is also based on this agency's need for 
 
         efficient administration of contested cases.  The time when a 
 
         hearing is cancelled should be the time when the condition is 
 
         frozen in time for purposes of review-reopening.  Otherwise, 
 
         claimant would be continually attempting to back out of 
 
         settlements because of changes in medical conditions.  It is 
 
         recognized that medical conditions are not static but dynamic in 
 
         nature and subject to dramatic change without notice.  The 
 
         undersigned is also aware that it may take up to several weeks to 
 
         prepare the settlement papers and actually receive approval from 
 
         this agency.  Changes in conditions during this delay time 
 
         between when the deal was struck and when approval was obtained 
 
         must be subject to review-reopening or this agency will always 
 
         receive a rash of claimants seeking equitable relief in the 
 
         courts on the basis of unanticipated events.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Defendants' arguments as to the lack of causal connection 
 
         are not convincing given the clear and uncontroverted views of 
 
         Dr. Riggins.  According to Dr. Riggins, the fall at home and the 
 
         need for surgery to correct resulting problems were the result of 
 
         the original instability and susceptibility to falls caused by 
 
         the work injury.
 
         
 
              The parties' stipulations as to the extent of claimant's 
 
         entitlement to disability benefits in the event of a finding of a 
 
         change of condition are dispositive of the remaining award.  The 
 
         stipulated amounts will be awarded.  Claimant is therefore 
 
         entitled to eight weeks of healing period benefits and to 
 
         permanent partial disability benefits consisting of 22 weeks or 
 
         10 percent of 220 weeks, the maximum allowable number of weeks 
 
         for a disability to the leg in Iowa Code section 85.34(2)(o).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 7, 1987, claimant and defendants entered into 
 
         an oral agreement for settlement under Iowa Code section 86.13 
 
         which did not anticipate that she would need further surgery from 
 
         a fall at home she had in late December 1986.  The fall was 
 
         diagnosed at that time as only a sprain and no new treatment 
 
         modalities were recommended.  Claimant was paid weekly benefits 
 
         pursuant to this settlement for a 35 percent permanent partial 
 
         disability to the left lower extremity.  This agreement was 
 
         signed by the parties on March 2, 1987 and approved by this 
 
         agency on April 1, 1987.
 
         
 
              2.  On January 9, 1987, claimant was told by her attending 
 
         physician that surgery was necessary due to a torn meniscus of 
 
         the left knee.  This torn meniscus was the result of the fall at 
 
         home in late December 1986.  This fall was the result of 
 
         instability of claimant's left knee precipitated by the original 
 
         work injury of February 15, 1985.
 
         
 
              3.  On March 2, 1987, claimant underwent arthroscopic 
 
         surgery to remove the torn lateral meniscus as a result of the 
 
         late December 1986 fall.  The purpose of this surgery was not to 
 
         increase instability but to relieve claimant's pain.
 
         
 
              4.  The additional permanent partial disability as a result 
 
         of the surgery was caused by the removal of the lateral meniscus, 
 
         an anticipated result of the surgery of March 2, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to eight 
 
         weeks of additional healing period benefits and 22 weeks of 
 
         additional permanent partial disability benefits as a result of 
 
         the original injury.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant twenty-two (22) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred and no/100 dollars ($100.00) per week from March 31, 
 
         1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from February 3, 1987 through March 30, 1987, a total of eight 
 
         (8) weeks at the rate of one hundred and no/100 dollars ($100.00) 
 
         per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and,filed this 30th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P 0 Box 1066
 
         Keokuk, IA  52632
 
         
 
         Ms. Merry C. Ford
 
         Attorney at Law
 
         205 Witte Bldg
 
         P 0 Box 1111
 
         Burlington, IA  52601
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1302.1
 
                                            Filed October 30, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENISE GRELK,
 
         
 
              Claimant,                            File No. 788371
 
         
 
         vs.                                        R E V I E W -
 
         
 
         DALE JONES d/b/a WESTERN BAR,            R E O P E N I N G
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         OHIO CASUALTY GROUP OF
 
         INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1302.1
 
         
 
              For purposes of determining a change of condition in 
 
         review-reopening, it was held that the prior condition should be 
 
         frozen when the deal was made whether oral or in writing not when 
 
         the settlement papers are finally signed or approved by this 
 
         agency, especially when there was no change between the oral and 
 
         written agreements.  Claimant can be compelled in equity to sign 
 
         oral agreements made.  It was recognized that there is a time 
 
         delay between when a deal is struck and when settlement papers 
 
         are actually prepared and approved.  It was held that it would be 
 
         unfair to claimant to hold her to a deal she made for reasons 
 
         which she could not anticipate at the time a deal is made.  Also, 
 
         as a matter of agency efficiency, this agency should use the time 
 
         when scheduled proceedings are cancelled and when the deal is 
 
         struck.  Otherwise, claimants will be attempting to back out of 
 
         deals made during the delay in obtaining approval from this 
 
         agency and in the Iowa District Court in equity due to 
 
         unanticipated events.  This would cause an administrative problem 
 
         to this agency in the administration of contested case 
 
         proceedings.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
           
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESTER D. PHILLIPS,
 
         
 
              Claimant,                               File No. 788541
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         WINIFRED LAW OPPORTUNITY                      D E C I S I O N
 
         CENTER,
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             FEB 10 1989
 
         
 
         EMPLOYER MUTUAL CASUALTY              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lester D. 
 
         Phillips, claimant, against Winifred Law Opportunity Center, 
 
         employer, and Employer Mutual Casualty Company, insurance 
 
         carrier, defendants, to recover benefits under the Iowa Workers' 
 
         Compensation Act for an alleged injury occurring on or about 
 
         October 8, 1984.  This matter was set for hearing on January 31, 
 
         1989 at 1:00 p.m. at the conference room at the Iowa Division of 
 
         Industrial Services in Des Moines, Iowa.
 
         
 
              The undersigned was present.  On the day scheduled for the 
 
         hearing, claimant's attorney, David D. Drake, and defendants' 
 
         attorney, Cecil L. Goettsch, signed a stipulation waiving the 
 
         requirements for recording oral proceedings.  Also on the day 
 
         scheduled for the hearing, claimant and defendants offered five 
 
         joint exhibits without objections by the parties.  All offered 
 
         exhibits were admitted as part of the official record.  Finally, 
 
         the parties entered into a number of written stipulations which 
 
         will be discussed in subsequent paragraphs.
 
         
 
              Claimant failed to appear at the hearing.  Nor did claimant 
 
         present any verbal testimony by way of deposition.  At the time 
 
         of the hearing, neither an agreement for settlement nor a request 
 
         for settlement was on file.
 
         
 
              Despite claimant's failure to appear the following 
 
         stipulated facts were made a part of the record:
 
         
 
              1) The existence of an employer/employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
                                                
 
                                                         
 
         
 
              2) The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendants are 
 
         found liable, is stipulated to be from October 8, 1984 through 
 
         December 27, 1984;
 
         
 
              3) The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole, with a commencement 
 
         date of December 28, 1984;
 
         
 
              4) The rate of compensation in the event of an award of 
 
         weekly benefits is stipulated to be $126.73 per week;
 
         
 
              5) Claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 and/or medical evaluation under section 85.39 
 
         is no longer in dispute; and,
 
         
 
              6) Defendants paid claimant 11 weeks and four days of 
 
         compensation at the rate of $126.73 per week prior to the 
 
         hearing.
 
                                        
 
                                 ISSUES PRESENTED
 
         
 
              According to the hearing assignment order and the prehearing 
 
         report, the parties have agreed the only issues are:
 
         
 
              1) Whether claimant sustained an injury arising out of and 
 
         in the course of his employment;
 
         
 
              2) Whether there is a causal relationship between the 
 
         alleged injury and the disability; and,
 
         
 
              3) Whether claimant is entitled to permanent partial or 
 
         total disability benefits.
 
         
 
                           ANALYSIS AND APPLICABLE LAW
 
         
 
              On review of the evidence, the question whether the injury 
 
         arose out of and in the course of claimant's employment must be 
 
         answered in the negative.  Claimant.failed to appear at the 
 
         actual proceedings.  Claimant has not proven by a preponderance 
 
         of the evidence the allegations contained in his original notice 
 
         and petition.  Specifically, claimant has not established that he 
 
         has sustained an injury which arose out of and in the course of 
 
         his employment.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
                                                
 
                                                         
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
                              FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              Claimant did not appear at the scheduled time and place.
 
         
 
              Claimant did not sustain temporary or permanent injuries on 
 
         October 8, 1984 which arose out of and in the course of his 
 
         employment.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to establish his injury arose out of and 
 
         in the course of his employment.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to the Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 10th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
                                                
 
                                                         
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
      
 
 
 
 
 
                                            1402.30
 
                                            Filed February 10, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESTER D. PHILLIPS,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 788541
 
         
 
         WINIFRED LAW OPPORTUNITY               A R B I T R A T I 0 N
 
         CENTER,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYER MUTUAL CASUALTY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30
 
         
 
              Claimant failed to establish that he sustained an injury
 
         which arose out of and in the course of his employment.