BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYLE L. WILSON,
 
         
 
              Claimant,                          File No. 788588
 
         
 
         VS.
 
                                                   A P P E A L 
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,                          D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
          
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         claimant permanent partial disability benefits as a result of an 
 
         alleged injury sustained on February 25, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 27.  Both 
 
         parties filed briefs on appeal.  The defendant filed a reply 
 
         brief.
 
         
 
                                      ISSUE
 
         
 
              The issue considered on appeal is: Whether claimant is 
 
         entitled to permanent partial disability benefits, and if so, the 
 
         extent of her entitlement.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was 42 years old at the time of the injury and 
 
         45 years old at the time of the hearing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WILSON VS. WILSON FOODS CORPORATION
 
         Page 2
 
         
 
         
 
              2. Claimant is a high school graduate whose past employments 
 
         include a waitress, grocery clerk and food and laundry worker.
 
         
 
              3. Claimant started to work for the employer on November 3, 
 
         1980, and had worked for approximately two and one-half years 
 
         when she was injured.
 
         
 
              4. Claimant sustained a very severe blow to the left side of 
 
         her head when she was hit by a 12 to 15 pound ham, which had been 
 
         thrown approximately 10 to 12 feet on February 25, 1985, when she 
 
         was stunned and knocked partially to the floor.
 
         
 
              5. Mark E. Wheeler, M.D., the treating orthopedic surgeon, 
 
         determined that claimant had sustained a five percent permanent 
 
         impairment of the left upper extremity due to the injury to her 
 
         neck which occurred on February 25, 1985.
 
         
 
              6. A five percent permanent impairment to the left upper 
 
         extremity converts to a three percent permanent impairment of the 
 
         body as a whole.
 
         
 
              7. Claimant sustained an industrial disability of ten 
 
         percent to the body as a whole, due to current difficulty in 
 
         performing her work, as a result of the injury which occurred on 
 
         February 25, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The injury of February 25, 1985, was the cause of permanent 
 
         impairment and permanent disability.
 
         
 
              Claimant sustained a five percent impairment of the upper 
 
         extremity which converts to a three percent permanent impairment 
 
         of the body as a whole.
 
         
 
              Claimant is entitled to 50 weeks or permanent partial 
 
         disability benefits for an industrial disability of ten percent 
 
         of the body as a whole.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to a diskogram 
 
         as recommended by Horst G. Blume, M.D.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to an order 
 
         for a change of care.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WILSON VS. WILSON FOODS CORPORATION
 
         Page 3
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay to claimant fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of one hundred 
 
         ninety-eight and 02/100 dollars ($198.02) per week in the total 
 
         amount of nine thousand nine hundred and one dollars ($9,901) 
 
         commencing on August 30, 1986, as stipulated to by the parties.
 
         
 
              That defendant is entitled to a credit of fifteen (15) weeks 
 
         of permanent partial disability benefits paid to claimant prior 
 
         to hearing at the rate of one hundred ninety-eight and 02/100 
 
         dollars ($198.02) per week in the total amount of two thousand 
 
         nine hundred seventy and 30/100 dollars ($2,970.30).
 
         
 
              That the remaining benefits are to be paid to claimant in a 
 
         lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine
 
         P.O. Box 535
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Cherokee, Iowa 51012
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1800 - 1803
 
                                         Filed July 31, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYLE L. WILSON,
 
          
 
               Claimant,                              File No. 788588
 
          
 
          VS.
 
                                                      A P P E A L
 
          WILSON FOODS CORPORATION,
 
          
 
               Employer,                              D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
         
 
         1800, 1803
 
         
 
         
 
              Claimant's award of 10 percent permanent partial disability 
 
         as a result of an injury to the head was affirmed on appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHERYLE L. WILSON,
 
         
 
              Claimant,                          File Nos. 788588
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         WILSON FOODS CORPORATION,               D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Cheryle L. 
 
         Wilson, claimant, against Wilson Foods Corporation, employer and 
 
         self-insured defendant, for benefits as the result of an alleged 
 
         injury to her left shoulder on May 24, 1982 (file no. 830439) and 
 
         an injury to her head, neck, shoulders and back on February 25, 
 
         1985 (file no. 788588).  A hearing was held in Storm Lake, Iowa, 
 
         on November 3, 1988, and the case was fully submitted at the 
 
         close of the hearing.  The record consists of the testimony of 
 
         Cheryle L. Wilson, claimant, and joint exhibits 1 through 27.  
 
         Defendant's attorney submitted an excellent brief.  Claimant's 
 
         attorney failed to file a brief.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              After discussion of the issues involved between the parties, 
 
         claimant move to dismiss the petition for the alleged injury to 
 
         the left shoulder which occurred on or about May 24, 1982.  
 
         Defendant did not object to the motion.  Claimant's motion was 
 
         granted and the original notice and petition on file no. 830439 
 
         was dismissed without prejudice at the request of claimant.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters with regard 
 
         to the injury which occurred on February 25, 1985 (file no. 
 
         788588).
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 25, 1985, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         that claimant was paid temporary disability benefits for the 
 
         injury from February 26, 1985 to March 21, 1985, and again from 
 
         March 27, 1985 to May 28, 1985, and that entitlement to temporary 
 
         disability benefits is not an issue in dispute in this case at 
 
         this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   2
 
         
 
         
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is August 30, 
 
         1986.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $198.02 per week.
 
         
 
              That defendant seeks no credit for nonoccupational group 
 
         health plan benefits paid prior to hearing.
 
         
 
              That defendant is entitled to a credit for 15 weeks of 
 
         workers' compensation permanent partial disability benefits paid 
 
         to claimant prior to hearing at the rate of $198.02 based on a 
 
         permanent functional impairment rating of 3 percent of the body 
 
         as a whole.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the issue of whether claimant is entitled to medical 
 
         benefits, as shown on the hearing assignment order, under Iowa 
 
         Code section 85.27 and whether claimant is entitled to an 
 
         independent evaluation by Horst G. Blume, M.D., in the amount of 
 
         $200 (Exhibit 27) are no longer issues in this case for the 
 
         reason that defendant has paid Dr. Blume and all of claimant's 
 
         other medical expenses prior to hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury of February 25, 1985, was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, the extent of her entitlement.
 
         
 
              Whether claimant is entitled to an order for alternate 
 
         medical care from Dr. Blume and whether claimant is entitled to 
 
         receive a diskogram performed by Dr. Blume.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was born on March 8, 1943.  She was 42 years old at 
 
         the time of the injury and 45 years old at the time of the 
 
         hearing.  She graduated from high school in 1961 and has received 
 
         no further education or training since that time.  She is married 
 
         and has two adult children.  Past employments include waitress, 
 
         grocery clerk and food and laundry worker at a state hospital.
 
         
 
              Claimant started to work for employer on November 3, 1980.  
 
         Claimant had worked for employer approximately two and one-half 
 
         years when she was accidentally struck, very hard, on the left 
 
         side of the head, by a ham weighing 12 to 15 pounds, which had 
 
         been thrown a distance of 10 to 12 feet by another employee.  She 
 
         was knocked sideways to the right, dropped down into a crouch 
 
         position, saw stars and was dazed for awhile.  Later she felt 
 
         stiff all over, developed a headache, and could not turn her 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
         head.  Eventually, claimant developed pain in both sides of her 
 
         neck, left shoulder, left shoulder blade and back down into her 
 
         left hip.  She also had pain in her right shoulder.
 
         
 
              Claimant's foreman took her to first aid.  She was treated 
 
         by Keith O. Garner, M.D., plant physician, Dean E. Meylor, D.C., 
 
         a chiropractor, and Mark E. Wheeler, M.D., an orthopedic surgeon. 
 
          She was also examined and evaluated by Horst G. Blume, M.D., a 
 
         neurosurgeon, and the various professionals at the industrial 
 
         Injury Clinic at Neenah, Wisconsin.  Claimant was also tested at 
 
         times by Dennis Nitz, M.D., a neurologist, and James L. Case, 
 
         M.D., a neurosurgeon.
 
         
 
              Claimant testified that her current condition is that she 
 
         still has headaches and pressure in her left shoulder that goes 
 
         down into her back.  She takes Tylenol for pain.  Claimant 
 
         returned to work on October 24, 1988, she has continued to work 
 
         since that time, but testified that she doubted if she could 
 
         continue to do so.  Claimant testified that she was active at 
 
         home prior to returning to work.  However, she was still stiff 
 
         from the injury and it wakes her up at night when it hurts.
 
         
 
              All employees took a cut in pay due to economic conditions 
 
         at the plant as well as claimant, but she testified that she 
 
         received an increase after the cut.  Claimant also testified that 
 
         she had not attempted to find work of any other kind with any 
 
         other employer, but chose instead to return to work for this 
 
         employer and has been performing the work satisfactorily since 
 
         October 24, 1988.
 
         
 
              Claimant denied any other accidents or injuries to her head, 
 
         neck, shoulders or back prior to or after this injury.  She has 
 
         had carpal tunnel syndrome treated concurrently with this injury, 
 
         but the carpal tunnel syndrome has been handled as a separate 
 
         claim.  Claimant did admit to a left shoulder injury in 1982.  
 
         She said that she was treated and returned to work without 
 
         restrictions and worked from that time until the date of this 
 
         injury without problems.
 
         
 
              Dr. Garner's notes show that he saw claimant a number of 
 
         times with left shoulder complaints after the injury of 1982 as 
 
         well as problems in both shoulders.  He actually treated claimant 
 
         on April 22, 1983, April 25, 1983, October 24, 1983, October 27, 
 
         1983, October 29, 1983, November 2, 1983, December 2, 1983, 
 
         December 14, 1983, December 16, 1983, December 22, 1983, and 
 
         December 29, 1983.  Dr. Garner's notes also reflect the injury of 
 
         February 25, 1985, for which he prescribed medication and 
 
         physical therapy.  His notes also show that claimant asked to see 
 
         Dr. Wheeler on March 25, 1985 (Ex. 22, pp. 1-6).
 
         
 
              Dr. Wheeler's notes show that he treated claimant for a left 
 
         shoulder injury in 1983.  He treated claimant for this injury on 
 
         April 15, 1985, for her neck and left shoulder pain.  X-rays were 
 
         normal.  Range of motion of the shoulder and her neurological 
 
         examination were normal.  She had C-7 tenderness and slight 
 
         restrictions of motion in all. directions of her neck.  Dr. 
 
         Wheeler diagnosed cervical strain with resultant muscle spasm.  
 
         He prescribed medications and a Philadelphia neck collar (Ex. 
 
         19).  On May 15, 1985, he added home cervical traction (Ex. 11, 
 
         p. 4).  Claimant had continuing complaints on September 4, 1985, 
 
         but x-rays showed no abnormalities (Ex. 11, p. 4).  When 
 
         conservative management failed, claimant was hospitalized on 
 
         September 10, 1985 through September 18, 1985 for cervical 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   4
 
         
 
         
 
         traction (Ex. 11, p. 5; Ex. 21).  A myelogram was also performed 
 
         while she was hospitalized and it showed no abnormality.(Ex. 21, 
 
         p. 2).  Claimant was essentially unchanged on October 4, 1985.  
 
         The left shoulder pain radiated to the hip.  An EMG and NCR tests 
 
         were ordered and resulted in normal findings.  A TENS unit 
 
         provided some relief.  On December 5, 1985, Dr. Wheeler awarded a 
 
         5 percent permanent impairment rating of the left upper extremity 
 
         (Ex. 11, p. 5; Ex. 14).  On January 2, 1986, Dr. Wheeler 
 
         clarified that his 5 percent impairment rating was specifically 
 
         due to the neck injury of February 25, 1985, and it was separate 
 
         and distinct from another 5 percent permanent impairment rating 
 
         he awarded for her carpal tunnel condition (Ex. 14).  On June 22, 
 
         1987, Dr. Wheeler said that claim,ant continued to have problems 
 
         with her shoulder and neck.  He said that this is a chronic 
 
         problem related to her work (Ex. 11, p. 5; Ex. 18).  On August 
 
         31, 1987, Dr. Wheeler wrote as follows:  "Mrs.  Wilson continues 
 
         to have difficulty about her neck.  She is tender over both 
 
         trapezius muscles with mild limitation in motion of the neck.  
 
         Thsi [sic] is her long standing problem.  I have little solution 
 
         here other than to discontinue her work." (Ex. 11, p. 5) Claimant 
 
         had continuing upper shoulder and neck pain on April. 25, 1988.  
 
         Dr. Wheeler said that as long as she continued to do strenuous 
 
         work she probably is going to have muscle symptoms in her 
 
         shoulder (Ex. 11, p. 6; Ex. 18).  On July 21, 1988, Dr. Wheeler 
 
         reported his examination of claimant as follows:
 
         
 
              Mrs. Wilson again comes in today complaining of back, 
 
              shoulder, and neck pain.  Her exam is unchanged.  She 
 
              is tender along the trapezius muscle and along most of 
 
              the paracervical muscles and also along the left 
 
              paraspinal muscles.  She has good range of motion and 
 
              no neurological deficit.  I feel this is a chronic 
 
              strain pattern.  I do not feel she is physically 
 
              holding up to the work at Wilson's.  I have advised I 
 
              have little offer other than recommending she 
 
              discontinue her employment.  In 1985, she had a 
 
              complete work up in the hospital including a full 
 
              myelogram which showed really no abnormality.  I do not 
 
              feel that further investigational studies are 
 
              indicated.  There is no sign of neurological deficit.  
 
              She has generalize aches and pains.  My only other 
 
              recommendation would be that she see a rheumatologist.  
 
              Return to me on a prn basis. (Given company release for 
 
              full duties)
 
         
 
         (Ex. 11, p. 6)
 
         
 
              Dr. Wheeler wrote to claimant's counsel on August 17, 1988, 
 
         in the following words:
 
         
 
              As you know, I have been following Mrs. Wilson for a 
 
              number of years.  She is going to have difficulty with 
 
              her neck, shoulder, hands, and arms as she works at 
 
              Wilsons.  I have discussed this with her on several 
 
              occasions.  I personally do not feel that work 
 
              restrictions are going to be of any benefit to Mrs. 
 
              Wilson.  As soon as she goes back to her normal duties, 
 
              I believe her symptoms are going to recur.  I have 
 
              advised her of this several times.
 
         
 
         (Ex. 15)
 
         
 
              Claimant was examined and evaluated extensively, in great 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   5
 
         
 
         
 
         detail, at the Industrial Disability Clinic, at Neenah, 
 
         Wisconsin, by G.R. Anderson, M.D., T. J. Michlowski, M.D., a 
 
         neurologist and psychiatrist, T. A. CoBabe, Ph.D., and W. J. 
 
         Reynolds, M.S., R.R.C, a vocational rehabilitation consultant.  A 
 
         summary of their combined reports is dated October 5, 1988  (Ex. 
 
         25).  Claimant received chest x-rays, a bone scan, x rays of the 
 
         cervical spine and right shoulder, urinalysis and blood tests, an 
 
         electromyogram and an electrocardiogram.  All of these tests were 
 
         within normal limits.  The final conclusions of this group are as 
 
         follows:
 
         
 
              STAFF DIAGNOSIS AND DISCUSSION
 
         
 
              Based on past medical records and data review and x-ray 
 
              review and current evaluation, both clinical and 
 
              laboratory, it is the opinion of the staff that this 
 
              individual does not have any significant physical 
 
              disorder relative to her pain complaints.  It is 
 
              noteworthy that the patterns of pain are rather unusual 
 
              with probably some elements of simple psychomotor 
 
              tension reaction.  No underlying physical disorder is 
 
              identified.
 
         
 
              From a psychosocial standpoint, there are numerous 
 
              complexities involved in the patient's current clinical 
 
              presentation to include unresolved conflicts at the 
 
              jobsite, job uncertainty and an obvious somatiform 
 
              response pattern to these perceived stressors.  It will 
 
              be very important for any primary clinician dealing 
 
              with this patient to maintain a broad biopsychosocial 
 
              perspective.  Particular attention should be paid to 
 
              any diagnostic or treatment intervention and how it 
 
              might affect the patient from the standpoint of 
 
              behavioral reinforcement, i.e., the somatiform 
 
              adaptation.
 
         
 
              STAFF RECOMMENDATIONS AND CONCLUSIONS
 
         
 
              1.  It is the opinion of the staff that this individual 
 
              has not sustained any significant or permanent injury.  
 
              There is no evidence of any permanent disability and, 
 
              in our opinion, she has long since recovered from the 
 
              industrial incident in question without any permanent 
 
              disability.
 
         
 
              2.  It is recommended that this patient move away from 
 
              formal therapy including physical therapy which appears 
 
              to be enhancing and reinforcing the somatiform 
 
              disturbance and that she develop an independent method 
 
              of dealing with her symptomatology and maintaining 
 
              physical fitness and limberness.  We would recommend in 
 
              this regard that perhaps for two or three months she be 
 
              provided with membership or access to the local swim 
 
              pool and whirlpool at a motel near the area where she 
 
              resides for aquacize and whirlpool.  We have 
 
              recommended she, in addition, maintain herself on her 
 
              exercise program and return to work at regular duty 
 
              within the Work Capacity Classification attached to 
 
              this report on or by 24 October 1988.
 
         
 
              3.  We do not see the need for any continued formal 
 
              medical intervention or further diagnostic studies 
 
              relative to the industrial incident in question.
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   6
 
         
 
         
 
         
 
         (Ex. 25)
 
         
 
              Dr. Blume examined claimant on October 12, 1988.  He 
 
         summarized her many symptoms and the extensive treatment which 
 
         she had received for them.  Dr. Blume did not give a permanent 
 
         impairment rating.  Dr. Blume did not feel that he could make a 
 
         definitive diagnosis without a diskogram at level C-4-5, C-5-6, 
 
         and C-6-7 (Ex. 5, p. 3).  Claimant testified that the surgical 
 
         risk of a diskogram had been explained to her and that she wanted 
 
         to have a diskogram performed.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 25, 1985, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   7
 
         
 
         
 
         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).
 
         
 
              As a claimant has an impairment to the body as  a  whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury of February 25, 1985, was the 
 
         cause of permanent impairment and disability.  The report of the 
 
         Industrial Injury Clinic at Neenah, Wisconsin, and the many 
 
         capable professional examiners and evaluators is impressive.  
 
         They captured many of the biopsychosocial conflicts that exist 
 
         between claimant, employer and Dr. Garner as well as claimant's 
 
         job uncertainty due to economic conditions at the plant.  Their 
 
         evaluation of somatiform adaptation has merit.  Their 
 
         recommendation that there is no need for additional formal 
 
         medical intervention or diagnostic studies also has merit.  This 
 
         confirms what Dr. Wheeler told claimant on several occasions.  
 
         Dr. Wheeler told her that she had been thoroughly examined and 
 
         tested and there was nothing further that he could do for her, 
 
         but that she could return on an as needed basis.
 
         
 
              As to claimant's physical symptoms and complaints, Dr. 
 
         Wheeler characterized these problems as chronic.  When 
 
         conservative management failed, he hospitalized claimant for 
 
         traction and a myelogram.  The myelogram, x-rays and other 
 
         objective tests were all normal.  Dr. Wheeler was claimant's 
 
         long-term treating physician.  He treated her as early as two 
 
         years prior to this injury for the left shoulder injury in 1983.  
 
         He treated claimant for over three years after this injury until 
 
         July 21, 1988.  He stated that claimant had a chronic muscle 
 
         strain pattern about the shoulder and rated the impairment at 5 
 
         percent of the upper extremity due to the injury and recommended 
 
         that she change jobs if she wanted relief.  As far as claimant's 
 
         purely physical complaints, the Industrial Injury Clinic did not 
 
         see claimant until over three years after the injury occurred.  
 
         They only saw her on this one occasion three years later.  
 
         Therefore, the opinion of Dr. Wheeler is accepted on the specific 
 
         element of claimant's physical injury, disability and impairment.  
 
         He awarded claimant a 5 percent impairment of the left upper 
 
         extremity (Ex. 11, p. 5; Ex. 14).  This converts to 3 percent of 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   8
 
         
 
         
 
         the body as a whole (Guides to the Evaluation of Permanent 
 
         Impairment, second edition, table 20, p. 23, published by the 
 
         American Medical Association) Even though Dr. Garner's notes say 
 
         that claimant requested to see Dr. Wheeler, nevertheless, Dr. 
 
         Wheeler was the authorized treating physician selected by 
 
         employer to treat claimant for this injury.  Iowa Code section 
 
         85.27.
 
         
 
              Even though Dr. Wheeler recommended to claimant that she 
 
         change jobs on numerous occasions, she testified at the hearing 
 
         that she had not attempted to find any other employment.  On the 
 
         contrary, she has returned to work for employer on her own 
 
         volition.  Therefore, two things are evident:  (1) claimant can 
 
         perform the work of this employer if she chooses to do so, and 
 
         (2) there is some impairment when she does perform this work.
 
         
 
              It must be taken into consideration that claimant received a 
 
         violent blow to the left side of her head which left her 
 
         partially stunned or dazed.  She was hit with a ham weighing 12 
 
         to 15 pounds which had been thrown 10 to 12 feet through the air 
 
         before it struck her in the left side of the head.  Claimant was 
 
         taken to first aid, saw Dr. Garner and was referred to Dr. 
 
         Wheeler and the Industrial Injury Clinic by employer.
 
         
 
              Claimant is young enough at age 45 to undertake formal 
 
         education and training to learn a new kind of work or to learn a 
 
         different kind of work through on-the-job training.  She has a 
 
         high school diploma and received C grades in high school.  She 
 
         has performed a variety of other employments satisfactorily such 
 
         as waitress, grocery clerk, food worker and laundry worker.  The 
 
         occupation of homemaker and mother of two children involved 
 
         numerous management skills as well as many problem solving 
 
         skills.
 
         
 
              Even though claimant is earning approximately the same or 
 
         slightly more then when she was injured, an actual loss of 
 
         earnings is only one factor in determining industrial disability.  
 
         The industrial disability is a loss of "capacity" not solely loss 
 
         of earnings.  Michael v. Harrison County, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 218, 220 (1979).
 
         
 
              At 45 years of age, claimant is in the middle of her working 
 
         career.  Her loss of future earnings from employment due to her 
 
         disability is much more severe than would be the case for an 
 
         older or younger individual.  Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981).
 
         
 
              At the same time, it must be taken into consideration that 
 
         claimant did not demonstrate a strong effort to either seek new 
 
         employment in a different line of work or to return to work for 
 
         this employer.  Consequently, it is difficult to tell what 
 
         claimant can or cannot do within the boundaries of her 
 
         disability.  Schofield v. Iowa Beef Processors, Inc., II Iowa 
 
         Industrial Commissioner Report 334, 336 (1981).
 
         
 
              Based on the foregoing considerations and all of the factors 
 
         that are used to determine industrial disability, it is 
 
         determined that claimant has sustained a 10 percent industrial 
 
         disability of the body as a whole.  Claimant's medical care and 
 
         treatment needs have been taken care of in a satisfactory manner.  
 
         She was treated by a qualified neurosurgeon, Dr. Wheeler, and had 
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE   9
 
         
 
         
 
         the benefit of physical therapy and chiropractic therapy on a 
 
         number of occasions.  She has taken numerous diagnostic tests, 
 
         including a myelogram, and all of her tests were within normal 
 
         limits.  In addition to the medical treatment that most 
 
         claimant's receive, claimant also had the benefit of being 
 
         examined and evaluated by the Industrial Injury Clinic at Neenah, 
 
         Wisconsin, at the expense of her employer.  Again, extensive 
 
         numerous objective tests were all normal.  The Industrial Injury 
 
         Clinic recommended against further medical intervention or 
 
         diagnostic studies and indicated that they would be 
 
         counterproductive.
 
         
 
              In view of all of the medical testing, examination and 
 
         evaluation that claimant has been given up to this point, she did 
 
         not sustain the burden of proof by the preponderance of the 
 
         evidence that a diskogram performed by Dr. Blume should be 
 
         authorized.  Nor did she sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to a change of 
 
         medical care.  The medical care that has been provided has been 
 
         reasonable and promptly offered.  Iowa Code section 85.27.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained a very severe blow to the left side 
 
         of her head when she was hit by a 12 to 15 pound ham, which had 
 
         been thrown approximately 10 to 12 feet on February 25, 1985, 
 
         when she was stunned and knocked partially to the floor.
 
         
 
              That Dr. Wheeler, the treating orthopedic surgeon, 
 
         determined that claimant had sustained a 5 percent permanent 
 
         impairment of the left upper extremity due to the injury to her 
 
         neck which occurred on February 25, 1985.
 
         
 
              That a 5 percent permanent impairment to the left upper 
 
         extremity converts to a 3 percent permanent impairment of the 
 
         body as a whole.
 
         
 
              That claimant sustained an industrial disability of 10 
 
         percent to the body as a whole, due to current difficulty in 
 
         performing her work, as a result of the injury which occurred on 
 
         February 25, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That the injury of February 25, 1985, was the cause of 
 
         permanent impairment and permanent disability.
 
         
 
              That claimant sustained a 5 percent impairment of the upper 
 
         extremity which converts to a 3 percent permanent impairment of 
 
         the body as a whole.
 
         
 
              That claimant is entitled to 50 weeks or permanent partial 
 
         disability benefits for an industrial disability of 10 percent of 
 
         the body as a whole.
 
         
 

 
         
 
         
 
         
 
         WILSON V. WILSON FOODS CORPORATION
 
         PAGE  10
 
         
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to a diskogram 
 
         as recommended by Dr. Blume.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to an order 
 
         for a change of care.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of one hundred 
 
         ninety-eight and 02/100 dollars ($198.02) per week in the total 
 
         amount of nine thousand nine hundred and one dollars ($9,901) 
 
         commencing on August 30, 1986, as stipulated to by the parties.
 
         
 
              That defendant is entitled to a credit of fifteen (15) weeks 
 
         of permanent partial disability benefits paid to claimant prior 
 
         to hearing at the rate of one hundred ninety-eight and 02/100 
 
         dollars ($198.02) per week in the total amount of two thousand 
 
         nine hundred seventy and 30/100 dollars ($2,970.30).
 
         
 
              That the remaining benefits are to be paid to claimant in a 
 
         lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 34.3-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 23rd day of December, 1988.
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1401; 1402.40; 1803; 1402.60
 
                                           2501; 2503; 2505; 2610; 2700
 
                                           Filed December 23, 1988
 
                                           WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHERYLE L. WILSON,
 
         
 
              Claimant,                            File Nos.  788588
 
         
 
         vs.
 
                                                A R B I T R A T I O N
 
         WILSON FOODS CORPORATION,
 
                                                   D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1401; 1402.40; 1803
 
         
 
              Claimant was hit in the head with a ham weighing 12 to 15 
 
         pounds which had been thrown 10 to 12 feet which gave rise to 
 
         neck, back and hip complaints.  Treating physician awarded 5 
 
         percent functional impairment of the left upper extremity which 
 
         converts to 3 percent of the body as a whole.  Claimant awarded 
 
         10 percent industrial disability.
 
         
 
         1402.60; 2501; 2503; 2505; 2610; 2700
 
         
 
              Claimant had been examined and treated extensively including 
 
         a trip to the Industrial Injury Clinic at Neenah, Wisconsin.  
 
         Claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that she was entitled to a diskogram from Dr. 
 
         Blume or an order for a change of care to Dr. Blume.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHERYLE L. WILSON,            :
 
                                          :      File No. 788588
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       R E V I E W -
 
                                          :
 
            WILSON FOODS CORPORATION,     :     R E O P E N I N G
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 11, 1993, at 
 
            Storm Lake, Iowa.  This is a proceeding in review-reopening 
 
            wherein claimant seeks additional permanent partial 
 
            disability benefits, alternate care, and payment of medical 
 
            bills as a result of an injury which occurred on February 
 
            25, 1985.
 
            
 
                 There had been an arbitration decision filed December 
 
            23, 1988, pursuant to a hearing held on November 3, 1988, in 
 
            which claimant was determined to have a 10 percent 
 
            industrial disability and was determined not to be entitled 
 
            to a diskogram or change of medical care.
 
            
 
                 The testimony in the proceeding consists of the 
 
            testimony of the claimant and Jean McCall; joint exhibits 1 
 
            through 53; and claimant's exhibits A and B.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The reasonableness and necessity of incurring the 
 
            medical expense;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's medical expense and the injury;
 
            
 
                 3.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27, the issue being authorization and 
 
            the incurrence of medical fees.  The actual reasonableness 
 
            of the fees is not disputed.
 
            
 
                 4.  Whether there has been a change of circumstances 
 
            since the last hearing claimant had on November 3, 1988; 
 
            and,
 
            
 
                 4.  Whether claimant is entitled to alternate medical 
 
            care.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant was born on March 8, 1943, and was 49 years 
 
            old on the date of the hearing.  She graduated from high 
 
            school but has received no further education or training 
 
            since that time.
 
            
 
                 Claimant started working for the employer on November 
 
            3, 1980, and has been employed with the defendant to the 
 
            present.
 
            
 
                 Claimant testified as to the procedures at defendant 
 
            company concerning if one is injured and is seeking medical 
 
            care.  Claimant indicated that if she was injured, she would 
 
            go to the nurse and an appointment would be made with Keith 
 
            O. Garner, M.D., who is the plant doctor.  She indicated Dr. 
 
            Garner cared for her as to her 1985 injury and that he has 
 
            an office at the defendant's place of business and sees 
 
            employees on the particular days when he is present at the 
 
            plant.  She indicated that he also has an office in town for 
 
            his private practice but usually she would see him at the 
 
            employer's place of business.  Claimant indicated that she 
 
            had treated with Dr. Garner even before her 1985 injury and 
 
            had seen him because of her high sensitivity to cotton prior 
 
            to her employment.  She indicated that she got along with 
 
            Dr. Garner for awhile and then around the time of her 
 
            discharge from a hospital in 1978 and before she began 
 
            working for defendant employer, the doctor-patient 
 
            relationship seemed to be strained as far as the claimant 
 
            was concerned.  Claimant indicated Dr. Garner wanted her to 
 
            take 26 pills a day and she said she switched doctors.  She 
 
            acknowledged she had originally picked Dr. Garner.
 
            
 
                 Claimant testified that since the November 1988 trial, 
 
            she has continued treatment and that she continued to be a 
 
            membrane skinner in the ham boning department until February 
 
            of 1990, at which time she was transferred to her current 
 
            department.  Claimant said the ham boning department 
 
            involved a lot of arm and shoulder movement, taking off fat 
 
            and handling 10 to 12 pound hams and running the hams 
 
            through a blade machine.  Claimant's current position 
 
            involves a day job rather than her former night position and 
 
            it involves rotating in all phases of the job which includes 
 
            but is not limited to making boxes, knocking meat out of 
 
            pans and involves continuous pulling, pushing and lifting.  
 
            Claimant contends that since her November 1988 hearing, her 
 
            problems have progressed to her elbow and deep into her left 
 
            shoulder blade, mainly, but also her right side.  Claimant 
 
            contends that all of her areas that were affected before are 
 
            now worse.  She indicted she had continued with Dr. Garner 
 
            but that he also referred her to a M. E. Wheeler, M.D., an 
 
            orthopedic surgeon.
 
            
 
                 Claimant had not seen Dr. Garner since her November 
 
            1988 hearing until December 1989.  She was referred to joint 
 
            exhibit 9 and acknowledged that Dr. Garner had indicated he 
 
            thought it was claimant's imagination.  She said he told her 
 
            this more than once.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant indicated that in October 1989, she was 
 
            referred to a Quentin J. Durward, M.D., by Patricia J. 
 
            Harrison, M.D., her personal doctor.  She indicated she had 
 
            tried to get a referral from the employer but could not.
 
            
 
                 Claimant acknowledged she knew that if she picked her 
 
            own doctor the defendant would not pay the bill.  She 
 
            indicated she had seen Dr. Durward in October 1989 after her 
 
            MRI and they discussed a physical therapy program.  Claimant 
 
            then went back to Dr. Garner but the employer at that time 
 
            would not authorize physical therapy.  Eventually, the 
 
            employer did authorize some additional physical therapy.
 
            
 
                 Claimant indicated that the employer ultimately 
 
            referred claimant to the University of Nebraska Medical 
 
            Center to see Angelo Patil, M.D.  She indicated he suggested 
 
            she come in for therapy.  She also saw someone in the 
 
            rheumatology department.  Claimant said that defendant 
 
            cancelled the appointment two days before she was to go to 
 
            her appointment.  She never did see a rheumatologist and did 
 
            not know why the appointment was cancelled.
 
            
 
                 Claimant related her alleged problems concerning her 
 
            physical therapy and attempt to get physical therapy.  The 
 
            record reflects joint exhibit 9, page 5, also shows there 
 
            was an apparent dispute she had concerning the extent of her 
 
            physical therapy treatment.  This record also shows that she 
 
            was missing appointments that had actually been set up for 
 
            her.  Claimant contends she did not miss a physical therapy 
 
            appointment but that they were cancelled by Dr. Garner.
 
            
 
                 Claimant acknowledged that on March 18, 1992, Dr. 
 
            Garner suggested that she needed psychiatric care.  She also 
 
            acknowledged that the 20 to 40 pound lifting restrictions 
 
            given on August 1991 were not violated by her work and that 
 
            her work was within these restrictions.  Claimant indicated 
 
            that she had not received any other back injuries since 
 
            November 1988.  Claimant was then referred to joint exhibit 
 
            3, page 7, in which a December 12, 1989 accident report 
 
            reflects that she injured herself which resulted in a sore 
 
            neck after bending over and working on a machine and that 
 
            she incurred pain in her back.  She was also referred to 
 
            joint exhibit 8, page 5, which indicates that on November 
 
            14, 1990, she complained of lower back pain and that she had 
 
            pain at the same time in her left leg.
 
            
 
                 Claimant was referred to joint exhibit 3, page 10, in 
 
            which an accident report showed on April 9, 1991, that she 
 
            was complaining of a right shoulder strain that had been 
 
            sore for approximately one week as a result of pulling meat 
 
            from the racks, etc.
 
            
 
                 Claimant acknowledged that she had carpal tunnel 
 
            surgery on both upper extremities.  She also acknowledged on 
 
            cross-examination that Dr. Garner is her authorized doctor 
 
            as of today and that from October 1988 until December 1989, 
 
            she had not seen Dr. Garner, and then again from December 
 
            1989 until August 1990.  She also acknowledged that she had 
 
            no authorization to get an MRI or see Dr. Durward nor did 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            she ever ask defendant to see the doctor or have an MRI.
 
            
 
                 Claimant further acknowledged that before her last 
 
            hearing she had an electromyelogram and a myelogram which 
 
            were normal.  Also, she had been to Neenah, Wisconsin for a 
 
            bone scan and tests and they were normal.
 
            
 
                 Claimant related that her present status with Dr. 
 
            Garner results in him yelling at her at appointments.  She 
 
            indicated that if she tells him she is stiff, he will reply 
 
            that she has been stiff for 20 years and is always stiff and 
 
            that it is her imagination.  After claimant mentioned this, 
 
            she was asked on recross that if she was so upset with the 
 
            doctor and was not comfortable with him why did she go to 
 
            him approximately 18 times from February 3, 1992 through 
 
            September 30, 1992, at his office in defendant's plant.
 
            
 
                 Jean McCall testified that she works for defendant as a 
 
            workers' compensation director and economics coordinator.  
 
            She said she takes care of the handling of the physical 
 
            therapy referrals and the doctor appointments.  She said Dr. 
 
            Garner is a general practitioner and is an independent 
 
            contractor but is the employer's authorized company doctor.  
 
            She said the doctor comes to the plant on Mondays, 
 
            Wednesdays and Fridays and, if necessary, a patient can go 
 
            to his office in town.  She said there is a nurse there with 
 
            a patient and that after the doctor sees a patient, he 
 
            immediately thereafter dictates the situation regarding each 
 
            patient.  She said if the doctor orders physical therapy and 
 
            sets a time for it to occur, she sets it up and has a Mr. 
 
            Hasty come to the plant for the physical therapy.  The 
 
            therapist is usually there from 12:30 to 4:00 on the 
 
            particular days involved.
 
            
 
                 She said that Mr. Hasty refers claimants to specialists 
 
            such as an orthopedic or neurologist.  She occasionally 
 
            refers claimants to a specialist, also.  Ms. McCall seems to 
 
            indicate that claimant needs to see a psychiatrist and that 
 
            in March of 1992, Dr. Garner's notes reflect that.
 
            
 
                 She explained the reason they sent claimant to Dr. 
 
            Patil was because claimant was complaining that she was 
 
            becoming blind when turning her head or she would become 
 
            unconscious.
 
            
 
                 Joint exhibit 9, page 4, reflects the basic problems 
 
            that apparently are existing concerning the treatment of the 
 
            claimant.  It states that basically claimant needs to see a 
 
            psychiatrist or go to a pain doctor as she has had every 
 
            test to modern science and her psychological evaluation has 
 
            already stated on several occasions that she has 
 
            somatization of anxiety.  Dr. Garner's notes indicate he 
 
            tried to explain this to her but she absolutely refuses to 
 
            accept this.  She indicated they will do the best they can 
 
            but she is just going to have to live with her problem.  
 
            This note, as indicated, seems to reflect the problem 
 
            existing in that claimant is convinced that she has problems 
 
            but tests and other treatment seems to be to the contrary.  
 
            Of course, there is a question additionally as to what her 
 
            problems may be, whether they are causally connected to her 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1985 injury or the result of other incidents she has had (as 
 
            referred to the various accident reports that have been 
 
            filed and reflected in the exhibits herein).  A February 26, 
 
            1992 note reflects problems the doctor was having with the 
 
            claimant.  It is obviously these problems that the claimant 
 
            is referring to when she indicates she cannot get along with 
 
            the doctor and wants alternate care.
 
            
 
                 The undersigned notes considerable exhibits relating to 
 
            the medical information that existed prior to the last 
 
            hearing and was obviously considered at the last hearing or 
 
            was available before the last hearing on November 3, 1988.  
 
            The undersigned is not reviewing information to determine 
 
            whether the deputy was right or wrong in his conclusions and 
 
            decision rendered on December 23, 1988.  The issue here is 
 
            whether there has been a change in condition since the 
 
            November 3, 1988 hearing.  Joint exhibit 53 is a September 
 
            25, 1991 letter from the West Dodge Neurologic Clinic signed 
 
            by Len Weber, M.D., a neurologist.  The summary indicates 
 
            that electrical testing done on claimant was normal without 
 
            evidence of any injuries or myelinor axons at an upper 
 
            extremity or scapular peripheral nerve, bronchial plexus or 
 
            cervical nerve root level on either side at the present 
 
            time.
 
            
 
                 Joint exhibit 44, an October 17, 1989 letter from Dr. 
 
            Durward, seems to reflect the problem that exists in this 
 
            case even at the current time.  He indicated on page 2 of 
 
            this exhibit that "This woman has a florid number of 
 
            complaints, but I can find nothing wrong on physical 
 
            examination."  He, too, like others made comments that 
 
            possibly claimant could consider changing her occupation.  
 
            He indicated that claimant's history gives a clear picture 
 
            that the initial change in the job she was doing at work did 
 
            result in an improvement.  It appears this doctor feels as 
 
            others that claimant's physical structure is such that 
 
            certain work will bother her but if she stops it or changes, 
 
            then her problems improve or are alleviated.
 
            
 
                 The evidence shows that claimant is still working at 
 
            defendant's place of business and has had no reduction in 
 
            her hourly wage since her last hearing of November 3, 1988.  
 
            Claimant is working in a different department than she was 
 
            at the time of her November 1988 hearing but it is 
 
            undisputed that any restrictions claimant may have or is 
 
            operating under did not prevent her from doing the work that 
 
            she is doing or would it appear that it would affect any 
 
            work she was actually doing at the time of her 1985 injury.
 
            
 
                 As indicated earlier, the issue here is whether there 
 
            is a change of circumstances in claimant's condition since 
 
            her November 3, 1988 hearing and if there is a change in 
 
            circumstances whether they were anticipated at the time of 
 
            the hearing.
 
            
 
                 There is no evidence of any increased impairment over 
 
            and above that impairment which was part of the evidence at 
 
            the November 3, 1988 hearing.  That evidence shows, and was 
 
            accepted by the deputy at that time, that claimant had a 5 
 
            percent impairment of her upper extremity which resulted in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a 3 percent impairment to her body as a whole and the deputy 
 
            found claimant had a 10 percent industrial disability.  
 
            Claimant has the burden of proof to show there is a change 
 
            in her condition.  The claimant has failed to carry her 
 
            burden.  There is evidence in the file that claimant has 
 
            gone through various tests and they show normal.  Claimant 
 
            still continues to complain as she did prior to the November 
 
            3, 1988 hearing and these complaints seem to be consistent.  
 
            They are similar in nature but appear to be basically 
 
            subjective.
 
            
 
                 There is reference in the record that claimant may have 
 
            psychological problems or emotional overlay.  It appears to 
 
            the undersigned that the evidence is sufficient to indicate 
 
            that claimant's problems could very much be from a 
 
            psychological standpoint and not from the fact that she does 
 
            have an increase in impairment or any resulting increase in 
 
            industrial disability since her November 3, 1988 hearing.
 
            
 
                 The decision of December 23, 1988 found that claimant 
 
            did have an impairment and was given an industrial 
 
            disability.  That decision indicates that claimant at that 
 
            time had a permanency.  It appears to the undersigned that 
 
            claimant still has that permanency and is suffering from 
 
            same.  The undersigned finds that it is not greater than it 
 
            was at the time of her November 3, 1988 hearing.
 
            
 
                 The evidence on several occasions reflect that the 
 
            doctors seem to indicate claimant may be in a type of 
 
            business that is not suitable to her and that she will 
 
            continue to have problems as long as she is in that 
 
            industry.  It appears if she removed herself from those 
 
            circumstances that caused her to have sore muscles or pain, 
 
            then she would improve and it would appear alleviate her 
 
            problems.  There are some people who can only do certain 
 
            jobs without suffering pain or discomfort or resulting sore 
 
            muscles.  That does not mean one has a permanent situation.  
 
            If they change their environment, circumstances, 
 
            surroundings, or the type of work, then oftentimes those 
 
            problems, unless there is a permanent injury, are 
 
            alleviated.
 
            
 
                 The claimant desires to continue to work and has 
 
            worked, as indicated earlier, to the present and is working 
 
            with the impairment that was found in the decision of 
 
            December 23, 1988.  Claimant has had other problems and 
 
            surgery for her carpal tunnel.  Claimant has had several 
 
            accidents which she reported and is evidence herein since 
 
            her November 3, 1988 hearing.  All those compound a 
 
            potential problem that claimant has or is complaining of but 
 
            there is no evidence relating her problems to her 1985 
 
            injury other than the fact she is still working with a 
 
            permanent impairment or industrial disability from her 1985 
 
            injury and as found in the December 23, 1988 decision.  
 
            Also, the record shows that claimant had an impairment 
 
            resulting from her carpal tunnel which is not an issue 
 
            herein but that claimant is operating with that permanent 
 
            impairment.  Any complaint that claimant may have may also 
 
            just as likely stem from her previous carpal tunnel problems 
 
            and any impairment resulting therefrom or any other 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            subsequent accidents after the November 3, 1988 hearing.
 
            
 
                 It appears to the undersigned that claimant may have an 
 
            overuse or overwork condition that isn't permanent but 
 
            occurs when claimant does the type of work she does at the 
 
            defendant's place of business taking into consideration, 
 
            additionally, the permanent impairment she had as of 
 
            November 3, 1988, and the additional permanent impairment 
 
            she had as a result of her carpal tunnel and resulting 
 
            surgeries.
 
            
 
                 Claimant has not attempted to find other employment and 
 
            the evidence shows that claimant can perform the work for 
 
            this employer if she chooses to do so and that this may be 
 
            affecting the impairment she had as of November 3, 1988, but 
 
            does not increase the same nor cause any additional 
 
            industrial disability.  The undersigned finds therefore that 
 
            claimant is not entitled to any increased benefits and does 
 
            not have any increase in impairment or industrial disability 
 
            as a result of her February 25, 1985 injury and since her 
 
            November 3, 1988 hearing which resulted in the December 23, 
 
            1988 arbitration decision.
 
            
 
                 In the prior arbitration decision, it was found that 
 
            Dr. Wheeler, an orthopedic surgeon, who was the one who 
 
            opined the ultimate 3 percent impairment to claimant's body 
 
            as a whole, was the authorized treating physician selected 
 
            by the employer to treat claimant for the injury.  Dr. 
 
            Garner was the other treating physician and is not a 
 
            specialist.  In reading the arbitration decision, it would 
 
            appear that the deputy at that time at least felt either Dr. 
 
            Garner authorized Dr. Wheeler or it had that same effect as 
 
            Dr. Wheeler was found also to be a treating physician.  
 
            There is no evidence in the record at this review-reopening 
 
            hearing that Dr. Wheeler issued any additional impairment.  
 
            The record also shows a substantial lapse between the date 
 
            of the hearing and the next time claimant saw a doctor.
 
            
 
                 Claimant is requesting alternate care.  She testified 
 
            considerably to the fact that she does not get along with 
 
            Dr. Garner and there seems to be with her, anyway, a dislike 
 
            of him.  Of course, disliking a doctor is not reason itself 
 
            for requesting alternate care.  Claimant has not in any way 
 
            indicated her displeasure with Dr. Wheeler and since Dr. 
 
            Wheeler had originally been found to be an authorized 
 
            treating physician, and since the record does not show that 
 
            Dr. Wheeler has subsequently been relieved as an authorized 
 
            treating doctor from the specialist standpoint since he is 
 
            an orthopedic surgeon, there is no reason why claimant could 
 
            not have gone to Dr. Wheeler.  The undersigned agrees that 
 
            claimant needed to go to a specialist and was referred to 
 
            Dr. Wheeler.  Claimant, instead, chose to go to other 
 
            doctors of her choice knowing full well that they were not 
 
            authorized.  Claimant admitted at the hearing that she did 
 
            not have authority to go to any other doctor including Dr. 
 
            Durward, a neurologist.  Claimant is asking that his bill in 
 
            the amount of $150 be paid (Claimant's Exhibit A).  She is 
 
            also asking that a $1,000 bill, represented by claimant's 
 
            exhibit B, be paid, also.  This involved claimant having an 
 
            MRI spinal cord procedure done at the Marian Health Center.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Again, there was no authorization for the same and it 
 
            appears that this test showed nothing new or further.  The 
 
            undersigned finds that claimant is responsible for those 
 
            bills represented by claimant's exhibits A and B.  The 
 
            undersigned notes that claimant's exhibit B was sent to 
 
            Wilson Foods and would seem to indicate that they also have 
 
            an employee hospital and medical benefit under their 
 
            self-insured program.  The undersigned wants to make it 
 
            clear that because he is not allowing it as a workers' 
 
            compensation medical does not mean that it isn't payable 
 
            under the provisions of the defendant's hospital and medical 
 
            program for its employees for a non-workers' compensation 
 
            benefit.  In other words, so there is no misunderstanding, 
 
            it appears this medical bill would be payable either under 
 
            workers' compensation or claimant's medical and hospital 
 
            insurance coverage.  In both instances, it would appear that 
 
            it is defendant employer who would be paying it under one 
 
            program or the other.  It is not a situation in which it 
 
            would not be covered under any program.  What the 
 
            undersigned is finding is that he is not ordering it to be 
 
            paid under the workers' compensation law and the same is 
 
            true as far as the $150 bill represented by claimant's 
 
            exhibit A.
 
            
 
                 The undersigned therefore finds that claimant is not 
 
            entitled to alternate care.  As indicated above, defendant 
 
            has provided care for the claimant, substantial physical 
 
            therapy, and that it would appear that even though Dr. 
 
            Garner is still the company's authorized doctor, claimant 
 
            also is under the care of an authorized specialist, Dr. 
 
            Wheeler, and there is no evidence Dr. Wheeler is not able to 
 
            treat claimant as a specialist or that defendant has not 
 
            made him available or has prevented claimant from going to 
 
            Dr. Wheeler.
 
            
 
                 The undersigned believes the above resolves all the 
 
            issues or makes moot any other issues that may be 
 
            outstanding.  It is therefore found that claimant takes 
 
            nothing further from these proceedings.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            25, 1985, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The case law relating to review-reopening proceedings 
 
            is rather extensive.
 
            
 
                 The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            
 
                 That the decision on review depends upon the 
 
                 condition of the employee, which is found to exist 
 
                 subsequent to the date of the award being 
 
                 reviewed.  We can find no basis for interpreting 
 
                 this language as meaning that the commissioner is 
 
                 to re-determine the condition of the employee 
 
                 which was adjudicated by the former award.
 
            
 
                 The court in Bousfield v. Sisters of Mercy, 249 Iowa 
 
            64, 86 N.W.2d 109 (1957) cited prior decisions and added a 
 
            new facet to the review-reopening law by stating at page 69:
 
            
 
                 But it is also true that unless there is more than 
 
                 a scintilla of evidence of the increase, a mere 
 
                 difference of opinion of experts or competent 
 
                 observers as to the percentage of disability 
 
                 arising from the original injury would not be 
 
                 sufficient to justify a different determination by 
 
                 another commissioner on a petition for 
 
                 review-reopening.  Such is not the case before us, 
 
                 for here there was substantial evidence of a 
 
                 worsening of her condition not contemplated at the 
 
                 time of the first award.
 
            
 
                 In a somewhat analogous vein, the Iowa Court of Appeals 
 
            held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 
 
            N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening 
 
            petition may allow a change in compensation when a claimant 
 
            has failed to improve to the extent initially anticipated.
 
            
 
                 A major pronouncement came in the case of Gosek v. 
 
            Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The 
 
            opinion there, at 732, stated that "[o]n a review-reopening 
 
            hearing claimant has the burden of showing by a 
 
            preponderance of the evidence his right to compensation in 
 
            addition to that accorded by a prior agreement or 
 
            adjudication."  The opinion went on to discuss the common 
 
            understanding that "if a claimant sustained compensable 
 
            injuries of which he was fully aware at time of prior 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            settlement or award, but for some unexplainable reason 
 
            failed to assert it, he cannot, for the first time on 
 
            subsequent review proceedings, claim additional benefits."  
 
            The opinion continued at 733 "[b]ut according to the 
 
            apparent majority view, if a claimant does not know of other 
 
            employment connected injuries or disability at time of any 
 
            prior agreement or adjudication, he is not ordinarily barred 
 
            from later asserting it as a basis for additional benefits."  
 
            The court went on to hold at 735 that "cause for allowance 
 
            of additional compensation exists on proper showing that 
 
            facts relative to an employment connected injury existed but 
 
            were unknown and could not have been discovered by the 
 
            exercise of reasonable diligence, sometimes referred to as a 
 
            substantive omission due to mistake, at time of any prior 
 
            settlement or award."
 
            
 
                 Each of these cases rests upon some disparity between 
 
            claimant's actual or anticipated physical condition at the 
 
            time of the previous assessment and the physical condition 
 
            which exists at the time of the review-reopening proceeding.  
 
            Thus, the question initially becomes whether claimant 
 
            established a change in his physical condition since the 
 
            time of the November 3, 1988 proceeding.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant has failed in his burden of proof to show that 
 
            there has been a change in his physical condition since the 
 
            time of his November 3, 1988 hearing.
 
            
 
                 Claimant has had no increase in impairment or loss of 
 
            income since her November 3, 1988 hearing which resulted in 
 
            the December 23, 1988 arbitration decision.
 
            
 
                 Claimant has not incurred any increase in industrial 
 
            disability over and above the 10 percent that she was 
 
            awarded in the December 23, 1988 arbitration decision.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Claimant is not entitled to any alternate medical care.  
 
            Defendant has provided him with Dr. Garner and an orthopedic 
 
            specialist, Dr. Wheeler.
 
            
 
                 Defendant is not responsible for the payment of 
 
            claimant's bills of $150 and $1000 as represented by 
 
            claimant's exhibits A and B as to any workers' compensation 
 
            matter.  This does not mean that defendant as a self-insured 
 
            is not responsible under another health or medical benefit 
 
            policy or self-insured program for employees.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3087
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402; 5-2500
 
                      5-2506; 5-2905
 
                      Filed January 29, 1993
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHERYLE L. WILSON,            :
 
                                          :      File No. 788588
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       R E V I E W -
 
                                          :
 
            WILSON FOODS CORPORATION,     :     R E O P E N I N G
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1402; 5-2905
 
            Claimant failed to prove there was a change of condition 
 
            since her last hearing.
 
            
 
            5-2506
 
            Claimant found not entitled to alternate care.
 
            
 
            5-2500
 
            Defendant found not responsible for medical bills incurred 
 
            by claimant.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY D. ROBINS,
 
                                                  FILE NO. 788740
 
              Claimant,
 
                                               A R B I T R A T I 0 N
 
         vs.
 
                                                  D E C I S I O N 
 
         TODD CORPORATION,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jerry D. 
 
         Robins, claimant, against the Todd Corporation, employer 
 
         (hereinafter referred to as Todd), whose insurance status for 
 
         this case is unknown, for workers' compensation benefits as a 
 
         result of an alleged injury on February 4, 1985.  On December 15, 
 
         1987, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.  The 
 
         caption of this case which identifies an adjusting firm, not an 
 
         insurance carrier, as a party defendant shall be modified to 
 
         reflect the unknown insurance status of the defendant employer.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated that on February 4, 1985, claimant 
 
         received an injury which arose out of and in the course of his 
 
         employment with Todd.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             II.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
            III.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
                             
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 

 
         
 
         
 
         
 
         ROBINS V. TODD CORPORATION
 
         Page   2
 
         
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Todd as a route 
 
         salesman and deliveryman.  Todd is engaged in the business of 
 
         selling and cleaning industrial uniforms, shop towels and other 
 
         items.  As a part of his duties, claimant was required to drive 
 
         his delivery truck and load and unload cargo consisting of 
 
         uniforms, towels and other items handled by Todd.  Claimant 
 
         testified that prior to his employment at Todd, he worked in a 
 
         manufacturing plant operating a "bessley" machine which cut 
 
         carbon brushes used in electric motors.  Claimant also testified 
 
         that he was and continues to be a house painter.  Subsequent to 
 
         his employment at Todd, claimant worked as a bread route 
 
         deliveryman.  Claimant currently works for a Des Moines 
 
         department store performing "stock work.O
 
         
 
              Claimant testified that on February 4, 1985, while 
 
         delivering uniforms to a customer in Webster City, Iowa, he 
 
         slipped on ice and fell, striking his head on the bumper of his 
 
         truck and twisting his left leg and left hand.  He said that 
 
         after the injury he experienced pain mainly in the left leg, 
 
         developed a bad headache and observed bleeding on his left hand.
 
         
 
              Claimant stated that after the incident, customers unloaded 
 
         his truck and he drove back to Des Moines.  In his deposition, 
 
         claimant testified that he could not remember driving back to Des 
 
         Moines.  Claimant said that after arriving at home that night, he 
 
         felt sore and was aching.  The next morning he reported the 
 
         incident to his superiors at Todd and was referred by Todd to 
 
         Iowa Methodist Hospital for treatment of continuing complaints.
 
         
 
              According to the records of the Iowa Methodist Hospital, 
 
         claimant complained to them on February 5, 1985 of left leg pain 
 
         and of a contusion on the right upper extremity on the inner 
 
         aspect of the arm.  The only diagnosis at that time was "knee 
 
         strain" and he was released to return to work on February 9, 
 
         1985.  There was no mention in these records of any complaints of 
 
         hand injuries, head injuries, head pain, dizziness or headache.
 
         
 
              Claimant testified that he returned to work at Todd.  In his 
 
         deposition, he stated that approximately a week after his 
 
         returned to work he complained to Todd management that he could 
 
         not continue his route work due to dizziness and that he would 
 
         have to quit.  Claimant was then asked to continue working for a 
 
         while until a replacement was found.  Claimant agreed and he 
 
         began his route that day but claimant later called back after a 
 
         period of time stating that he became dizzy and could not 
 
         continue working.  Claimant did not seek medical attention for 
 
         these complaints of dizziness until May, 1985, when he reported 
 
         to Broadlawns Hospital.  According to the records at Broadlawns, 
 
         claimant complained at that time of numbness of the left leg and 
 
         foot along with the dizziness and numbness of the hand.  
 
         Initially, claimant was admitted for diagnostic testing to 
 
         determine the cause of the dizziness.  After further tests, 
 
         including an abnormal liver scan and a review of a history of 
 
         past treatment for alcoholism, it was concluded by physicians at 
 
         Broadlawns that claimant's vertigo problems were due to 
 
         "alcoholic hepatitis" and claimant was informed of this 
 

 
         
 
         
 
         
 
         ROBINS V. TODD CORPORATION
 
         Page   3
 
         
 
         diagnosis.  Nothing was mentioned in the Broadlawns records as to 
 
         the possible cause of or treatment given for claimant's leg and 
 
         hand complaints.
 
         
 
              Claimant later returned to Iowa Methodist Hospital and 
 
         states he was referred to a neurosurgeon.  Claimant states that 
 
         this doctor would not examine him because the treatment may 
 
         involve workers' compensation.  No report from Iowa Methodist 
 
         Hospital other than the treatment on February 5, 1985, was 
 
         submitted into the evidence in this case.
 
         
 
              In his deposition, claimant claimed that the diagnosis by 
 
         Broadlawns was not fair and that Broadlawns confused him with his 
 
         twin brother, Larry, who looks the same as claimant and who 
 
         possesses the same tattoo.  The existence of such a twin brother 
 
         called "Larry" and his presence in the Des Moines area in 1982 
 
         and at Broadlawns Hospital for treatment of alcoholism in 1982 
 
         was an issue in this proceeding.  Claimant's sister testified 
 
         that such a brother does, in fact, exist although she did not 
 
         know his current whereabouts or where he graduated from high 
 
         school.  Claimant's sister stated that claimant's brother was an 
 
         electrician and moves about frequently.  She stated that her lack 
 
         of knowledge as to his education in Iowa was due to the fact that 
 
         she was absent from the state during his education.
 
         
 
              The defendant contended in claimant's deposition that the 
 
         Broadlawns records in 1982 contain historical facts pertaining 
 
         only to claimant's past life and family circumstances, not that 
 
         of any twin brother.  These records, however, were not introduced 
 
         into the evidence at hearing.
 
         
 
              Claimant has been evaluated by a neurologist, Thomas B. 
 
         Summers, M.D.  According to Dr. Summers, claimant's symptoms may 
 
         be attributable to thoracic outlet syndrome and he recommended 
 
         further testing of claimant.  He did not give a possible cause of 
 
         such a condition.  Dr. Summers notes that claimant has had carpal 
 
         tunnel surgery on both hands in 1983.  Dr. Summers also makes 
 
         reference to a psychological report of a person having the same 
 
         name as claimant who was diagnosed as an alcoholic at Broadlawns 
 
         Hospital in 1982.  According to Dr. Summers, this report states 
 
         that the person treated had described to the staff at Broadlawns 
 
         a sense of being two different persons but did not view the two 
 
         persons as separate entities or personalities.  Dr. Summers 
 
         stated that if the Broadlawns records pertained to claimant, he 
 
         would have a longstanding psychiatric history and clinical 
 
         manifestations of substance abuse, sociopathic personality 
 
         disorder and affective disorder.
 
         
 
              Claimant testified that he lost his job as a bread route 
 
         person after leaving Todd because he was too slow in his work and 
 
         that slowness was not a problem for him before the work injury at 
 
         Todd.  Claimant complains at the present time of light 
 
         headedness, dizziness and of continued numbness and pain in his 
 
         left leg and in his hands which he says is effecting his current 
 
         job at the department store.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 

 
         
 
         
 
         
 
         ROBINS V. TODD CORPORATION
 
         Page   4
 
         
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The claimant also has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the' 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, neither claimant nor his sister can 
 
         be found to be credible in this case.  Their testimonies contain 
 
         numerous inconsistencies.  Given such testimony and the current 
 
         medical records in this case, this deputy is simply unable to 
 
         determine whether or not claimant has a twin brother by the name 
 
         of Larry or whether claimant or that twin brother was treated at 
 
         Broadlawns in 1982.  However, it is unnecessary to decide whether 
 
         or not Larry and Jerry are one in the same persons.  Even 
 
         assuming Larry does exist and that such a twin brother, not 
 

 
         
 
         
 
         
 
         ROBINS V. TODD CORPORATION
 
         Page   5
 
         
 
         claimant, was the person who received the treatment at Broadlawns 
 
         in 1982, claimant has not shown by the greater weight of 
 
         evidence, be it lay or medical, that his current continuing 
 
         complaints are causally connected to the work injury in this 
 
         case.
 
         
 
              The most critical aspect of the evidence was that no head 
 
         injuries were reported at the time of claimantOs initial 
 
         treatment for the work injury.  Furthermore, claimant did not 
 
         seek any sort of treatment for his headaches or dizziness 
 
         problems until several months after the February, 1985 fall and 
 
         well after leaving the employment of Todd.  Finally, no doctor 
 
         involved in this case has opined that claimant's current symptoms 
 
         are attributable to the February, 1985 fall.  Any speculation by 
 
         claimant, who has not been shown to possess any medical training, 
 
         is not by itself sufficient evidence in light of the lack of head 
 
         injury complaints at the time of injury on February 4, 1985.  Dr. 
 
         Summers, the only physician to render an opinion in this case, 
 
         states that there is only a possibility of thoracic outlet 
 
         syndrome and recommends further tests.  Dr. Summers, however, 
 
         also states that it is possible that claimant may have on the 
 
         other hand a severe psychological problem.  Therefore, on the 
 
         whole record, claimant has not shown that the work injury in this 
 
         case is a cause of his alleged continuing difficulties in his 
 
         legs, extremities or head.  It also could not be found that 
 
         claimant terminated his employment at Todd for reasons 
 
         attributable to the February 4, 1985 work injury.
 
         
 
              Claimant has established that the fall resulted in a 
 
         temporary period of disability from February 5, 1985 until 
 
         February 9, 1985 for a period of four days.  Pursuant to Iowa 
 
         Code sections 85.32 and 85.33(l), claimant is entitled to only 
 
         one day of compensation for such an injury.  According to the 
 
         prehearing report, claimant has already been paid three days of 
 
         compensation.  Consequently, claimant is not entitled to further 
 
         compensation for absences from work.
 
         
 
              Claimant seeks reimbursement of medical expenses which were 
 
         listed in the attachment to the prehearing report totaling 
 
         $133.90.  However, there is no indication when and for what 
 
         treatment these bills were incurred.  The actual bills were not 
 
         submitted into the evidence and claimant did not mention these 
 
         bills at the time of hearing.  Claimant only stated in his 
 
         deposition generally that $100 of his bills were not paid.  
 
         Therefore, claimant's request for medical expenses must be 
 
         denied.
 
         
 
              As the medical records and the report of Dr. Summers were 
 
         objective and assisted not only claimant but also defendant in 
 
         making this decision, the cost of such evidence shall be assessed 
 
         to the defendant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and his sister, Shirley Allison, could not be 
 
         found to be credible.
 
         
 
              2.  On February 4, 1985, claimant suffered an injury to the 
 
         left leg and right upper arm as a result of a fall which arose 
 
         out of and in the course of employment with Todd.
 

 
         
 
         
 
         
 
         ROBINS V. TODD CORPORATION
 
         Page   6
 
         
 
         
 
              3.  The work injury of February 4, 1985, was a cause of a 
 
         period of temporary disability from work beginning on February 5, 
 
         1985 and ending on February 9, 1985, at which time claimant 
 
         returned to work.  Claimant has been paid temporary total 
 
         disability benefits by defendant for a period of three days.
 
         
 
              It could not be found that the work injury was a cause of 
 
         permanent disability or permanent impairment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to additional workers' compensation 
 
         benefits.
 
         
 
                                      ORDER
 
         
 
               1.  Claimant shall take nothing from these proceedings.
 
         
 
              2.  Claimant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 except that the 
 
         defendant shall pay the cost of obtaining the medical records and 
 
         reports submitted at hearing in this case.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         Suite 500
 
         The Saddlery Bldg.
 
         309 Court Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1800
 
                                                 Filed February 22, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY D. ROBINS,
 
                                                  FILE NO. 788740
 
              Claimant,
 
                                               A R B I T R A T I 0 N
 
         vs.
 
                                                  D E C I S I 0 N
 
         TODD CORPORATION,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         1800
 
         
 
              Claimant denied additional workers' compensation benefits 
 
         for failure to show causal connection of his current problems to 
 
         the work injury in this case.