5-2207
 
            Filed July 22, 1991
 
            Clair R. Cramer
 
            WRM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY A. LEWIS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 797154
 
            DEE ZEE MANUFACTURING,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2207
 
            Claimant failed to prove a causal connection between 
 
            claimant's May 6, 1985 work injury to his right knee and 
 
            subsequent right knee injuries on March 16, 1986 and July 1, 
 
            1986.  Claimant had arthroscopic surgery on July 25, 1985 
 
            and was released by his treating physician to return to work 
 
            with no restrictions.  Claimant sustained an injury to his 
 
            right knee during a volleyball game on March 16, 1986.  
 
            Claimant's treating physician opined that a causal 
 
            connection existed between claimant's May 6, 1985 work 
 
            injury and an injury on March 16, 1986.  Claimant provided 
 
            his treating physician with inaccurate information 
 
            concerning the events of the volleyball game, therefore, his 
 
            opinion as to causal connection is given little weight.  
 
            Claimant's June 29, 1986 injury which resulted in surgery on 
 
            July 1, 1986 was even more remote causally. 
 
            
 
 
            
 
       
 
          
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GREGORY A. LEWIS,
 
         
 
              Claimant,
 
                                                   File No. 797154
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         DEE ZEE MANUFACTURING,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         KEMPER INSURANCE,                           SEP 11 1989
 
         
 
              Insurance Carrier,                 INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gregory A. 
 
         Lewis, claimant, against Dee Zee Manufacturing, employer, and 
 
         Kemper Insurance, insurance carrier, defendants, for benefits as 
 
         the result of an injury that occurred on May 9, 1985.  A hearing 
 
         was held in Des Moines, Iowa, on July 25, 1988, and the case was 
 
         fully submitted at the close of the hearing.  Claimant was 
 
         represented by Channing L. Dutton and defendants were represented 
 
         by William D. Scherle.  The record consists of the testimony of 
 
         Gregory A. Lewis, claimant, Barb A. Wright, assistant plant 
 
         manager, joint exhibit 1 with pages 1 through 254 and joint 
 
         exhibit 2 consisting of pages 1 and 2.  The deputy ordered a 
 
         transcript of the hearing.  Defendants were ordered to pay 
 
         initially for the transcript, but the ultimate cost of the 
 
         transcript is to be assessed to the nonprevailing party in this 
 
         decision.  Iowa Code section 86.19(1).  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                              STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employee-employer relationship existed between 
 
         claimant and employer at the time of the injury on May 9, 1985, 
 
         and on March 16, 1986 and July 1, 1986.
 
         
 
              That claimant sustained an injury on May 9, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury of May 9, 1985, was the cause of some 
 
         temporary disability (6.143 weeks); that temporary disability 
 
         benefits for this injury date have been paid; and that additional 
 
                                                
 
                                                         
 
         temporary disability immediately following this injury date is 
 
         not an issue in dispute in this case at this time.  However, 
 
         defendants assert they paid 6.143 weeks of benefits, claimant 
 
         asserts he only received 2.143 weeks of benefits.
 
         
 
              That the extent of entitlement to temporary disability 
 
         benefits for the subsequent incidents to the same right lower 
 
         extremity which allegedly occurred on March 16, 1986, and July 1, 
 
         1986, is as follows:  For the incident of March 16, 1986, it is 
 
         from March 16, 1986 to May 12, 1986, and for the incident of July 
 
         1, 1986, it is from June 16, 1986 to March 1, 1987, in the event 
 
         defendants are liable for these two subsequent incidents.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to the right lower extremity.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits as a result of the injury that occurred on May 9, 1985, 
 
         is August 20, 1985.
 
         
 
              That if the incidents that occurred on March 16, 1986, and 
 
         July 1, 1986, are compensable as sequelae of the injury of that 
 
         occurred on May 9, 1985, then the commencement date for permanent 
 
         partial disability benefits for the latter two incidents is March 
 
         1, 1987.
 
         
 
              That claimant is married and was entitled to four exemptions 
 
         at the time of all three injury events.
 
         
 
              That the fees charged for medical services and supplies are 
 
         fair and reasonable, except the charges of the Dr. Rosenfeld, 
 
         which are in dispute.
 
         
 
              That the medical expenses were incurred for reasonable and 
 
         necessary treatment.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         a medical condition upon which claimant bases his claim is 
 
         admitted, but that the causal connection of this condition to a 
 
         work injury remains an issue to be decided in this proceeding.
 
         
 
              That defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for medical expenses paid prior to hearing under 
 
         an employee nonoccupational group health plan, which is to be 
 
         worked out by the parties independent of this decision.
 
         
 
              That defendants are entitled to a credit for workers' 
 
         compensation benefits actually paid prior to hearing at the rate 
 
         of $161.39 per week.  There is a dispute as to whether claimant 
 
         was paid and received 2.143 weeks or 6.143 weeks of benefits 
 
         prior to hearing.
 
         
 
              That the issue of penalty benefits under Iowa Code section 
 
         86.13, as shown on the hearing assignment order, was dismissed at 
 
                                                
 
                                                         
 
         the time of the hearing.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the incidents that occurred on March 16, 1986, and 
 
         July 1, 1986, at which times the right knee was reinjured, were 
 
         caused by or were sequelae of the injury on May 9, 1985.
 
         
 
              Whether the incidents that occurred on March 16, 1986, and 
 
         July 1, 1986, were the cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits for the incidents of March 16, 1986 or July 1, 1986.
 
         
 
              Whether any of the three injury events; May 9, 1985; March 
 
         16, 1986; or July 1, 1986; was the cause of any permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits for any of the three injury dates, and if so, the extent 
 
         of benefits to which claimant is entitled.
 
         
 
              Whether claimant is entitled to certain medical expenses.
 
         
 
              Whether the fee of Dr. Rosenfeld, in the amount of $1,050, 
 
         for the arthroscopy on July 25, 1985, is reasonable.
 
         
 
              What is the proper rate of compensation.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, age 26, started to work for employer on December 
 
         25, 1984, as maintenance person.  Claimant was promoted and 
 
         received two salary increases within four months.  Claimant 
 
         admitted that he injured his right leg a few years back helping a 
 
         guy push a pickup.  He pulled some muscles in his leg.  A doctor 
 
         told him it was water on the knee.  It healed without any 
 
         residual problems.
 
         
 
              On May 9, 1985, claimant was working about 12 feet up on a 
 
         ladder tightening up bolts on a cam on a virgin press with a big 
 
         allen wrench and a two foot long cheater bar.  The brace on the 
 
         A-frame ladder broke and the ladder twisted and turned.  Claimant 
 
         said he twisted and fell approximately eight feet off of the 
 
         ladder into the wall.  He injured his right knee when he hit the 
 
         ground at an angle.  Emergency ice packs were applied to his knee 
 
         by his supervisor at work.  Claimant did not go to a doctor 
 
         immediately, but his leg was stiff and his knee swelled up.  When 
 
         he bent down, it locked up and he had to force it out to 
 
         straighten it out.
 
         
 
              Claimant expected it to get better without medical 
 
                                                
 
                                                         
 
         attention, but when it did not and he was no longer able to 
 
         unlock it, his supervisor sent him to Ankeny EmergiClinic on June 
 
         4, 1985.  From the date of the injury until he went to the doctor 
 
         it would lock up, but he could always straighten it out with his 
 
         other leg or his hands.  During that period, he continued to 
 
         apply ice and wear a wrap around it at work.
 
         
 
              Claimant saw Richard S. McCaughey, D.O. at the Ankeny 
 
         EmergiClinic on June 4, 1985.  Dr. McCaughey diagnosed internal 
 
         derangement and put him on light duty until he could see an 
 
         orthopedist, Martin S. Rosenfeld, D.O., on June 10, 1985 (joint 
 
         exhibit 1, pages 1 & 2; transcript pages 45 & 46).
 
         
 
              Claimant also saw David B. McClain, D.O., Dr. Rosenfeld's 
 
         associate on June 19, 1985, for a fresh abrasion of the right 
 
         knee (JE 1, pp. 6 & 18; JE 2, p. 7).  Claimant could not recall 
 
         the exact circumstances, but believed he may have fell on one of 
 
         the occasions that his knee locked up (tr. pp. 85-86).
 
         
 
              Claimant testified that Dr. Rosenfeld had him elevate his 
 
         leg and do leg lift exercises, but when he continued to get worse 
 
         Dr. Rosenfeld hospitalized claimant and performed an arthroscopy 
 
         on July 25, 1985.  During the arthroscopy claimant regurgitated 
 
         some clear liquid, aspirated it and had to be treated for a lung 
 
         problem as a result of this experience (JE 1, pp. 1-75).  
 
 
 
                                   
 
                                                         
 
         Claimant said he was off work until August 20, 1985.  During his 
 
         recuperation he performed leg lifts, but his right knee continued 
 
         to lock up on him.  He was not released to return to work until 
 
         August 25, 1985, but went back early at the request of employer, 
 
         light duty, because they needed maintenance real bad.  Claimant 
 
         said his knee continued to lock up after he returned to work when 
 
         he bent down. (tr. pp. 46-49).
 
         
 
              Dr. Rosenfeld's records show claimant reported falling ten 
 
         feet, and had swelling and pain.  The knee both gave out and 
 
         locked.  Claimant denied previous knee problems.  X-rays showed 
 
         no bony abnormalities.  Dr. Rosenfeld diagnosed internal 
 
         derangement, right knee (JE I, pp. 5-27).  Claimant was released 
 
         to return to work on August 20, 1985.  Claimant saw Dr. Rosenfeld 
 
         on August 26, 1985, and did not see Dr. Rosenfeld again until 
 
         March 20, 1986 (JE 1, pp. 10 & 13).  On December 6, 1985, Dr. 
 
         Rosenfeld said claimant had an internal derangement of the right 
 
         knee with laceration of the medial meniscus.  He was released to 
 
         full activity.  No permanency was expected at that time (JE 1, 
 
         p..12).
 
         
 
              Claimant admitted that he did not see Dr. Rosenfeld from 
 
         August of 1985 until March 17, 1986, as far as he could recall, 
 
         but he contended that his knee continued to give him trouble.  
 
         Dr. Rosenfeld testified in his deposition that claimant had other 
 
         episodes of his knee giving out between August of 1985 and March 
 
         of 1986 (JE 2, p. 11).  Claimant said that if it swelled up he 
 
         took the pills Dr. Rosenfeld had prescribed and the swelling 
 
         would go back down.  He also took a lot of pain pills (tr. pp. 
 
         100 & 101).  Claimant said he continued to work because he needed 
 
         the money for his family.  The reason he saw the doctor on March 
 
         17, 1986, was because the knee gave him problems after playing 
 
         volleyball on March 16, 1986.  He went to Ankeny EmergiClinic 
 
         again and they sent him to Dr. Rosenfeld (tr. pp. 50-56).
 
         
 
              On March 18, 1986, the clinic gave employer a note that 
 
         claimant was to stay off his feet for the next three days and if 
 
         he is still having trouble at that time, he is to see an 
 
         orthopedic surgeon (JE 1, p. 3).  The parties stipulated and the 
 
         record shows claimant was taken off work from this episode from 
 
         March 17, 1986 to May 12, 1986 (JE 1, pp. 10 & 13-15).
 
         
 
              Dr. Rosenfeld's letter of March 20, 1986, said that he saw 
 
         claimant on.that date for continued right knee pain.  The knee 
 
         had given out on two occasions with the last being March 16, 
 
         1986, when it popped and claimant noted marked increased 
 
         discomfort. Claimant was unable to straighten the right leg.  
 
         X-rays showed no bony abnormalities.  Dr. Rosenfeld diagnosed 
 
         internal derangement of the right knee with medial meniscal tear.  
 
         He scheduled an arthroscopy for March 21, 1986 (JE 1, pp. 30 & 
 
         70-95).  Dr. Rosenfeld wrote a letter on April 11, 1986, in which 
 
         he referred to claimant's recurrent knee injury (JE 1, p. 34).  
 
         Claimant was released to return to work on May 12, 1986, without 
 
         any restrictions (JE 1, p. 34).  On September 5, 1986, Dr. 
 
         Rosenfeld traced his entire course of treatment of claimant.  In 
 
                                                
 
                                                         
 
         this letter, the doctor said claimant returned on March 20, 1986, 
 
         because the right knee had given out again while playing 
 
         volleyball.  Claimant related that he was standing when it 
 
         occurred.  He diagnosed medial meniscal tear and on March 21, 
 
         1986, he performed an arthroscopy and a partial medial 
 
         meniscectomy and partial synovectomy of the knee.  Post-surgery 
 
         on June 17, 1986, there was one inch atrophy of the right thigh 
 
         and claimant complained of medial joint tenderness and the knee 
 
         was still giving way.  Dr. Rosenfeld concluded:  "I would feel 
 
         that the continued problems with the knee are related to the 
 
         initial injury and that the second surgery was necessitated 
 
         because of the initial injury with further problems as opposed to 
 
         a separate and distinct second injury while playing volleyball."  
 
         (JE 1, p. 36).
 
         
 
              Employer completed a first report of injury for the 
 
         volleyball incident (JE l,"p. 192).  Claimant testified that he 
 
         did not request it.  Claimant testified that he figured it was 
 
         because employer knew this was the result of his first injury 
 
         because they knew at work that he was having trouble with his leg 
 
         (tr. pp. 55 & 56).
 
         
 
              The hospital admission form for both the incident of May 9, 
 
         1985 and March 16, 1986, show that the primary insurance coverage 
 
         was workers' compensation (JE 1, p. 43 & 76).
 
         
 
              Claimant testified that when he continued to have the same 
 
         problems of swelling and locking after the second arthroscopy he 
 
         wanted a second opinion on his leg and he chose to go see Robert 
 
         F. Breedlove, M.D., an orthopedic surgeon, on the recommendation 
 
         of a friend.  At this same time, which was on or about July 1, 
 
         1986, just before he was to go see Dr. Breedlove, he bent down by 
 
         his washer and dryer in the basement of his home and his knee 
 
         locked up and he could not get up.  On this occasion his leg was 
 
         twisted, locked up and popped clear out.  It was laying sideways 
 
         (tr. pp. 57-62).
 
         
 
              Dr. Breedlove's office note of July 1, 1986, confirms that 
 
         claimant was stooping down, tried to straighten up and was unable 
 
         to straighten his leg because it was locked.  Dr. Breedlove 
 
         recorded that claimant originally injured his knee in May of 1985 
 
         and reinjured it in March of 1986, and had arthroscopic 
 
         evaluations and partial meniscectomies on both occasions.
 
         
 
              Dr. Breedlove diagnosed locked bucket handle tear of the 
 
         medial meniscus, right knee.  On the same day, July 1, 1986, he 
 
         performed an arthroscopy and a partial meniscectomy for a linear 
 
         tear of the medial meniscus (JE 1, pp. 105-123).  On July 10, 
 
         1986, Dr. Breedlove recorded that he explained to claimant that 
 
         at the time of the surgery, he determined that claimant had a 
 
         positive Lochman's pivot shift test and that claimant had an 
 
         anterior cruciate ligament rupture that is old in nature and 
 
         which is a problem for his locking.  On July 31, 1986, when 
 
         claimant complained of continued giving way, popping and locking 
 
         in normal daily activities, Dr. Breedlove told claimant that he 
 
                                                
 
                                                         
 
         had three choices:  (1) continuing strengthening exercises; (2) 
 
         wear a brace; or (3) have a surgical repair (JE 1, p. 96).
 
         
 
              The hospital admission form of July 1, 1986, indicated the 
 
         primary insurance coverage is Blue Cross-Blue Shield and does not 
 
         mention workers' compensation (JE 1, p. 105).  On the admitting 
 
         history and physical on July 1, 1986, Dr. Breedlove stated:
 
         
 
              This is a 27-year-old male who presents complaining of 
 
              severe right knee pain and inability to completely 
 
              straighten it out.  He has had two previous arthroscopic 
 
              evaluations, one in May of 1985 after he fell off of a 
 
              ladder, and one in March of 1986 following a volleyball 
 
              accident.  The patient stated that yesterday he squatted 
 
              down, was unable to straighten his leg out.  This has 
 
              happened multiple times in the past with severe pain and 
 
              swelling following initial extension of the leg.
 
         
 
         (JE 1, p. 106)
 
         
 
              Claimant elected to have the surgical repair and claimant 
 
         underwent right anterior cruciate ligament reconstruction at 
 
         Mercy Hospital on September 12, 1986, (JE 1, p. 97).  The parties 
 
         stipulated that claimant was off work for this episode from June 
 
         16, 1986 to March 1, 1987.  Dr. Breedlove's record shows claimant 
 
         returned to work on March 1, 1987 (JE 1, p. 98).
 
         
 
              On September 12, 1986, Dr. Breedlove performed the right 
 
         anterior cruciate reconstruction at Mercy Hospital (tr. pp. 62 & 
 
         69; JE 1, pp. 27 & 105-163).
 
         
 
              On September 12, 1986, Dr. Breedlove gave this history of 
 
         present illness:
 
         
 
              HISTORY OF PRESENT ILLNESS:  This is a 23-year-old male who 
 
              has had problems with his right knee since May of 1985.  He 
 
              has had three previous arthroscopic examinations, the first 
 
              two being normal, the third showing a linear tear of the 
 
              medial meniscus.  At the time of his last arthroscopy it was 
 
              noted that he had an anterior cruciate deficient knee, both 
 
              clinically and on direct visualization.  The patient has had 
 
              multiple episodes of his knee going out on him with minimal 
 
              trauma such as walking or stooping.  He is admitted at this 
 
              time for an anterior cruciate ligament reconstruction.
 
         
 
         (JE 1, p. 125)
 
         
 
              On the discharge,summary dated September 9, 1986, Dr 
 
         Breedlove stated:  "This 27 y/o male injured his right knee in 
 
         5/85.  He has had significant problems with his knee since.  He 
 
         recently had an arthroscopic evaluation which revealed anterior 
 
         cruciate ligament rupture as well as instability under general 
 
         anesthesia."  (JE 1, p. 124).
 
         
 
              On May 28 1987, Dr. Breedlove said:
 
                                                
 
                                                         
 
         
 
              Greg is now approximately 9 months status post right 
 
              anterior cruciate ligament reconstruction.  The patient has 
 
              been doing extremely well until approximately 1 1/2 months 
 
              ago when he began squatting.  [N]oticed his knee twisting or 
 
              popping out. There is no swelling associated with that and 
 
              only mild pain. He is able to run and ride his bicycle and 
 
              do all the normal daily activities.  He does have some mild 
 
              discomfort when he squats and puts pressure on his right 
 
              knee....
 
         
 
              Based upon the fact that he has had a anterior cruciate 
 
              ligmaent [sic] rupture and reconstruction, I feel he has a 
 
              20% permanent partial impairment plus 4% for decreased ROM 
 
              for a total of 24% permanent partial impairment of the right 
 
              lower extremity.
 
         
 
         (JE 1, p. 99)
 
         
 
              On October 20, 1987, Dr. Breedlove wrote to defendants' 
 
         counsel as follows:
 
         
 
              Following our discussion and review of my records I find 
 
              that Mr. Lewis has a 24% permanent impairment of his right 
 
              leg.  I feel 10% of that is secondary to the meniscectomy.  
 
              10% is due to the anterior cruciate ligament loss and 
 
              subsequent reconstruction.  The patient has a 4% impairment 
 
              because of a small lack of range of motion.  It is my 
 
              opinion that half of the decreased range of motion is 
 
              secondary to the meniscectomy and half of the decreased 
 
              range of motion is secondary to the anterior cruciate 
 
              ligament loss.  I feel that the patient has a 12% permanent 
 
              partial impairment of the right lower extremity as a result 
 
     
 
                                   
 
                                                         
 
              of the work related accident and 12% permanent partial 
 
              impairment as a result of the anterior cruciate ligament 
 
              rupture.
 
         
 
         (JE 1, p. 104)
 
         
 
              In his deposition Dr. Rosenfeld testified that at the time 
 
         of the first arthroscopy on July 25, 1985, he removed some 
 
         synovial plica (JE 2, p. 9).  At the time of the second 
 
         arthroscopy on March 21, 986, claimant had a tear of the anterior 
 
         horn of the medial meniscus that he did not believe was there at 
 
         the time of the first surgery (JE 2, p. 12).  Dr. Rosenfeld did 
 
         not feel claimant had any impairment after the first arthroscopy, 
 
         on July 25, 1985, but after the second arthroscopy, on March 21, 
 
         1986, he estimated claimant had a 5 percent to 10 
 
         percent.impairment based on the Manual for Orthopedic Surgeons in 
 
         Evaluating Permanent Physical Impairment, by the American Academy 
 
         of Orthopedic Surgeons (JE 2, pp. 13 & 14).  The following 
 
         colloquy transpired between defendants' counsel and Dr. 
 
         Rosenfeld:
 
         
 
              Q.  Given the intervening history between the two surgeries, 
 
              that of the volleyball and the other incidents that you've 
 
              described, do you feel there's a causal relationship between 
 
              the fall off the ladder in May of 1985 and the torn medial 
 
              meniscus which was diagnosed and treated in May--or March of 
 
              1986?
 
         
 
              A.  Well, if indeed my memory serves me right that he'd been 
 
              having trouble with the knee giving way but had not come in 
 
              to see me then, yes, there is.  The knee was not working 
 
              right and it sounded to me--the history given in March was 
 
              that he was--he happened to be at the volleyball game, that 
 
              it was not associated with the specific move, but that it 
 
              gave out on him, which is what he said had happened before 
 
              but not as seriously, which I think would mean that there 
 
              was probably something going on inside the knee from the 
 
              original injury.
 
         
 
              Q.  He indicated to you that he had been playing volleyball, 
 
              but at the time it popped he was standing still?
 
         
 
              A.  Right.
 
         
 
              Q.  But he had not been in to have any of these problems 
 
              treated, the locking or discomfort or anything, since you 
 
              had released him in August?
 
         
 
              A.  Correct.
 
         
 
              Q.  For the purposes of your opinion you're assuming that 
 
              what he told you was correct?
 
         
 
              A.  Of course.
 
         
 
                                                
 
                                                         
 
              Q.  Can the type of physical activity associated with 
 
              volleyball in and of itself produce a meniscus tear such as 
 
              you saw in Mr. Lewis?
 
         
 
              A.  Sure.
 
         
 
                   MR. SCHERLE:  I think that's all I have right now. 
 
              Thank you, Doctor.
 
         
 
         (JE 2, p. 14 & 15)
 
         
 
              With respect to playing volleyball, Dr. Rosenfeld added that 
 
         it didn't take much stress to cause additional injury where, as in 
 
         this case, there is something not right inside the knee in the 
 
         first place.  He said it just doesn't take too much stress to do 
 
         it (JE 2, pp. 16 & 17).  Dr. Rosenfeld testified that he 
 
         specifically examined the anterior cruciate each time he scoped 
 
         claimant's right knee because he suspected he might find something 
 
         there because of the continued giving way, but he did not 
 
         specifically find anything on those two occasions.  However, "in 
 
         this patient it's consistent with the problems that he kept having 
 
         that finally it either gave way or there was a tear underneath 
 
         that eventually allowed it to give way."  (JE 2, pp. 19 & 20).  
 
         Dr. Rosenfeld added that even though he tested the anterior 
 
         cruciate previously it is possible that it can tear in continuity, 
 
         still be intact, but lose it strength (JE 2, p. 21).  Dr. 
 
         Rosenfeld said he examined the anterior cruciate after the 
 
         volleyball episode and did not see an obvious or demonstrable tear 
 
         to the anterior cruciate (JE 2, p. 22).  Finally, claimant's 
 
         counsel asked this question and received this reply:
 
         
 
              Q.  I think that everyone in this case is interested in 
 
              examining Mr. Lewis's physical activities, and if I asked 
 
              you to assume that from the time of this volleyball episode 
 
              to the time that Doctor Breedlove went in and did the 
 
              surgical repair of the anterior cruciate ligament that there 
 
              is no other episode that would account for an acute 
 
              laceration to the anterior cruciate ligament, can that fact 
 
              help us understand a causal connection between Mr. Lewis's 
 
              work-related injury and the subsequent repair of the 
 
              anterior cruciate, or do you have an opinion?
 
         
 
              A.  Oh, I think there are probably many scenarios that you 
 
              could choose and there's certainly a number of them, that 
 
              the knee never worked right from the beginning from the 
 
              industrial injury and subsequently the cruciate did give 
 
              way, and so the cruciate repair is definitely tied into the 
 
              original injury.
 
         
 
                 Mr. Dutton:  I don't have any further questions.
 
         
 
         (JE 2, pp. 22 & 23)
 
         
 
              Dr. Rosenfeld testified that his fees were in comparison 
 
         with the fees of other physicians in the area.  He said he 
 
                                                
 
                                                         
 
         investigated and it is within $100 of what the health maintenance 
 
         organizations would pay other orthopedic surgeons (JE 2, pp. 28 & 
 
         29).
 
         
 
              Claimant testified that since the anterior cruciate surgery, 
 
         he can move around better, but that it still swells and locks up 
 
         (tr. p. 71).
 
         
 
              In a statement to an adjuster dated April 23, 1986, claimant 
 
         stated that he jumped up, hit the volleyball and came back down 
 
         like you normally do and his knee locked up on him (JE 1, p. 
 
         200). Dr. Rosenfeld understood that claimant was simply standing 
 
         when the knee popped (JE 2, p. 10).  At the hearing, claimant 
 
         indicated he was standing before he hit the ball, but may have 
 
         jumped to hit it, but came back down on his feet in a normal 
 
         manner (tr. p. 54).
 
         
 
              A great deal of inquiry was placed on how much effect 
 
         playing volleyball affected claimant's knee injury and the 
 
         disability resulting from it (tr. pp. 86-108).  Claimant said 
 
         that although he had played volleyball competitively in 1985, 
 
         that on March 16, 1986, it was just a bunch of families in a fun 
 
         get-together on Sunday in the park (tr. pp. 86 & 89).  This was 
 
         the first time he played in 1986 (tr. p. 89).  Claimant denied 
 
         that he told employer that he "jumped up, came down hard on right 
 
         foot and jarred the knee" (tr. p. 90).  Claimant admitted he told 
 
         the adjustor that he was playing volleyball and "jumped up and 
 
         hit a ball and come down just like I regularly do"  (tr.  P. 92).  
 
         Claimant admitted that he played volleyball between August 20, 
 
         1985, and March 16, 1986, and that it hurt when he played, but it 
 
         also hurt when he walked or did anything (tr. p. 94).  Claimant 
 
         admitted that he was denied a raise because he was absent a lot 
 
         due to his knee and employer told him to quit playing volleyball 
 
         (tr. pp. 95 & 96).  Claimant answered that after August 20, 1985, 
 
         he had been released to return to work without any restrictions 
 
         (tr. p. 99).  Claimant testified that he was healthy before the 
 
         initial fall on May 9, 1985, and that he should have been able to 
 
         play volleyball on March 16, 1986, irrespective of whether he 
 
         jumped or just stepped sideways, and do other things without his 
 
         knee locking up or giving way (tr. pp. 105 & 106).  Claimant said 
 
         that even though Dr. Breedlove put pins in there to keep his knee 
 
         from falling out of the socket, that it still did so (tr. p. 
 
         107).
 
         
 
              Claimant testified that he worked Monday through Saturday 
 
         for approximately 44 to 48 hours per week.  He and other 
 
         production plant employees received a production bonus every 
 
         month up until he was injured.  After that he did not work 16 out 
 
         of 30 days a month in order to qualify for the bonus.  Claimant 
 
         said he could not remember why he only worked 28.74 hours the 
 
         week of April 24, 1985 (tr. pp. 72-74).  Claimant said that he 
 
         was paid time and one-half for overtime and everything over 40 
 
         hours a week was considered overtime (tr. p. 76).  Claimant 
 
         conceded the bonus was not guaranteed because it was based on 
 
         production (tr. p. 80). Claimant was absent from work a number of 
 
                                                
 
                                                         
 
         times, but many of them were due to his knee (JE 1, pp. 
 
         239-242).
 
         
 
              Claimant contended he was authorized to be off work after 
 
         July 1, 1986, pursuant to the slips issued by Dr. Breedlove (JE 
 
         1, p. 100).  Defendants contend that when claimant did not report 
 
         in on July 8, 1986, they terminated him, but did not tell him 
 
         about the termination until he called in on August 5, 1986 (JE 1, 
 
         p. 242).  When claimant filed for unemployment compensation 
 
         benefits (JE 1, p. 252) employer reported that claimant was 
 
         discharged for misconduct for failure to keep employer informed 
 
         about when he would be reporting back to work (JE 1, pp. 252 & 
 
         254).  Claimant appealed and Job Service held that employer 
 
         failed to prove misconduct and claimant was not disqualified from 
 
         benefits (JE 1, p. 255).
 
         
 
              A complete summary of all of the medical expenses appears at 
 
         transcript page 168.  It shows the total expense, the amount paid 
 
         by group insurance and the amount paid by workers' compensation 
 
         insurance.  The total medical expense is $14,090.89 (tr. p. 
 
         168).
 
         
 
              The brief of claimant's attorney has correctly abstracted 
 
         the correct information from claimant's pay stubs as follows (JE 
 
         1, pp. 130-236):
 
         
 
           Check Date    Total Hours     Hourly Pay        Total    Bonus
 
         
 
         May 8, 1985        46.38           $6.00        $278.28
 
         May 1, 1985        48.22            6.00         289.32
 
         April 30, 1985     BONUS                                  
 
         $225.00
 
         April 24, 1985     28.74            6.00         172.44
 
 
 
                                   
 
                                                         
 
         April 17, 1985     42.82            6.00         256.92
 
         April 10, 1985     42.20            6.00         253.20
 
         April 3, 1985      BONUS                                   
 
         275.00
 
         April 3, 1985      43.94            6.00         263.64
 
         March 27, 1985     51.84            6.00         311.04
 
         March 20, 1985     44.38            6.00         266.28
 
         March 13, 1985     44.94            6.00         269.64
 
         March 6, 1985      46.78            6.00         280.68
 
         February 28, 1985  BONUS                                   
 
         225.00
 
         February 27, 1985  47.16            5.25         247.59
 
         February 20, 1985  43.08            5.25         226.17
 
         February 13, 1985  47.36            5.25         248.64
 
         February 6, 1985   51.62            5.25         271.00
 
         
 
         (claimant's brief page 2)
 
         
 
              Defendant insurance company disputed Dr. Rosenfeld's bill in 
 
         the amount of $1,050 for the arthroscopy and excision of synovial 
 
         plica of July 25, 1985 (JE 1, p. 187) and submitted the matter to 
 
         a peer review committee.  The unsigned report of the committee 
 
         indicated a proper charge would be $370 (JE 1, pp. 189-190).. Dr. 
 
         Rosenfeld contended that fees of other surgeons in the area 
 
         ranged from $992 to over $1,200 (JE 1, p. 191).  Dr. Rosenfeld 
 
         claimed: (1) he was discriminated against because he was a doctor 
 
         of osteopathy rather than a medical doctor; (2) the committee did 
 
         not understand the procedure; and (3) the review was done by 
 
         nonorthopedists.  He pointed out the review was unsigned by the 
 
         medical doctor who authored it (JE 1, pp. 24 & 25).  Dr. 
 
         Rosenfeld's charges were not responded to by either the peer 
 
         review committee or the insurance company.  There is some 
 
         evidence the charge was coded incorrectly (JE 1, p. 27).  By 
 
         comparison, it is noted that the charge made by Dr. Breedlove for 
 
         the arthroscopy with meniscectomy of July 1, 1986, was $1,205 (JE 
 
         1, p. 186).  Dr. Rosenfeld charged $1,275 for the arthroscopy and 
 
         repair of the medial meniscus on March 21, 1986 (JE 1, p. 187).
 
         
 
              Barbara A. Wright, assistant plant manger, testified the 
 
         normal work week is 40 hours.  Employees are paid time and 
 
         one-half for overtime.  She could not explain from company 
 
         records why claimant had a short week on April 24, 1985.  She 
 
         related that the plant pays a bonus based on overall plant 
 
         production to all plant employee.  The bonus is not guaranteed, 
 
         but is based on monthly production.  Some months it is not paid 
 
         when production standards are not met (tr. pp. 111-117).  It is 
 
         not figured on the company's profits.  It is guaranteed that the 
 
         employee will be paid a bonus if they meet the production goal - 
 
         "just like clockwork".  (tr. p. 118).  The amount of the bonus 
 
         varies based on production and the number of employees working at 
 
         the plant and the amount of production.  Each employee has to 
 
         work a certain number of days each month in order to be eligible.  
 
         Claimant did not get paid a bonus one month because he didn't 
 
         work enough days that month (tr. pp. 121 & 122).
 
         
 
                                                
 
                                                         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties stipulated that claimant did receive an injury 
 
         which arose out of and in the course of employment on May 9, 
 
         1985, when claimant fell from a ladder and injured his right 
 
         knee.  The principal issue in this case is whether the episodes 
 
         which occurred on March 16, 1986 and July 1, 1986 were separate 
 
         and distinct injuries in themselves unrelated to the injury of 
 
         May 9, 1985, or whether the episodes of March 16, 1986 and July 
 
         1, 1986, were sequelae of the injury of May 9, 1985.  Sequelae is 
 
         defined as an after effect of an injury, a secondary result.  
 
         Stated differently, were the events of March 16, 1986 and July 1, 
 
         1986, new injuries or were they recurrences of the original 
 
         injury of May 9, 1985.
 
         
 
              Where an accident occurs to an employee in the usual course 
 
         of his employment the employer is liable for all consequences 
 
         that naturally and proximately flow from the accident.  If an 
 
         employee suffers a compensable injury and thereafter suffers 
 
         further disability which is the proximate result of the original 
 
         injury, such further disability is compensable.  Oldham vs. 
 
         Scofield and Welch, 222 Iowa 764, 767, 768 (1936).  Lawyer and 
 
         Higgs, Iowa Workers' Compensation--Law & Practice, Section 4-4, 
 
         Sequelae of Injuries, page 23.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result.  It only needs 
 
         to be one cause; it does not have to be the only cause.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              Claimant did not return to see Dr. Rosenfeld from August 20, 
 
         1985, until March 20, 1986.  Claimant testified that during this 
 
         period of time, his knee swelled up, locked up, gave out and 
 
         caused him pain.  There is evidence that before the arthroscopy 
 
         on July 25, 1985, that claimant saw Dr. McClain for a right knee 
 
         abrasion on June 19, 1985, which claimant believed was an 
 
         occurrence where the knee caused him a problem and he fell down 
 
         and abrased it (JE 1, p. 6; JE 2, p. 7; tr. pp. 84-86).
 
         
 
              Claimant said that he did not see the doctor from August 20, 
 
         1985 to March 20, 1986, because he needed to work to support his 
 
         family and that the medication Dr. Rosenfeld had prescribed 
 
         earlier reduced the swelling and pain pills reduced the pain (tr. 
 
         pp. 100-101).
 
         
 
              Claimant's testimony about continuing problems could be a 
 
         self-serving falsehood or the purest truth.  In either event it 
 
         is the uncontradicted evidence of record and when compared with 
 
         all the other evidence in the case, there is no reason to 
 
         discredit it.  On the contrary, it is supported by all of the 
 
         other evidence in the case.  All of the evidence seems to 
 
         establish that claimant had a continuing, recurring problem with 
 
         his right knee after the injury on May 9, 1985.  The first 
 
         recurrence appears to have occurred on June 19, 1985, when 
 
         claimant saw Dr. McClain with the right knee abrasion.  Dr. 
 
         Rosenfeld testified he believed claimant's testimony about many 
 
                                                
 
                                                         
 
         knee malfunctions between August 20, 1985 and March 20, 1986.
 
         
 
              Claimant testified that after the arthroscopy on July 25, 
 
         1985, that the right knee continued to lock up on him during he 
 
         recuperation period.  He said it continued to lock up on him 
 
         after he returned to work on August 20, 1985 (tr. pp. 46-49).  On 
 
         March 20, 1986, Dr. Rosenfeld described claimant's problem as 
 
         "continued right knee pain" (JE 1, p. 30).  On April 11, 1986, he 
 
         described claimant's condition as the "recurrent knee injuries" 
 
         (JE 1, p. 33).  On September 5, 1986, Dr. Rosenfeld said "the 
 
         continued problems with the knee are related to the initial 
 
         injury and that the second surgery was necessitated because of 
 
         the initial injury as opposed to a separate and distinct second 
 
         injury while playing volleyball" (JE 1, p. 36).  For reasons of 
 
         their own choosing employer elected to make out a first report of 
 
         injury for the volleyball incident (JE 1, p. 92).  The hospital 
 
         admission forms for both the injury of May 9, 1985, and March 16, 
 
         1986, indicate that the primary insurance coverage was workers' 
 
         compensation coverage (JE 1, pp. 43 & 76).
 
         
 
              Claimant testified that when he continued to have problems 
 
         after two arthroscopies he made an appointment with Dr. Breedlove 
 
         in order to get a second opinion, but a few days before the 
 
         appointment on July 1, 1986, the knee locked up while bending 
 
         over by his washer and dryer on or about June 29, 1986, which 
 
         immobilized him (tr. pp. 57-62).  Dr. Breedlove said it unlocked 
 
         after he began the induction of anesthesia at the arthroscopy on 
 
         July 1, 1986 (JE 1, p. 107).  On the admitting history and 
 
         physical, Dr. Breedlove recorded that the locking up had 
 
         "happened multiple times in the past with severe pain and 
 
         swelling following the initial extension of the leg" (JE 1, P. 
 
         106).
 
         
 
              At the time of the reconstruction of September 12, 1986, Dr. 
 
         Breedlove said on the history and physical examination:  "This is 
 
         a 23-year-old male who has had problems with his right knee since 
 
         May of 1985".  He added:  "The patient has had multiple episodes 
 
         of his knee going out on him with minimal trauma such as walking 
 
         or stooping" (JE 1, p. 125).  On the discharge summary Dr. 
 
         Breedlove stated:  "This 27 y/o male injured his knee in 5/85.  
 
         He has had significant problems with his knee since". (JE 1, p. 
 
         124).
 
         
 
              In his deposition, Dr. Rosenfeld said in spite of the 
 
         volleyball game, there 'was "something going on inside the knee 
 
         from the original injury" (JE 2, pp. 14 & 15).  He said it did 
 
         not take too much stress when something was not right inside the 
 
         knee in the first place (JE 2, pp. 16 & 17).  Dr. Rosenfeld said 
 
         he suspected the anterior cruciate from the beginning because of 
 
         the instability, but it looked alright upon examination at the 
 
         time of both of his arthroscopies.  Nevertheless, he said the 
 
         anterior cruciate could have sustained a tear in the continuity, 
 
         still be in tact, but lose its strength (JE 2, p. 21).  This is 
 
         consistent with Dr. Breedlove's discovery of the anterior 
 
         cruciate instability on July 1, 1986, when he described it as 
 
                                                
 
                                                         
 
         "old".  Dr. Rosenfeld said that the right "knee never worked 
 
         right from the beginning from the industrial injury and 
 
         subsequently the cruciate did give way, and so the cruciate 
 
         repair is definitely tied into the original injury" (JE 2, pp. 22 
 
         & 23).
 
         
 
              If claimant was released to return to work without 
 
         restrictions on August 20, 1985, there is no reason that he 
 
         should not play volleyball.  It is not significant that he knee 
 
         hurt playing volleyball when it also hurt while simply walking, 
 
         working or performing other activities.  It is immaterial whether 
 
         claimant jumped, was standing, or stepped sideways in the family 
 
         volleyball game.  Even though employer representatives told him 
 
         to quit playing volleyball, as claimant pointed out, they were 
 
         not his doctor.  No doctor had indicated he could not engage in 
 
         volleyball or any other activity.  Dr. Rosenfeld did not 
 
         attribute the March 16, 1986, injury to playing volleyball, but 
 
         rather to the instability of the knee due to the original injury 
 
         on May 9, 1985 (JE 2, pp. 14, 15, 22 & 23).
 
         
 
              When assessing a rating Dr. Breedlove assigned 12 percent to 
 
         "the work related accident and 12% permanent partial impairment 
 
         as a result of the anterior cruciate ligament rupture". (JE 1, p. 
 
         104).
 
         
 
              Dr. Breedlove did not clarify what he meant by this remark. 
 
         Possibly he meant to say that he did not know if the anterior 
 
         cruciate problem was caused by the injury of May 9, 1985, or 
 
         possibly he meant to say that he did not have any opinion on what 
 
         caused the anterior cruciate problem.  When he discovered the 
 
         anterior cruciate,problem on July 1, 1986, he described it as 
 
         old. Since he had not treated the patient during the period from 
 
         May 9, 1985 until July 1, 1986, possibly he was unable to, or 
 
 
 
                       
 
                                                         
 
         didn't care to, make a statement on causal connection.  In any 
 
         event, Dr. Breedlove did not say that the anterior cruciate 
 
         problem was not caused by the injury of May 9, 1985.  No 
 
         physician in the record ever stated that the injury of May 9, 
 
         1985, did not cause the recurrences on March 16, 1986 and July 1, 
 
         1986.  Neither party chose to depose Dr. Breedlove for a 
 
         clarification of his written reports.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 9, 1985, is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Dr. Rosenfeld said that after his second arthroscopy of 
 
         March 21, 1986, that claimant sustained a 5 percent to 10 percent 
 
         impairment (JE 2, pp. 13 & 14).  Dr. Breedlove said that claimant 
 
         sustained a 24 percent permanent partial impairment after all of 
 
         the surgical procedures had been performed, that is, three 
 
         arthroscopies with various surgical repairs, and one complete 
 
         major right knee reconstruction (JE 1, p. 104).
 
         
 
              The overwhelming weight of the evidence is the episodes of 
 
         March 16, 1986 and July 1, 1986, were caused by and were sequelae 
 
         of the injury that occurred on May 9, 1985.  Dr. Rosenfeld said 
 
         several times in the clearest language possible that all of 
 
         claimant's knee problems were caused by the initial injury on May 
 
         9, 1985.  Dr. Breedlove is silent in his rating letter (JE 1, p. 
 
         104) on causal connection, but all of his earlier recorded notes 
 
         demonstrate that he too traced claimant's knee problems back to 
 
         the original of May 9, 1985.
 
         
 
              Claimant is entitled to temporary benefits of 6.143 weeks as 
 
         agreed to by.the parties for the period following the injury of 
 
         May 9, 1985.  Claimant asserts he only received 2.142 weeks of 
 
         benefits; whereas, defendants claim that claimant was paid 6.143 
 
         weeks of benefits.  Defendants are ordered to pay claimant 6.143 
 
                                                
 
                                                         
 
         weeks of benefits.  Defendants are entitled to a credit for any 
 
         benefits that they can prove were paid to and which were received 
 
         by claimant.  Cancelled benefit checks bearing the claimant's 
 
         endorsement on the back are the best evidence of payment.
 
         
 
              Claimant is entitled to healing period benefits for the 
 
         period from March 17, 1986 to May 12, 1986, as stipulated for the 
 
         recurrence of March 16, 1986.
 
         
 
              Claimant is entitled to healing period benefits for the 
 
         period from June 16, 1986  to March 1, 1987, as stipulated for 
 
         the recurrence of July 1, 1986.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits for a 24 percent partial impairment of the right leg as 
 
         a result of the injury of May 9, 1985, and all of the subsequent 
 
         surgical procedures on July 25, 1985, March 21, 1986, July 1, 
 
         1986 and September 12, 1986.
 
         
 
              Claimant is entitled to:  (1) $14,090.89 for all of his 
 
         medical expenses (JE 1, p. 168); (2) $114.66 in medical mileage 
 
         as itemized in the mileage expense statement (JE 1, p. 169); and 
 
         (3) $4.39 for a prescription from Drug Mart prescribed by Dr. 
 
         Rosenfeld.on March 21, 1986, for Emperin #3, which the parties 
 
         did not include in their master summary of medical expenses (JE 
 
         1, pp. 168 & 173).
 
         
 
              Dr. Rosenfeld is entitled to be paid $1,050 for the 
 
         arthroscopy of July 25, 1985.  He testified that his charges are 
 
         similar to other physicians which ranged from $992 to $1,200 (JE 
 
         1, p. 191).  It is comparable with Dr. Breedlove's charge of 
 
         $1,205 for a similar arthroscopic procedure.  Dr. Rosenfeld's 
 
         evidence was not rebutted.  There is no explanation why $370 is 
 
         reasonable or correct.  On its face, it appears to be incorrect. 
 
         Neither the peer review committee nor defendants rebutted Dr. 
 
         Rosenfeld's testimony on the reasonableness of this charge or 
 
         even responded to his letters and testimony.
 
         
 
              Defendants maintain that claimant's rate should not include 
 
         overtime hours and that it should not include bonus pay. 
 
         Defendants also contend that the calculation of the rate should 
 
         not eliminate the nonrepresentative week of April 30, 1985.
 
         
 
              The abstract of claimant's hours, hourly pay, and bonus pay 
 
         as shown in the summary of facts, is correct and corresponds to 
 
         the numbers on claimant's pay stubs.  The overtime hours are 
 
         included at the straight time rate (JE 1, pp. 229-237).
 
         
 
              Iowa Code section 85.36 provides for the computation of the 
 
         rate of compensation as follows:
 
         
 
                   The basis of compensation shall be the weekly earnings 
 
              of the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
                                                
 
                                                         
 
                   the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar...
 
         
 
                   6.  In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by thirteen 
 
              the earnings, not including overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
              Iowa Code section 85.61 defines gross earnings in this 
 
         language:
 
         
 
                   In this and chapters 86 and 87, unless the context 
 
              otherwise requires, the following definitions of terms shall 
 
              prevail:...
 
         
 
                   12.  "Gross earnings" means recurring payments by 
 
              employer to the employee for employment, before any 
 
              authorized or lawfully required deduction or withholding of 
 
              funds by the employer, excluding irregular bonuses, 
 
              retroactive pay, overtime, penalty pay, reimbursement of 
 
              expenses, expense allowances, and the employer's 
 
              contribution for welfare benefits.
 
         
 
              Division of Industrial Services Rule 343-8.2 clarifies the 
 
         meaning of overtime as the term is used in ICS 85.62(12) in these 
 
         words:
 
         
 
                   The word "overtime" as used in section 85.61(12) of the 
 
              Code means amounts due in excess of the straight time rate 
 
              for overtime hours worked.  Such excess amounts shall not be 
 
              considered in determining gross weekly wages within section 
 
              85.36 of the Code.  Overtime hours at the straight time rate 
 
              are included in determining gross weekly earnings.
 
                   This rule is intended to implement Iowa Code sections 
 
              85.36 and 85.61.
 
         
 
              Nonrepresentative or short weeks of pay were addressed in 
 
         Lewis v. Aalfs Manufacturing Company, I Iowa Industrial 
 
         Commissioner Report 206, 207 (Appeal Decision 1980):
 
         
 
              ...Claimant did not work 13 consecutive weeks between May 6, 
 
              1978 and the date of the injury in September 1978.  However, 
 
              it is clear that the requirement of 13 consecutive weeks 
 
              must be interpreted in light of the first unnumbered 
 
              paragraph of section 85.36 which mandates that one determine 
 
              the weekly earnings "at the time of the injury," and that 
 
              said earnings are those to which the employee "would have 
 
              been entitled had he worked the customary hours for the full 
 
                                                
 
                                                         
 
                   pay period in which he was injured,...."  Here, as in many 
 
              other cases, claimant had vacations and layoffs which broke 
 
              the string of weeks.
 
         
 
                   The requisite action, then, is to determine what 
 
              claimant was earning when she was hurt; subsection 6 
 
              qualifies this requirement by stating a method of 
 
              computation.  Reading the first unnumbered paragraph and 
 
              subsection 6 together, the best method of calculation would 
 
              be to determine the last 13 completed consecutive weeks....
 
         
 
              Thus, nonrepresentative weeks are to be excluded.
 
         
 
              As to whether overtime hours are to be used in the 
 
         calculation and how they are to be used is clarified even more in 
 
         Lawyer and Higgs, Section 12-3, Hourly, Daily or Output Wages, 
 
         page 97.
 
         
 
              Iowa Code section 85.36(6) sets out the basis for 
 
         determining the weekly earnings at the time of the injury when 
 
         the employee is paid by the hour, by day, or by output.  To 
 
         compute the gross weekly earnings in these situations, the 
 
         earnings from the employer for the "last [thirteen] completed 
 
         consecutive weeks" prior to the injury are added together and 
 
         divided by thirteen. Premium pay is not included in this 
 
         calculation.  Overtime hours are included at the straight time 
 
         pay scale.  (footnotes excluded).
 
         
 
              In the next paragraph of Lawyer and Higgs the treatment of 
 
         nonrepresentative weeks is made unmistakably clear:
 
         
 
                   It is not uncommon in determining the rate under 
 
              section 85.36(6) for a non-salaried employee to find that 
 
                       
 
                                                         
 
              there are weeks within the thirteen consecutive weeks prior 
 
              to the injury that contain absences due to illness, vacation 
 
              or other causes.  Since the worker often does not get paid 
 
              unless he works, these weeks are not included in the 
 
              thirteen weeks for determining the rate under Iowa Code 
 
              section 85.36(6).  Instead, the "short" weeks are skipped 
 
              and additional weeks are included until thirteen completed 
 
              consecutive weeks are accumulated for the calculation.  The 
 
              rationale for this method of determining the weekly earnings 
 
              is based on the mandate of the first unnumbered paragraph of 
 
              Iowa Code section 85.36 which requires a determination of 
 
              earnings to which an employee "would have been entitled had 
 
              he worked the customary hours for the full pay period in 
 
              which he was incurred..."  (footnotes excluded)
 
         
 
              Consequently, defendants' arguments:  (1) that overtime 
 
         hours are not to be used in the calculation; and (2) that the 
 
         short week of April 24, 1985, is not to be eliminated are 
 
         patently without merit based on the longstanding precedent of the 
 
         agency.  The overtime hours are included only at the straight 
 
         time rate as provided in Division of Industrial Services Rule 
 
         343-8-2.
 
         
 
              The remaining issue is whether claimant's bonus is an 
 
         irregular bonus to be excluded from the calculation as provided 
 
         in ICS 85.61(12).  The bonus which claimant received was a 
 
         production bonus which was an integral component of the regular 
 
         overall compensation system of employer.  The bonus provisions 
 
         were in effect for each and every pay period.  This component of 
 
         the compensation was explained to prospective employees as one of 
 
         the advantages of working for employer.  Normally, the employees 
 
         earned the bonus every month.  It was a "recurring payment."  The 
 
         only requirement was to meet the production standard required.  A 
 
         bonus which is available every pay period as an integral part of 
 
         an employers' overall system of compensation is not an irregular 
 
         bonus.  This bonus did not hinge on company profits or the whim 
 
         or fancy of the officers or board of directors.  Consequently, 
 
         the bonus is an element of claimant's regular compensation, a 
 
         recurring payment, and is not an irregular bonus as defined by 
 
         ICS 85.61(12).
 
         
 
              Therefore, (1) eliminating the week of April 24, 1985, which 
 
         is a nonrepresentative week; (2) including claimant's overtime 
 
         hours at the straight time rate; and (3) including the bonuses 
 
         that claimant was paid, then his earnings for the 13 
 
         representative weeks prior to the injury on May 9, 1985, total 
 
         $4,187.41.  Gross earnings of $4,187.41 divided by 13 weeks 
 
         equals average weekly earnings of $322.11.  It is stipulated that 
 
         claimant is married and entitled to four exemptions.  Applying 
 
         this data to the Workers' Compensation Benefit Schedule of July 
 
         1, 1984, page 33 shows that the proper weekly rate of 
 
         compensation is $210.26.
 
         
 
                             FINDINGS OF FACT
 
         
 
                                                
 
                                                         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer on May 9, 1985, March 
 
         16, 1986, and July 1, 1986.
 
         
 
              That claimant fell and injured his right knee on May 9, 
 
         1985.
 
         
 
              That the injury caused claimant to have an unstable right 
 
         knee which continued to swell, lock up, fall away and cause 
 
         pain.
 
         
 
              That claimant suffered a recurrence of right knee 
 
         instability on March 16, 1986, while playing volleyball which was 
 
         an after effect and a secondary result of the injury on May 9, 
 
         1985.
 
         
 
              That the injury of May 9, 1985, caused claimant to be off 
 
         work for 6.143 weeks as stipulated.
 
         
 
              That the recurrence on March 16, 1986, caused claimant to be 
 
         off work from March 17, 1986 until May 12, 1986 as stipulated.
 
         
 
              That the recurrence on July 1, 1986, caused claimant to be 
 
         off work from June 16, 1986 until March 1, 1987 as stipulated.
 
         
 
              That Dr. Breedlove determined that claimant sustained a 24 
 
         percent permanent partial impairment of the right leg from all of 
 
         the episodes set forth above, three arthroscopies and one major 
 
         knee reconstruction.
 
         
 
              That claimant incurred medical expenses in the amount of 
 
         $14,090.89, medical mileage expense in the amount of $114.66 and 
 
         a medication bill for $4.39.
 
         
 
              That Dr. Rosenfeld's fee in the amount of $1,050 for the 
 
         arthroscopy on July 25, 1985, is reasonable.
 
         
 
              That the proper rate of compensation is $210.26 per week.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law discussed the following conclusions of law are 
 
         made.
 
         
 
              That claimant sustained an injury on May 9, 1985, and 
 
         recurrences of that injury and sequelae of it on March 16, 1986 
 
         and July 1, 1986.
 
         
 
              That the injury was the cause of temporary disability after 
 
         each of these dates.
 
         
 
              That claimant is entitled to 6.143 weeks of temporary total 
 
                                                
 
                                                         
 
         disability as a result of the original injury on May 9, 1985.
 
         
 
              That claimant is entitled to healing period benefits for the 
 
         period from March 17, 1986 until May 12, 1986, as a result of the 
 
         original injury on May 9, 1985 and the recurrence of it on March 
 
         16, 1986.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         June 16, 1986 until March 1, 1987, as a result of the original 
 
         injury on May 9, 1985, and the recurrence of in on or about July 
 
         1, 1986.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant is entitled to permanent partial disability 
 
         benefits for a 24 percent permanent impairment of his right leg.
 
         
 
              That the injury was the cause of claimant's medical 
 
         expenses.
 
         
 
              That claimant is entitled to medical expenses in the amounts 
 
         of $14,090.89 for hospitals and doctors, $114.66 for medical 
 
         mileage and $4.39 for a prescription.
 
         
 
              That the computation of the proper rate of compensation is 
 
         calculated by eliminating the one nonrepresentative week of April 
 
         24, 1985.
 
         
 
              That the computation of the proper rate of compensation is 
 
         calculated by including overtime hours at the regular straight 
 
         time rate.
 
         
 
              That the production bonus that claimant received was an 
 
         integral component of the overall regular compensation system and 
 
         therefore, was not an irregular bonus as that term is used in ICS 
 
         85.61(12).
 
         
 
              That the proper rate of compensation is calculated by 
 
         including the regular bonus payments that claimant received 
 
         during the 13 weeks prior to the injury.
 
         
 
              That the proper rate of compensation is $210.26 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant six point one four three 
 
         (6.143) weeks of temporary total disability benefits at the rate 
 
         of two hundred ten and 26/100 dollars ($210.26) per week as 
 
         stipulated for the time off work immediately following the 
 
         original injury in the total amount of one thousand two hundred 
 
         ninety-one and 63/100 dollars ($1,291.63) commencing on June 10, 
 
         1986.
 
         
 
                                                
 
                                                         
 
              That defendants pay to claimant eight point one four three 
 
         (8.143) weeks of healing period benefits for the period from 
 
         March 17, 1986 until May 12, 1986, at the rate of two hundred ten 
 
         and 26/100 dollars ($210.26) in the total amount of one thousand 
 
         seven hundred twelve and 15/100 dollars ($1,712.15) commencing 
 
         March 17, 1986.
 
         
 
              That defendants pay to claimant thirty four point eight five 
 
         seven (34.857) weeks of healing period benefits for the period 
 
         from July 1, 1986 until March 1, 1987 at the rate of two hundred 
 
         ten and 26/100 dollars ($210.26) per week in the total amount of 
 
         seven thousand three hundred twenty-nine and 03/100 dollars 
 
         ($7,329.03) commencing on July 1, 1987.
 
         
 
              That defendants pay to claimant fifty-two point eight weeks 
 
         (52.8) of permanent partial disability benefits based upon a 
 
         twenty-four (24) percent permanent impairment of the leg (220 x 
 
         .24 = 52.8) at the rate of two hundred ten and 26/100 dollars 
 
         ($210.26) per week in the total amount of eleven thousand one 
 
         hundred one and 73/100 dollars ($11,101.73) commencing on March 
 
         1, 1987.
 
         
 
              That defendants are entitled to a credit for workers' 
 
         compensation benefits paid prior to hearing at the rate of one 
 
         hundred sixty-one and 39/100 dollars ($161.39) per week upon 
 
         proof that such payments were both made to and received by 
 
         claimant.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
                             
 
                                                         
 
              That defendant pay to claimant or the provider of medical 
 
         services the amount of eleven thousand ninety and 89/100 dollars 
 
         ($11,090.89), one hundred fourteen and 66/100 dollars ($114.66) 
 
         and four and 39/100 dollars ($4.39) as shown above.
 
         
 
              That defendants are charged with the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4-33, including the cost of the transcript.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency.
 
         
 
              Signed and filed this 11th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Channing Dutton
 
         Attorney at Law
 
         West Towers office Bldg
 
         1200 35th St. STE 500
 
         West Des Moines, IA  50265
 
         
 
         Mr. William Scherle
 
         Attorney at Law
 
         803 Fleming Bldg
 
         Des Moines, IA  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
            
 
 
 
                                       1106; 1108.40; 1401; 1402.20; 
 
                                       1402.30; 1402.40; 1402.60; 1403.10; 
 
                                       1403.20; 1403.30; 2201; 2207; 
 
                                       51801; 51802; 51803; 2501; 2505; 
 
                                       2700; 3001; 3002; 3003; 1703
 
                                       Filed September 11, 1989
 
                                       Walter R. McManus, Jr.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GREGORY A. LEWIS,
 
         
 
              Claimant,
 
                                                    File No. 797154
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         DEE ZEE MANUFACTURING,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.40; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1403.10; 
 
         1403.20; 1403-30; 2201; 2207
 
         
 
              Claimant injured his knee in a fall at work on May 9, 1985; 
 
         reinjured it playing volleyball on March 16, 1986; and reinjured 
 
         it at again at home when he bent over by his washer and dryer on 
 
         or about July 1, 1986.  It was held, based on the weight of the 
 
         medical evidence, that the latter two episodes were sequelae and 
 
         recurrences of the injury on May 9, 1985, and were not separate 
 
         and distinct injuries unrelated to the original injury.  One 
 
         physician unequivocally testified it all stemmed from the first 
 
         injury.  The other physician did not testify that the subsequent 
 
         occurrences were not caused by the initial injury; but most of 
 
         his office notes and surgical notes indicate the subsequent 
 
         episodes were caused by the original injury.  Sequelae defined as 
 
         an after effect or secondary effect of an injury.
 
         
 
         51801; 51802
 
         
 
              Claimant awarded temporary disability for all three periods 
 
         for the dates stipulated to by the parties.
 
         
 
         51803
 
         
 
              Claimant awarded 24 percent permanent disability, the only 
 
         rating given for all three arthroscopies and one major 
 
                                                
 
                                                         
 
         reconstruction.
 
         
 
         2501; 2505; 2700
 
         
 
              Defendants were liable for all of the medical including a 
 
         disputed charge for one arthroscopy that was submitted to peer 
 
         review.
 
         
 
         3001; 3002; 3003
 
         
 
              Calculation of the rate:  (1) eliminated a nonrepresentative 
 
         week; (2) included overtime hours at the straight time rate of 
 
         pay; and (3) determined that a bonus that is an integral part of 
 
         defendants overall compensation system paid to all employees 
 
         based on production which is available to be paid every month and 
 
         which was paid most months was not an irregular bonus and 
 
         therefore, was included in the calculation of rate.
 
         
 
         1703
 
         
 
              Defendants could offset or have credit for benefits they 
 
         could prove were paid to and received by claimant.  The best 
 
         evidence of this was the cancelled check with claimant's 
 
         endorsement on the back.
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DELORES SALCEDO,
 
         
 
              Claimant,
 
                                                   FILE NO. 797275
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         H. J. HEINZ,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Delores 
 
         Salcedo, claimant, against H. J. Heinz, employer (hereinafter 
 
         referred to as Heinz), and Liberty Mutual Insurance Company, 
 
         insurance carrier, for workers' compensation benefits as a result 
 
         of an alleged injury on June 7, 1985.  On December 9, 1987, a 
 
         hearing was held on claimant's petition and the matter considered 
 
         fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Marsha Kuhl and Leon May.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  On June 7, 1985, claimant received an injury which arose 
 
         out of and in the course of her employment with Heinz.
 
         
 
              2.   Claimant's rate of weekly compensation in the event 
 
         of an award of weekly benefits from this proceeding shall be 
 
         $220.71 per week.
 
         
 
              3.  Claimant is entitled to either temporary total 
 
         disability or healing period benefits from June 14, 1985 
 
         through August 13, 1985.
 
         
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   2
 
         
 
              4.  If injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  If permanent disability benefits are awarded herein, 
 
         they shall begin as of August 14, 1985.
 
         
 
              6.  The fees charged in the medical bills submitted by 
 
         claimant at hearing were fair and reasonable and causally 
 
         connected to the medical condition upon which the claimed 
 
         hearing is based but the issue of their causal connection to a 
 
         work injury and the reasonableness of the treatment rendered 
 
         remains an issue to be decided.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and permanent disability;
 
         
 
             II.  The extent of weekly benefits for permanent disability 
 
         to which claimant is entitled; and,
 
         
 
            III.  The extent of claimant's entitlement to medical benefits 
 
         for treatment given to claimant by Raymond W. Dasso, M.D.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence may show are inevitable.  Such conclusions, if any, 
 
         in the following summary should be considered as preliminary 
 
         findings of facts.
 
         
 
              Claimant testified that she worked for Heinz since 
 
         September, 1968, and was working at Heinz at the time of the 
 
         hearing.  Initially, she was assigned to the labeling department 
 
         but beginning five years.prior to the alleged work injury in this 
 
         case she has been a packer operator and she performs this job at 
 
         the present time.  The job involves the operation of a pet food 
 
         packing machine which consists primarily of operating the 
 
         machine's controls with the hands.  At first the job involved 
 
         feeding the machine with empty cases but this operation now has 
 
         been automated and the only physical work required is the 
 
         occasional loading of 100 foot rolls of shrink wrap material onto 
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   3
 
         
 
         the machine, cleaning and relieving "jams" which can be heavy 
 
         work at times according to the job description.  The packing 
 
         operation job has always required constant attention to the 
 
         machine to avoid jams and injury.  According to the head plant 
 
         nurse, the current packing job at Heinz is easier than before but 
 
         still requires prolong sitting and standing in one position.  
 
         However, claimant is free to change positions frequently.  
 
         Claimant earns at the present time $10.25 per hour in her present 
 
         job which is the same job and the same pay grade as the position 
 
         she had at the time of the work injury.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that on June 7, 1985, she was asked 
 
         by her lead worker to take a counter reading on each of the 
 
         machines in her area.  Claimant testified that while bending over 
 
         under the conveyor line to read a counter on one of the machines, 
 
         two or three cases of canned product fell approximately six feet 
 
         onto her head, upper back and shoulders.  Claimant was wearing a 
 
         hard hat at the time and did not lose consciousness but she said 
 
         that the incident made her quite dizzy.  She said she felt neck 
 
         and shoulder numbness after the incident.  Claimant immediately 
 
         reported to the company medical department with complaints of 
 
         discomfort in the head and neck and was referred for treatment to 
 
         William Catalona, M.D., an orthopedic surgeon.  After his 
 
         examination of claimant, Dr. Catalona diagnosed a Ocompress. inj. 
 
         superimposed on old degen. changs. c-spine."  Dr. Catalona 
 
         prescribed use of a neck collar, medication and ice massages 
 
         along with placing claimant on lighter work at Heinz.  Claimant 
 
         returned three days later complaining that she could not perform 
 
         the light work.  She stated that the time she injured her back 
 
         three years ago at Heinz when a forklift struck her between the 
 
         shoulders and her back pain has persisted since that time.  She 
 
         felt that the June 7, 1985 incident, combined with her past 
 
         problems, has caused her permanent disability.  Claimant also 
 
         told Dr. Catalona of a prior neck injury and skull fracture after 
 
         falling or jumping from a moving car eight to 10 years ago which 
 
         has caused some persistent neck pain since that time.  On June 
 
         14, 1985, claimant complained to Dr. Catalona that she had not 
 
         fully recovered from the 1983 forklift injuries and was receiving 
 
         chiropractic treatments.  She also indicated that the work injury 
 
         in June of 1985 aggravated her back pain.  Dr. Catalona diagnosed 
 
         at that time "back pain, cause undertermin [sic]." and found no 
 
         abnormalities in claimant's back.  Claimant stated that something 
 
         was wrong with her back due to a "heavy feeling" in her back and 
 
         an inability to sit for any length of time.  On June 21, 1985, 
 
         claimant complained that her headaches, neck and back pain were 
 
         worsening.  Claimant was then referred to Richard Neiman, M.D., a 
 
         neurosurgeon for EMG testing and evaluation.  Dr. Neiman 
 
         initially found abnormal readings on the EMG test at two levels 
 
         of claimant's cervical spine.  Upon further testing, Dr. Neiman 
 
         could find no low back abnormalities.  In the injury report of 
 
         July 29, 1985, Dr. Neiman gives the following impression:
 
         
 
              ...I have contacted Dr. Catalona.  Something is "fishy" 
 
              about this patient.  Her physical symptoms seem to be 
 
              exaggerated compared to her actual objective findings.  
 
              I wonder if she is not somewhat less than genuine.  I 
 
              prefer to have the case referred back to Dr. Catalona 
 
              for further disposal.  I do not believe Deloris is 
 
              telling me the whole story.
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   4
 
         
 
         
 
              Dr. Neiman explained further what he meant by this statement 
 
         in his deposition taken on June 15, 1987.
 
         
 
              Q.  So as a whole then you feel that she was open and 
 
              frank with you and that she didn't attempt to mislead 
 
              you in any way about her history or her present 
 
              symptoms?
 
         
 
              A.  No, sir.
 
         
 
              Q.  When you were saying that you reported you 
 
              questioned whether she was being genuine with you, now, 
 
              is that referring to the complaint of lower back pain 
 
              only?
 
         
 
              A.  Yes, sir.  I thought frankly that the examination 
 
              was not very impressive at all in the lower back and 
 
              she seemed to exaggerate her complaints in regard to 
 
              the lower back.  I do, however, feel that she had 
 
              significant problems with the cervical spine.
 
         
 
              Q.  The neck and the upper thoracic area?
 
         
 
              A.  Yes, sir.
 
         
 
              Q. You felt that those complaints were genuine, that 
 
              they were consistent with the history that you had?
 
         
 
              A. Yes, sir.
 
         
 
              Claimant was hospitalized in June, 1985, for a myelogram and 
 
         CT scan.  The results of these tests were normal except that 
 
         there was the finding of degenerative changes in claimant's spine 
 
         of longstanding origin.  Dr. Neiman did not continue to treat 
 
         claimant after his examination on July 29 and referred claimant 
 
         back to Dr. Catalona for follow up treatment.  Claimant then was 
 
         treated by Dr. Catalona for her neck and back problems until 
 
         August, 1985, at which time he released her for light duty work 
 
         with the following restrictions:  no overhead reaching; no 
 
         frequent turning of neck; no lifting more than 25 pounds; and, no 
 
         frequent bending, stooping or twisting of the neck or back.  Dr. 
 
         Catalona believes that claimant's back pain was a radiation of 
 
         her upper back problems.
 
         
 
              Dr. Catalona's views as to the cause of claimant's neck pain 
 
         is unclear and he gave no opinions as to the relationship of 
 
         claimant's current problems to all of her past difficulties.  In 
 
         his deposition, Dr. Neiman stated that although he felt that the 
 
         June 7, 1985 work incident, if claimant is to be believed, 
 
         aggravated claimant's past non-work related arthritis.  He 
 
         further stated that he could not render an opinion as to 
 
         permanency of the aggravation because he had not seen claimant 
 
         after his examination in July, 1985.  Dr. Neiman opined, however, 
 
         that if claimant is continuing to have persistence of her 
 
         symptoms that were described to him in July of 1985, it is likely 
 
         that claimant has suffered a permanent aggravation and will 
 
         require surgery to correct the difficulties.
 
         
 
              As claimant's current job as a packer operator has been 
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   5
 
         
 
         changed somewhat to ease the physical requirements of the job, 
 
         her current duties do not exceed the requirements imposed by Dr. 
 
         Catalona and claimant was able to return to that job.  However, 
 
         claimant testified that she continues to experience neck, 
 
         shoulder and back pain, headache, nervousness and numbness in the 
 
         hands which she says was not present before June, 1985.  Claimant 
 
         testified at hearing that although she has had neck, shoulder and 
 
         back pains before June, 1985, and received regular chiropractic 
 
         treatment since 1979, her prior pain has never bothered her work 
 
         until June, 1985.  She stated that she was struck in the mid-back 
 
         area by a forklift truck on two occasions in 1983 causing pain 
 
         and numbness.  According to medical records submitted into the 
 
         evidence, claimant suffered a skull fracture from a fall from a 
 
         car following an argument with her boyfriend in 1974 causing 
 
         headaches, nausea and vomiting.  Examinations and x-rays of the 
 
         cervical spine at that time revealed a slight reversal of the 
 
         curvature of her cervical spine at various levels and "spina 
 
         bifida" of three cervical vertebral bones but no fracture or 
 
         dislocation was observed.
 
         
 
              Following her return to work in August, 1985, claimant 
 
         sought and received a second opinion from another orthopedic 
 
         surgeon, David C. Naden, M.D.  According to Dr. Naden there was 
 
         clear cut evidence of disc lesion at two levels of claimant's 
 
         spine brought on by the June, 1985, incident at work which 
 
         warrants surgical intervention.  As claimant did not desire 
 
         surgery, she sought out another,physician referred to her by 
 
         friends, Raymond Dasso, M.D., whose specialty, if any, is 
 
         unknown.  Claimant stated that Dr. Catalona told her that there 
 
         was nothing more he could do for her.  According to the exhibits 
 
         submitted into the evidence at hearing, claimant's attorney 
 
         requested Heinz to authorize treatment by Dr. Dasso but Heinz 
 
         refused to do so and referred claimant back to Dr. Catalona 
 
         stating that Dr. Catalona would make any further referrals.  
 
         Claimant, however, did not see Dr. Catalona at that time and 
 
         continued with Dr. Dasso who was periodically injecting claimant 
 
         with upper and lower back pain medication.  Claimant testified 
 
         that this treatment helps her to continue with her current job.
 
              Claimant was examined by another neurosurgeon, Byron Rovine, 
 
         M.D., in March of 1987.  Dr. Rovine diagnosed that claimant was 
 
         suffering from cervical spondylosis with degenerative cervical 
 
         discs and arthritis which existed before 1985.  He opined that by 
 
         history given to him by claimant, claimant's symptoms were 
 
         aggravated by the 1985 injury.  Dr. Rovine indicated that he 
 
         would not recommend surgery but would restrict claimant's 
 
         physical activity in a manner similar to the restrictions imposed 
 
         by Dr. Catalona.  He also advised claimant to discontinue the 
 
         injection therapy by Dr. Dasso.  Although he noted an emotional 
 
         aspect to claimant's problems, he considered such an aspect 
 
         "integrally related to her injury.O
 
         
 
              Claimant stated at the hearing that she is 47 years of age 
 
         and only has a tenth grade education.  She said that she left 
 
         high school to work.  Claimant only described one job she held 
 
         prior to her employment at Heinz and that job involved work on an 
 
         assembly line making Christmas tree bulbs.
 
         
 
              There is no indication in the record that claimant has 
 
         looked for more suitable work other than her employment at Heinz.  
 
         Claimant appeared at the hearing to possess average intelligence.  
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   6
 
         
 
         She has not undergone any formal evaluation of her vocational 
 
         rehabilitation potential.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         she was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         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, claimant contends that she has 
 
         suffered permanent disability as a result of the work injury in 
 
         June, 1985, due to permanent impairment to the body as a whole 
 
         arising from her persistent difficulties with the neck, shoulder 
 
         and back.  First, the greater weight of the evidence established 
 
         that she suffers from permanent impairment to the cervical spine.  
 
         There is little disagreement among the medical experts involved 
 
         in claimant's case that work restrictions imposed by Dr. Catalona 
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   7
 
         
 
         are valid and that claimant cannot perform physical activities 
 
         such as heavy lifting, repetitive lifting, bending, stooping, 
 
         twisting of the cervical spine or prolonged sitting.  The 
 
         evidence does not establish, however, that any of her low back 
 
         problems, to the extent they are not radiated pain from the neck, 
 
         are permanent.  She denied low back problems in her last 
 
         examination with Dr. Rovine.
 
         
 
              Second, despite clear evidence of a prior existing 
 
         degenerative condition to the spine and prior back and neck 
 
         injuries, the greater weight of the evidence shows the requisite 
 
         causal connection between the work injury and permanent 
 
         impairment.  Despite her prior problems, claimant complained very 
 
         infrequently to the medical department of her neck and back pain 
 
         before June, 1985.  Most importantly, before June, 1985, she had 
 
         no permanent restrictions imposed upon her work activity.  
 
         Although Dr. Catalona agreed with Dr. Neiman that claimant's low 
 
         back problems are not serious, Dr. CatalonaOs views on claimant's 
 
         upper back problems are not clear.  However, the testimony of Dr. 
 
         Neiman in his deposition is very clear.  If claimant's symptoms 
 
         are persisting after he last saw her, then she likely has 
 
         permanent impairment which requires further treatment.  Critical 
 
         to the causal connection opinions of Dr. Naden and Dr. Rovine was 
 
         the history provided by claimant to them that the pain worsened 
 
         after the June, 1985, incident.  As claimant is found credible, 
 
         these opinions are supportive of claimant's case for causal 
 
         connection.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent,disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   8
 
         
 
              Claimant's medical condition before the work injury in this 
 
         case was certainly not excellent.  She had significant problems 
 
         before June, 1985, with pain and a need for regular chiropractic 
 
         treatments.  But, none of these prior problems appeared to affect 
 
         her performance on the job.  Today she has work restrictions 
 
         which she did not have before.
 
         
 
              Claimant's job is not a heavy labor job and she, to date, 
 
         has been able to tolerate the discomfort by continuing to work.  
 
         This is probably due at least, in part, to the injection 
 
         treatments by Dr. Dasso and due to claimant's motivation to 
 
         remain working. Consequently, she has not as yet suffered a loss 
 
         of actual earnings because of the work injury.  Her current 
 
         employment appears suitable although the future stability of such 
 
         employment is unknown and greatly depends on claimant's ability 
 
         to tolerate the discomfort in the future.
 
         
 
              Despite her current job and earnings, she has suffered an 
 
         industrial disability or a loss of earning capacity given her 
 
         injury, work experience, age, work restrictions and limited 
 
         education.  A showing that claimant had no loss of actual 
 
         earnings does not preclude a finding of industrial disability.  
 
         See Michael v. Harrison County, Thirty-Fourth Biennial Report of 
 
         the Industrial Commissioner 218, 220 (Appeal Decision 1979).
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 10 percent loss in 
 
         earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 50 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page   9
 
         
 
         85.34(2)(u) which is 10 percent of the 500 weeks, the maximum 
 
         number of weeks allowable for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              III.  Claimant also seeks reimbursement for the medical 
 
         treatment she received from Dr. Dasso.  Claimant certainly has 
 
         the right to be treated by a physician of her own choice and 
 
         defendants should not discriminate against her in granting 
 
         absences from work to receive such treatment.  Defendants claim 
 
         that claimant is not entitled to reimbursement for the expense of 
 
         such treatment under Iowa Code section 85.27 which provides 
 
         employers with the right to choose the care.  However, section 
 
         85.27 applies only to injuries compensable under Chapters 85 and 
 
         85A of The Code and obligates the employers to furnish reasonable 
 
         medical care.  This agency has held that it is inconsistent to 
 
         deny liability and the obligation to furnish care on one hand and 
 
         at the same time claim a right to choose the care.  Kindhart v. 
 
         Fort Des Moines Hotel, (Appeal Decision, March 27, 1985).  
 
         Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner 
 
         Report 6 (1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for a medical condition 
 
         requiring treatment either by admission or final agency decision.  
 
         Iowa Code section 85.27 does not give an employer the right to 
 
         choose the care without affording claimant the right to petition 
 
         the commissioner to resolve disputes concerning such care.  
 
         However, this agency does not have authority to order an employer 
 
         to furnish any particular care unless the employer's liability 
 
         for an injury or the condition being treated under Chapters 85, 
 
         85A or 85B has been established.  Therefore, the right to control 
 
         the care must coincide with this agency's jurisdiction over the 
 
         matter.
 
         
 
              Defendants, in this case, have throughout these proceedings 
 
         denied that claimant suffered any permanent disability or 
 
         continuing problems as a result of the work injury herein.  
 
         Absent a future change in defendants' legal position on the issue 
 
         of liability for permanent disability, defendants cannot control 
 
         the treatment of claimant's current cervical problems until a 
 
         decision of this agency establishing the compensability of such 
 
         problems becomes final.  Therefore, the expenses of Dr. Dasso are 
 
         reimbursable and will be awarded herein.  However, claimant did 
 
         not itemize the expenses requested as ordered in the hearing 
 
         assignment order and only made reference,to exhibits 21 and 28 in 
 
         the prehearing report.  These bills are not decipherable.  
 
         Therefore, defendants are ordered only generally to pay the 
 
         charges of Dr. Dasso.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Heinz at all times 
 
         material herein.
 
         
 
              3.  On June 7, 1985, claimant suffered an injury to the 
 
         cervical spine which arose out of and in the course of her 
 
         employment with Heinz.  The injury was caused when boxes of can 
 
         product fell upon her head and upper spine.
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page  10
 
         
 
         
 
              4.  As stipulated, the work injury of June 7, 1985, was a 
 
         cause of a period of disability from work beginning on June 14, 
 
         1985 and ending on August 13, 1985 at which time claimant 
 
         returned to work and reached maximum healing.
 
         
 
              5.  The work injury of June 7, 1985, was a cause of a 
 
         significant permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no overhead reaching, lifting over 25 pounds and no 
 
         frequent bending, stooping or twisting of the neck.  Claimant had 
 
         significant prior existing degenerative changes in her spine due 
 
         to prior existing arthritis and prior injuries both at work in 
 
         1983 and from an auto accident in the early 1970's.  Although 
 
         claimant's condition prior to 1985 did cause recurrent but mild 
 
         upper back pain radiating into the low back, the prior 
 
         difficulties did not result in any physical restrictions until 
 
         the aggravation injury of June 7, 1985, as a result of the work 
 
         injury.  This injury caused a permanent worsening of her 
 
         condition.
 
         
 
              6.  The work injury of June 7, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 10 percent loss of 
 
         earning capacity.  Claimant is 47 years of age with a work 
 
         history of assembly line work involving repetitive bending, 
 
         stooping, twisting, lifting and occasional heavy lifting.  
 
         Claimant is able to tolerate the physical requirements of her 
 
         current position at Heinz with medical treatment and has not as 
 
         yet suffered a loss of actual earnings as a result of the work 
 
         injury.  Claimant has only a tenth grade education.  Claimant has 
 
         no prior history of sedentary employment.  Claimant's current 
 
         employment is suitable but nothing could be found as to its 
 
         future stability.
 
         
 
              7.  Beginning in September, 1985, claimant began to treat 
 
         with William Dasso, M.D.  This treatment consisted of periodic 
 
         injections into her spine.  This treatment is reasonable and the 
 
         charges for such treatment by Dr. Dasso are reasonable but they 
 
         were not authorized by Heinz before they were incurred.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the disability and medical benefits ordered 
 
         below.
 
         
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         twenty and 71/100 dollars ($220.71) per week from August 14, 
 
         1985.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         as set forth in the parties' stipulation in the prehearing 
 
         report.
 
         
 
              3.  Defendants shall pay to claimant the medical expenses of 
 
         Dr. Dasso for treatment of the cervical spine only beginning in 
 

 
         
 
         
 
         
 
         SALCEDO V. H. J. HEINZ
 
         Page  11
 
         
 
         August, 1985.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against the award for all benefits 
 
         previously paid as set forth in the prehearing report.
 
         
 
              5.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file activity reports upon the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 4th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East Second St.
 
         Muscatine, Iowa 52761
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed February 4, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DELORES SALCEDO,
 
         
 
              Claimant,
 
                                                   FILE NO. 797275
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         H. J. HEINZ,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Despite evidence of prior neck problems and prior injuries, 
 
         claimant established a permanent worsening of her condition 
 
         following a work injury.  However, claimant has gone back to work 
 
         and has suffered no loss of actual earnings.  Therefore, only a 
 
         10 percent industrial disability was found due to her work 
 
         history, age, physical impairment and lack of education.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARVIN H. NEPPLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 797313
 
            FARMLAND FOODS, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Marvin 
 
            H. Nepple, claimant, against Farmland Foods, Inc., employer 
 
            (hereinafter referred to as Farmland), and Aetna Casualty & 
 
            Surety, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of an alleged injury on June 13, 
 
            1985.  On March 21, 1990, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On June 13, 1985, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Farmland.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits for eight different time periods 
 
            between June 1985 and December 1989, as more particularly 
 
            set forth in paragraph four of the prehearing report and 
 
            defendants stipulated that claimant was not working during 
 
            these periods of time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shall begin as of March 21, 1989.
 
            
 
                 5.  Claimant's rate of weekly compensation benefits 
 
            shall be $235.94.
 
            
 
                 6.  The charges contained in the medical bills submit
 
            ted by claimant at the hearing for which he seeks reimburse
 
            ment were fair and reasonable.
 
            
 
                                      issue
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The causal connection and extent of claimant's 
 
            disability; and,
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27 or 85.39.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant has worked for Farmland since 1971 and contin
 
            ues to do so at the present time.  Prior to the injury, 
 
            claimant's duties consisted of general meat packing work 
 
            such as lugging meat, boxing meat, pulling loins and ribs, 
 
            skinning, etc.  Claimant continues to work for Farmland 
 
            under a permanent restriction against working while his arms 
 
            are elevated.  Claimant continues to receive the same rate 
 
            of pay as before the injury.
 
            
 
                 On or about June 13, 1985, claimant injured his back 
 
            and neck from a fall to the floor while pulling hogs.  There 
 
            is some differences in claimant's description of this injury 
 
            as reported by various treating and evaluating physicians 
 
            but none appear to be significant as they only relate to the 
 
            exact specifics of the fall.  However, all physicians note a 
 
            slip and fall with the immediate onset of back and neck 
 
            pain.
 
            
 
                 As a result of the injury of June 13, 1985, claimant 
 
            was absent from his job upon the advice of his physicians 
 
            for the periods of time set forth in the prehearing report 
 
            between June 1985 and December 1989.  During December 1988, 
 
            claimant underwent fusion surgery in the mid-cervical spine 
 
            or neck area following a diagnosis of a herniated disc.  
 
            Between the time of the injury and surgery, claimant had 
 
            returned to work several times only to suffer additional 
 
            back and neck pain from this activity.  Physical therapy and 
 
            use of medication for pain and inflammation was continually 
 
            necessary to allow claimant to continue working in this 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            capacity.  During this time, claimant saw a number of physi
 
            cians.  It was only after the diagnosis of herniated disc 
 
            and surgery that claimant began to improve and was able to 
 
            return to work with less symptoms of pain and inflammation.  
 
            Although claimant failed to lose weight against the advice 
 
            of his physicians, claimant's physicians have not opined 
 
            that such failure to lose weight lengthened the healing 
 
            process.
 
            
 
                 Most of claimant's treating and evaluating physicians 
 
            opined that claimant had a prior low back and neck condi
 
            tion.  However, those who rendered a specific opinion opined 
 
            that the injury of June 1985 had at least aggravated the 
 
            preexisting condition.  The most significant prior injury 
 
            was a fall from a horse in 1978 in which claimant received 
 
            extensive contusions of the mid back and low back area and 
 
            fractures of the first, second and third transverse process 
 
            of the right lumbar vertebra.  After recovery from this 
 
            fall, claimant returned to work at Farmland without 
 
            restrictions.
 
            
 
                 As a result of the work injury of June 13, 1985, 
 
            claimant has suffered a 10 percent permanent partial impair
 
            ment to the body as a whole.  Also, claimant is permanently 
 
            restricted from working while his arms are elevated.  
 
            Michael Morrison, M.D., was the primary treating orthopedic 
 
            surgeon at the time of the surgery.  His opinions concerning 
 
            the extent of claimant's impairment and physical restric
 
            tions were given greater weight in this proceeding.  No 
 
            physician has opined that claimant had permanent partial 
 
            impairment prior to the June 13, 1985 injury, although most 
 
            stated that claimant had prior degenerative conditions of 
 
            neck and back.  Also, no physician opined that claimant's 
 
            permanent partial impairment is the result of any continuing 
 
            low back problems.  Low back difficulties appeared to 
 
            resolve after the injury and the low back returned to its 
 
            condition prior to the injury.  On August 1, 1989, Dr. 
 
            Morrison indicated that claimant had reached maximum healing 
 
            and opined that claimant has a 10 percent permanent partial 
 
            impairment.  Claimant denies any chronic problems with his 
 
            neck before June 13, 1985.  There appears to be a fairly 
 
            consistent and continuous pattern of chronic neck pain after 
 
            its onset on June 13, 1985.  This pain precipitated the 
 
            surgery and led to the permanent partial impairment and to 
 
            the imposition of the work restriction.  It should be noted 
 
            that the views of Horst Blume, M.D., in this case, were not 
 
            given much weight as none of the medical reports were signed 
 
            by the doctor and there appears to be no indication that he 
 
            reviewed this report before they were submitted into the 
 
            evidence.
 
            
 
                 As a result of the work injury of June 13, 1985, 
 
            claimant has suffered a 15 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was not 
 
            excellent but he had no functional impairments or ascertain
 
            able disabilities.  Claimant was able to fully perform phys
 
            ical tasks involving heavy lifting, repetitive lifting, 
 
            bending, twisting and stooping.  Due to his physical limita
 
            tions, claimant's medical condition prevents him from many 
 
            of the jobs he performed at Farmland.  However, claimant is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            able to return to work due to accommodations made by his 
 
            employer.  This accommodation has resulted in no loss of pay 
 
            as a result of claimant's disability.  Claimant also oper
 
            ates a very small farming operation on his 15 acres of land 
 
            in the feeding of hogs.  Claimant states that his disability 
 
            adversely affects this operation and his usual chores around 
 
            the farm as he cannot do the same things as he had done 
 
            before.  However, claimant's income tax returns indicate 
 
            that claimant had suffered no loss of earnings from his farm 
 
            operation since 1985.  Claimant is 41 years of age and has 
 
            only an eighth grade education.  He would appear to be a 
 
            poor candidate for vocational retraining.  However, such 
 
            training is unnecessary at this time due to his return to 
 
            the work force and to Farmland due to accommodations made by 
 
            his employer.
 
            
 
                 The evaluation of claimant by Dr. Blume in March 1987, 
 
            was primarily for evaluation rather than treatment.  
 
            However, Dr. Blume did give treatment recommendations 
 
            including the recommendation of surgery which was eventually 
 
            followed by claimant.  Therefore, Dr. Blume's evaluation can 
 
            be considered as treatment.
 
            
 
                 The transportation expenses requested by claimant in 
 
            the prehearing report are causally connected to the injury 
 
            and were necessary to receive necessary medical treatment.
 
            
 
                                conclusions of law
 
            
 
                   I.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary 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, pos
 
            itive 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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            insufficient along to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse 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 compensabil
 
            ity, 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 condi
 
            tion, 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, claimant established by a pre
 
            ponderance of the evidence that he suffered permanent par
 
            tial impairment as a result of the injury.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found as a matter of 
 
            fact that claimant had suffered a 15 percent loss of earning 
 
            capacity as a result of the work injury.  Based upon such a 
 
            finding, claimant is entitled as a matter of law to 75 weeks 
 
            of permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(u) which is 15 percent of 500 weeks, the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            maximum allowable number of weeks for an injury to the body 
 
            as a whole in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until claimant returns to work or reaches 
 
            maximum improvement, whichever occurs first.  The parties 
 
            stipulated as to the starting date of permanent partial dis
 
            ability benefits of March 21, 1989.  This is also the ending 
 
            date of claimant's healing period benefits.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled only to an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, claimant is entitled to reimburse
 
            ment for any expenses found causally connected to the injury 
 
            and the expenses to receive medical treatment.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 1.  Defendants shall pay to claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-five and 94/l00 dollars ($235.94) per 
 
            week from March 21, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from the periods of time he was absent from work 
 
            between June 13, 1985 and March 21, 1989, as more particu
 
            larly set forth in paragraph four of the prehearing report 
 
            at the rate of two hundred thirty-five and 94/l00 dollars 
 
            ($235.94) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report and specifically three hundred sixty 
 
            and no/l00 dollars ($360.00) for the evaluation and treat
 
            ment by Horst Blume, M.D., and transportation expenses of 
 
            fifty and 89/l00 dollars ($50.89) for meals and lodging plus 
 
            $84.00 mileage reimbursement.  Claimant shall be reimbursed 
 
            for any of these expenses paid by him.  Otherwise, defen
 
            dants are ordered to pay the provider directly along with 
 
            any lawful late payment penalties imposed upon the account 
 
            by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay the interest on weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            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, Suite 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed July 11, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARVIN H. NEPPLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 797313
 
            FARMLAND FOODS, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 - Nonprecedential
 
            
 
                 Extent of disability.