Page 1                 OCT 91
 
            
 
            before the iowa industrial commissioner
 
            
 
            __________________________________________________________	
 
		                 	  :
 
                		 	  :
 
            ROBERT HOFFARD,      	  :
 
                   		 	  :
 
	              Claimant,  	  :      File No. 802499
 
        			          :
 
	              vs.	 	  :    A R B I T R A T I O N
 
                   			  :
 
            WILSON FOODS CORPORATION,	  :      D E C I S I O N
 
                   			  :
 
	              Employer, 	  :
 
        	      Self-Insured,  	  :
 
              		Defendant. 	  :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            On May 3, 1988, Robert Hoffard (claimant) filed a petition 
 
            for arbitration as a result of an injury to claimant's back 
 
            occurring on August 19, 1985.  Wilson Foods Corp. ( Wilson 
 
            or defendant) was identified as employer and self insured.  
 
            On May 1, 1991,  these matters came on for hearing in Storm 
 
            Lake, Iowa.  The parties appeared as follows:  the claimant 
 
            in person and by his counsel Harry Smith of Sioux City, 
 
            Iowa and Wilson by its counsel David Sayre of Cherokee, 
 
            Iowa.  
 
            
 
            The record in this proceeding consisted of the following:
 
            
 
            1.  The live testimony of the claimant and Jana Hoffard.  
 
            
 
            2.  Joint exhibits 1-4 and 6.
 
            
 
            PRELIMINARY MATTERS
 
            
 
            At the time of the hearing, Wilson objected to evidence 
 
            regarding subsequent injuries suffered by claimant at 
 
            Wilson on the grounds of relevancy.  The evidence was 
 
            received into the record subject to the objection.  The 
 
            evidence in this dispute is sparse.  The evidence relating 
 
            to the subsequent injuries is relevant only to the extent 
 
            that it may bear on the extent of disability suffered by 
 
            claimant, if any, as a result of the injury suffered in 
 
            1985.  Consequently, the evidence regarding subsequent 
 
            injuries will be admitted for whatever probative value the 
 
            evidence may have.
 
            
 

 
         
 
 
 
 
 
 
 
 
 
 
 
            stipulations
 
            
 
            The parties stipulated to the following matters at the time 
 
            of the hearing:
 
            
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
            b.  The claimant sustained an injury on August 19, 1985, 
 
            which arose out of and in the course of employment.
 
            
 
            c.  The alleged injury is a cause of temporary disability.
 
            
 
            d.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
            e.  The commencement date for permanent partial disability, 
 
            is August 28, 1985.
 
            
 
            f.  The rate of compensation, in the event of an award, is 
 
            $178.78 per week based on a weekly wage of $267.00 per 
 
            week. Claimant is married and has two children.  He is 
 
            entitled to four exemptions.
 
            
 
            g.  The fees charged for medical services are fair and 
 
            reasonable.
 
            
 
            h.  The causal connection of the expenses to treatment for 
 
            a medical condition upon which claimant is now basing his 
 
            claim is admitted but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided 
 
            in these proceedings.
 
            
 
            i.  The expenses were authorized by the employer.
 
            
 
            j.  That defendants make no claim for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing.
 
            
 
            k.  That defendants have paid 4/7 weeks of workers' 
 
            compensation benefits to claimant at the rate of $178.78 
 
            per week prior to hearing.
 
            
 
            l.  That there are no bifurcated claims.
 
            
 
            m.  There are no costs to assess in this matter because no 
 
            filing fee was required when this matter was filed in 1988.
 
            
 
            Issues
 
            The issues for resolution are as follows:
 
            
 
            1..  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
            2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a 
 
            work injury.
 
            findings of fact
 
            
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
            1.  At the time of the hearing in this matter, claimant was 
 
            31 years old.  At the time of the injury, claimant was 26 
 
            years old.  Claimant has obtained a formal education 
 
            through the eleventh grade in the Alta school system.  
 
            Claimant quit school when he was a junior because he found 
 
            it difficult for him.
 
            
 
            2.  After he left school, claimant enlisted in the United 
 
            States Army and served for three years and six months as a 
 
            tank driver.  Claimant was honorably discharged.  After his 
 
            discharge, claimant was unemployed for a period of six 
 
            months and then began working for a hog farmer for minimum 
 
            wages.  Thereafter, claimant worked for a construction 
 
            company, IBP, and a seed corn company.  This employment 
 
            period lasted between approximately 1981 through March of 
 
            1985.  Claimant's wages during this time period were at or 
 
            slightly above minimum wage.
 
            
 
            3.  Claimant began working for Wilson on March 19, 1985.  
 
            At the time claimant began working for Wilson he was 
 
            assigned to the ham room where he was responsible for 
 
            making cardboard boxes.  During his tenure at Wilson, 
 
            claimant also shaved the sides of pigs and did paste 
 
            boning.  Claimant did not accumulate much seniority while 
 
            he was with Wilson.
 
            
 
            4.  On August 19, 1985, claimant was working in the ham 
 
            room making boxes.  A forklift was coming through the room 
 
            and claimant reached down to move a pallet out of the way 
 
            so the forklift could get by.  Claimant estimated that the 
 
            pallet weighed between 150 and 200 pounds.  While claimant 
 
            was attempting to move the pallet, he felt something pull 
 
            in his back.  Prior to this time, claimant had been in good 
 
            health and had had no prior back problems.  Additionally, 
 
            claimant had successfully passed the physical examination 
 
            that Wilson had required him to take prior to his 
 
            employment.  When claimant began his employment with Wilson 
 
            he was able to lift between 100 and 150 pounds.
 
            
 
            5.  Claimant was sent to the Wilson's company physician, 
 
            Keith Garner, M.D., who examined his back and referred him 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            to D. E. Meylor, D.C., a chiropractor.  Dr. Meylor treated 
 
            claimant for a period of 20 days.  Dr. Meylor determined 
 
            that claimant had strained his low back and was 
 
            experiencing pain over the L3-L4 disc.  Dr. Meylor noted 
 
            that claimant had significant disc swelling on the left 
 
            side at the third lumbar disc level.  Dr. Meylor treated 
 
            claimant aggressively during the course of treatment.
 
            
 
            6.  Dr. Meylor's treatment consisted of a back brace, 
 
            manipulations, heat and electrical stimulation.  Claimant's 
 
            condition improved and by September 10, 1985, claimant was 
 
            released from Dr. Meylor's care.  Claimant returned to work 
 
            on August 28, 1985, however.  Claimant was on layoff at the 
 
            time he was released to return to work.  Apparently, 
 
            claimant did return to work from layoff status on August 
 
            29, 1985 (Ex. 1).  When claimant was released from Dr. 
 
            Meylor's care, Dr. Meylor performed studies on claimant's 
 
            lower lumbar spine and they were all normal.  
 
            
 
            7.  Claimant worked without incident until September of 
 
            1987 when he reported another flare-up of back pain.  The 
 
            plant nurse and Dr. Garner both concluded that this 
 
            flare-up was not work related and advised claimant to seek 
 
            his own medical care.  Claimant saw his own doctor and was 
 
            referred to Allender Chiropractic Offices for treatment. 
 
            
 
            5.  Beginning in 1986, claimant began to experience carpal 
 
            tunnel syndrome symptoms in her right hand.  In March of 
 
            1986, her hand became too numb to work.  Claimant was taken 
 
            off work on March 27, 1986.  On April 23, 1986, Dr. Jardon 
 
            performed a carpal tunnel release for claimant.  During the 
 
            course of the surgery, Dr. Jardon discovered that claimant 
 
            had a rupture of the flexor digitorum profundus to the 
 
            fifth finger.  As a result of that discovery, Dr. Jardon 
 
            increased claimant's functional impairment rating.  On June 
 
            30, 1986, claimant was awarded a rating of fifteen percent 
 
            (15%) of the hand.  Dr. Jardon reaffirmed his fifteen 
 
            percent (15%) rating on July 31, 1986.  Claimant was 
 
            returned to work shortly after the rating was given.  
 
            Thereafter, claimant continued to complain of right wrist 
 
            pain beginning in September of 1986 and intermittently 
 
            thereafter.  EMG studies were performed on September 22, 
 
            1987.  These studies
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
         showed that there was no evidence of carpal tunnel in the 
 
         right hand at that time.  Claimant was not off work during 
 
         this time period.
 
            
 
            6.  On November 11, 1987, claimant slipped on some fat and 
 
            fell off a stand, landing on her right shoulder and left 
 
            forearm.  After the fall, there was an onset of pain in the 
 
            right shoulder area.  Claimant returned to work the next 
 
            day and had no further pain complaints in her right 
 
            shoulder until January 1988.
 
            
 
            7.  After claimant complained of pain in her shoulder in 
 
            January, Dr. Garner, Wilson's company physician, referred 
 
            claimant to Dr. Jardon.  Dr. Jardon saw claimant on January 
 
            13, 1988 and noted that claimant's carpal tunnel syndrome 
 
            had not reappeared but that claimant's shoulder showed 
 
            evidence of mild inflammation.  Dr. Garner ordered x-ray 
 
            studies of claimant's right shoulder on February 26, 1988  
 
            The x-ray study revealed a soft tissue swelling over the 
 
            acromioclavicular joint.  Additionally, the 
 
            acromioclavicular joint appeared to be slightly widened, 
 
            suggestive of a first degree tear in the rotator cuff.  
 
            However, no follow-up studies were performed to confirm a 
 
            possible tear of the rotator cuff.  The x-ray did not show 
 
            a soft tissue injury.  Claimant was not taken off work at 
 
            the time the x-ray was performed.  Claimant was receiving 
 
            physical therapy three times a week.  
 
            
 
            8.  Claimant continued to complain of right shoulder pain.  
 
            On March 30, 1988, claimant was taken off work for three 
 
            weeks and a diagnosis of tendinitis was made by the company 
 
            nurse.
 
            
 
            9.  On April 20, 1988, claimant was referred to Mark 
 
            Wheeler, M.D., an orthopedist for further examination of 
 
            her shoulder.  Upon examination, Dr. Wheeler determined 
 
            that there had been an insidious onset of pain with no 
 
            precipitating trauma or event.  Dr. Wheeler in his history 
 
            indicated that claimant regularly uses a Whizard knife in 
 
            her work.  Dr. Wheeler found that claimant had tendinitis 
 
            in her right shoulder.  As a result of the tendinitis, Dr. 
 
            Wheeler took claimant off work for three weeks.  Claimant 
 
            did not advise Dr. Wheeler that she had fallen on November 
 
            11, 1987.
 
            
 
            10. When Dr. Wheeler saw claimant again on July 7, 1988, he 
 
            indicated that claimant's work had aggravated the symptoms 
 
            of tendinitis in her right shoulder, but that she was 
 
            working.  Claimant was released to return to work after 
 
            this examination.  Claimant was returned to work without 
 
            restriction on July 21, 1988.
 
            
 
            11. On October 20, 1988, claimant continued to complain of 
 
            shoulder pain and that she was ready to quit work.  She 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            returned to see Dr. Wheeler for a rating of her shoulder.  
 
            Dr. Wheeler found that claimant had a ten percent 
 
            functional impairment of her shoulder.  However, Dr. 
 
            Wheeler did not impose any restrictions at the time he gave 
 
            this rating to claimant.  The rating was based on her 
 
            limitations of external and internal rotation and her 
 
            limitation of ten degrees of full abduction and flexion.  
 
            Claimant's ten percent functional impairment rating was 
 
            attributed to the loss of motion that she had in the joint.  
 
            Dr. Wheeler gave claimant a release for full duty on 
 
            October 20, 1988. 
 
            
 
            12. On January 20, 1989, claimant voluntarily quit her 
 
            employment with Wilson to accept a new position.  Claimant 
 
            was under the impression from conversations that she had 
 
            with her medical providers that she should leave the 
 
            packing industry as a worker.  However, there is no 
 
            documentary evidence that would support this conclusion.  
 
            Further, there was no recommendation by any of claimant's 
 
            doctors in any written form that indicates they advised her 
 
            to stop working at Wilson as a result of her injuries at 
 
            the time she left Wilson.
 
            
 
            13. On May 11, 1989, Pat Luse, D.C., evaluated claimant for 
 
            the purposes of assigning an industrial disability rating.  
 
            Dr. Luse identified two injuries that claimant had 
 
            suffered, one on February 26, 1988 and another on November 
 
            11, 1987.  Apparently, Dr. Luse was unaware that claimant 
 
            had suffered an injury with carpal tunnel syndrome claimed 
 
            to have occurred on March 27, 1986.  Dr. Luse did note that 
 
            claimant had a carpal tunnel release on the right hand 
 
            however.  It is unclear from Dr. Luse's report the total 
 
            loss he assigned to claimant's hand for the carpal tunnel 
 
            release.  He did not separately identify this condition as 
 
            an injury.  The balance of the report discussed claimant's 
 
            shoulder.  Dr. Luse did not separately rate claimant's 
 
            shoulder.  Dr. Luse rated separate parts of claimant's loss 
 
            and then combined the values.  Dr. Luse indicated that he 
 
            used the AMA Guides to the Evaluation of Permanent 
 
            Impairment, third edition, but he did not indicate that he 
 
            used the combined value table for assessing the loss.  He 
 
            summarily concluded that claimant had a functional 
 
            impairment rating of 20%.  The worksheet referenced in his 
 
            report was not part of the exhibit that was submitted at 
 
            the time of trial.
 
            
 
            14. In November of 1989, claimant began to work at 
 
            Countryside Nursing Home.  After she had been working at 
 
            the nursing home, claimant's shoulder flared up again.  
 
            Claimant testified that her pain was worse at Countryside 
 
            and that she was having more problems.  Claimant quit her 
 
            work at Countryside Nursing Home in March of 1990.  She 
 
            indicated to her medical providers that she was in too much 
 
            pain to continue working.  On April 3, 1990, Dr. Wheeler 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            sent a report to the Iowa Disability Determination Service 
 
            Bureau regarding claimant's shoulder condition.  He 
 
            indicated that claimant had chronic recurring tendinitis in 
 
            her right shoulder.  Dr. Wheeler gave her a lifting and 
 
            carrying restriction of no greater than 20 pounds and a 
 
            restriction of no work above shoulder level.  He further 
 
            indicated that her standing was unlimited as well as 
 
            walking and sitting.  Additionally, claimant was not 
 
            limited in terms of stooping, climbing, kneeling or 
 
            crawling.  Claimant's manual dexterity was adequate and her 
 
            hearing, speaking and traveling abilities were not 
 
            restriction in a work environment.
 
            
 
            15. On April 17, 1990, Dr. Garner, directed a letter to the 
 
            Social Security Administration in support of claimant's 
 
            application for Social Security disability income.  Dr. 
 
            Garner indicated that claimant had a history of trigger 
 
            finger, right carpal tunnel syndrome, and a probable right 
 
            rotator cuff tear.    Dr. Garner indicated that claimant 
 
            had continuing complaints of pain in her right shoulder.  
 
            He found on the date of his examination, no evidence of 
 
            swelling, redness or instability.  Additionally, he found 
 
            no evidence of nerve root compression.  He found that her 
 
            range of motion was fairly normal and that she had some 
 
            crepitation with rotation of the shoulder.  In terms of 
 
            claimant's restrictions, Dr. Garner concluded that claimant 
 
            could not lift or carry more than 10 pounds.  He felt that 
 
            she could walk, stand, move about and sit without 
 
            restrictions.  Additionally, claimant was capable of 
 
            stooping, climbing and crawling.  Claimant can handle 
 
            objects, see and hear, however, Dr. Garner did note that 
 
            claimant would have great difficulty doing any type of 
 
            manual labor with her right shoulder.  Dr. Garner concluded 
 
            that claimant has tried to do manual labor with her right 
 
            arm and this has not worked out.  He recommended that she 
 
            not do this type of work in the future.
 
            
 
            16. In June of 1990, claimant participated in a demolition 
 
            derby at the Cherokee fairgrounds.  During the course of a 
 
            demolition derby, claimant attempts to run into other 
 
            automobiles being driven in a large track infield type 
 
            area.  Additionally, claimant attempts to avoid being hit.  
 
            In the demolition derby that claimant participated in, if a 
 
            participant was struck three times then the car and driver 
 
            were disqualified.  Claimant participated in this activity 
 
            though she was not in the competition very long.  
 
            
 
            17. As of the date of the hearing, claimant had had no 
 
            further medical care for her shoulder.  Additionally, at 
 
            the time of the hearing, claimant indicated that she could 
 
            not mow the lawn, she could not vacuum and she could not 
 
            play recreational softball.  Additionally, claimant could 
 
            not ride a motorcycle or drive a car with a clutch.  She 
 
            indicated that her activities regarding grocery shopping 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            and playing with her children had been limited.  
 
            
 
            CONCLUSIONS OF LAW
 
            
 
            I.  March 27, 1986 Injury
 
            
 
            The only issue for resolution regarding this injury is the 
 
            extent of permanent partial disability claimant is entitled 
 
            to as a result of the carpal tunnel injury to her hand.  
 
            Claimant contends that she is entitled to a benefit in 
 
            excess of 15%.  Wilson asserts that claimant has been paid 
 
            all that she is entitled to receive.
 
            
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial 
 
            method is used to evaluate an unscheduled disability.  
 
            Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 
 
            98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
            1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 
 
            (Iowa 1983).  The right of a worker to receive compensation 
 
            for injuries sustained which arose out of and in the course 
 
            of employment is statutory. The statute conferring this 
 
            right can also fix the amount of compensation to be paid 
 
            for different, specific injuries.  Barton v. Nevada Poultry 
 
            Co., 110 N.W.2d 660, 663 (Iowa 1961);  Soukup v. Shores 
 
            Co., 268 N.W. 598, 601 (Iowa 1936).  Where there is an 
 
            injury to a specific part of claimant's body, such loss 
 
            shall be compensable only to the extent provided by the 
 
            statute.  Thus by legislative edict, where the result of an 
 
            injury causes the loss of a foot, or eye etc, such loss, 
 
            together with its ensuing natural results upon the body, is 
 
            declared to be a permanent partial disability and entitled 
 
            only to the prescribed compensation.  Barton, 110 N.W.2d at 
 
            663.  
 
            
 
            Expert medical evidence forms the basis for evaluating a 
 
            claimant's functional impairment.  This evidence must be 
 
            considered with all other evidence introduced bearing on 
 
            the causal connection.  Burt v. John Deere Waterloo Tractor 
 
            Works, 73 N.W.2d 732, 738 (Iowa 1955).  Moreover, 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, 907 (Iowa 1974).  Finally, 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 material circumstances.  Bodish 
 
            v. Fischer, Inc., 133 N.W.2d 867, 870 (Iowa 1965); 
 
            Musselman v. Central Telephone Co., 154 N.W.2d 128, 133 
 
            (Iowa 1967).  The Supreme Court has also observed that 
 
            greater deference is ordinarily accorded expert testimony 
 
            where the opinion necessarily rests on medical expertise.  
 
            Sondag, 220 N.W.2d at 907.  
 
            
 

 
         
 
 
 
 
 
 
 
 
 
 
 
            In this instance, the only evidence of an increased 
 
            impairment for claimant's hand is from the report of Dr. 
 
            Luse.  Dr. Luse did not correlate his findings to 
 
            claimant's hand.  He assigned his rating to claimant's 
 
            upper extremity.  In connection with the rating, Dr. Luse 
 
            did not combine the values to arrive at a functional 
 
            impairment for claimant's hand.  Dr. Luse did not recognize 
 
            claimant's hand injury as a separate injury for the purpose 
 
            of the evaluation he did in May of 1989.  Finally, Dr. Luse 
 
            did not have an opportunity to follow claimant's course of 
 
            treatment and perform the surgery and post operative care.  
 
            He only saw claimant once.  Consequently, Dr. Luse's 
 
            opinion can be accorded little weight in connection with 
 
            the loss to claimant's hand.  The functional impairment 
 
            rating of 15% given by Dr. Jardon on July 30, 1986 and 
 
            reaffirmed by him will be adopted as the rating for 
 
            claimant's hand.  Consequently, claimant will take nothing 
 
            further on the claim for her hand as that claim was fully 
 
            paid by Wilson prior to the hearing on this matter.
 
            
 
            II.  November 11, 1987 injury 
 
            
 
            The threshold issue to resolve with this injury and the 
 
            injury of February 26, 1988 is to determine whether there 
 
            were two separate injuries or one injury and an aggravation 
 
            that led to a diagnosis of chronic tendinitis in March of 
 
            1988.  
 
            
 
            Wilson does not dispute that claimant fell on November 11, 
 
            1987 while she was at work.  However, Wilson does dispute 
 
            that claimant suffered another injury on February 26, 1988.  
 
            Claimant urges that she suffered two injuries that have 
 
            contributed to her permanent partial disability that should 
 
            be compensated industrially.  The evidence supports 
 
            claimant's contention that she was injured on November 11, 
 
            1987.  However, it does not support a conclusion that 
 
            claimant suffered any permanent disability from her fall.
 
            
 
            Claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of November 11, 1987, is 
 
            causally related to the disability on which she now bases 
 
            her claim.  Bodish, 133 N.W.2d at 868;  Lindahl, 18 N.W.2d 
 
            at 613-14.  A possibility is insufficient; a probability is 
 
            necessary.  Burt, 73 N.W.2d at 738.  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw, 101 N.W.2d at 171.
 
            
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag, 220 N.W.2d at 907.  Moreover, the expert 
 
            opinion may be accepted or rejected, in whole or in part, 
 
            by the trier of fact.  Sondag, 220 N.W.2d at 907.  Finally, 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            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 material 
 
            circumstances.  Bodish, 133 N.W.2d at 870; Musselman, 154 
 
            N.W.2d at 133.  The Supreme Court has also observed that 
 
            greater deference is ordinarily accorded expert testimony 
 
            where the opinion necessarily rests on medical expertise.  
 
            Sondag, 220 N.W.2d at 907.
 
            
 
            The evidence shows that claimant fell and was off work the 
 
            night she fell.  She returned to work the next day.  
 
            Claimant had no further complaints relating to her shoulder 
 
            until January 4 1988.  The fall in November of 1987 did not 
 
            have any affect on the claimant's ability to work.  She 
 
            went home the night of the fall and returned to work the 
 
            next day.  Claimant lost no time at work as a result of the 
 
            fall on November 11, 1987.  Claimant did not recount any 
 
            traumatic event for Dr. Jardon on January 13, 1988 that 
 
            would have led him to conclude that she suffered permanent 
 
            damage to her shoulder at the time of her fall.  Moreover, 
 
            claimant did not think her fall was important enough to 
 
            mention to Dr. Wheeler, when she was examined in April 
 
            regarding pain in her shoulder.  Even Dr. Luse did not 
 
            differentiate between the injury on November 11, 1987 and 
 
            the injury suffered in February.  The greater weight of the 
 
            evidence supports the conclusion that claimant did not 
 
            suffer any disability as a result of her fall on November 
 
            11, 1987.  Consequently, claimant will take nothing for 
 
            this injury.
 
            
 
            III.  February 26, 1988 Injury
 
            
 
            Regarding the February 26, 1988 injury, claimant has the 
 
            burden of proving by a preponderance of the evidence that 
 
            she received an injury on February 26, 1988 which arose out 
 
            of and in the course of her employment. McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman, 
 
            154 N.W.2d at 130.  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);  
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  A determination 
 
            that an injury "arises out of" the employment contemplates 
 
            a causal connection between the conditions under which the 
 
            work was performed and the resulting injury; i.e., the 
 
            injury followed as a natural incident of the work.  
 
            Musselman, 154 N.W.2d at 130; Reddick v. Grand Union Tea 
 
            Co., 296 N.W. 800, 804 (Iowa 1941).
 
            
 
            The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            case the Court found that a personal injury, is an injury 
 
            to the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2906; 5-1402.40; 5-1801
 
                      Filed October 28, 1991
 
                      ELIZABETH A . NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            ROBERT HOFFARD,           :
 
                     		      :
 
                 Claimant, 	      :        File No. 802499
 
                      		      :
 
		            vs.       :     A R B I T R A T I O N
 
                		      :
 
            WILSON FOODS CORPORATION, :        D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            5-2906
 
            Claimant pled only one injury date but discussed separate, 
 
            distinct and identifiable flare-ups of his back condition 
 
            during the course of his hearing.  The subsequent injuries 
 
            were not identified as separate injuries and were not 
 
            included in the consideration for the 1985 injury pled.
 
            
 
            5-1402.40, 5-1801
 
            Claimant failed to establish that the injury of August 19, 
 
            1985 caused any permanent disability.  Claimant was treated 
 
            for 20 days and then released for full duty.  Claimant 
 
            returned to his job without restriction and worked until a 
 
            subsequent flareup of his back condition.  Claimant was 
 
            entitled to temporary total disability benefits for the time 
 
            he was off work for the 1985 injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL D. RESENE,
 
         
 
              Claimant,
 
                                                     File No. 802699
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         WOODWARD STATE HOSPITAL SCHOOL
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         STATE OF IOWA,                                MAY 26 1989
 
         
 
              Insurance Carrier,                   INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Michael D. 
 
         Resene, claimant, against Woodward State Hospital School, 
 
         employer, and State of Iowa, defendants, for benefits as the 
 
         result of an injury that occurred on August 27, 1985.  A hearing 
 
         was held in Storm Lake, Iowa, on March 31, 1988, and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Lawrence (Bud) Miller, resident treatment 
 
         worker, Valerie Resene, claimant's wife, Keith O. Garner, M.D., a 
 
         treating physician, Larry Johnson, rehabilitation counselor, 
 
         Michael D. Resene, claimant, claimant's exhibits 1 through 32 and 
 
         defendant's exhibits A through D.  Both attorneys submitted 
 
         excellent briefs.  The deputy ordered a transcript of the 
 
         hearing. Claimant's exhibits failed to mark page numbers on their 
 
         exhibits which made it difficult to cite to the record.  Both 
 
         parties failed to comply with paragraph 10(2) of the hearing 
 
         assignment order which requires the parties to meet prior to the 
 
         hearing and prepare a joint exhibit list.  As a result most of 
 
         the same exhibits were introduced by both parties which required 
 
         them to be examined twice, rather than once, and doubled the 
 
         number of cites to the record.
 
         
 
                              STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury..
 
         
 
              That claimant sustained an injury on August 27, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
                                                
 
                                                         
 
              That the rate of compensation, in the event of an award, is 
 
         $191.10 per week.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that:  (1) the fees charged are fair and reasonable; (2) 
 
         the treatment was reasonable and necessary treatment; and (3) the 
 
         parties agree that the treatment was for the medical condition of 
 
         which claimant now bases his claim, but causal connection of this 
 
         condition to a work injury is an issue to be decided in these 
 
         proceedings.
 
         
 
              That defendant makes no claim for credit for benefits paid 
 
         prior to hearing under an employee nonoccupational group health 
 
         plan.
 
         
 
              That defendant is entitled to a credit for 61 weeks of 
 
         workers' compensation benefits paid prior to hearing at the rate 
 
         of $191.10 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury is the cause of temporary disability.
 
         
 
              Whether the injury is the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         he is entitled.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         he is entitled, to include whether claimant is entitled to 
 
         scheduled member benefits or to industrial disability benefits 
 
         for an injury to the body as a whole.
 
         
 
              Whether claimant is entitled to certain medical expenses 
 
         under Iowa Code section 85.27.
 
         
 
                            PRELIMINARY MATTERS
 
         
 
              At the beginning of the hearing, claimant moved to amend the 
 
         petition to change the action from a review-reopening proceeding 
 
         to an arbitration proceeding.  Claimant also moved to amend the 
 
         petition to show an injury date of August 27, 1985, rather than 
 
         to show no date of injury in item number 4 of the original notice 
 
         and petition.  Defendants had no objection to these motions and 
 
         both motions were granted.
 
         
 
              Claimant stated on the record that the issue of whether 
 
         claimant was an odd-lot employee, as shown on the hearing 
 
                                                
 
                                                         
 
         assignment order, was withdrawn at the time of the hearing and 
 
         that it was no longer a disputed issue in this case.
 
         
 
              Claimant's request for costs lists a charge of $121 for an 
 
         independent medical examination by A.J..Wolbrink, M.D.  However, 
 
         an employee examination under Iowa Code section 85.39 is a 
 
         contested case proceeding issue under Division of Industrial 
 
         Services Rule 343-4.1(11).  An Iowa Code section 85.39 
 
         examination was not designated as a hearing issue at the time of 
 
         the prehearing conference and was not designated as a hearing 
 
         issue on the hearing assignment order.  Therefore, the issue of 
 
         an independent employee examination will not be addressed in this 
 
         decision.  Hearing deputies determine only issues raised at the 
 
         prehearing conference and designated as hearing issues on the 
 
         hearing assignment order.  Presswood vs. Iowa Beef Processors, 
 
         Inc., file number 735442 (appeal decision November 14, 1986); 
 
         Rahn vs. Siouxland Towing and Auto Body, Inc., file number 
 
         797004, (filed October 20, 1987); Pulju vs. Iowa Beef Processors, 
 
         Inc., file numbers 804656 and 814502, (filed February 9, 1988); 
 
         Fisher, vs. American Freight System, Inc., file number 797015, 
 
         (filed September 26, 1988); Sachau vs. Farmland Foods, file 
 
         number 759191 (filed October 19, 1988); Goodley vs. Tama Meat 
 
         Packing Corp., file number 787802 (filed February 27, 1988), 
 
         Crawford vs. Tama Meat Packing Corp., file number 803960 (filed 
 
         March 28, 1989); Wiebers vs. Westinghouse Elec., file number 
 
         751080 (filed April 18, 1989).
 
         
 
              The independent medical examination cannot be allowed as a 
 
         cost of this proceeding because it is more properly a trial 
 
         preparation expense and furthermore, is not specifically 
 
         enumerated in the allowable costs under Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              The independent medical examination by claimant's choice of 
 
         physician cannot be allowed as an item of medical expense under 
 
         Iowa Code section 85.27, as contended by claimant's counsel at 
 
         the hearing, because it was not incurred for treatment or care of 
 
         the injury.
 
         
 
              In conclusion, claimant's bill in the amount of $121 from 
 
         Dr. Wolbrink for an independent medical examination cannot be 
 
         allowed as a cost, a medical expense or as an independent medical 
 
         examination.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Lawrence (Bud) Miller testified that he is a resident 
 
         treatment worker (RTW) at the Woodward State Hospital School 
 
         responsible for primary nursing care and monitoring of profoundly 
 
         retarded adult residents.  Claimant was performing the same job 
 
         as a coemployee and they worked together from July 1, 1985 until 
 
         August 27, 1985.  Miller testified that claimant had no physical 
 
                                                
 
                                                         
 
         problem in performing this job which requires physical agility 
 
         and strength to handle the patients everyday.  On August 27, 
 
         1985, a resident hyperflexed claimant's left arm when they tried 
 
         to put a helmet on him to keep him from biting himself.  The 
 
         resident twisted claimant's left arm up high behind his back.  
 
         Miller said that he could hear a snap at that time.  Miller 
 
         related that he told claimant to fill out an incident report.  
 
         Claimant did so and was sent to the medical center.
 
         
 
              Valerie Resene testified that she has been claimant's wife 
 
         since April 8, 1985.  She testified that she was aware of 
 
         claimant's fall from a motorbike on March 30, 1985.  She said 
 
         claimant was working for the Mental Health Institute (MHI) at 
 
         Cherokee at that time.  He saw Dr. Michel or Harrison one time, 
 
         but lost no time from work and did not complain of any pain 
 
         afterwards.  She said claimant had no difficulty from this injury 
 
         after the accident.
 
         
 
              Claimant's wife testified that on Memorial Day weekend, 
 
         1985, claimant was injured again, but this time it occurred at 
 
         work on the ward and was caused by one of the patients.  She said 
 
         claimant saw Keith O. Garner, M.D.  Claimant stayed home two or 
 
         three days after this injury.  She said that claimant did not 
 
         complain that it bothered him after that and that claimant did 
 
         not lose any more work.
 
 
 
                         
 
                                                         
 
         
 
              Claimant and his wife, who were both employees at the Mental 
 
         Health Institute, then transferred from Cherokee to Woodward 
 
         State Hospital School on July 1, 1985 and moved their family to 
 
         Perry, Iowa.  On October 27, 1985, claimant's wife was notified 
 
         that her husband was injured and she was called to drive him to 
 
         Mercy Hospital in Des Moines.  She told that she could see a big 
 
         raised area above his left shoulder, like a big round ball.  She 
 
         contended that claimant has been in constant pain everyday after 
 
         that with his shoulder.  After this injury, she said that the 
 
         family decided to move back to Cherokee.  Claimant was unable to 
 
         find work there.  Her husband was financially unable to complete 
 
         the first semester of college that he began at Buena Vista 
 
         College in Storm Lake.  She said that claimant got a job at IBP 
 
         for about seven weeks, but had to quit because he could not keep 
 
         up.  She said that claimant lied about his injury and put makeup 
 
         on his scar in order to get the job (transcript pages 20-33).
 
         
 
              Dr. Garner testified that he saw claimant on June 22, 1985, 
 
         for the injury that occurred on Memorial Day weekend in 1985.  
 
         Dr. Garner related that he sent the x-ray of claimant's shoulder 
 
         to Mark E. Wheeler, M.D., an orthopedic surgeon in Sioux City.  
 
         Dr. Wheeler recommended that claimant wear a sling for three to 
 
         four weeks (tr. pp- 34-36).
 
         
 
              Dr. Garner's office also performed a preemployment physical 
 
         examination on claimant for Wilson's on September 19, 1985.  On 
 
         claimant's portion of the medical form, he described that he had 
 
         received two days of workers' compensation benefits for a bruised 
 
         shoulder.  The report also indicates a fracture to the clavicle 
 
         which occurred in July 1985.  The physician's assistant who 
 
         performed the physical examination noted that claimant needed an 
 
         x-ray for evaluation of the shoulder injury.  The final 
 
         conclusion on the form is that claimant is not physically able 
 
         for any type of work, but rather is only fit for certain types of 
 
         work (exhibit D, tr. pp. 43-45).
 
         
 
              Dr. Garner related that he saw claimant on October 1, 1985, 
 
         for this injury which occurred at work on August 27, 1985.  This 
 
         time he sent claimant to see Earl M. Mumford, M.D., an orthopedic 
 
         surgeon in Sioux City, Iowa.  Dr. Garner also continued to see 
 
         claimant several times while he was being treated by Dr. Mumford 
 
         (tr. p. 36).  Dr. Garner's office note for October 1, 1985, 
 
         indicates that claimant had a previous fracture of the clavicle 
 
         that was still sore and that he reinjured it at work again.  
 
         X-rays still showed the fracture area (ex. A, p. 35).
 
         
 
              Dr. Garner's office notes, reports and testimony are not 
 
         clear concerning the injury date of the condition for which Dr. 
 
         Garner treated claimant on October 1, 1985.  In any event, 
 
         claimant required two surgeries by Dr. Mumford (tr. p. 38, ex. 
 
         3). Dr. Garner confirmed that he awarded a 35 percent permanent 
 
         impairment rating to the body as a whole (tr. p. 37).  Dr. Garner 
 
         confirmed that all of the medications shown on exhibit 28, were 
 
         prescribed by him for the injury to claimant's shoulder (tr. pp. 
 
                                                
 
                                                         
 
         38 & 39; ex. 28).  Dr. Garner further verified that all of the 
 
         charges on exhibit 29 were made by him for treatment of the 
 
         shoulder injury (tr. 40; ex. 29).  Exhibit 28 shows medical 
 
         expenses in the amount of $586.14.  Exhibit 29 shows that the 
 
         balance due to Dr. Garner is $533.75 as of February 29, 1988.  
 
         Dr. Garner testified that he was authorized by Dick Andrews to 
 
         treat claimant and that he was never told that this authority was 
 
         revoked.  The State of Iowa paid some of claimant's bills with 
 
         Dr. Garner, but did not pay others (tr. p. 41).
 
         
 
              Claimant testified that he is 34 years old.  He is a high 
 
         school graduate.  He served in the army as a military policeman. 
 
         Other past employments include packing house employee, carpenter 
 
         for construction companies and auto body repair work.  Claimant 
 
         started to work for employer on March 17, 1984, as a resident 
 
         treatment worker at Cherokee Mental Health Institute.  He 
 
         transferred to Woodward on July 1, 1985.
 
         
 
              Claimant confirmed that he slipped on the ice with his 
 
         motorcycle in March of 1985 and saw Dr. Michel (full name 
 
         unknown). Dr. Michel's one and only office note says that he saw 
 
         claimant as an outpatient at Sioux Valley Hospital on March 30, 
 
         1985, when he fell off of a motorcycle.  X-rays were negative.  
 
         Dr. Michel diagnosed contusion of the left shoulder (ex. 6, p. 2; 
 
         ex. A, p. 42).  X-rays revealed no fractures or dislocations (ex. 
 
         7). Claimant testified that he was given two aspirins for pain. 
 
         Claimant said he lost no time from work and never saw a doctor 
 
         again for this injury (tr. pp. 60 & 61).
 
         
 
              Claimant related that on Memorial Day in 1985, that he was on 
 
         duty on South 3 at Cherokee, when he responded to an emergency on 
 
         South 8.  He found that a coemployee had been attacked and that 
 
         blood was all over the ceiling and the walls.  The patient 
 
         responsible for this attack hit claimant a glancing blow on the 
 
         tip of his left shoulder.  About two weeks later it was still sore 
 
         and claimant went to see Dr. Garner.  The injury was reported to 
 
         employer about three weeks later (tr. pp. 109 & 110).  Claimant 
 
         testified that this was not a severe injury (tr. p. 110).  
 
         Claimant said that Dr. Garner sent his x-rays to Dr. Wheeler.  Dr. 
 
         Wheeler recommended that he wear his arm in a sling for three or 
 
         four weeks.  Claimant said that he babied the arm for about one 
 
         week. The record shows that claimant saw Dr. Garner on June 22, 
 
         1985 and was returned to work on June 25, 1985 (tr. p. 61-67).
 
         
 
              Dr. Garner's.office note on June 22, 1985, says that 
 
         claimant hurt his left shoulder on Memorial Day weekend.  He 
 
         ordered x-rays with weights and sent them to Dr. Wheeler.  Dr. 
 
         Garner diagnosed a severe shoulder separation.  On June 25, 1985, 
 
         Dr. Garner noted that the shoulder feels better and indicates 
 
         that he returned claimant to work on June 25, 1985 (tr. p. 41; 
 
         ex. 3, p. 2; ex. A, p. 34).
 
         
 
              The letter from Dr. Wheeler, dated July 2, 1985, to Dr. 
 
         Garner states that he reviewed the films and diagnosed a distal 
 
         left clavicle fracture in reasonably good position.  He 
 
                                                
 
                                                         
 
         recommended a sling for three to four weeks (ex. 4; ex. A, p. 
 
         32).
 
         
 
              Claimant said that he was told that he was not entitled to 
 
         workers' compensation because he did not report the injury within 
 
         72 hours (tr. P. 110).
 
         
 
              Claimant testified that he transferred to Woodward about 
 
         July 1, 1985 (ex. B, pp. 1-3).  Claimant stated that he was given 
 
         a physical examination and was oriented.  He said that he did not 
 
         wear a sling.  His arm was fine.  He had no pain at all.  He said 
 
         that he was completely recovered from the Memorial Day injury 
 
         (tr. pp. 67-69).  Claimant said that this injury was not a 
 
         serious injury (tr. p. 110).
 
         
 
              On August 27, 1985, a resident started biting himself, 
 
         claimant tried to restrain him, and the resident grabbed his left 
 
         arm and jerked it backward and up and out of its socket.  
 
         Claimant stated that he heard a tear and a pop.  The incident was 
 
         reported and an illness and incident report was completed that 
 
         day (tr. pp. 70-72).  An incident report was made out for this 
 
         injury on August 27, 1985, but it erroneously stated that the 
 
         injury date was September 25, 1985 (ex. 1; tr. p. 73).
 
         
 
              A physician at the employer's medical center sent claimant 
 
         to Mercy Hospital in Des Moines.  The admitting diagnosis was 
 
         possible dislocation of left shoulder (ex. 2, p. 1; ex. A, p. 
 
         47). The nursing assessment noted that claimant was restraining a 
 
         violent resident when he felt and heard a pop in his left 
 
         shoulder (ex. 2, p. 2; ex. A, p. 48).  An x-ray found the humeral 
 
         head normally situated in the glenoid.  No fracture was seen. 
 
         Acromioclavicular articulation was normal.  The left upper lung 
 
         was clear.  The impression was negative left shoulder (ex. 2, p. 
 
         4; ex. A, p. 49).  Another x-ray on the following day of the 
 
         acromioclavicular joint stated that no separation of the 
 
         acromioclavicular joint on either side is identified.  The 
 
         visualized bones of the shoulder appear normal bilaterally.  No 
 
         soft tissue nor upper lung abnormality was seen.  The impression 
 
         was normal bilateral A/C joints (ex. 2, p. 5; ex. A, p. 50).  
 
         A.D. Hebere, D.O., released claimant to return to light duty 
 
         until released by orthopedic Associates (ex. A, p. 52; tr. p. 
 
         102).
 
         
 
              Claimant was.off work for four to five days.  There was no 
 
         explanation for why he did not return to work light duty.  
 
         Claimant then obtained a release from John. L. Beattie, M.D., at 
 
         Perry, that said that he may return to work on Monday, September 
 
         2, 1985 (ex. A, p. 43).  Claimant explained that the orthopedic 
 
         doctor in Des Moines did not want him on any duty of any kind, but 
 
         claimant, nevertheless, obtained the slip from Dr. Beattie to 
 
         satisfy a supervisor at Woodward who required a return to work 
 
         slip before claimant would be allowed either to resign, take 
 
         emergency leave, or obtain a transfer back to the Cherokee Mental 
 
         Health Institute. Claimant and his wife did not like the work at 
 
         Woodward.  The institution was under a state of emergency which 
 
                                                
 
                                                         
 
         was caused by a threat of the federal government to withdraw funds 
 
         unless the institution corrected certain abuses.  Claimant's wife 
 
         owned a house at Cherokee which they could not sell and they had 
 
         difficulty making house payments at Cherokee and paying rent at 
 
         Perry.  It was September and claimant's wife wanted to enroll her 
 
         children in school at Cherokee (tr. pp. 75-77, 102; ex. B, pp. 
 
         7-11).  Claimant admitted that employer did not ask him to leave 
 
         Woodward and he was not fired.  Claimant requested a transfer back 
 
         to Cherokee, but.it was denied (tr. pp. 97-102).
 
         
 
              Claimant saw Dr. Garner back in Cherokee on October 1, 1985 
 
         with the permission of Dick Andrews, the workers' compensation 
 
         representative for the State of Iowa.  Dr. Garner referred 
 
         claimant to Dr. Mumford, the orthopedic surgeon in Sioux City, on 
 
         October 22, 1985.  Dr. Mumford diagnosed that the left shoulder 
 
         was dislocated and told claimant that he wanted him to wear a 
 
         sling as a conservative measure to see if the injury would mend 
 
         without surgery.  If it did not, then he would resect the outer 
 
         border of the clavicle and reconstruct the conoid and trapezoid 
 
         ligaments (tr. pp. 77-80; ex. 8; ex. 9; ex. A, pp. 1 & 6-11).
 
         
 
              Claimant said that the pain got worse, he had a build up of 
 
         fluid and Dr. Mumford admitted him to the hospital and performed 
 
         surgery on the left shoulder on November 11, 1985.  Claimant 
 
         declared that he did not get a good result from this surgery.  A 
 
         second surgery was performed on January 24, 1986 (tr. pp. 80 & 
 
         81).  At the time of the second surgery, Dr. Mumford put two pins 
 
         in his left shoulder and took them out again in March of 1986.  
 
         Claimant testified that he is left handed.  Claimant demonstrated 
 
         in the court room that he can only lift to his waist with his 
 
         left arm.  He demonstrated that his left arm cracks when he moves 
 
         it in rotation.  He showed that he can lift his left arm up to a 
 
         90-degree angle with his body, about chest high, but he cannot 
 
 
 
                         
 
                                                         
 
         lift it higher than that.  If he tries to go higher, it goes out 
 
         of place. Claimant felt that he cannot lift more than 15 pounds.  
 
         He said that he cannot use his left hand repetitively.  A couple 
 
         of months of physical therapy did not improve his condition (tr. 
 
         pp. 84-88).
 
         
 
              The medical records show that claimant was admitted to St. 
 
         Luke's Regional Medical Center on November 11, 1986, for a grade 
 
         II A-C separation with traumatic arthritis.  He underwent a 
 
         resection of the outer border of the clavicle and excision of 
 
         degenerative meniscal material.  The final diagnosis was 
 
         traumatic arthritis of the acromioclavicular joint.  Claimant was 
 
         discharged on November 13, 1985 (ex. A, pp. 12 & 15).  A small 
 
         incision was made across the acromioclavicular joint paralleling 
 
         the clavicle. The grumous-torn cartilaginous material and 
 
         meniscus were excised (ex. 9, P. 5; ex. A, p. 13).
 
         
 
              Dr. Mumford readmitted claimant on January 24, 1986, 
 
         because: (1) claimant was still having clicking in his left 
 
         shoulder; (2) claimant continued to have pain in his left 
 
         shoulder; (3) the shoulder was becoming increasingly unstable; 
 
         and (4) Dr. Mumford described it as a delayed reconstruction 
 
         using the coraco-acromial ligament and internal fixation.  
 
         Claimant was discharged on January 26, 1986 (ex. 9, p. 6; ex. A, 
 
         p. 18).  The old incision was opened up and enlarged.  Two pins 
 
         were placed through the acromial process reducing the clavicle 
 
         (ex. A, p. 19).  The pins were removed on March 31, 1986 (ex. A, 
 
         p. 3).  On May 9, 1986, Dr. Mumford said claimant still had a 
 
         click in his shoulder, but it was causing him no pain.  Claimant 
 
         had essentially full mobility. Claimant was released to return to 
 
         work except for heavy overhead work (ex. 10; ex. A, p. 25).  Dr. 
 
         Mumford's office notes on April 16, 1986, disclose the same 
 
         information and that he intended to release him to return to work 
 
         at that time (ex. A, p. 3).
 
         
 
              On or about June 17, 1989, claimant wrote a letter to Dr. 
 
         Mumford disputing and protesting the doctors report of May 9, 
 
         1986.  Claimant's handwritten letter to Dr. Mumford declared that 
 
         he still does have pain, takes pain pills, his left shoulder 
 
         still pops and clicks when his arm is elevated, he is limited on 
 
         how much weight he can lift, his range of motion is limited, he 
 
         has to sleep on his right side to avoid pain in his left 
 
         shoulder, his shoulder throbs if he tries to use it, and he has 
 
         blackheads and pimples near the incision scar (ex. 11, ex. A, p. 
 
         26).
 
         
 
              On July 15, 1986, Dr. Mumford offered to see claimant again 
 
         for another evaluation (ex. 12; ex. A, p. 27).  Defendant 
 
         requested an evaluation from Dr. Mumford on September 16, 1986. 
 
         Claimant was reevaluated on December 22, 1986 and Dr. Mumford 
 
         reported on December 30, 1986 that claimant had some impairment, 
 
         but he wanted an EMG before he rated it.  X-rays showed that the 
 
         acromioclavicular area was stable and an arthrogram was negative 
 
         (ex. A, p. 30).  On January 5, 1987, Dr. Mumford reported that 
 
         the EMG showed no evidence of nerve damage to the rotator cuff 
 
                                                
 
                                                         
 
         area. Dr. Mumford concluded as follows:
 
         
 
              In summary this man still complains of a click and weakness 
 
              in his shoulder.  He does have slight laxity of the 
 
              acromio-clavicular [sic] joint post resection and repair.  
 
              However, there is no clinical evidence or arthrogram 
 
              evidence of rotator cuff tear or EMG evidence of rotator 
 
              cuff neuropathy or damage to the nerves going to the rotator 
 
              cuff or shoulder muscles.  For this reason I must conclude 
 
              the resident's discomfort still comes from slight laxity of 
 
              the acromioclavicular joint and residual weakness.
 
         
 
              It would be my opinion that he would have a disability of 
 
              about 15% of the upper extremity.
 
         
 
         (ex. 13; ex. A, p. 31)
 
         
 
              Dr. Garner saw claimant on April 17, 1986 and made a report 
 
         on April 18, 1986.  In this report he mentioned the Memorial Day 
 
         1985 injury, but failed to mention the August 27, 1985 injury 
 
         (ex. 5; ex. A, p. 33).  When Dr. Garner attempted to correct this 
 
         omission, he injected yet another erroneous injury date of 
 
         January 1985.  The so-called correction letter, however, did 
 
         state that claimant injured his shoulder in August of 1985 and 
 
         that this required two surgeries by Dr. Mumford (ex. 3; ex. A, p. 
 
         41).
 
         
 
              On April 18, 1986, Dr. Garner said that claimant had reached 
 
         the end of his healing period because he did not anticipate that 
 
         his shoulder would improve any in the future.  Dr. Garner's 
 
         impairment rating and the reasons for it are stated as follows:
 
         
 
              ...He still has a marked click at the end of the clavicle 
 
              with a circular rotation of the humerus.  He has some 
 
              limitation forward elevation of the humerus and 40- 
 
              reduction in abduction.  He is unable to get his elbow up to 
 
              the level of his shoulder.  His limitation in lifting by 
 
              flexion of the biceps is approximately 10 to 15 lbs.  It is 
 
              only with great difficulty that he can place his hand behind 
 
              his head with winging of his arm.
 
         
 
              In as much as part of the clavicle, and his trunk were 
 
              involved in the surgery this disability would be of the body 
 
              as a whole.  I would rate this at 35%...
 
         
 
         (ex. 5, ex. A, p. 33)
 
         
 
              Claimant was examined and evaluated by A.J. Wolbrink, M.D., 
 
         on March 27, 1987.  Dr. Wolbrink reported on March 30, 1987:
 
         
 
              It is my opinion that Mr. Resene had a severe AC separation 
 
              of the left shoulder.  This was probably a grade III or 
 
              grade IV injury.  This has been treated with subsequent 
 
              surgical excision of the clavicle and reconstruction of the 
 
              coracoclavicular ligament.  He has residual problems which 
 
                                                
 
                                                         
 
                   appear to be predominantly due to a rotator cuff tendinitis 
 
              and weakness of the deltoid muscle.  There is probably scar 
 
              formation causing the tendinitis.  I don't think any 
 
              additional surgical treatment would be of significant 
 
              benefit.  He may see a little improvement with well 
 
              supervised, prolonged physical therapy program for the left 
 
              shoulder.
 
         
 
              In my opinion Mr. Resene has a permanent impairment of 29 
 
              percent of the left upper extremity due to the limited 
 
              motion.  This is based on the "Guides to Evaluation of 
 
              Permanent Impairment," American Medical Association, 2nd 
 
              Edition.  He may see a little improvement with physical 
 
              therapy program but probably not significantly change the 
 
              permanent impairment rating.
 
         
 
         (ex. 16; ex. A, p. 45)
 
         
 
              Claimant was evaluated by Iowa Central Community College on 
 
         June 25, 1987 and June Hageness, M.S., reported on July 6, 1987. 
 
         Several tests were administered.  Claimant demonstrated an 
 
         aptitude for a large number of occupational groups.  He 
 
         demonstrated an ability for a four year college program.  Ms. 
 
         Hageness made three recommendations:  (1) consider a two to four 
 
         year college training program in drafting, accounting or business 
 
         administration; (2) consider jobs as a dispatcher, driver's 
 
         license examiner, reservations agent and production coordinator; 
 
         and (3) perform library research on other possible career choices 
 
         (ex. 18).
 
         
 
              Claimant was also evaluated by Jo Weeces, M.Ed., a 
 
         vocational rehabilitation counselor on January 24, 1987.  She 
 
         found that claimant's lifting restrictions and restrictions of no 
 
         overhead work foreclosed him from doing all of his past 
 
         occupations of psychiatric aide, carpenter, military policeman 
 
         and body and fender work.  She stated that retraining would be 
 
         required.  She thought retraining was feasible because claimant 
 
         had C grades in high school and was in the top one-half of his 
 
         graduating class.  Ms. Weeces suggested a large number of career 
 
         fields that were appropriate for claimant (ex. 19).
 
         
 
              Larry Johnson testified at the hearing that he has been a 
 
         rehabilitation counselor for the State of Iowa for 21 years.  He 
 
         opened a case on claimant on January 9, 1987.  Johnson determined 
 
         that claimant had a disability to his left shoulder and arm and 
 
         was qualified for his services.  The medical reports indicated a 
 
         weight restriction, a motion restriction and a continuous use 
 
         restriction.  Johnson testified that he authorized tuition to 
 
         attend Buena Vista College so that claimant could be trained for 
 
         work within his handicap.  He also assisted claimant in obtaining 
 
         a Pell grant and other financial aid.  Johnson expressed that 
 
         claimant had excellent motivation and tried to secure many 
 
         employment situations.  Johnson said that claimant's self-esteem 
 
         and self-worth have been shot due to this complete rejection from 
 
         reentering employment of any kind.  Johnson testified that the 
 
                                                
 
                                                         
 
         Cherokee Mental Health Institute would not rehire claimant due to 
 
         his shoulder impairment (tr. pp.,49-53).
 
         
 
              Johnson also wrote a letter on September 23, 1987, which 
 
         stated that claimant dropped out of college due to financial 
 
         reasons, but that he was assisting claimant in trying to find 
 
         some on-the-job training (ex. 20).
 
         
 
              Claimant testified that he has applied for possibly 100 
 
         jobs. Some rejection letters were included in the exhibits.  One 
 
         letter of rejection was from the Cherokee Mental Health Institute 
 
         dated March 4, 1988, which rejected claimant for a job as a 
 
         custodial worker (exs. 23 & 24).
 
         
 
              Richard C. Andrews, workers' compensation coordinator for 
 
         the State of Iowa, pointed out to claimant's attorney that 
 
         claimant was released to return to work by Dr. Mumford on April 
 
         17, 1986, but that as of December 8, 1986, some 32 weeks later, 
 
         he had not received a permanent impairment rating.  He terminated 
 
         benefits 30 days from the date of his letter.  Andrews requested 
 
         a permanent impairment rating in order to determine if claimant 
 
         had been overpaid permanent disability benefits after April 17, 
 
         1986 (exs. 25 & 26).  Andrews then paid claimant a total of 37.5 
 
         weeks of permanent partial disability benefits for a 15 percent 
 
         impairment of the upper extremity as a scheduled member injury 
 
         (ex. 27).
 
         
 
              Exhibit 30 is a schematic diagram of a left shoulder that 
 
         shows:  (1) that the conoid ligament and the trapezoid ligament 
 
         are located between the coracoid of the scapula and the clavicle; 
 
         (2) that the coraco-acromial process lies between the coracoid 
 
         and the acromion process of the scapula; and (3) the 
 
         acromioclavicular area is between the acromion of the scapula and 
 
 
 
                         
 
                                                         
 
         the clavicle.
 
         
 
              Exhibit 31 is an additional prescription for two of the 
 
         medications by Dr. Garner.  The bill totals $32.75.
 
         
 
              Exhibit 32 is a photograph of claimant which illustrates the 
 
         large and long incision scar on the anterior and superior portion 
 
         of his left shoulder.  At the hearing, claimant marked the 
 
         beginning and ending of the scar with a pen on the photograph 
 
         (tr. P. 107).
 
         
 
              Claimant testified that he went to Buena Vista College in 
 
         Storm Lake in February, March and April of 1987, but quit because 
 
         he could not afford it.  He did not obtain any credit for his 
 
         attendance because he only went to midterm.  Claimant declared 
 
         that he would go to college if he had the money to do it, but 
 
         actually he preferred on-the-job training to college (tr. pp. 89 
 
         & 90).
 
         
 
              Claimant testified that Andrews never transferred his care 
 
         from Dr. Garner after he initially authorized it (tr. p. 96).  
 
         Dr. Garner verified by letter dated October 15, 1987, that he is 
 
         continuing to treat claimant for pain in his left shoulder and 
 
         that he did not anticipate that his shoulder will ever get any 
 
         better (ex. 17).
 
         
 
              Claimant verified that exhibit 28 was the medication expense 
 
         prescribed by Dr. Garner for his shoulder injury for pain, but he 
 
         still suffers.  Also, the pain affects his ability to sleep (tr. 
 
         p. 91).  Claimant averred that he tried to work in September of 
 
         1985 for two different construction companies.  One job lasted 
 
         one week and the other one lasted three days.  Claimant stated 
 
         that he could not perform the work (tr. pp. 92, 93, 104 & 105).
 
         
 
              Claimant admitted that he lied to get the job at IBP because 
 
         he was broke, could not get a job and had several living expenses 
 
         to pay (tr. p. 93).  After a few weeks, claimant told them that 
 
         he could not do the job and quit (tr. pp. 105-107).
 
         
 
              Claimant testified that he made over 100 job applications 
 
         all over northwest Iowa (tr. p. 94).  Claimant wrote a letter to 
 
         defendant's counsel asking for help in finding a state job, but 
 
         was told that the attorney had nothing to do with hiring and 
 
         firing (tr. pp. 95 & 96).  Claimant acknowledged that he applied 
 
         for work at Wilson's in September of 1985 because he thought he 
 
         could handle the job at that time and because he needed the money 
 
         (tr. pp. 103 & 104).  Claimant admitted.that he did not tell Dr. 
 
         Garner's physician's assistant, at the time of the preemployment 
 
         physical examination for Wilson's in September of 1985, that he 
 
         had sustained an injury to his shoulder on August 27, 1985 (tr. 
 
         pp. 103 & 104).  Claimant testified that between his release to 
 
         return to work on April 18, 1986, and his attendance at Buena 
 
         Vista College in February of 1987, that he worked for his father 
 
         driving a tractor, driving a pickup truck, running the elevator 
 
         and painting with his right hand (tr. p. 105).  Claimant said 
 
                                                
 
                                                         
 
         that he currently experiences pain in his neck, shoulder, arm, 
 
         back and chest most of the time everyday (tr. p. 109).  Claimant 
 
         testified that he believed that being an injured worker with a 
 
         workers' compensation claim makes it impossible to find work at 
 
         the present time.  Even the state thought that he was too 
 
         handicapped for a housekeeping job.  Claimant contacted Dick 
 
         Andrews for work a couple of times.  Andrews mentioned a couple 
 
         of jobs, but was unable to provide them (tr. pp. 111-112).
 
         
 
              Defendant introduced no witnesses.  Neither party introduced 
 
         any depositions from Dr. Mumford, Dr. Garner or Dr. Wolbrink.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 27, 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).
 
         
 
              While.a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
                                                
 
                                                         
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury of August 27, 1985 was the cause 
 
         of both temporary and permanent disability.  Defendant contended 
 
         that claimant did not prove causal connection between the injury 
 
         of August 27, 1985 and claimant's disability.  Defendant's first 
 
         contention is that claimant sustained prior injuries on March 30, 
 
         1985 and on Memorial Day 1985.  Defendant's second contention is 
 
         that none of the medical practitioners, Dr. Mumford, Dr. Garner 
 
         or Dr. Wolbrink, specifically stated that the injury of August 
 
         27, 1985 was the cause of claimant's impairment which they found 
 
         and awarded a rating.
 
         
 
              As to the first contention, the injury of March 30, 1985, 
 
         was inconsequential.  This was the fall from the motorcycle.  
 
         Claimant was treated at the emergency room and released.  The 
 
         injury was diagnosed as a bruise (ex. 6, p. 2; ex. A, p. 42).  
 
         X-rays demonstrated no fractures or dislocations (ex. 7).  
 
         Claimant took two aspirins.  Claimant lost no time from work and 
 
         never saw a doctor again for this injury (tr. pp. 60 & 61).  This 
 
         injury was not the cause of either temporary or permanent 
 
         disability.
 
         
 
              As to the injury on Memorial Day 1985, Dr. Garner, in his 
 
         letter of April 18, 1986, indicated that this injury was the 
 
         cause of claimant's impairment (ex. 5; ex. A, p. 33).  When he 
 
         attempted to correct this injury date in his undated letter, he 
 
         said it was the injury of January 1985.  At the hearing Dr. 
 
         Garner said January 1985 was an error.  Dr. Garner's office 
 
         notes, his medical report letters and his testimony at the 
 
         hearing are difficult to reconcile.  One cannot tell what date he 
 
         meant to say was the injury date which caused the disability that 
 
         he rated.  There is no other evidence of any injury in January 
 
         1985.
 
         
 
              Dr. Garner was apparently unaware of the fall off of the 
 
         motorcycle on March 30, 1985, because he never mentioned it and 
 
         it does not appear in any of his records.  Dr. Garner did know 
 
         about the Memorial Day 1985 injury at Cherokee and the August 27, 
 
         1985 injury at Woodward, because they are mentioned in his 
 
         records and he treated claimant for both of these injuries.  In 
 
         either event, defendant would be liable for the impairment and 
 
         resulting disability because claimant worked for the State of 
 
         Iowa at both times and both were work related injuries.  Claimant 
 
         filed the original notice and petition on November 20, 1985 with 
 
                                                
 
                                                         
 
         an unspecified injury date.  The injury date of August 27, 1985 
 
         was not designated or adopted until the day of the hearing.  
 
         Defendant was aware of both injuries and had possession of all of 
 
         the medical data available concerning both injuries.  Defendant 
 
         could interrogate claimant or investigate elsewhere about both of 
 
         these injuries.  Defendant did not claim surprise or prejudice.  
 
         The original notice and petition and discovery exchanges apprised 
 
         defendant of both possible injuries and provided defendant an 
 
         opportunity to defend against both possible injuries.  Claimant's 
 
         petition was timely filed as to either injury.  Claimant gave 
 
         notice and defendant had actual notice of both injuries.  
 
         Therefore, it is immaterial which injury caused claimant's 
 
         impairment and disability because the State of Iowa is liable for 
 
         either one.  Workers' compensation practice does not require 
 
         technical forms of pleading.  Alm vs.  Morris Barick Cattle Co., 
 
         240 Iowa 1174, 1177, 38 N.W.2d 161, 163 (1949); Yeager vs.  
 
         Firestone Tire and Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
         (1944).  From the evidence presented at the hearing, it is 
 
         evident that employer was informed of the basic facts upon which 
 
         claimant relied and had an opportunity to prepare and defend.  
 
         Hoenig vs. Mason and Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 
 
         1968). If the alternative would be accepted for purposes of 
 
         argument that claimant's impairment was due to the Memorial Day 
 
         1985 injury, defendant would still be liable for that injury.
 
         
 
              Therefore, neither the injury of March 30, 1985 nor the 
 
         Memorial Day 1985 injury provide defendant with a viable defense 
 
         based on causal connection between the injury and the disability. 
 
         The weight of the evidence however, supports the conclusion that 
 
         the injury of August 27, 1985 was the cause of claimant's 
 
         impairment because prior to March 30, 1985, claimant had no 
 
         shoulder problems at all.  On March 30, 1985, he only received a 
 
         bruise, x-rays disclosed no separations or fractures, claimant 
 
 
 
                       
 
                                                         
 
         was treated once in the emergency room and released.  He took two 
 
         aspirin, no other medications were prescribed, lost no time from 
 
         work and received no further treatment for this injury.  Based on 
 
         claimant's testimony, his wife's testimony and the exhibits 
 
         introduced into evidence, this injury was not the cause of any 
 
         temporary or permanent impairment or disability.
 
         
 
              As to the Memorial Day 1985 injury, claimant did not 
 
         immediately see a doctor and did not have any severe complaints. 
 
         Three weeks later he saw Dr. Garner, on June 22, 1985, and was 
 
         returned to work three days later on June 25, 1985.  Dr. Wheeler 
 
         told Dr. Garner that this was a well positioned fracture and 
 
         recommended only a sling for three to four weeks (tr. pp. 41 & 
 
         42, 61-67; ex. 3, p. 2; ex. A, p. 34; ex. 4).  There was no 
 
         evidence that claimant had any problem with his left shoulder 
 
         after he returned to work on June 25, 1985.
 
         
 
              Claimant testified that he had a physical examination at 
 
         Woodward before he started work on July 1, 1985.  Claimant worked 
 
         on the same ward with his wife and Miller.  Both claimant's wife 
 
         and Miller testified that the job required physical strength and 
 
         agility to restrain patients on a regular basis and claimant was 
 
         able to fully perform his job as a resident treatment worker.  
 
         Dr. Mumford, claimant's treating orthopedic surgeon, proceeded to 
 
         treat claimant.and performed three surgeries on the basis of the 
 
         history that the injury occurred on August 27, 1985 (ex. 8, p. 2; 
 
         ex. 9, p. 4; ex. A, pp. 15 & 20; ex. 12, p. 8).
 
         
 
              Claimant testified that the severe injury was the attack by 
 
         the resident at Woodward on August 27, 1985.  Claimant testified 
 
         that he heard a tear and a snap when he was injured by the 
 
         resident.  Miller testified that he heard a snap in claimant's 
 
         shoulder at the time of the injury.  Except for Dr. Garner's 
 
         confusion about injury dates, all of the other evidence indicates 
 
         that the injury of August 27, 1985, was the cause of claimant's 
 
         impairment and disability.  Although Dr. Garner's office notes, 
 
         medical report letters and testimony at the hearing are 
 
         inclusive, they could be interpreted to mean that Dr. Garner 
 
         meant to say that the disability he assessed was due to the 
 
         injury of August 27, 1985.  Dr. Garner's notes have two entries 
 
         for the Memorial Day 1985 injury, which spans a three day period 
 
         from June 22 until June 25, 1985.  By comparison, he has 33 
 
         entries about the August 27, 1985 injury which spans a period of 
 
         approximately, two years, from October 1, 1985 until October 3, 
 
         1986 (ex. 3, pp. 2-8; ex. A, pp. 35-40).
 
         
 
              Simply as a practical matter, all of claimant's major left 
 
         shoulder problems began after the injury of August 27, 1985 and 
 
         after he saw Dr. Garner on October 1, 1985.  There is no evidence 
 
         of any other injury that might have caused impairment other than 
 
         the motorcycle fall on March 30, 1985 and the Memorial Day 1985 
 
         injury at work and these two propositions have already been 
 
         disposed of.  Reference to an injury in July 1985 on the 
 
         physician's assistant's physical examination does not reappear 
 
         any place else in the record and therefore, may be a scrivener's 
 
                                                
 
                                                         
 
         error or simply a misunderstanding that is otherwise unexplained. 
 
         Therefore, it is determined that the injury of August 27, 1985, 
 
         when the violent resident at Woodward twisted claimant's left arm 
 
         up and backwards behind his shoulder, until claimant heard it 
 
         tear and pop and which Miller heard pop, is the cause of both 
 
         temporary and permanent disability to claimant.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         November 11, 1985, when he entered the hospital for the first of 
 
         three surgeries, until he was released to return to work by Dr. 
 
         Garner on April 18, 1986 (ex. 5; ex. A, p. 33).  Dr. Mumford also 
 
         indicated on April 16, 1986, in his office notes that he intended 
 
         to return claimant to work, but did not make a formal report of 
 
         his decision until May 9, 1986 (ex. 10; ex. A, p. 25).  Dr. 
 
         Garner actually made the clearest statement of the return to work 
 
         date as of April 18, 1986.
 
         
 
              Claimant is not entitled to healing period benefits from 
 
         August 27, 1985 to November 11, 1985.  Dr. Hebere, at the 
 
         emergency room at Mercy Hospital in Des Moines, did not actually 
 
         take claimant off work, but rather recommended light duty (ex. A, 
 
         p. 5).  Furthermore, claimant himself obtained a full release 
 
         from Dr. Beattie on September 2, 1985 (ex. A, p. 43).  Therefore, 
 
         it cannot be established by any medical evidence that claimant 
 
         was taken off work by a medical practitioner until November 11, 
 
         1985. Also, there is evidence that claimant, his wife and family 
 
         were engaged in activities in preparation for the move from Perry 
 
         back to Cherokee.
 
         
 
              It is determined that claimant received an injury to the body 
 
         as a whole, rather than a scheduled member injury.  Therefore, 
 
         claimant is entitled to industrial disability benefits rather than 
 
         scheduled member disability benefits.  Claimant's injury clearly 
 
         was at all times described as being to the shoulder.  Dr. Garner 
 
         and Dr. Mumford both treated a left shoulder injury.  They talked 
 
         in terms of a shoulder injury.  They did not talk in terms of an 
 
         arm injury.  The wide and lengthy surgical scar is on the top and 
 
         front of claimant's left shoulder.  It is not on his arm.  
 
         Claimant described his pain as being in his shoulder, neck, back 
 
         and chest rather than in his arm.  Claimant's worst impairment is 
 
         that he cannot lift his arm, in particular the left elbow, above 
 
         the height of his chest.  Dr. Mumford restricted claimant from 
 
         performing heavy overhead work.  Lifting of the arm above chest 
 
         level is a function of the entire shoulder and not just the arm.  
 
         The residual of the persistent click which claimant experiences is 
 
         in his shoulder.  This click persists after three surgeries.  It 
 
         is the left shoulder that dislocates if claimant doesn't hold it 
 
         with his right hand if he attempts to lift his left arm above 
 
         chest level.
 
         
 
              Mercy Hospital in Des Moines diagnosed a possible shoulder 
 
         dislocation.  The emergency room x-rays photographed the left 
 
         shoulder and the acromioclavicular joints.  Dr. Garner talked of 
 
         the shoulder, not the arm.  Dr. Garner assessed an impairment of 
 
         the shoulder as an injury to the body as a whole.
 
                                                
 
                                                         
 
         
 
              Dr. Mumford said x-rays showed a grade II acromioclavicular 
 
         separation on October 22, 1985.  The acromioclavicular area is 
 
         beyond the shoulder joint and into the body as a whole.  Dr. 
 
         Mumford resected the distal clavicle which is beyond the arm and 
 
         well into the body as a whole.
 
         
 
              Dr. Wolbrink diagnosed a severe separation of the left 
 
         shoulder.  Dr. Wolbrink said his x-ray of the shoulder showed an 
 
         excision of the distal one centimeter of the clavicle with good 
 
         anatomic relationship between the clavicle, acromion and the 
 
         coracoid process.  These are all parts of the body beyond the arm 
 
         and into the body as a whole.  The glenohumeral joint, which is 
 
         the borderline between the arm and the body as a whole, showed no 
 
         abnormality.
 
         
 
              The fact the Dr. Mumford and Dr. Wolbrink rated claimant's 
 
         injury in terms of the left upper extremity does not mean that 
 
         the injury is to the arm as mentioned in Iowa Code section 
 
         85.34(2)(m).  The left upper extremity contains both arm parts 
 
         and body as a whole parts.  Doctors, especially orthopedic 
 
         surgeons, commonly and typically rate shoulder injuries in terms 
 
         of the upper extremity.  Upper extremity measurements are then 
 
         converted to body as a whole percentages.
 
         
 
              Claimant's impairment is his inability to do heavy work 
 
         above shoulder level and his loss of range of motion.  These are 
 
         functions of the entire shoulder and not just the arm alone.  The 
 
         injury is manifested by the use of the arm, but the actual 
 
         injury, impairment, disability and derangement, is in the 
 
         shoulder, and more particularly in the parts of the shoulder that 
 
         are part of the body as a whole--more specifically the conoid and 
 
         trapezoid ligaments and the acromioclavicular joint.  The 
 
         shoulder joint is clearly not included in the arm schedule 
 
         mentioned in Iowa Code section 85.34(2)(m).  Shoulder injuries 
 
         are generally considered to be injuries to the body as a whole.  
 
         Alm, 240 Iowa 1174, 38 N.W.2d 161; Nazarenus v. Oscar Mayer & 
 
         Co., II Iowa Industrial Commissioner Report 281 (1982); Godwin 
 
         vs. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 
 
         (1981); Lauhoff Grain vs. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
         Therefore, it is determined that claimant's injury is to the body 
 
         as a whole and claimant is entitled to industrial disability 
 
         benefits.
 
         
 
              On January 5, 1987, Dr. Mumford, the treating orthopedic 
 
         surgeon who performed all three surgeries on claimant's left 
 
         shoulder, awarded a 15 percent "disability" of the upper 
 
         extremity.  Physicians are supposed to determine impairment and 
 
         the industrial commissioner is supposed to determine disability. 
 
         Dr. Mumford possibly intended to say impairment.  If so, a 15 
 
         percent impairment to the upper extremity converts to 9 percent 
 
         of the body as a whole using Guides to the Evaluation of 
 
         Permanent Impairment, second edition, published by the American 
 
         Medical Association, table 20 on page 23.  However, Dr. Mumford 
 
         did not say whether he used the AMA Guides, the Orthopedic 
 
                                                
 
                                                         
 
         Surgeon's Guides, some other guides or no guides at all.  
 
         Apparently it is simply his personal judgement without the 
 
         benefit of any guides. He found that claimant had some slight 
 
         laxity of the acromioclavicular joint post resection and repair 
 
         (ex. 13, p. 2; ex. A, p. 31).  Earlier, on May 9, 1986, Dr. 
 
         Mumford acknowledged that claimant still had a clicking sound in 
 
         his shoulder after three surgeries and returned claimant to work 
 
         except for heavy overhead work.  In that letter Dr. Mumford said 
 
         that claimant had full mobility and no pain (ex. 10; ex. A, p. 
 
         23).
 
         
 
              Claimant then wrote a very clear letter to Dr. Mumford in 
 
         his own handwriting which alleged that Dr. Mumford was mistaken. 
 
         Claimant recited a litany of complaints:  (1) he described pain 
 
         whenever he used his left hand; (2) he said his left shoulder 
 
         pops and clicks when his hand is raised to a certain height and 
 
         also causes pain; (3) the range of motion in his left arm was no 
 
         where near what it was before the accident; (4) his weight 
 
         lifting is limited with his left hand; (5) he was unable to lay 
 
         on his left side on account of the pain; (6) the area of the 
 
         surgical scar had blackheads and pimples; (7) at times the 
 
         shoulder throbs when he uses it; and (8) he is still taking pain 
 
         pills prescribed by Dr. Garner (ex. 11).  Dr. Mumford did not 
 
         address most of these complaints in his letter of January 5, 
 
         1987.
 
         
 
              On March 30, 1987, Dr. Wolbrink, an evaluating orthopedic 
 
         surgeon, assessed that claimant sustained a 29 percent permanent 
 
         impairment of the left upper extremity based upon the AMA Guides 
 
         to the Evaluation to Permanent Impairment, second edition.  This 
 
         converts to 17 percent impairment of the whole person (AMA 
 
         Guides table 20, page 23).  Dr. Wolbrink diagnosed a severe 
 
         acromioclavicular separation amounting to a grade III or grade IV 
 
 
 
                       
 
                                                         
 
         injury which resulted in an excision of the clavicle and the 
 
         coracoclavicular ligament leaving claimant with residual rotator 
 
         cuff tendonitis and weakness of the deltoid muscle.  He said 
 
         there is probably scar formation causing the tendonitis.  Dr. 
 
         Wolbrink also found atrophy, reduced range of motion and weakness 
 
         in the left shoulder of 50 percent when compared to the right 
 
         shoulder (ex. 16; ex. A, p. 44).
 
         
 
              Dr. Garner, a general practitioner, assessed a 35 percent 
 
         impairment of the body as whole.  He noted the click at the end 
 
         of the clavicle with circular rotation of the humerus.  He said 
 
         claimant had reduced range of motion and was unable to get his 
 
         elbow above the level of his shoulder.  His limitation in lifting 
 
         by flexion of the biceps is approximately 10 to 15 pounds (ex. 5; 
 
         ex. A, p. 33).
 
         
 
              Dr. Wolbrink's and Dr. Garner's reports are the most 
 
         explanative and appear to be the most realistic and reliable. 
 
         Rockwell Graphics Systems, Inc. vs.  Prince, 366 N.W.2d 187 
 
         (Iowa 1985).
 
         
 
              Since claimant, his wife and Miller testified that claimant 
 
         performed strenuous work which required agility daily at 
 
         Woodward, from July 1, 1985 to August 27, 1985 without any 
 
         difficulty, it then appears that this disability is a result of 
 
         the injury that occurred on August 27, 1985 inspite of Dr. 
 
         Garner's mistakes in naming injury dates.  The substance of the 
 
         above evaluations is that claimant has sustained a serious left 
 
         shoulder injury that still causes pain, has reduced his ability 
 
         to lift weight with his left hand, and has foreclosed his ability 
 
         to work with his left hand overhead.  These limitations foreclose 
 
         claimant from performing all of his prior employments of military 
 
         policeman, carpenter or construction worker, packing house 
 
         employee and body and fender repairman.  It would also preclude 
 
         some activities and movements in the farm work that he performed 
 
         for his father after he was released to return to work and before 
 
         he started school at Buena Vista College.  These limitations 
 
         would also preclude claimant from numerous other jobs in the 
 
         employment market. Michael vs. Harrison Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 218, 220 (appeal 
 
         decision January 30, 1979); Rohrberg vs. Griffin Pipe Products 
 
         Co., I Iowa Industrial Commissioner Report 282 (1981).
 
         
 
              Claimant was sufficiently motivated to attempt to perform 
 
         two construction jobs in September of 1985 with the agreement of 
 
         the employers that he would do them if he could.  One of the jobs 
 
         lasted one week and the other job lasted three days because 
 
         claimant was not able to do the work.  Claimant has demonstrated 
 
         the motivation to apply for 100 jobs, according to his testimony, 
 
         and he has not been able to find employment.  Claimant was 
 
         motivated to lie and conceal his surgical scar in order to obtain 
 
         a job at IBP in meat packing, but based on his testimony he was 
 
         forced to quit because he was unable to do the work.  Based upon 
 
         the medical descriptions of claimant's injury and the limitations 
 
         he suffers according to the doctors, his testimony that he was 
 
                                                
 
                                                         
 
         unable to perform these jobs is entirely credible.
 
         
 
              Claimant has cooperated fully with Johnson, the State of 
 
         Iowa vocational rehabilitation consultant.  Johnson said that 
 
         claimant was cooperative and motivated to work.  In addition to 
 
         claimant's job searches, Johnson has not been successful in 
 
         finding claimant a job.
 
         
 
              Claimant applied for a job with the Cherokee Mental Health 
 
         Institute doing custodial work.  The fact that he was turned down 
 
         by employer is evidence that employer considers his impairment 
 
         quite serious if they cannot accommodate claimant with a 
 
         custodial job.  Claimant testified that he requested Andrews to 
 
         find work for him, but Andrews was unable to do so.  Again, this 
 
         is some evidence of a significant impairment if the workers' 
 
         compensation representative for the State of Iowa cannot find any 
 
         work that claimant can do.
 
         
 
              Employer has not hired a private vocational rehabilitation 
 
         consultant to assist claimant in being placed in a job.  The 
 
         injury is more serious because it is to claimant's dominant left 
 
         upper extremity rather than the nondominant upper extremity. 
 
         Claimant testified that it has been his experience that it is 
 
         more difficult to find work when prospective employers discover 
 
         that he was previously injured on the job, had surgery and has 
 
         received workers' compensation benefits.
 
         
 
              Consideration must be given to the fact that claimant had no 
 
         shoulder complaints or degeneration to the shoulder prior to this 
 
         injury.  Consideration is given to the fact that claimant 
 
         suffered a traumatic, accidental type of injury on the job when 
 
         he was violently attacked by a profoundly retarded resident.  
 
         This is not a situation where a prior degenerative condition just 
 
         happened to become triggered or aggravated at work.
 
         
 
              Consideration is given to the fact that claimant had three 
 
         surgeries rather than one.  The first surgery was clearly not 
 
         successful.  The second and third surgeries were more successful, 
 
         but nevertheless, left claimant seriously impaired and foreclosed 
 
         from performing all of his former employments and many of the 
 
         other employments readily available in the competitive job 
 
         market.
 
         
 
              Claimant is 34 years old and should be approaching the peak 
 
         of his earning capacity.  This makes his loss more severe than it 
 
         would in the case of a younger or older employee.  Becke vs. 
 
         Turner-Busch, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 34 (Appeal Decision 1979); Walton vs. B & H Tank 
 
         Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy 
 
         vs. Donaldson Company, Inc., file numbers 752670 & 805300 (appeal 
 
         decision, April 28, 1989).  At age 34, claimant is young enough 
 
         to be retrained.  The feasibility of retraining is one of the 
 
         considerations involved in determining industrial disability. 
 
         Conrad vs. Marquette School Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).
 
                                                
 
                                                         
 
         
 
              Claimant does have the benefit of a high school education.  
 
         He was found to be academically promising by both Hageness and 
 
         Weeces, two vocational rehabilitation counselors, who said that 
 
         claimant tested out with a potential for additional education, 
 
         even a two to four year college course.  Claimant was sufficiently 
 
         motivated to attempt to obtain further education at Buena Vista 
 
         College in the months of February, March and April of 1987, when 
 
         he dropped out due to financial reasons.  The state vocational 
 
         rehabilitation consultant verified that claimant left college 
 
         because of financial restraints.  Claimant and Johnson both 
 
         testified to the fact that they are looking for employment which 
 
         provides on-the-job training for claimant at this time.
 
         
 
              Therefore, based upon all of the foregoing factors and all 
 
         of the factors taken into consideration in order to determine 
 
         industrial disability and applying agency expertise, technical 
 
         competence and specialized knowledge [Iowa Administrative 
 
         Procedure Act 17A.14(5)], it is determined that claimant has 
 
         sustained an industrial disability of 45 percent of the body as a 
 
         whole and is entitled to 225 weeks of permanent partial 
 
         disability benefits.
 
         
 
              Claimant is entitled to the unpaid medical expenses of Dr. 
 
         Garner, an authorized physician, as shown in exhibit 29 in the 
 
         amount of $533.75.
 
         
 
              Claimant is entitled to his medication expense which was 
 
         prescribed for this injury by Dr. Garner as shown in exhibit 28 
 
         in the total amount of $586.14.  Claimant is entitled to another 
 
         $32.75 for prescription drugs found at exhibit 31.  These are 
 
         medications which Dr. Garner said that he prescribed for 
 
         claimant.
 
         
 
              Both Dr. Garner and claimant testified that employer 
 
         authorized Dr. Garner to be a treating physician.  Neither one of 
 
         them was ever notified that the authorization was revoked or that 
 
         employer had transferred his care to another physician.  
 
         Defendant offered no explanation for why they paid some of 
 
         claimant's medical expenses with Dr. Garner and then stopped and 
 
         refused to pay others.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That the injury of August 27, 1985 was the cause of claimant 
 
         to be off work from November 11, 1985, at the time of his first 
 
         hospitalization for surgery, until he was released to return to 
 
         work by Dr. Garner on April 18, 1986.
 
         
 
              That Dr. Mumford, a treating orthopedic surgeon, determined 
 
         that claimant sustained a 15 percent impairment to the upper 
 
         extremity which converts to 9 percent of the body as a whole.
 
                                                
 
                                                         
 
         
 
              That Dr. Wolbrink, an evaluating orthopedic surgeon, 
 
         determined that claimant sustained a 29 percent permanent 
 
         impairment of the left upper extremity based upon the AMA Guides 
 
         and this translates to 17 percent of the body as a whole.
 
         
 
              That Dr. Garner, claimant's personal treating physician and 
 
         general practitioner, had determined that claimant sustained a 35 
 
         percent permanent impairment of the body as a whole.
 
         
 
              That claimant still has a click and pain in his left 
 
         shoulder, reduced range of motion, weakness, and cannot lift his 
 
         left arm above chest level.
 
         
 
              That claimant cannot lift heavy weights and cannot perform 
 
         heavy work, or any work for that matter, overhead with his left 
 
         arm.
 
         
 
              That claimant incurred $586.14 in medical expenses for 
 
         medications prescribed by Dr. Garner.  That claimant incurred an 
 
         additional $32.75 for a prescription medication that Dr. Garner 
 
         said he typically prescribed for claimant's injury.
 
         
 
              That claimant incurred $533.75 in unpaid medical doctor 
 
         bills with Dr. Garner who was an authorized physician by 
 
         employer.
 
         
 
              That claimant sustained an industrial disability of 45 
 
         percent of the body as a whole.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
                             
 
                                                         
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That the injury of August 27, 1985 was the cause of healing 
 
         period disability from November 11, 1985 to April 18, 1986.
 
         
 
              That claimant is entitled to 22.714 weeks of healing period 
 
         disability benefits for this time off work.
 
         
 
              That the injury of August 27, 1985, was the cause of 
 
         permanent impairment and disability.
 
         
 
              That claimant sustained an injury to the body as a whole 
 
         rather than a scheduled member injury.
 
         
 
              That claimant sustained an industrial disability of 45 
 
         percent of the body as a whole and is entitled to 225 weeks of 
 
         permanent partial disability benefits.
 
         
 
              Claimant is entitled to $586.14 in unpaid medication 
 
         expenses, an additional $32.75 for unpaid medication expense and 
 
         the balance due on Dr. Garner's bill in the amount of $533.75.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant twenty-two point seven one 
 
         four (22.714) weeks of healing period disability benefits at the 
 
         rate of one hundred ninety-one and 10/100 dollars ($191.10) per 
 
         week in the amount of four thousand three hundred forty and 
 
         65/100 dollars ($4,340.65) for the period from November 11, 1985 
 
         to April 18, 1986.
 
         
 
              That defendant pay claimant two hundred twenty-five (225) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred ninety-one and 10/100 dollars ($191.10) in the total 
 
         amount of forty-two thousand nine hundred ninety-seven and 50/100 
 
         dollars ($42,997.50) commencing on April 18, 1986.
 
         
 
              That defendant is entitled to a credit for sixty-one (61) 
 
         weeks of workers' compensation benefits paid prior to hearing at 
 
         the rate of one hundred ninety-one and 10/100 dollars ($191.10) 
 
         per week in the total amount of eleven thousand six hundred 
 
         fifty-seven and 10/100 dollars ($11,657.10).
 
         
 
              That all accrued 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 five hundred eighty-six and 14/100 dollars ($586.14) in 
 
         prescription expense, another thirty-two and 75/100 dollars 
 
         ($32.75) in prescription expense, and five hundred thirty-three 
 
                                                
 
                                                         
 
         and 75/100 dollars ($533.75) in doctor expense for Dr. Garner.
 
         
 
              That the costs of this action are assessed to defendant, 
 
         including the cost of the transcript, pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Claimant has attached a statement of costs to be taxed. 
 
         Defendant is to pay claimant eleven dollars ($11) for the service 
 
         of an original notice (an itemized statement is attached to the 
 
         request for expenses) pursuant to Division of Industrial Services 
 
         Rule 343-4.33(3).  Defendant is to pay claimant one hundred 
 
         sixty-nine and 78/100 dollars ($169.78) for the practitioners 
 
         report of Ms. Weeces pursuant to Division of Industrial Services 
 
         Rules 343-4.33(6).  The other itemized costs:  (1) copy of 
 
         claimant's deposition-twenty and 80/100 dollars ($20.80) and (2) 
 
         processing medical records at St. Luke's Regional Medical 
 
         Center-twenty-four and 25/100 dollars ($24.25) are disallowed 
 
         because they are not specifically enumerated in Division of 
 
         Industrial Services Rule 343-4.33, but rather are considered to 
 
         be trial preparation expenses which cannot be recovered by 
 
         claimant.  The independent medical examination of Dr. Wolbrink in 
 
         the amount of one hundred twenty-one dollars ($121) has already 
 
         been disallowed with reasons given therefore at the beginning of 
 
         the decision.
 
         
 
              That defendant file claim activity reports with this agency 
 
         pursuant to 343-3.1.
 
         
 
              Signed and filed this 26th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         606 Ontario St
 
         PO Box 188
 
         Storm Lake, IA  50588
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, IA  50319
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51401, 51402.40, 51402.60, 
 
                                            51403.10, 51403.20, 51802
 
                                            51803, 51803.1, 52501, 52502
 
                                            Filed May 26, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL D. RESENE,
 
         
 
              Claimant,
 
                                                      File No. 802699
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         WOODWARD STATE HOSPITAL SCHOOL
 
                                                       D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51401, 51402.40, 51402.60, 51403.10, 51403.20
 
         
 
              Claimant did prove that his injury was the cause of 
 
         temporary and permanent disability and the cause of his claimed 
 
         medical expenses.  Claimant received a severely dislocated 
 
         shoulder when a resident twisted his arm until his shoulder 
 
         popped.
 
         
 
         51802
 
         
 
              Claimant paid healing period from the date of 
 
         hospitalization for surgery until released to return to work.
 
         
 
         51803
 
         
 
              Claimant, male age 34, awarded 45 percent industrial 
 
         disability.  He was foreclosed from all prior employments. 
 
         Retraining will be necessary.  He cannot lift his dominant left 
 
         arm above shoulder level and cannot work overhead.
 
         
 
         51803.1
 
         
 
              Shoulder injury was to the body as a whole.  Detailed 
 
         analysis as to why the body as a whole given in the decision.
 
         
 
         52501, 52502
 
         
 
              The decision did not decide whether claimant was entitled to 
 
                                                
 
                                                         
 
         an Iowa Code section 85.39 examination because it was not raised 
 
         at the prehearing conference and was not designated as a hearing 
 
         issue on the hearing assignment order.  Also, it was not a cost 
 
         enumerated in Division of Industrial Services Rule 343-4.33.  It 
 
         was not care or treatment to qualify as a medical expense under 
 
         Iowa Code section 85.27.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN C. BRONNER,
 
         
 
              Claimant,                              File No. 802730
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         TOP OF IOWA,                                D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       FEB 20 1990
 
         NORTHWESTERN NATIONAL,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Alan C. 
 
         Bronner, claimant, against Top of Iowa Trailers, Inc., employer 
 
         (hereinafter referred to as Top of Iowa), and Northwestern 
 
         National Insurance Company, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on August 15, 1985.  On July 6, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony 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 August 15, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with Top of 
 
         Iowa.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits only from August 15, 1985 through May 15, 
 
         1987.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
                                                
 
                                                         
 
              4.  Claimant's rate of weekly compensation, in the event of 
 
         an  award of weekly benefits from this proceeding, shall be 
 
         $134.19.
 
         
 
              5.  With reference to the medical bills submitted by 
 
         claimant at hearing, the providers of services would testify that 
 
         the fees were fair and reasonable.
 
         
 
                                    ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                           STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              The claimant is 32-years-old.  Claimant is a high school 
 
         graduate and has no post-high school education.  His work history 
 
         is as follows:
 
         
 
              Upon graduation from high school in 1977 through 1980, he 
 
         worked for Lerdahl Construction operating backhoes, excavators 
 
         and caterpillars at $7.10 per hour.  From 1981 through 1983, Mr. 
 
         Bronner worked for Moen Drainage of Cresco, Iowa at $7.00 per 
 
         hour.  In June of 1984, Mr. Bronner began working for the 
 
         defendant, Top of Iowa, for $4.00 an hour.  He was paid 
 
         approximately $5.00 per hour at the time of injury.
 
         
 
              On March 25, 1985, the claimant was injured at work.  He 
 
         fell off a ladder and injured his low back.  A couple of days 
 
         later claimant sought treatment from Thomas Kafka, M.D., and was 
 
         given medication for the pain.  Claimant was confined to bed for 
 
         approximately one week.  His condition worsened and soon 
 
         thereafter, he went to the emergency room and was admitted to St. 
 
         Mary's Hospital for approximately six days.  At that time, he 
 
         returned home and remained at home for three to four more weeks. 
 
         Claimant went back to work in August of 1985, with physician 
 
         imposed restrictions that he not lift more than 20-25 pounds.  
 
         Top of Iowa was aware of claimant's restrictions, but according 
 
                                                
 
                                                         
 
         to claimant they still required him to perform heavy lifting.  On 
 
         August 15, 1985, claimant was instructed to lift an axle weighing 
 
         approximately 300 pounds.   He informed his foreman of his 
 
         lifting restrictions.  His foreman discussed the matter with the 
 
         company president, Donald Fenske, who informed claimant that he 
 
         must perform the work as instructed.  Claimant did so and injured 
 
         his back.  The following day claimant sought treatment from the 
 
         Cresco Medical Center.  He was off work for approximately three 
 
         to four weeks.  Claimant stated that he could not even take care 
 
         of his personal needs during this period of time.  Claimant was 
 
         taken care of by his parents and his sister.  Also, claimant was 
 
         given several prescribed pain medications.  Claimant worked for 
 
         Kinseth Construction out of Millville, Minnesota from June 1986 
 
         through October 1986.  Claimant worked for Elcor Construction, 
 
         Rochester, Minnesota from May 1987 through November 1987 and has 
 
         continued his employment with Elcor Construction in 1988 and 1989 
 
         at $10.00 - $11.00 an hour.
 
         
 
              In December of 1983, claimant was involved in an auto 
 
         accident which resulted in low back pain requiring treatment 
 
         including physical therapy.  Claimant admits that this low back 
 
         pain was intermittent since that time but asserts that the 
 
         condition grew worse after the work injury herein.  Claimant also 
 
         has a long history of mental depression and use of prescription 
 
         anti-depressant medication.  According to his treating mental 
 
         health practitioners, this depression is the result of many 
 
         factors but was aggravated in part when claimant could not return 
 
         to work following the Top of Iowa injury in 1985.
 
         
 
              Claimant's back condition was evaluated several times by the 
 
         Mayo Clinic in 1985 and 1986.  J. D. Bartleson, from this clinic, 
 
         reports a diagnosis of chronic low back pain with no objective 
 
         evidence of abnormality.  The same conclusion was reached by the 
 
         Gunderson Clinic in early 1988.  Dr. Bartleson opined in 1988 
 
         that claimant has a 3.5 percent permanent partial impairment 
 
         under "Minnesota statutes."  Upon inquiry as to.what the 
 
         impairment would be under AMA Guidelines, Dr. Bartleson opined 
 
         that under the second edition of those guidelines claimant has no 
 
         permanent partial impairment.  Dr. Bartleson did not offer an 
 
         explanation of his opinions.
 
         
 
              Claimant testified that his back is "not much of a problem" 
 
         in his current work as a heavy equipment operator except when he 
 
         is asked to perform extensive lifting.  Claimant states that he 
 
         has pain on occasion and is unable to engage in the same level of 
 
         sporting activity that he had before the work injury.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  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 injury and 
 
         disability.  From his demeanor while testifying, claimant will be 
 
         found credible.
 
         
 
                                                
 
                                                         
 
                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 along 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. 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 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 he has 
 
         suffered disability as a result of the work injury herein due to 
 
         permanent impairment to the body as a whole.  Claimant argues in 
 
         his brief that the views of Dr. Bartleson containing a 3.5 
 
         percent permanent partial impairment were uncontroverted by 
 
         defendants. Unfortunately, Dr. Bartleson impeaches his own rating 
 
         by using the 2nd Edition of the AMA Guidelines.  This agency is 
 
         familiar with those guidelines and notes that a more recent 
 
         edition to allow for rating of chronic pain has been published.  
 
         Unfortunately, this doctor did not discuss these newer editions.  
 
         However, more importantly in an industrial disability case is the 
 
         physical limitations on activity because we are measuring loss of 
 
         earning capacity, not loss of function.  Dr. Bartleson did state, 
 
         as well as other doctors in the case, that heavy exertion will 
 
         precipitate chronic pain syndrome for claimant.  This is verified 
 
         by claimant's credible testimony.  Therefore, it will be found 
 
         that claimant suffers from some degree of permanent partial 
 
         impairment. Also, it is found that the permanent partial 
 
         impairment is caused by the work injury.  Admittedly, claimant 
 
         had problems since 1983 but his credible testimony establishes 
 
         that these problems worsened after the 1985 work injury.  
 
         However, a finding that the work injury is a cause of permanent 
 
         partial impairment does not automatically entitle claimant to 
 
         permanent partial disability benefits in an industrial disability 
 
         case as the effect of this pain upon claimant's earning capacity 
 
         must be evaluated.
 
         
 
               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 v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         apparently excellent and he had no ascertainable functional 
 
         impairments or ascertainable disabilities.  Although claimant had 
 
         occasional low back pain claimant was able to quickly return to 
 
         work and perform physical tasks involving heavy lifting, 
 
         repetitive lifting, bending, twisting and stooping.
 
         
 
              As discussed above, claimant's testimony that the physical 
 
         condition has worsened since the 1985 work injury is credible.  
 
         His physicians have recommended against work requiring heavy 
 
         exertion. However, this physical condition has not affected his 
 
         earning capacity.  Claimant is fully able to return to work as a 
 
         heavy equipment operator, his primary occupation since high 
 
         school. Claimant is currently earning more than twice the amount 
 
         he was earning at the time of the work injury at Top of Iowa.  
 
         Claimant is relatively young.  His loss of future earnings from 
 
         employment due to impairment is not as severe as would be the case 
 
         for an older individual.  See Becke v. Turner-Busch. Inc., 
 
         Thirty-fourth Biennial Reports, Iowa Industrial Commissioner 34 
 
         (Appeal Decision 1979).
 
         
 
              Claimant's current employment appears to be suitable and 
 
         stable at the present time.  Claimant states that his back does 
 
         not present much of a problem for him except when he is required 
 
         to perform heavy lifting.  However, it appears that he is not 
 
         required to perform heavy lifting on a regular basis.  He 
 
         explains that he has intermittent pain and limitations on his 
 
         ability to perform recreational activities.  However, workers' 
 
         compensation statutes are not designed to award compensation for 
 
         pain and suffering or for loss of recreational pursuits.  Only a 
 
         loss of earning capacity can be compensated.
 
         
 
                                                
 
                                                         
 
              Claimant has shown that his depression was aggravated by his 
 
         loss of work at Top of Iowa in 1985.  However, no physician or 
 
         mental health practitioner has opined that this depression was a 
 
         cause of this loss of work or any current disability.  Also, it 
 
         would appear that any aggravation of his depression caused by his 
 
         inability to return to work in 1985 was corrected when he 
 
         returned to work in 1986.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered no loss of earning 
 
         capacity from his work injury and the resulting impairment.  
 
         Based upon such a finding, claimant has failed to show 
 
         entitlement to any permanent partial disability benefits.
 
         
 
              Iowa Code section 85.33(1) provides for temporary total 
 
         disability benefits from the date of injury until claimant 
 
         returns to work or until claimant is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of the injury, whichever occurs first.  
 
         Claimant returned to work on May 15, 1986.  This ends his 
 
         temporary total disability period.  Claimant raises an issue of 
 
         applying a credit of excess temporary total disability benefits 
 
         toward the permanent partial disability benefits to be awarded.  
 
         Apart from the fact that this issue was not raised at the time of 
 
         the prehearing conference and listed as an issue on the hearing 
 
         assignment order, this issue is moot in light of the fact that no 
 
         permanent partial disability benefits will be awarded.  No 
 
         additional temporary total disability benefits will be awarded as 
 
         claimant has already been paid his entitlement.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  The prescription charges requested 
 
         since 1986 involved medication for claimant's depression.   This 
 
         cannot be awarded as claimant's mental health practitioner has 
 
         only stated that the depression was aggravated by his inability 
 
         to work at Top of Iowa.  This ended in May 1986, when he returned 
 
         to work as a heavy equipment operator.  Claimant seeks payment or 
 
         reimbursement for the Gunderson Clinic bill for an independent 
 
         evaluation of his disability.  This will be awarded as it appears 
 
         that the charges are reasonable and causally connected to the low 
 
         back injury except for the Lyme disease test in the amount of 
 
         $22.70.  Any independent evaluation obviously includes any 
 
         necessary testing such as CT scans to arrive at an evaluation.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2.  The work injury of August 15, 1985, was a cause of a 
 
         period of disability from work beginning on August 15, 1985, and 
 
         ending on May 15, 1987, at which time claimant returned to work.
 
         
 
              3.  The work injury of August 15, 1985 is a cause of some 
 
                                                
 
                                                         
 
         degree of permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of limited lifting, bending and twisting.  Claimant 
 
         has had intermittent problems with his back since a 1983 car 
 
         accident, but the work injury somewhat worsened this condition.
 
         
 
              4.  Claimant has failed to show that the work injury of 
 
         August 15, 1985 and the resulting permanent partial impairment is 
 
         a cause of a loss of earning capacity.  Claimant is 32 years of 
 
         age and has a high school education.  Claimant's physician has 
 
         imposed no work restrictions and his condition does not prevent a 
 
         return to the job he was performing at the time of injury or to 
 
         his primary occupation as a heavy equipment operator.  Claimant 
 
         is earning over twice as much as he did at the time of the work 
 
         injury.  Claimant does experience occasional pain from work 
 
         injury which at times limits his recreational activities.
 
         
 
              5.  Except for the Lyme disease testing in the amount of 
 
         $22.70, the medical expenses are fair and reasonable and 
 
         claimant's exhibit A and were incurred by claimant to receive an 
 
         independent evaluation under Iowa Code section 85.39 previously 
 
         authorized by this agency.  Claimant failed to show that any 
 
         portion of exhibit B is related to the work injury.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to payment of 
 
         medical expenses in the amount of $1,010.00.
 
         
 
                                    ORDER
 
         
 
              1.  Defendants shall pay the medical expenses listed in 
 
         exhibit A except for the Lyme disease test.  Claimant shall be 
 
 
 
                   
 
                                                         
 
         reimbursed for any of these expenses paid by him.  Otherwise, 
 
         defendants shall pay the provider directly along with any lawful 
 
         late payment penalties proposed on the account by the provider.
 
         
 
              2.  Each party shall pay its own cost under Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kevin E. Schoeberl
 
         Attorney at Law
 
         112 North Elm St
 
         P 0 Box 280
 
         Cresco IA  52136
 
         
 
         Mr. James E. Thomson
 
         Attorney at Law
 
         25 First Ave NW
 
         P 0 Box 49
 
         Waukon IA  52172
 
 
 
         
 
         
 
 
            
 
 
 
 
 
          
 
 
 
                                            1803
 
                                            Filed February 20, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN C. BRONNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 802730
 
         TOP OF IOWA,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803 - Extent of permanent partial disability benefits.
 
         
 
              Despite a showing that claimant has some degree of permanent 
 
         partial impairment as a result of an aggravation of a preexisting 
 
         back condition, claimant failed to show a loss of earning 
 
         capacity.  No permanent partial disability benefits were 
 
         awarded.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
       
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN C. BRONNER,
 
         
 
              Claimant,
 
                                                 File No. 802730
 
         VS.
 
                                             M 0 D I F I C A T I 0 N
 
         TOP OF IOWA,
 
                                                        0 F
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
                                                     F I L E D
 
         NORTHWESTERN NATIONAL,
 
                                                   MAR 02 1990
 
              Insurance Carrier,
 
              Defendants.                  IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
              Claimant's period of temporary total disability ended on May 
 
         15, 1986.  To the extent this is inconsistent with the decision 
 
         of February 20, 1990, it is modified accordingly.
 
         
 
         
 
         
 
         
 
              Signed and filed this 2nd day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kevin E. Schoeberl
 
         Attorney at Law
 
         112 North Elm St
 
         P 0 Box 280
 
         Cresco, IA  52136
 
         
 
         Mr. James E. Thomson
 
         Attorney at Law
 
         25 First Ave NW
 
         P 0 Box 49
 
         Waukon, IA  52172
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DANIEL J. LORING,
 
                                                 FILE NO. 802777
 
              Claimant,
 
                                               A R B I T R A T I O N
 
         VS.
 
                                                 D E C I S I O N
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
         
 
              This is a proceeding in arbitration brought by Daniel J. 
 
         Loring, claimant, against John Deere Dubuque Works of Deere & 
 
         Company, employer and self-insured defendant for benefits as a 
 
         result of an alleged injury which occurred on July 19, 1985.  A 
 
         hearing was held on November 13, 1986 at Dubuque, Iowa and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of joint exhibits 1 through 24 and the testimony of 
 
         Daniel J. Loring (claimant) , Patricia J. Loring (claimant's 
 
         wife), William C. Burgess (supervisor), and Charles D. Birkett 
 
         (supervisor).
 
         
 
                                  STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the rate of weekly compensation in the event of an 
 
         award is $443.42.
 
         
 
              That the time off work for which the claimant now seeks 
 
         temporary disability benefits is from July 19, 1985 to December 
 
         2, 1985.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
                                 ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant sustained an injury on July 19, 1985 
 
         which arose out of and in the course of his employment with the 
 
         employer.
 
         
 

 
              Whether the alleged injury is the cause of any temporary 
 
         disability during a period of recovery.
 
         
 
              Whether the alleged injury is the cause of any permanent 
 
         disability.
 
         
 
              Whether the claimant is entitled to any weekly compensation 
 
         for temporary disability benefits during a period of recovery.
 
         
 
              Whether the claimant is entitled to weekly compensation for 
 
         permanent disability benefits.
 
         
 
              Whether the claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 36 years old and married.  He began working for 
 
         the employer on March 8, 1972.  Initially, he poured in the 
 
         foundry, became a machine operator, and has been a welder for 
 
         approximately 11 years.  He is a high school graduate and 
 
         attended college for two and one-half years where he studied 
 
         industrial safety.  He was a general's aide in the military 
 
         service.  Prior to this employer he drove a milk semi for two 
 
         years.
 
         
 
              On December 3, 1979, a non-work related ruptured lumbar L-4 
 
         disc was excised by Julian Nemmers, M.D., (Exhibit 19).  On 
 
         November 3, 1983, a second non-work related excision of a 
 
         recurrent rupture of the L-4 disc was excised by Dr. Nemmers as 
 
         well as an exploration of the L-3 disc space (Ex. 20).  Claimant 
 
         recovered from both of these non-work related surgeries and 
 
         continued to perform his job as a welder.
 
         
 
              Claimant testified that he had back pain again in early 
 
         1985.  It was not associated with any particular incident.  He 
 
         saw Dr. Nemmers about it but did not lose any work on account of 
 
         it.  The records of Dr. Nemmers show that he saw claimant on 
 
         April 26, 1985 again for back pain and left leg pain that goes 
 
         all the way down his left leg.  An intravenous enhanced CT scan 
 
         ordered by Dr. Nemmers showed a new massive L-4 recurrence of an 
 
         extruded or ruptured disc (Ex. 16, page 2; Ex. 22, pages 10 & 
 
         11).
 
         
 
              Dr. Nemmers recommended surgery at that time in May of 1985.  
 
         Claimant chose not to have surgery performed at that time but 
 
         required Tylenol 3 quite consistently for relief of pain (Ex. 4, 
 
         p. 1). Dr. Nemmers told claimant it was bad enough for surgery 
 
         whenever he wanted it.  Claimant elected to try to work with the 
 
         pain.  Dr. Nemmers gave claimant an instruction sheet on pinched 
 
         nerve syndrome which, in effect, instructed claimant that he 
 
         could live with it as long as he was not getting weakness in his 
 
         leg (Ex. 22, pp. 12, 13 & 14).
 
         
 
              Claimant continued to perform his job of welding heavy 
 
         construction equipment which required a lot of movement and 
 
         bending, stooping, squatting, working on his knees., climbing up 
 
         and down ladders and crawling into and out of units on which he 
 
         was working.  He handled parts weighing from two pounds to 20 
 
         pounds.  Shortly before this injury occurred claimant worked a 50 
 
         hour week and a 54 hour week earning $900 to $1,000 per week.  
 
         Claimant testified that just prior to this injury he was fully 
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   3
 
         
 
         
 
         performing his job to his employer's satisfaction and was making 
 
         a lot of money.
 
         
 
              Friday, July 19, 1985 was the last working day before a two 
 
         week summer shut down.  Claimant testified that on that day some 
 
         steel bb shot came out of a part which caused him to fall and 
 
         land on his left buttock.  He reported this to his supervisor 
 
         Bill Burgess; was taken by ambulance to the dispensary and seen 
 
         by Mervin L. McClenahan, M.D.; then transported by ambulance to 
 
         Finley Hospital for emergency care by Gerald L. Meester, M.D., 
 
         (Ex. 17).  X-rays showed narrowing of the L4-5 disc.  Dr. Meester 
 
         diagnosed massive nerve pressure and arranged for a CT scan on 
 
         Monday, July 22, 1985 and for claimant to see Dr. Nemmers, his 
 
         associate, on Tuesday, July 23, 1985.  Dr. Meester's recorded 
 
         note for July 19, 1985 reads as follows:
 
         
 
                   This is a 35 year old white male with a long 
 
              history of back pain.  The patient has had 2 previous 
 
              surgeries by Dr. Nemmers.  He is coming in Tuesday to 
 
              discuss repeat surgery.  He has had a CT scan in May 
 
              which showed a reherniation for the second time of 
 
              L4-5.  The patient has been seen by Dr. Lehman and I do 
 
              not know the results of that consultation, but Dr. 
 
              Nemmers had been planning, I believe, a re-excision of 
 
              herniated disc material and an L4-5 fusion.  At that 
 
              time, however, there was a bulging disc at L4-5.  It is 
 
              at this point that the patient was out working today 
 
              and slipped on some shot on the floor and both feet 
 
              went out from under him.   He landed on the left 
 
              buttock and hit the ground pretty hard.  He got up and 
 
              walked about 10' and then had pretty severe pain and an 
 
              ambulance was called.  Prior to this the patient had 
 
              been taking multiple doses of codeine per day trying to 
 
              keep the pain under control so he could keep working 
 
              until shut down. (Ex. 16, p. 1)
 
         
 
              Claimant was not hospitalized but rather was examined and 
 
         released.
 
         
 
              E. J. Hannon, M.D., a radiologist, reported that the CT scan 
 
         done on Monday, July 22, 1985, was unchanged from the earlier one 
 
         done on April 29, 1985.  Dr. Hannon reported as follows: 
 
         "IMPRESSION: Unchanged lumbar CT.  There is no improvement or 
 
         worsening in the large left L4-5 HNP which is extruded downwards 
 
         when compared to the April, 1985, study." (Ex. 5, p.. 1)
 
         
 
              Dr. Nemmers reported to Dr. McClenahan that the CT scan was 
 
         reported as showing no change in the interval between April, 1985 
 
         and july, 1985 (Ex. 4, p. 1).
 
         
 
              Dr. Nemmers testified that in his opinion there was no 
 
         significant change in claimant's lumbar area and CT scans between 
 
         April of 1985 and July of 1985 (Ex. 22, p. 18).  More 
 
         specifically, Dr. Nemmers testified as follows:
 
         
 
                   Q.  Were you able to determine whether the history 
 
              of a fall that the patient had on July 19, 1985 
 
              worsened or made his lumbar back problem worse than 
 
              before the accident?
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   4
 
         
 
         
 
         
 
                   A.  Well, I believe that he had more pain 
 
              following the accident and more muscle spasm, 
 
              limitation of motion in his back, but as far as the CAT 
 
              scan was concerned, it was basically an unchanged CAT 
 
              scan.  So in my opinion, he still had the same problem 
 
              that he had before but he was hurting worse. (Ex. 22, 
 
              p. 18)
 
         
 
              Dr. Nemmers said in the letter to Dr. McClenahan on August 
 
         27, 1985:
 
         
 
                   In Answer to the questions in your letter of 
 
              August 21, 1985, it is my opinion that the fall did not 
 
              cause Mr. Loring's herniated disc.  It is further my 
 
              opinion that the fall did not aggravate the objective 
 
              clinical evidence of ruptured disc and it is the 
 
              radiologist's opinion that the fall did not aggravate 
 
              the condition of the herniated disc as viewed on the CT 
 
              scan.  Mr. Loring had more pain after the fall, but 
 
              there is no way that I can measure a degree of pain 
 
              except by objective measurements.
 
              (Ex. 4, p. 1)
 
         
 
              In his deposition Dr. Nemmers testified:
 
         
 
                   Q.  In your medical judgment, was his condition 
 
              such that he would have been required to have surgery 
 
              in his lifetime irregardless of the July 19, 1985 fall 
 
              at the John Deere Dubuque Works?
 
         
 
                   A. In all probability I believe he would have had 
 
              to have surgery.  I can't give you 100 percent.  In 
 
              probability i think he would have had to have surgery, 
 
              but I can't be positive.
 
         
 
                   Q. But in medical probability, you would say 
 
              that's true?
 
         
 
                   A.  Yes, sir. (Ex. 22, p. 26)
 
         
 
              Dr. Nemmers than performed surgery for the third time for 
 
         excision of the L4 lumbar disc on July 29, 1985 (Ex. 21; Ex. 22, 
 
         pp. 18 & 19).  Dr. Nemmers testified in his opinion the cause of 
 
         the claimant's recurrent I-4 disc problem was wear and tear (Ex. 
 
         22, p. 21).  A certain amount of recurrent disc problems are 
 
         statistically predictable (Ex. 22, pp. 19 & 20).  Claimant was 
 
         released fully to go back to work on December 2, 1985 (Ex. 22, p. 
 
         21).
 
         
 
              In his office notes on October 7, 1986, Dr. Nemmers 
 
         expressed his opinion on disability in the following words:
 
         
 
              It is my opinion that he has a 20% impairment of the 
 
              whole body as a result of three lumbar disc excisions 
 
              and persistent pain with heavy work.  He is doing his 
 
              regular work prior to lay-off and I suspect he can 
 
              continue in same.  I reviewed his x-rays and he does 
 
              have quite marked narrowing of L4 and L5 disc spaces 
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   5
 
         
 
         
 
              and he has retrospondylolisthesis of L3 on L4 and L4 on 
 
              L5.  It is my opinion he has a 20% whole body 
 
              disability as a result of the three operated herniated 
 
              discs at L4, degeneration of the L3 and L5 disc spaces, 
 
              persistent pain associated with lifting.  How much of 
 
              this disability is allotted to which surgery at this 
 
              point is up to his attorney and his employer.
 
              (Ex. 16, p. 3).
 
         
 
              In his deposition Dr. Nemmers said claimant had an overall 
 
         impairment of 20 to 25 percent of the body as a whole due to his 
 
         back.  He further indicated that the increase in the impairment 
 
         from the second to the third surgery was estimated to be five 
 
         percent to 10 percent (Ex. 22, pp. 22, 23 & 29).  But he also 
 
         gave contradictory testimony in his deposition as follows:
 
         
 
                   Q.  Did the fall which increased his pain, Doctor, 
 
              increase his medical disability that you found after 
 
              the surgery?
 
         
 
                   A.  I don't believe it would because he had a 
 
              third operation done, and he did have a ruptured disc 
 
              before the fall and he had one afterwards and he had to 
 
              have surgery, so I don't believe it would have 
 
              increased the disability.
 
              (Ex. 22, pp. 26 & 27).
 
         
 
              William C. Burgess testified that he was claimant's 
 
         supervisor from June 1, 1985 to the shut down on July 20, 1985, 
 
         as a replacement for the claimant's regular supervisor,,Charles 
 
         D. Birkett.  Claimant told Burgess in early July that he was 
 
         going to have his back checked and that he would let him know on 
 
         July 23, 1985 whether or not he was going to have surgery.  As a 
 
         result of this 'conversation Burgess had another employee, Gary 
 
         Bainbridge, train with the claimant to do his job in the event of 
 
         the claimant's absence.  This was how it was done at the time of 
 
         the claimant's 1983 surgery. on July 19, 1985, an employee the 
 
         name of Chaffee reported to Burgess that claimant had a fall.  
 
         Chaffee did not see the fall but saw claimant on the floor.  
 
         Exhibit 23 is the record which Burgess made at the time of the 
 
         incident.  Burgess said that as far as he observed claimant 
 
         performed his job without difficulty up until the time of the 
 
         fall.  Claimant pointed out an inconsistency in the note which 
 
         Burgess made.  The first part of the note said that claimant 
 
         bumped his elbow, slipped and fell.  The second part of the note 
 
         said that claimant fell on some shot.  Burgess also conceded that 
 
         the numeral three in the number 23 had been written over on the 
 
         note.
 
         
 
              Charles D. Birkett testified he was the claimant's regular 
 
         supervisor but was temporarily absent from July 1, 1985 to July 
 
         19, 1985 because he was working in another department.  Birkett 
 
         stated that claimant told him sometime in May of 1985 that he may 
 
         have back surgery and that Birkett would have to break someone 
 
         else in if that happened.  Birkett verified that claimant had won 
 
         a safety award for recommending the elimination of the shot 
 
         problem that caused the claimant's fall before the fall actually 
 
         occurred, but sometimes shot still came through in the parts.  
 
         Since claimant returned to work in December of 1985, he has 
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   6
 
         
 
         
 
         performed his old job full time without any limitations or weight 
 
         restrictions.  The witness said claimant did not complain of pain 
 
         to him prior to the fall but he may have had some because he 
 
         welded from the floor rather than get up on the fixtures on his 
 
         hands and knees.  Another employee reported to Birkett that 
 
         claimant was high on  pain pills but Birkett did not observe him 
 
         do anything reckless.  Claimant testified in rebuttal that he did 
 
         this one welding job standing up because he was tall and had a 
 
         long reach and it was more convenient for him to do it this way.  
 
         It was not because of pain.
 
         
 
              Claimant testified that he was training another person to do 
 
         his job because it was just common practice to have someone else 
 
         who can do your job if you have to be gone for eight hours for 
 
         any reason.  Claimant granted he could have made the request for 
 
         a trainee but he denied that it was so that he could have 
 
         surgery.    Shut down was on Friday and he and his wife planned 
 
         to leave on vacation on Sunday to go out west with no particular 
 
         destination in mind other than maybe Colorado or Wyoming.  He 
 
         denied that he planned to have surgery during shut down or 
 
         otherwise.  He did not have surgery scheduled during shut down. 
 
         Dr. Nemmers confirmed that there was no arrangement for surgery 
 
         during shut down or otherwise (Ex. 22, pp. 16 & 31).
 
         
 
              Claimant testified he could hardly get out of bed the day 
 
         after the fall.  There was tingling and numbness down his left 
 
         leg into his toes.  He denied any leg symptoms prior to the fall 
 
         but Dr. Nemmers' office notes of April 26, 1985 reported pain all 
 
         the way down his left leg (Ex. 16, p. 2).  Claimant replied that 
 
         his earlier leg pain would come and go.  Claimant testified that 
 
         Dr. Nemmers said to let him know if the claimant had leg 
 
         symptoms.  Dr. Nemmers testified that claimant did not have the 
 
         leg weakness that he was talking about either before or after the 
 
         fall on July 19, 1985 (Ex. 22, pp. 27 & 28).
 
         
 
              Claimant testified that after the third surgery he returned 
 
         to his old job and has performed it satisfactorily but he has to 
 
         be more careful about what he does and how he does it.  Claimant 
 
         denied that he told Burgess that he would call him on July 23, 
 
         1985 to let him know if he was going to have surgery.         
 
         Claimant did not think that anyone witnessed his fall but someone 
 
         saw him lying on the floor afterwards.
 
         
 
              Claimant conceded that he purchased a medical insurance and 
 
         income disability insurance policy from Combined Insurance 
 
         Company about a month or so before his surgery and dropped it 
 
         again shortly after the surgery.  Initially, the claimant's claim 
 
         for benefits from this policy was denied (Ex. 1).  However, 
 
         claimant testified that as a result of a letter (Ex. 1), he did 
 
         collect $500 for hospitalization and disability benefits.  
 
         Exhibit 1 is a letter from Dr. Nemmers to Combined Insurance 
 
         Company.  However, Dr. Nemmers testified that this letter was not 
 
         written by him but was written by his secretary at the request of 
 
         the claimant.  She wrote it and she signed it.  The doctor said 
 
         that he disagreed with the portion of the letter that said the 
 
         claimant's symptoms were in remission prior to the fall.  He did 
 
         agree with the part of the letter that said the fall exacerbated 
 
         his symptoms and prompted him to proceed with the surgery (Ex. 
 
         22, p. 30).
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   7
 
         
 
         
 
         
 
              Patricia Jean Loring, wife of claimant, testified that 
 
         claimant did not have any surgery scheduled. on the contrary, 
 
         they were planning on going on vacation during shut down.  She 
 
         had requested vacation time from her employer.    They planned to 
 
         go out west someplace but did not have any particular place in 
 
         mind.  She was in the emergency room with claimant on July 19, 
 
         1985 when Dr. Meester was present and there was no talk about 
 
         surgery being scheduled on Tuesday, July 23, 1985.    She 
 
         testified that claimant had numbness in his legs and toes that he 
 
         did not have before the fall.  She admitted claimant took out a 
 
         policy of insurance from Combined Insurance Company about a month 
 
         before the injury and cancelled it a short time later because he 
 
         no longer wanted the insurance.
 
         
 
              Claimant obtained a consulting x-ray opinion from Michael T. 
 
         Nelson, M.D., a radiologist, on November 27, 1985 for the CT scan 
 
         that was taken on April 29, 1985 and the CT scan that was taken 
 
         on July 22, 1985.  Dr. Nelson found that the second x-ray was 
 
         basically unchanged except there was more concavity to the 
 
         bulging disc.  He said these changes are quite subtle but may be 
 
         indicative of more pressure on the subarachnoid space (Ex. 2).
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   8
 
         
 
         
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 19, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of' refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         198 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W. (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman, 261 Iowa 352, 154 N.W. d 128 (1967).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W. 2d 591 (1960), and cases cited.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 19, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page   9
 
         
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756Y 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              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); 
 
         Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist V. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 555(17)a.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on July 19, 1985 that 
 
         arose out of and in the course of his employment with the 
 
         employer.  He testified that he fell on some steel bb shot and 
 
         landed on his left buttock.  Even though no one witnessed the 
 
         actual fall Chaffee reported to Burgess that he found claimant on 
 
         the floor.  Burgess sent claimant to the dispensary by ambulance.  
 
         Dr. McClenahan sent claimant to Finley Hospital by ambulance 
 
         where he was examined by Dr. Meester.  Dr. Meester reported 
 
         claimant was having pain and diagnosed massive nerve pressure 
 
         after the x-rays showed a narrowed L-4, L-5 disc.  Dr. Nemmers 
 
         testified that claimant did suffer more pain and was hurting 
 
         worse after the fall than before the fall (Ex. 22, pp. 18, 22 & 
 
         26).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the fall of July 19, 1985 
 
         caused the surgery performed on July 29, 1985 or any disability 
 
         resulting from either the fall or the surgery.  Nor did claimant 
 
         present any evidence claiming.medical expenses or any evidence of 
 
         disability from the time of the fall on July 19, 1985 until the 
 
         surgery on July 29, 1985.
 
         
 
              It was established that claimant had two prior surgeries and 
 
         that there was a new massive recurrence at the same L-4 disc 
 
         space on April 26, 1985 which was not work related.  This was the 
 
         claimant's testimony and this was also Dr. Nemmers' testimony.  
 
         Dr. Nemmers recommended surgery at the time of the April 26, 1985 
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page  10
 
         
 
         
 
         examination and claimant declined to do it at that time (Ex ' 4, 
 
         p. 1; Ex. 22, pp. 12, 13 & 14).  Even though claimant continued 
 
         to do strenuous work and worked overtime and made a great deal of 
 
         money, Dr. Meester indicated he was taking multiple doses of 
 
         Codeine to keep the pain under control to keep working until shut 
 
         down (Ex. 16, p. 1).  Dr. Hannon, the radiologist, reported that 
 
         the CT scan on July 22, 1985 was unchanged from the CT scan on 
 
         April 29, 1985.  There was no improvement or worsening (Ex. 5, 
 
         pp. 1, 2 & 3).  Dr. Nemmers reported the same information to Dr. 
 
         McClenahan (Ex. 4, p. 1).  Dr. Nemmers reconfirmed this 
 
         information in his deposition testimony.  He said claimant had 
 
         the same problem in his opinion but he was hurting worse (Ex. 22, 
 
         p. 18).  Dr. Nemmers told Dr. McClenahan that it was his opinion 
 
         that the fall did not cause the herniated disc and did not 
 
         aggravate the objective clinical evidence of the ruptured disc 
 
         (Ex. 4, p. 1).  Dr. Nemmers stated that it was his medical 
 
         opinion that claimant probably would have been required to have 
 
         the third herniated disc surgery irrespective of the fall on July 
 
         19, 1985 (Ex. 22, p. 26).  He felt claimant had a wear and tear 
 
         problem (Ex. 22, p. 21) and that a certain amount of recurrent 
 
         disc problems are statistically predictable (Ex. 22, pp. 19 & 
 
         20).
 
         
 
              In this case there is basically only one medical expert and 
 
         that is Dr. Nemmers who has been the claimant's treating 
 
         physician since 1979 up until the present time.  Dr. Meester only 
 
         examined claimant once at the emergency room at Finley Hospital 
 
         on July 19, 1985.   There is no opposing or evaluating physician 
 
         in this case.  Dr. Nelson, a radiologist, gave a slightly 
 
         different report than Dr. Hannon, another radiologist (Ex. 2 & 
 
         5).  However, Dr. Nelson's report did not establish that the fall 
 
         of July 19, 1985 caused a change in claimant's preexisting back 
 
         condition.  Dr. Nelson appears to be speculating rather than 
 
         making a definitive finding by indicating only that there may be 
 
         subtle changes of increased concavity of the bulge between the 
 
         two CT scan dates.   But Dr. Nelson himself states the later scan 
 
         is basically unchanged from the earlier scan (Ex. 2).
 
         
 
              Dr. Nemmers' letter to the Combined Insurance Company cannot 
 
         be used to support the claimant's workers' compensation claim.  
 
         First, the letter was not written and signed by the doctor but 
 
         rather it was written and signed by the doctor's secretary at the 
 
         request of the claimant (Ex. 22, p. 30).  Secondly, Dr. Nemmers 
 
         said he did not agree with the portion of the letter that said 
 
         the claimant's symptoms of a ruptured disc were in remission at 
 
         the time of the injury.  He did agree with the portion that said 
 
         the injury of July 19, 1985 exacerbated his symptoms and prompted 
 
         claimant to proceed with the surgical excision of the ruptured 
 
         disc (Ex. 1; Ex. 22, p. 30).
 
         
 
              The clear weight of the evidence in this case is that 
 
         claimant suffered from recurrent disc problems at the level of 
 
         L-4 in his lumbar spine.  From the evidence presented, remedial 
 
         surgery was almost inevitable.  Claimant denied he had already 
 
         scheduled surgery during the shut down on July 23, 1985.  Dr. 
 
         Nemmers corroborated claimant on this point by testifying that 
 
         surgery was not scheduled during shut down or otherwise (Ex. 22, 
 
         pp. 16 & 31).
 
         
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page  11
 
         
 
         
 
              There is, however, evidence that the claimant may well have 
 
         been contemplating surgery at or near the time of the fall on 
 
         July 19, 1985.  Both Burgess and Birkett testified that a trainee 
 
         was being trained the week before shut down because claimant 
 
         might be off work for back surgery.  In addition, claimant 
 
         purchased a medical and income disability insurance policy from 
 
         Combined Insurance Company approximately one month before the 
 
         surgery and discontinued it shortly after the surgery.
 
         
 
              From the foregoing evidence it is determined that claimant 
 
         did not sustain the burden of proof by a preponderance of the 
 
         evidence that the fall at work on July 19, 1985 either caused, 
 
         aggravated, accelerated, worsened or lit up his already 
 
         preexisting recurrent extruded and herniated L-4. disc to cause 
 
         the surgery on July 29, 1985.  On the contrary, the weight of the 
 
         evidence is that the third L-4 disc surgery was inevitable if not 
 
         almost imminent as a result of non-work related factors.  
 
         Claimant could have chosen to have the surgery any time.  He 
 
         could have had it before July 29, 1985 or he could have had it 
 
         after July 29, 1985.  As it happened, he chose to have it on that 
 
         date due to the increased pain he was suffering shortly after the 
 
         fall.  Dr. Nemmers testified that the claimant did not have the 
 
         kind of leg weakness after the fall that would have made surgery 
 
         imperative (Ex. 22, pp. 27 & 28).
 
         
 
              Furthermore, the evidence is in conflict as to whether there 
 
         is any disability from this third surgery or from the fall.  At 
 
         one point Dr. Nemmers stated claimant has an overall 20 percent 
 
         impairment of the body as a whole due to his total back condition 
 
         and that five to 10 percent of that is attributable to the third 
 
         surgery (Ex.22, pp.22,23 & 29).  However, in his office note of 
 
         October 7, 1986, Dr. Nemmers said that how much disability is due 
 
         to which surgery at that point was up to his attorney and his 
 
         employer (Ex.16, p.3).  Also, in his deposition testimony on 
 
         November 4, 1986, Dr. Nemmers said that the fall, which increased 
 
         his pain, did not increase his medical disability because he had 
 
         a third surgery, because he had a ruptured disc before the fall 
 
         and he had one after the fall, and he had to have the surgery so 
 
         he did not believe it would have increased the disability (Ex.22, 
 
         p. 26 & 27).
 
         
 
              Consequently, claimant has not proven by a preponderance of 
 
         the evidence that the injury of July 19, 1985 caused the surgery 
 
         on July 29, 1985 or that either the fall or the surgery caused 
 
         any temporary or permanent disability.
 
         
 
              No evidence was presented to support a claim for any medical 
 
         expenses or disability from the date of the fall on July 19, 1985 
 
         to the date of the surgery on July 29, 1985.  Therefore, no 
 
         finding is in order.  A handwritten noted dated August 7, 1985 at 
 
         the bottom of exhibit 16 indicated claimant was told that the 
 
         company would go along with workers' compensation up to July 28, 
 
         1985 but that the employer did not feel the surgery was due to 
 
         the accident.  Therefore, any medical or disability benefits for 
 
         this period of time appear not to be in dispute and may have 
 
         already been paid.
 
         
 
                              FINDINGS OF FACT
 
         
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page  12
 
         
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant had two prior surgeries for excision of an L-4 
 
         disc.
 
         
 
              That on April 29, 1985, claimant's doctor diagnosed a third 
 
         recurrent massive extrusion and herniation of the L-4 disc and 
 
         recommended surgery at that time.
 
         
 
              That the extrusion and herniation discovered on April 29, 
 
         1985 were not work related.
 
         
 
              That claimant chose not to have surgery at that time but 
 
         instead took multiple doses of Codeine in order to continue to do 
 
         his job.
 
         
 
              That claimant demonstrated he may have been planning on 
 
         having surgery in the near future by training a replacement at 
 
         work and by the purchase of a medical insurance and income 
 
         disability insurance policy a short time before the third 
 
         surgery.
 
         
 
              That on July 19, 1985, claimant fell on some steel bb shot 
 
         at work and suffered increased pain and increased symptoms of his 
 
         preexisting recurrent L-4 herniated disc.
 
         
 
              That this fall and the ensuing pain prompted claimant to 
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page  13
 
         
 
         
 
         have the surgery which his doctor had recommended earlier in 
 
         April of 1985.
 
         
 
              That the surgery was performed on July 29, 1985.
 
         
 
              That a CT scan after the fall in July showed no change in 
 
         his bulging L-4 recurrent herniated disc from the CT scan taken 
 
         in April before the fall.
 
         
 
              That claimant's doctor found no change in his basic 
 
         recurrent L-4 disc herniation before or after the fall.
 
         
 
              That his doctor said the fall did not cause or aggravate his 
 
         preexisting herniated disc other than to increase his pain and 
 
         his subjective symptoms of it.
 
         
 
              That claimant's doctor testified that it was medically 
 
         probable that claimant would have to have a third surgery 
 
         irrespective of the fall on July 19, 1985.
 
         
 
              The claimant's doctor gave contradictory evidence of whether 
 
         he sustained any additional impairment as a result of the third 
 
         surgery.
 
         
 
              That no claim is presented for medical benefits or 
 
         disability benefits from the date of the fall on July 19, 1985 to 
 
         the date of the surgery on July 29, 1985.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did sustain an injury that arose out of and in 
 
         the course of his employment when he slipped and fell on some 
 
         steel bb shot at work on July 19, 1985 and fell on his left 
 
         buttock.
 
         
 
              That the fall was the cause of increased pain and increased 
 
         subjective symptoms of his preexisting recurrent L-4 herniated 
 
         disc.
 
         
 
              That the injury did not cause the surgery which was 
 
         performed on July 29, 1985.
 
         
 
              That the injury was not the cause of any temporary or 
 
         permanent disability either as a result of the fall or as a 
 
         result of the third surgery.
 
         
 
              That claimant is not entitled to any temporary or permanent 
 
         disability benefits.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due to the claimant from the defendant.
 
         
 

 
         
 
         
 
         
 
         LORING V. JOHN DEERE DUBUQUE WORKS OF DEERE COMPANY
 
         Page  14
 
         
 
         
 
              That each party is to pay their own respective costs of this 
 
         action except the defendant is to pay for the attendance of the 
 
         certified shorthand reporter at the hearing pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              That the defendant is to file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 20th day of May, 1987.
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Michael Coyle
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P. 0. Box 239
 
         Dubuque, Iowa 52004
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1108.50; 1401 1402.20; 
 
                                            1402.30 1402.40; 1402.60; 1801 
 
                                            1802; 1803; 2206 
 
                                            Filed May 20, 1987 
 
                                            WALTER R. McMANUS, JR.
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DANIEL J. LORING,
 
         
 
              Claimant,
 
                                                   FILE NO. 802777
 
         VS.
 
                                                 A R B I T R A T I 0 N 
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1801 
 
         1802; 1803; 2206
 
         
 
              Claimant had two prior non-work related L-4 laminectomies.  
 
         His same and only doctor told him he needed a third one at L-4 
 
         again which was not work related.  Claimant then fell at work.  
 
         The increased pain caused him to have the third laminectomy.  
 
         Radiology before and after the fall showed no physical change at 
 
         L-4.  His doctor said there was no physical change before and 
 
         after the fall.  His doctor indicated that the third surgery was 
 
         inevitable with or without the fall.
 
         
 
              Held: Claimant did sustain an injury that arose out of and 
 
         in the course of his employment that caused increased pain and 
 
         Symptoms.  The fall did not cause the surgery or any disability 
 
         resulting from the surgery.  No medical of disability benefits 
 
         allowed.
 
 
 
         
 
 
            
 
 
 
 
 
           
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY S. CUROE,
 
         RICHARD P. CUROE, Deceased,
 
         
 
              Claimant,
 
                                                     File No. 802807
 
         vs.
 
         
 
         CLIFFORD PFAB,                                A P P E A L
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
                                                        F I L E D
 
         IMT INSURANCE COMPANY,
 
                                                       MAR 15 1988
 
              Insurance Carrier,
 
              Defendants.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying death 
 
         benefits.  The record on appeal consists of the transcript of the 
 
         arbitration proceeding, and joint exhibits 1 and 2.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issue on appeal:  "The deputy 
 
         commissioner erred in denying benefits in this case."
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 8, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The injury 
 
         must both arise out of and be in the course of the employment. 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246, Iowa 402, 405-406, 68 
 
         N.W.2d 63 (1955).  Sister Mary Benedict v. St Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 
 
         Iowa 1147, 91 N.W.2d 555 (1958).  The words "out of" refer to the 
 
         cause or source of the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 
 
         63. The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
                                                
 
                                                         
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.  It was stated in McClure, 188 N.W.2d 
 
         283 that, "'in the course of' the employment refers to time, 
 
         place and circumstances of the injury....An injury occurs in the 
 
         course of employment when it is within the period of employment 
 
         at a place where the employee reasonably may be performing his 
 
         duties, and while he is fulfilling those duties or engaged in 
 
         doing something incidental thereto."
 
         
 
              Whenever an employee leaves the line of duty, compensation 
 
         coverage ceases.  Walker v. Speeder Mach. Corp., 213 Iowa 1134, 
 
         240 N.W. 725 (1932).  However, to disqualify the employee from 
 
         compensation coverage, the departure from the usual place of 
 
         employment must amount to an abandonment of the employment or be 
 
         an act wholly foreign to the usual work.  Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63.  The mere fact that an employee happens to be a short 
 
         distance removed from the actual situation of his work does not 
 
         prevent recovery in a compensation proceeding.  Bushing v. Iowa 
 
         R. & L. Co., 208 Iowa 1010, 226 N.W. 719 (1929).  If an employee 
 
         deviates sufficiently from the line of duty so that his actions 
 
         are foreign to the employer's line of work, injuries which occur 
 
         to the employee may be outside the course of employment.  Sheerin 
 
         v. Holin Company, 380 N.W.2d 415 (Iowa 1986).  In determining 
 
         whether an employee was acting in the course of his employer's 
 
         business, the question of whether the activity was to the benefit 
 
         of the employer is a relevant factor.  Briarcliff College v. 
 
         Campolo, 360 N.W.2d 91 (Iowa 1984).
 
         
 
              A worker whose duty includes painting a house, not the 
 
         property of his employer, who is injured while attempting to 
 
         extinguish a fire that threatens the house voluntarily assumes a 
 
         risk not contemplated by his employment, and the injury would not 
 
         arise out of and be in the course of his employment.  Robert's 
 
         Case, 284 Mass. 316, 187 N.E. 556 (1933).
 
         
 
                                 ANALYSIS
 
         
 
              To be compensable, Richard Curoe's heart attack must arise 
 
         out of and in the course of his employment.  If either 
 
         requirement is not met, claimant cannot recover benefits.
 
         
 
              Richard Curoe was working as a farm laborer at the time of 
 
         his heart attack and death.  His duties involved driving a 
 
         tractor across a field at the Gerald Brown farm.  He was engaged 
 
         in this activity when he observed a fire in an old shed.  Curoe 
 
         left the tractor and informed Mrs. Brown of the fire, then took 
 
         steps to contain the fire.  The record is undisputed that the 
 
         fire posed no danger to Mrs. Brown or her children.  It is also 
 
         clear that, although a truck belonging to Curoe's employer was in 
 
                                                
 
                                                         
 
         the farmyard, it was not in danger from the fire.  Thus, Curoe 
 
         was not acting to save any person from the fire, or to save his 
 
         employer's property from the fire.
 
         
 
              Curoe's actions, although commendable from a humanitarian 
 
         standpoint, were a deviation from his employment.  Although 
 
         certain emergency situations have been held to be an extension of 
 
         the employee's employment, such as an emergency posing danger to 
 
         a person or to the employer's property, no such extension exists 
 
         for an emergency endangering a third party's property.  99 C.J.S. 
 
         Worker's Compensation Sec. 257(2), pp. 889-890; 1A Larson, 
 
         Workmen's Compensation Law  28.00, 28.24 (1985).
 
         
 
              The record does not show that Curoe was excited when he 
 
         informed Mrs. Brown of the fire, nor did it show that he 
 
         exhibited any signs that he had run from the tractor to the 
 
         farmhouse.  At that point in time, Curoe would have known that 
 
         neither persons in the house, or the truck belonging to his 
 
         employer, were in any danger from the fire.  The testimony of 
 
         Mrs. Brown that she and the deceased joked about the fire 
 
         indicates that Curoe was aware of the lack of immediate danger.  
 
         When Curoe left his tractor to warn Mrs. Brown of the fire, and 
 
         then elected to undertake containment actions after it became 
 
         clear only the property of the third party was threatened by the 
 
         fire, he deviated from his employment with defendant employer.  
 
         His heart attack was not an injury in the course of his 
 
         employment.
 
         
 
              Although this determination that Curoe's heart attack was 
 
         not in the course of his employment is dispositive of the claim, 
 
         the question of whether his heart attack and death arose out of 
 
         his employment will also be addressed.  To arise out of the 
 
         employment, there must be a causal connection between the injury 
 
         and the employment.  Here, it must be shown that Curoe's heart 
 
         attack was causally connected to the employment.
 
         
 
              Even if it is assumed that Curoe was acting in the course of 
 
         his employment at the time he warned Mrs. Brown of the fire and 
 
         took steps to keep the fire from spreading to the house, there is 
 
         no showing in the record that his heart attack was caused by that 
 
         activity.  There is no expert testimony by way of a physician's 
 
         opinion on any connection between the heart attack and the events 
 
         surrounding it.  There are no medical reports, other than the 
 
         death certificate, listing the heart attack as the cause of 
 
         death. The only testimony in this regard is that of the 
 
         decedent's wife, a registered nurse, opining that the fire and 
 
         the excitement caused by it could have caused her husband's heart 
 
         attack. Initially, it is noted that this opinion is that of the 
 
         claimant herself, and must be viewed as self serving.  Secondly, 
 
         it is the opinion of a registered nurse, not that of a physician, 
 
         and as such is not competent as medical evidence on causation.  
 
         Finally, Mrs. Brown, a registered nurse trained in recognizing 
 
         and treating heart attack patients in emergency situations and 
 
         who witnessed decedent's attack, stated that Curoe did not show 
 
         any visible signs of being excited or under stress, such as being 
 
                                                
 
                                                         
 
         out of breath, sweating, etc. prior to his attack.  Taken as a 
 
         whole, the record is devoid of any competent evidence 
 
         establishing a causal connection between Curoe's heart attack and 
 
         his employment. Claimant has failed to show that Richard Curoe's 
 
         subsequent death arose out of his employment.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Richard Curoe was employed by Clifford Pfab as a farm 
 
         worker on May 8, 1985.
 
         
 
              2.  Richard Curoe left the site of his work in a farm field 
 
         to aid in the containment of a fire on the farm of Gerald Brown 
 
         on May 8, 1985.
 
         
 
              3.  Richard Curoe died as a result of a heart attack on May 
 
         8, 1985.
 
         
 
              4.  Richard Curoe was not an employee of Gerald Brown.
 
         
 
              5.  The fire on the Gerald Brown farm on May 8, 1985 did not 
 
         pose a threat to human life.
 
         
 
              6.  The fire on the Gerald Brown farm on May 8, 1985 did not 
 
         pose a threat to any property of Richard Curoe's employer.
 
 
 
                              
 
                                                         
 
         
 
              7.  Richard Curoe was not performing any of his job duties 
 
         when he had his heart attack on May 8, 1985.
 
         
 
              8.  Richard Curoe was not on the location of his job at the 
 
         time of his heart attack on May 8, 1985.
 
         
 
              9.  Richard Curoe was not acting in the course of his 
 
         employment at the time of his heart attack and death on May 8, 
 
         1985.
 
         
 
              10.  Richard Curoe's heart attack on May 8, 1985 and his 
 
         death therefrom did not arise out of his employment.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that Richard Curoe suffered an injury that arose out of 
 
         anD was in the course of his employment when he suffered a heart 
 
         attack and died on May 8, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant is to pay the costs of this action.
 
         
 
              Signed and filed this 15th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dave Hughes
 
         Attorney at Law
 
         P.O. Box 657
 
         RR #2
 
         Cascade, Iowa  52033
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Bldg.
 
         Dubuque, Iowa  52001
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1101; 1107; 1108.10
 
                                                 Filed 3-15-88
 
                                                 David E. Linquist
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARY S. CUROE,
 
         RICHARD P. CUROE, Deceased,
 
         
 
              Claimant,                              File No. 802807
 
         
 
         vs.
 
                                                      A P P E A L
 
         CLIFFORD PFAB,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         IMT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1101; 1107
 
         
 
              Claimant's decedent was working as a farm laborer driving a 
 
         tractor for his employer when he observed a fire in a shed on the 
 
         farm place where his employer had sent him to work.  Claimant 
 
         went to the farmhouse, warned the farm wife of the fire, and 
 
         sprayed a part of the farmhouse with a water hose to prevent the 
 
         fire from spreading.  The record showed no human lives or safety 
 
         were endangered, and no property of decedent's employer was 
 
         endangered. Decedent suffered a heart attack and died immediately 
 
         thereafter. Held that decedent's action in going to the farmhouse 
 
         to alert the occupant that the shed was burning was a deviation 
 
         from his employment, and a risk he voluntarily assumed.  Decedent 
 
         was not acting in the course of his employment.  Larson cited for 
 
         rule that deviation from work to protect property of a third 
 
         party takes an employee out of his employment.
 
         
 
         1108.10
 
              In heart attack death case, claimant failed to prove 
 
         decedent's death arose out of his employment where decedent died 
 
         at scene of a fire he helped to contain, but no medical opinion 
 
         other than that of claimant (decedent's spouse) was offered. 
 
         Claimant was a registered nurse with experience in heart attack 
 
         cases, but was held not competent to offer expert medical 
 
         testimony or cause of heart attack.  In addition, her testimony 
 
         on causation was couched in terms of possibility rather than 
 
         probability.
 
         
 
         
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HOWARD C. ENGELHART,
 
        
 
            Claimant,
 
        
 
        vs.                             File No. 803205
 
        
 
        MID-AMERICA TANNING CO., INC.,     A P P E A L
 
        
 
            Employer,                  D E C I S I O N
 
        
 
        and
 
        
 
        ROCKWOOD INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying all 
 
        compensation because he failed to establish that he sustained an 
 
        injury, that the alleged injury resulted in any disability, or 
 
        that he gave his employer notice of an injury pursuant to Iowa 
 
        Code section 85.23.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 6. No briefs 
 
        were filed on appeal.
 
        
 
                                      ISSUES
 
        
 
        As appellant filed no brief on appeal, this appeal will be 
 
        considered generally without specified errors to determine its 
 
        compliance with the law.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
                                                
 
        The deputy's analysis of the issues in conjunction with
 
        
 
        ENGELHART V. MID-AMERICA TANNING CO., INC.
 
        Page 2
 
        
 
        
 
        law and evidence presented is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant did not sustain the burden of proof by a 
 
        preponderance of the evidence that he sustained an injury on 
 

 
        
 
 
 
 
 
        January 17, 1985 by slipping on the ice and twisting his back on 
 
        that date.
 
        
 
        2. There were no eye witnesses to the incident.
 
        
 
        3. Claimant did not report the injury at the time it occurred to 
 
        Shelton, the office, or any other supervisor.
 
        
 
        4. Claimant did not report the injury to the plant manager, 
 
        Rohen, whom he saw everyday in the office and who directly 
 
        supervised his work. 
 
        
 
        5. Claimant's testimony that he reported the accident to Shelton 
 
        and Fuehrer was not credible.
 
        
 
        6. Claimant did not seek medical treatment for the alleged injury 
 
        of January 17, 1985 until March 5, 1985.
 
        
 
        7. Claimant did not follow the admonition of Dr. McCarthy to get 
 
        approval from the company medical doctor for further care.
 
        
 
        8. Neither Dr. McCarthy nor Dr. Cotton found that the alleged 
 
        injury of January 17, 1984 was the cause of either temporary or 
 
        permanent disability or impairment.
 
        
 
        9. No doctor recommended that claimant quit his job.
 
        
 
        10. Claimant voluntarily quit his job on March 28, 1987.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant failed to establish by the greater weight of evidence 
 
        that he sustained an injury on January 17, 1985.
 
        
 
        Claimant failed to establish by the greater weight of evidence 
 
        that the alleged injury was the cause of any temporary or 
 
        permanent disability.
 
        
 
        Claimant did not establish his entitlement to either compensation 
 
        benefits or medical benefits.
 
        
 
        Defendants established by the greater weight of evidence that 
 
        claimant did not give notice as provided by Iowa code section 
 
        85.23 and that they did not have actual knowledge of the alleged 
 
        injury.
 
        
 
        ENGELHART V. MID_AMERICA TANNING CO., INC.
 
        Page 3
 
        
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That no amounts are due from defendants to claimant for 
 
        compensation benefits or medical benefits.
 
        
 
        That the costs of this action including the cost of the 
 
        transcript on appeal are taxed to claimant pursuant to Division 
 
        of Industrial Services Rule 343-4.33.
 
        
 
        
 
        Signed and filed this 19th day of August, 1988.
 
        
 

 
        
 
 
 
 
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HOWARD C. ENGELHART,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 803205
 
         
 
         MID-AMERICA TANNING CO., INC.,          A P P E A L
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         ROCKWOOD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish that he sustained an 
 
         injury, that the alleged injury resulted in any disability, or 
 
         that he gave his employer notice of an injury pursuant to Iowa 
 
         Code section 85.23.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 6.  No briefs 
 
         were filed on appeal.
 
         
 
                                      ISSUES
 
         
 
              As appellant filed no brief on appeal, this appeal will be 
 
         considered generally without specified errors to determine its 
 
         compliance with the law.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's analysis of the issues in conjunction with law 
 
         and evidence presented is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         January 17, 1985 by slipping on the ice and twisting his back on 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         PAGE   2
 
         
 
         that date.
 
         
 
              2.  There were no eye witnesses to the incident.
 
         
 
              3.  Claimant did not report the injury at the time it 
 
         occurred to Shelton, the office, or any other supervisor.
 
         
 
              4.  Claimant did not report the injury to the plant manager, 
 
         Rohen, whom he saw everyday in the office and who directly 
 
         supervised his work.
 
         
 
              5.  Claimant's testimony that he reported the accident to 
 
         Shelton and Fuehrer was not credible.
 
         
 
              6.  Claimant did not seek medical treatment for the alleged 
 
         injury of January 17, 1985 until March 5, 1985.
 
         
 
              7.  Claimant did not follow the admonition of Dr. McCarthy 
 
         to get approval from the company medical doctor for further 
 
         care.
 
         
 
              8.  Neither Dr. McCarthy nor Dr. Cotton found that the 
 
         alleged injury of January 17, 1984 was the cause of either 
 
         temporary or permanent disability or impairment.
 
         
 
              9.  No doctor recommended that claimant quit his job.
 
         
 
             10.  Claimant voluntarily quit his job on March 28, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to establish by the greater weight of 
 
         evidence that he sustained an injury on January 17, 1985.
 
         
 
              Claimant failed to establish by the greater weight of 
 
         evidence that the alleged injury was the cause of any temporary 
 
         or permanent disability.
 
         
 
              Claimant did not establish his entitlement to either 
 
         compensation benefits or medical benefits.
 
         
 
              Defendants established by the greater weight of evidence 
 
         that claimant did not give notice as provided by Iowa code 
 
         section 85.23 and that they did not have actual knowledge of the 
 
         alleged injury.
 
         
 
              WHEREFORE the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That no amounts are due from defendants to claimant for 
 
         compensation benefits or medical benefits.
 
         
 
              That the costs of this action including the cost of the 
 
         transcript on appeal are taxed to claimant pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         PAGE   3
 
         
 
              Signed and filed this 19th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Paul A. Mahr
 
         Attorney at Law
 
         318 Insurance Exchange Bldg.
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Michael J. O'Bradovich
 
         Attorney at Law
 
         4535 Leavenworth, Suite 22
 
         Omaha, NE  68106
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.20; 1403.30; 2802
 
                                                   Filed August 19, 1988
 
                                                   David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOWARD C. ENGELHART,
 
         
 
              Claimant,
 
         vs.                                    File No. 803205
 
         
 
         MID-AMERICA TANNING CO., INC.,            A P P E A L
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         ROCKWOOD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20
 
         
 
              Claimant failed to establish that he sustained an injury. 
 
         Claimant found not credible.
 
         
 
         1403.30; 2802
 
         
 
              Employer established that claimant failed to give notice
 
         pursuant to section 85.23.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOWARD C. ENGELHART,
 
         
 
              Claimant,
 
                                                    FILE NO.  803205
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         MID-AMERICA TANNING CO., INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ROCKWOOD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Howard C. 
 
         Engelhart, claimant, against Mid-America Tanning Company, Inc., 
 
         employer, and Rockwood Insurance Company, insurance carrier, for 
 
         benefits as a result of an alleged injury on January 17, 1985.  A 
 
         hearing was held in Sioux City, Iowa on December 17, 1986 and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of joint exhibits 1 through 6; the testimony of Howard 
 
         C. Engelhart (claimant), Grace Engelhart (claimant's wife), 
 
         Philip Osborne (vocational rehabilitation consultant), Everett L. 
 
         Shelton (employer's environmental consultant), and Tom Rohen 
 
         (plant manager).
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the time off work for which claimant now seeks 
 
         temporary disability benefits is March 28, 1985 to March 4, 
 
         1986.
 
         
 
              That the commencement date for permanent partial disability 
 
         in the event such benefits are awarded is March 4, 1986.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         award is $280.40 per week.
 
              
 
              That there are no bifurcated claims.
 
         
 
                                   ISSUES
 
         
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   2
 
         
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether claimant sustained an injury on January 17, 1985 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              Whether the alleged injury is the cause of any temporary 
 
         disability.
 
         
 
              Whether the alleged injury is the cause of any permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to any temporary disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to any permanent disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to any medical benefits.
 
         
 
              Whether defendants have sustained the burden of proof by a 
 
         preponderance of the evidence that claimant failed to give notice 
 
         as required by Iowa Code section 85.23.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 44 years old and married.  He worked for 
 
         employer for approximately five and one-half years.  He started 
 
         on October 17, 1979 and resigned on March 28, 1985.  At the time 
 
         of his alleged injury he worked in the pollution control 
 
         department mixing chemicals and taking care of pumps.  His past 
 
         employments have all been laboring types of work.  In this job he 
 
         sometimes handled 50 pound bags of chemicals and 700 pound 
 
         barrels of acid (Transcript pages 12-14).  Claimant is five feet 
 
         nine inches tall and weighs approximately 230 pounds (Tr. p. 
 
         50).
 
         
 
              Claimant testified that on January 17, 1985, at 
 
         approximately 3:00 p.m. in the afternoon, he was coming out of 
 
         the maintenance shop carrying a roll of insulation in front of 
 
         him that was about 30 inches in diameter and weighed 
 
         approximately 20 pounds.  He had trouble seeing where he was 
 
         going.  As he came out of the door he slipped on some ice on a 
 
         slope and twisted his back which caused pain in the lower part of 
 
         his hips (Tr. pp. 14 & 15).  He did not fall to the ground but 
 
         just slipped and twisted his back (Joint Exhibit 3; Tr. p. 14).  
 
         There were no witnesses to the incident (Tr. p. 44).
 
         
 
              Claimant worked in the pollution control building alone (Tr. 
 
         p. 91).  He usually reported directly to Tom Rohen, plant manager 
 
         (Tr. p. 16).  Rohen testified that for quite some time claimant 
 
         did not have a maintenance supervisor and claimant came to him 
 
         for just about everything (Tr. p. 100).  Claimant did not make an 
 
         accident report on the day of the injury but continued to work 
 
         the rest of the day until 4:30 p.m.  He went home, told his wife 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   3
 
         
 
         
 
         he twisted his back, took a hot shower and received a massage 
 
         from his wife who has training as a masseuse.  Claimant testified 
 
         that he reported the incident the next morning at work to Larry 
 
         Shelton.  Shelton was not actually an employee of employer, but 
 
         claimant testified that he thought Shelton was an employee and a 
 
         supervisor because he gave claimant directions.  Actually, 
 
         Shelton was a private consultant who spent 30 to 40 hours per 
 
         month at employer's plant working on a pollution control problem 
 
         (Tr. pp. 15 & 16; 41 & 42; 45 & 46; and 89).
 
         
 
              Shelton testified that he is a self-employed consultant on 
 
         environmental affairs retained by employer to assist them on a 
 
         waste water problem (Tr. pp. 80-84).  He did not supervise 
 
         anyone.  Shelton usually gave instructions on major changes to 
 
         Tom Rohen, plant manager, but occasionally gave recommendations 
 
         directly to claimant to turn off the chemical feed (Tr. p. 85) or 
 
         to turn a pump on or off or to change the chemical mix (Tr. p. 
 
         90).  Shelton denied any recollection that claimant reported that 
 
         injury to him.  Shelton further testified that if claimant had 
 
         reported an injury to him he would have told claimant that he was 
 
         not an employee and that he should report an injury to Tom Rohen, 
 
         plant manager (Tr. pp. 86 & 87).  Shelton knew and observed 
 
         claimant from January 17, 1985 to when claimant left in March of 
 
         1985.  During that period claimant made no complaints of pain to 
 
         Shelton (Tr. p. 87).  Claimant did not report to Shelton that he 
 
         was leaving or why (Tr. p. 88).  Rohen testified that claimant 
 
         knew Shelton was a consultant (Tr. p. 101).
 
         
 
              Claimant testified that after January 17, 1985 his pain 
 
         continued to get worse but he continued to work and treated at 
 
         home with hot showers, heating pad, aspirin and Tylenol, and 
 
         massages from his wife.  He further testified that approximately 
 
         in early March of 1985 he asked David LaFleur (actually David 
 
         Fuehrer), a supervisor out in the maintenance shop which was in 
 
         another building, if he could go to the company doctor.  Claimant 
 
         said that LaFleur called the office and then told claimant that 
 
         he could not authorize it because claimant could not prove it 
 
         happened on the job.  Claimant then chose to see a chiropractor 
 
         on his own (Tr. pp. 18 & 19).  Claimant never inquired at the 
 
         office himself to see if he could go to a company doctor (Tr. pp. 
 
         40 & 41).  Claimant then saw John P. McCarthy, D.O., a 
 
         chiropractor, on March 5, 1985 (Tr. pp. 18 & 19; Jt. Ex. 1).
 
         
 
              Neither party called David Fuehrer as a witness.  However, 
 
         Rohen testified that he was plant manager.  The company only has 
 
         about 30 employees and everybody reports to him.  He testified 
 
         that claimant never notified him that he was injured on January 
 
         17, 1985 nor did anyone in the company, including Larry Shelton, 
 
         notify him that claimant was injured on January 17, 1985.  Rohen 
 
         testified that he did not know of the alleged injury until the 
 
         workers' compensation carrier called to say that a claim had been 
 
         filed later in September of 1985 (Tr. pp. 92-95).  In mid-March 
 
         of 1985, claimant notified Rohen that he would be leaving in two 
 
         weeks.  Claimant did not say he was quitting due to pain, but 
 
         indicated that he was going to retire and move to Arizona (Tr. 
 
         pp. 97-99).  Rohen stated that David LaFleur was actually an 
 
         employee named David Fuehrer (Tr. p. 100).  Rohen testified that 
 
         claimant came into his office about every morning to talk about 
 
         what he was going to do and to discuss his problems (Tr. p. 101).  
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   4
 
         
 
         
 
         Claimant did not mention that he was quitting because he could 
 
         not take the walking or the lifting.  When Rohen first learned of 
 
         the injury in September of 1985 he talked to David Fuehrer and 
 
         Pat Schurdevin, the office girl, and they had no recollection or 
 
         any record of an injury on January 17, 1985 (Tr. pp. 101 & 102).  
 
         Rohen did say David Fuehrer or any immediate supervisor in the 
 
         plant would be a proper person to report an injury to (Tr. p. 
 
         103).  Rohen testified that even though he talked to claimant 
 
         probably every day claimant never complained of pain or 
 
         discomfort to him (Tr. p. 104 & 105).
 
         
 
              Claimant testified that Dr. McCarthy took x-rays and said 
 
         that his injuries were too bad to treat but suggested that he 
 
         stay off work for a week.  Claimant saw Dr. McCarthy on March 5, 
 
         1987.  Joint exhibit 2 is a release from Dr. McCarthy to return 
 
         to work on March 13, 1985 without restrictions.  The release does 
 
         not specify whether claimant was off work due to a work related 
 
         injury or to some non-work related problem (Jt. Ex. 2).  Dr. 
 
         McCarthy's clinical notes are not in evidence.  However, he 
 
         reported by letter to claimant's attorney on September 24, 1985 
 
         that he saw claimant on March 5, 1985 for a mild spasm of the 
 
         lumbar paravertebral- musculature.  The report says claimant told 
 
         the doctor he slipped at work in January of 1985.  Dr. McCarthy's 
 
         diagnosis as to the lumbar spine was segmental dysfunction and 
 
         myofascial fibrosis of the lumbar spine and associated soft 
 
         tissues.  Contrary to claimant's testimony the report says 
 
         manipulative treatment was administered to the lumbar spine.  The 
 
         report concludes as follows:
 
         
 
              Manipulative treatment was administered to the lumbar spine 
 
              with immediate relief.  The patient was then referred to a 
 
              company medical doctor for approval of further care.  He was 
 
              told that a week of no work would be very beneficial.  On 
 
              April 12th, 1985 he was again seen with persistent low back 
 
              pain.  He was again treated and instructed that he must be 
 
              careful and work within himself. (Jt. Ex. 1, p. 2)
 
         
 
              Dr. McCarthy concluded by saying that claimant's condition 
 
         is chronic and that his prognosis is poor (Jt. Ex. 1, p. 2).  Dr. 
 
         McCarthy did not specifically state whether the fall that 
 
         claimant related to him was the cause of his present symptoms; he 
 
         did not state that the alleged injury was the cause of any 
 
         permanent impairment; he did not assess an impairment rating for 
 
         this alleged injury; and Dr. McCarthy did not state that he 
 
         advised claimant to quit his job.  The recommendation to take a 
 
         week off from work appears to be optional rather than mandatory 
 
         (Jt. Ex. 1).
 
         
 
              Claimant testified that he took the return to work form and 
 
         turned it in to the office personnel.  Dr. McCarthy sent the bill 
 
         to the group medical insurance carrier and claimant let them take 
 
         care of the doctor bill (Tr. p. 20).  Claimant testified that he 
 
         then continued to work from March 13, 1985 to March 28, 1985.  He 
 
         notified Rohen two weeks before March 28, 1985 that he was 
 
         quitting because of his back.  He was having problems with his 
 
         back and he could not take it (Tr. pp. 41 & 43).  Two weeks prior 
 
         to March 28, 1985 would have been approximately March 14, 1985.
 
         
 
              Claimant stated that the reason he kept working was because 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   5
 
         
 
         
 
         he knew he would have difficulty trying to get workers' 
 
         compensation and he needed money so he continued to work .(Tr. 
 
         pp. 20 & 39).
 
         
 
              Claimant then went to see Horst G.Blume, M.D., a neurologist 
 
         and a neurosurgeon at the Headache and Pain Control Center, P.C., 
 
         on March 28, 1985 for heat treatments, injections and other 
 
         treatments (Jt. Ex. 3; Tr. p. 20).  Dr.BlumeOs itemized statement 
 
         shows 99 treatment dates between March 28, 1985 and March 3, 1986 
 
         with total charges in the amount of $2,187 (Jt. Ex. 5).
 
         
 
               Claimant testified (Tr. pp. 22 & 40) and Dr. Blume 
 
         confirmed that he treated claimant for a very serious injury that 
 
         occurred on July 17, 1975.  At that time claimant fell off a 
 
         catwalk and sustained very,serious injuries including his 
 
         thoracic spine.  These injuries kept claimant off work for 
 
         approximately four years from 1975 until 1979.  Claimant started 
 
         to work then for the current employer on October 17, 1979 (Jt. 
 
         Ex. 3).  Claimant gave Dr. Blume a history that on January 17, 
 
         1985, he twisted his back when he slipped on the ice, but did not 
 
         fall, and the pain has not diminished but only gotten worse.  Dr. 
 
         Blume reported that claimant has an aggravation of both his 
 
         thoracic and lumbar preexisting conditions (Jt. Ex. 3).  In a 
 
         letter to claimant's counsel dated March 4, 1986, Dr. Blume 
 
         stated that as a result of the accident on January 17, 1985, 
 
         claimant aggravated his preexisting thoracic spine condition and 
 
         his preexisting lumbar spine condition.  He concluded his report 
 
         as follows:
 
         
 
         "It is my opinion within reasonable medical probability that the 
 
         partial permanent functional disability to the body as a whole is 
 
         around 15-20%." (Jt. Ex. 4).
 
         
 
              Dr. Blume did not distinguish how much of the impairment was 
 
         due to the injury of July 17, 1975 and how much was due to the 
 
         injury of January 17, 1985 (Jt. Ex. 4).  Dr. Blume did not 
 
         recommend in either report that claimant quit working (Jt. Ex. 3 
 
         & 4).
 
         
 
              Claimant testified that Dr. Blume told him to try to find a 
 
         real light duty job.  He filled out an application at Job 
 
         Service.  They investigated and agreed that he should only do 
 
         light work.  However, with no educational training it was not 
 
         likely that he would be able to do that kind of work (Tr. pp. 23 
 
         & 24).
 
         
 
              Claimant testified that he went to Iowa Vocational 
 
         Rehabilitation and talked to Philip Osborne.  Osborne checked 
 
         claimant's educational and medical background and determined that 
 
         it would not do any good for claimant to go to Des Moines for 
 
         training.  That was the end of Osborne's services (Tr. pp. 24 & 
 
         25).
 
         
 
              Claimant testified that when he attempted to get his GED he 
 
         took tests and was told that he had a second grade reading level.  
 
         It would take two years, if not longer, to get his reading up to 
 
         where there is a possibility that he could get a GED (Tr. p. 
 
         25).
 
         
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   6
 
         
 
         
 
              Claimant testified that he graduated from eighth grade.  He 
 
         attended freshman and sophomore years but got F's.  Since he 
 
         would not have graduated he quit school when he was 16 years old 
 
         (Tr. pp. 25 & 26).  Since then he has performed a number of 
 
         laboring type jobs to include hanging turkeys in a turkey plant, 
 
         loading and unloading steel and farm machinery, running a punch 
 
         press, working as a section laborer on the railroad, pushing and 
 
         lugging beef and he worked at the hide plant which was the 
 
         predecessor of the current employer from 1970 until his serious 
 
         injury on July 17, 1975 which kept him off work until the spring 
 
         of 1979 (Tr. pp. 26 & 27).  Claimant received workers' 
 
         compensation benefits for this earlier injury (Tr. p. 28).
 
         
 
              Also, two years prior to the alleged injury of January 17, 
 
         1985, claimant testified that he twisted his mid-back and went to 
 
         the company doctor.  According to the testimony, this was 
 
         sometime in 1982 or 1983 (Tr. pp. 32, 48 & 52-54).  Also a 
 
         breaker box exploded in May of 1984 and claimant burned his eyes, 
 
         face and hair and the company sent him to Marian Health Center 
 
         (Tr. p. 36).  In 1980 claimant also strained his back and the 
 
         company doctor took care of that (Tr. p. 37).  Claimant testified 
 
         that it was not necessary to fill out any forms for the prior 
 
         injuries (Tr. pp. 36 & 37).
 
         
 
              Claimant conceded that he was aware of a sign that notified 
 
         employees that if they got hurt, no matter how minor, you should 
 
         report it to your supervisor as soon as possible (Tr. p. 37).  He 
 
         stated that he thought he did that in this case.  In other 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   7
 
         
 
         
 
         testimony, claimant acknowledged that the first time he or his 
 
         representative asked for workers' compensation benefits was in 
 
         September of 1985 (Tr. p. 48).
 
         
 
              Claimant testified that he has not improved any since March 
 
         28, 1985.  He cannot walk more than a block and a-half and he 
 
         cannot sit very long.  At home he washes dishes and vacuums the 
 
         floor.  The landlord takes care of the yard.  He gets up in the 
 
         morning and watches television and reads the newspaper.  In the 
 
         afternoon he takes a nap and watches TV.  In the evening he 
 
         watches television.  He drives a car but not very far because it 
 
         hurts his back and legs (Tr. pp. 30-32).  Claimant testified that 
 
         he thought he was worse now than he was in 1979 after the 1975 
 
         injury (Tr. p. 49).  Claimant testified that he has applied for 
 
         work at Willards, Cargill and Goodwill Industries but was not 
 
         successful in obtaining employment (Tr. pp. 34 & 35).
 
         
 
              Grace Engelhart, claimant's wife, testified that claimant 
 
         told her on January 17, 1985 that he slipped at work and hurt his 
 
         lower back and she helped him treat it at home with heat and 
 
         massage (Tr. pp. 69 & 70).  He put off going to the doctor 
 
         because she was in school at that time and his income was their 
 
         only income (Tr. p. 70).  She corroborated his testimony on his 
 
         current walking, sitting and driving limitations (Tr. pp. 72-74). 
 
          She disagreed with Osborne that claimant was mentally retarded 
 
         or borderline mentally retarded (Tr. p. 80).
 
         
 
              Philip Osborne testified that he has been a vocational 
 
         rehabilitation counselor for the State of Iowa for 15 years.  He 
 
         saw claimant in October of 1985.  He obtained his employment and 
 
         medical history (Tr. pp. 57-60).  The psychological report from 
 
         the Social Security Administration indicated that claimant had an 
 
         IQ of 73 which by Iowa Vocational Rehabilitation criteria is 
 
         mental retardation (Tr. p. 60).  Witness did not obtain 
 
         educational records or perform any more tests (Tr. p. 61).  In 
 
         making a vocational handicap determination he found that claimant 
 
         was not able to work and that there was no training that could 
 
         assist him (Tr. p. 61).  As a result his office was not able to 
 
         give him any assistance in finding employment (Tr. p. 62).  The 
 
         witness estimated that possibly 50 percent of claimant's 
 
         vocational handicap was due to physical limitations and 50 
 
         percent was due to mental retardation (Tr. p. 63).  Osborne had 
 
         no explanation for how claimant was able to hold a full time job 
 
         for several years as a laborer at $7.10 per hour until he 
 
         resigned from it in March of 1985 (Tr. pp. 65 & 66).
 
         
 
               Claimant testified that he applied for social security 
 
         disability benefits but he was denied.  He appealed and the 
 
         appeal was denied (Tr. p. 46).
 
         
 
              Joel T. Cotton, M.D., a neurologist examined and evaluated 
 
         claimant for the defendants on June 9, 1986.  Dr. Cotton stated 
 
         that claimant's neurological examination was essentially 
 
         unremarkable.  Claimant complained of impotence since the injury 
 
         but Dr. Cotton thought it was a result of diabetes rather than 
 
         the back.  Dr. Cotton concluded as follows:
 
         
 
              ... I can demonstrate specifically no evidence of damage to 
 
              this man's spinal cord, lumbar nerve roots, sacral nerve 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   8
 
         
 
         
 
              roots, or peripheral nerves as a result of the injury he 
 
              describes in 1985.  There is specifically in this individual 
 
              no evidence of neurological impairment.  I am unable to 
 
              explain his continued symptoms of pain in the absence of any 
 
              objective abnormalities on his current neurological 
 
              examination.  I can document no evidence of a neurological 
 
              impairment in this individual.  In the absence of 
 
              neurological impairment, I do not feel there is any 
 
              disability in this individual either temporary or permanent 
 
              as a result of the injury which he describes.  From a 
 
              neurological standpoint this individual could pursue his 
 
              usual and customary activity without restriction.
 
              (Jt. Ex. 6)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 17, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 6-1 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 17, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is-for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the     evidence that he sustained an injury 
 
         that arose out of and in the course of his employment with 
 
         employer on January 17, 1985.  It is noted that the alleged 
 
         injury was not one with a severe traumatic onset.  Claimant did 
 
         not fall, fall to the ground or hit anything.  He allegedly 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page   9
 
         
 
         
 
         merely slipped on ice while walking on a slope and carrying a 20 
 
         pound roll of insulation and twisted his back (Tr. pp. 14 & 15; 
 
         Jt. Ex. 3).  There were no witnesses to the injury (Tr. p. 44).  
 
         Claimant did not seek emergency or immediate medical care for his 
 
         injury.  In fact he did not seek medical treatment until 
 
         approximately a month and a-half after the alleged injury of 
 
         January 17, 1985 when he went to see a chiropractor of his own 
 
         choice on March 5, 1985 (Jt.  Ex. 1). Claimant did not make a 
 
         report of the accident on the day it occurred (Tr. p. 15).  He 
 
         thinks he mentioned it to a co-employee while changing clothes 
 
         but produced no corroboration on this point.  Claimant testified 
 
         that he reported it to Shelton the following day and that he 
 
         thought Shelton was an employee and his supervisor (Tr. pp. 15 & 
 
         16).  Rohen testified that claimant knew that Shelton was a 
 
         consultant (Tr. p. 101).  Shelton denied that claimant reported 
 
         the incident to him.  Furthermore, if he had, Shelton would have 
 
         informed the claimant that he was not an employee and that 
 
         claimant should report it to Rohen (Tr. pp. 86 & 87).  Rohen 
 
         testified that for quite some time claimant did not have a 
 
         supervisor and claimant came to him for just about everything 
 
         (Tr. p. 100).
 
         
 
              Claimant testified that he asked David Fuehrer if he could 
 
         go see the doctor.  Claimant testified that he was told that 
 
         since the company did not have an injury report they would not 
 
         let him go to the company doctor.  It should be noted that 
 
         claimant did not contact the office himself which he could have 
 
         done if he chose to do so (Tr. pp. 40 & 41).  Rohen first learned 
 
         of the injury when claimant filed his petition in September of 
 
         1985.  At that time he talked to Fuehrer and Pat, the office girl 
 
         (Tr. pp. 92-95).  Neither one of them had any recollection or 
 
         record of any injury to claimant on January 17, 1985 (Tr. pp. 101 
 
         & 102).  Rohen testified that claimant came into the office and 
 
         talked to him practically every morning about what he was going 
 
         to do or to discuss his problems (Tr. pp. 101, 104 & 105).  
 
         Claimant alleged that he resigned due to his pain, but Rohen 
 
         testified that claimant did not mention pain or injury to him, 
 
         but rather indicated that he was going to retire and move to 
 
         Arizona.  The company had a retirement party for claimant when he 
 
         quit (Tr. pp. 97-99).
 
         
 
              Claimant stated that Dr. McCarthy did not give him an 
 
         adjustment because his injury was too bad.  Dr. McCarthy on the 
 
         contrary said that a manipulative treatment was administered with 
 
         immediate relief (Jt. Ex. 1).  Although Dr. McCarthy recorded the 
 
         history that claimant gave him, he did not specifically state 
 
         that the claimant's symptoms were caused by this alleged injury.  
 
         It is just as likely that the symptoms are the result of the 
 
         chronic degenerative problems described by Dr. McCarthy in his 
 
         report. Dr. McCarthy did not find that claimant was either 
 
         temporarily or permanently impaired but simply indicated that a 
 
         week of no work would be beneficial.  This phrasing indicates 
 
         that it was optional rather than mandatory (Jt. Ex. 1).
 
         
 
              Dr. Blume found that the alleged injury of January 17, 1985 
 
         aggravated claimant's thoracic and lumbar preexisting conditions 
 
         (Jt. Ex. 3 & 4).  However, Dr. Blume did not see claimant until 
 
         over two months after the alleged injury.  Dr. Blume did not give 
 
         a statement declaring that claimant had suffered any temporary 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page  10
 
         
 
         
 
         impairment or disability which rendered him unable to work.  He 
 
         did not distinguish how much of the permanent impairment rating 
 
         of 15 to 20 percent was due to the alleged January 17, 1985 
 
         injury and how much was due to the preexisting conditions (Jt. 
 
         Ex. 3 & 4).
 
         
 
              Dr. Cotton found no evidence of temporary or permanent 
 
         impairment or disability from the alleged injury of January 17, 
 
         1985.  He found that claimant could pursue his usual and 
 
         customary activities without restriction (Jt. Ex. 6).
 
         
 
              Osborne's opinion that claimant was unable to work at all 
 
         because of mental retardation and physical disability is not 
 
         supported by the medical evidence from the doctors.  Furthermore, 
 
         it is not a reasonable conclusion considering that claimant 
 
         voluntarily quit a laboring job that he had held for several 
 
         years at $7.10 per hour just shortly before he saw Osborne.  
 
         Neither Dr. McCarthy or Dr. Blume, both doctors of the claimant's 
 
         own choosing, told him to quit his job (Jt. Ex. 1, 3 & 4).
 
         
 
              Claimant's injury reporting as he described it in his 
 
         testimony was not reasonable.  He saw Rohen everyday and never 
 
         mentioned an injury or back pain.  Furthermore, if Shelton was 
 
         notified of the injury but failed to tell Rohen or the office 
 
         then claimant should have confronted Shelton and/or protested to 
 
         the office that he did report the injury to Shelton, but Shelton 
 
         did not report it to them.  However, claimant did not do so.
 
         
 
              Defendants pointed out that when it came to reporting 
 
         important matters such as his resignation, claimant did not tell 
 
         Shelton, but rather told Rohen direct.  Furthermore, Dr. McCarthy 
 
         said that he told the claimant on March 3, 1985, to see the 
 
         company medical doctor for approval of medical care (Jt. Ex. 1).  
 
         However, claimant did not follow Dr. McCarthy's advice or attempt 
 
         to see a company doctor for approval of further medical care.  
 
         Instead claimant went to see Dr. Blume on his own without any 
 
         approval and incurred charges totalling $2,187 for 99 office 
 
         visits (Jt. Ex. 5).  When claimant went to the office in person 
 
         to give them the return to work slip from Dr. McCarthy on March 
 
         13, 1985, it would have been an ideal opportunity to report the 
 
         injury of January 17, 1985; or to make sure that Shelton had 
 
         reported it to them; or to reconfirm it if he believed that it 
 
         had already been reported.  Claimant did not explain why he 
 
         allowed Dr. McCarthy to bill the group insurance carrier if in 
 
         fact he thought he was entitled to workers' compensation benefits 
 
         for this claim.  For the foregoing reasons it is found that 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on January 17, 1985.  
 
         It is gratuitously added that claimant did not sustain the burden 
 
         of proof by a preponderance of the evidence that the alleged 
 
         injury was the cause of any temporary or permanent disability.
 
         
 
              Defendants did sustain the burden of proof by a 
 
         preponderance of the evidence that claimant failed to give notice 
 
         within 90 days as required by Iowa Code section 85.23 and that 
 
         they did not have actual knowledge of the injury.  The injury 
 
         allegedly occurred on January 17, 1985.  The preponderance of the 
 
         evidence is that the first knowledge that employer had about the 
 
         injury was when claimant filed his petition on September 20, 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page  11
 
         
 
         
 
         1985.  Consequently, claimant is not entitled to disability or 
 
         medical benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made.;
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         January, 17, 1985 by slipping on the ice and twisting his tack on 
 
         that date.
 
         
 
              That there was no eye witnesses to the incident.
 
         
 
              That claimant did not report the injury at the time it 
 
         occurred to Shelton, the office, or any other supervisor.
 
         
 
              That claimant did not report the injury to the plant manger, 
 
         Rohen, that he saw  everyday in the office and who directly 
 
         supervised his work.
 
         
 
              That claimant's testimony that he reported the accident to 
 
         Shelton and Fuehrer was contradicted by evidence of the 
 
         defendants.
 
         
 
              That claimant did not seek medical treatment for the alleged 
 
         injury of January 17, 1985 until March 5, 1985, which was 
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page  12
 
         
 
         
 
         approximately one and one-half months after the injury allegedly 
 
         occurred.
 
         
 
              That claimant did not follow the admonition of Dr. McCarthy 
 
         to get approval from the company medical doctor for further 
 
         care.
 
         
 
              Neither Dr. McCarthy and Dr. Cotton found that the alleged 
 
         injury of January 17, 1985 was the cause of either temporary or 
 
         permanent disability or impairment.
 
         
 
              That Dr. Blume's impairment rating is not entirely clear and 
 
         was controverted by Dr. McCarthy and Dr. Cotton.
 
         
 
              That no doctor recommended that claimant quit his job.
 
         
 
              That claimant voluntarily quit his job on March 28, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously mentioned, the following conclusions 
 
         of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         January 17, 1985.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the alleged injury was the 
 
         cause of any temporary or permanent disability.
 
         
 
              That claimant did.not establish his entitlement to either 
 
         compensation benefits or medical benefits.
 
         
 
              That the defendants did sustain the burden of proof by a 
 
         preponderance of the evidence that claimant did not give notice 
 
         as provided by Iowa Code section 85.23 and that they did not have 
 
         actual knowledge of the injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendants to claimant for 
 
         compensation benefits or medical benefits.
 
         
 
              That the cost of this action are taxed to claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 13th day of August, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         ENGELHART V. MID-AMERICA TANNING CO., INC.
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Paul A. Mahr
 
         Attorney at Law
 
         318 Insurance Centre
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Michael J. O'Bradovich
 
         Attorney at Law
 
         4535 Leavenworth
 
         Suite 22
 
         Omaha, Nebraska 68106
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   
 
                                                1106; 1108; 1402.20
 
                                                1402.30; 1402.50; 1402.60
 
                                                1801; 1802; 1803; 1804
 
                                                2801; 2802; 2803
 
                                                Filed August 13, 1987
 
                                                WALTER R. McMANUS, JR.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HOWARD C. ENGELHART,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 803205
 
         MID-AMERICA TANNING CO., INC.,
 
                                                   A R B I T R A T I 0 N
 
             Employer,
 
                                                      D E C I S I O N
 
         and
 
         
 
         ROCKWOOD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108; 1402.20; 1402.30; 1402.50; 1402.60
 
         
 
              Claimant failed to sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury that 
 
         arose out of and in the course of his employment that he slipped 
 
         and twisted his back at work.  There were no eye-witnesses.  He 
 
         did not report it that day.  He testified he reported it the next 
 
         day to a consultant on the premises but the consultant denied 
 
         that he did.  The office did not receive a report.  He saw the 
 
         plant manager everyday and he was claimant's direct supervisor 
 
         and he never mentioned an injury or pain to him.  Claimant 
 
         resigned a few weeks later without mention of pain or injury.  
 
         The company had a retirement party for him and gave him gifts.
 
         
 
         1801; 1802; 1803; 1804
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he was either temporarily or 
 
         permanently disabled.  Two doctors found no temporary or 
 
         permanent impairment. one doctor found no temporary impairment 
 
         but awarded 15-20 percent permanent partial disability but failed 
 
         to distinguish how much, if any, was this injury or how much was 
 
         from an earlier more serious injury.
 
         
 
         
 
                                                
 
                                                         
 
         
 
         2801; 2802; 2803
 
         
 
              Defendants did sustain the burden of proof by a 
 
         preponderance of the evidence that they did not have actual 
 
         knowledge of the injury and that claimant did not give them 
 
         notice.