BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN GRAVES,
 
         
 
              Claimant,                            File Nos. 803214
 
                                                           767270
 
         vs.
 
                                                      A P P E A L
 
         FRENCH & HECHT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,                            F I L E D
 
              Defendant.
 
                                                      OCT 17 1989
 
              
 
                                                  INDUSTRIAL SERVICES
 
              
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant and defendant appeal from an arbitration decision 
 
         awarding permanent partial disability benefits as the result of 
 
         alleged injuries on June 12, 1984 and August 13, 1985.  The 
 
         record on appeal consists of the transcript of the arbitration 
 
         hearing and joint exhibits 1 through 9.
 
         
 
                                      ISSUES
 
         
 
              Neither party filed a brief on appeal.  Thus, the appeal 
 
         will be considered generally and without regard to specific 
 
         issues.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has shown that on August 13, 1985, he suffered a 
 
         work injury to his back that resulted in permanent impairment.  
 
         The report of John Sinning, M.D., causally connects claimant's 
 
         present condition to the August 13, 1985 injury.  Dr. Sinning 
 
         appears to have been aware of claimant's prior falls and back 
 
         injuries, and has nevertheless concluded that the August 13, 1985 
 
         injury is the cause of claimant's present condition.  His opinion 
 
         is uncontroverted.
 
         
 
              Claimant is 34 years of age, with a high school education. 
 
         His work experience is limited to manual labor involving lifting. 
 
         Claimant now has permanent lifting restrictions as a result of 
 
         the August 13, 1985 injury.  Based on these and all other 
 
         appropriate factors for determining industrial disability, 
 
         claimant is determined to have an industrial disability of 30 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical expenses are also causally connected to 
 
         his work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On August 13, 1985, claimant suffered an injury to his 
 
         low back which arose out of and in the course of his employment 
 
         with employer while lifting at work.
 
         
 
              2.  The work injury of August 13, 1985, was a cause of a 
 
         five percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no repetitive lifting over 50 pounds and no 
 
         occasional lifting over 100 pounds.  Claimant must be able to 
 
         change positions and cannot stand continuously while working at 
 
         shoulder height or above.  Bending and twisting must also be 
 
         limited.
 
         
 
              3.  The work injury of August 13, 1985, and the resulting 
 
         permanent partial impairment and work restrictions, was a cause 
 
         of a 30 percent loss of earning capacity.  Claimant is unable to 
 
         return to his former heavy work for employer and to other heavy 
 
         work generally.  Heavy work is the employment to which claimant 
 
         is best suited given his work history, age and education.  
 
         Claimant is currently unemployed but only in part due to his 
 
         disability. Claimant was terminated by employer for absenteeism 
 
         unrelated to his work injury.  Claimant's potential for 
 
         rehabilitation employment is unknown but claimant is relatively 
 
         young and has a high school education.  Claimant has not been 
 
         offered vocational rehabilitation by the employer.  Claimant 
 
         reached maximum healing on December 31, 1985.
 
         
 
              4.  The medical expenses listed in the prehearing report, 
 
         which total $1,577.20 were authorized by defendant.  The expenses 
 
         were incurred as a result of a referral by a physician authorized 
 
         by defendant.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the permanent partial disability benefits and 
 
         medical benefits awarded below.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
              
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred ninety-two and 62/100 dollars ($192.62) per week from 
 
         December 31, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendant shall pay to Michael R. DeBlois, D.O., the 
 
         sum of two hundred thirty-nine and 00/100 dollars ($239.00) plus 
 
         any late payment charges authorized by law and the sum of one 
 
         thousand three hundred thirty-eight and 20/100 dollars 
 
         ($1,338.20) to the Davenport Osteopathic Hospital plus any late 
 
         payment charges authorized by law.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for any permanent 
 
         partial disability benefits previously paid.
 
         
 
              That defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file activity reports on payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 17th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa  52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Ste. 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1108
 
                                            Filed October 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN GRAVES,
 
         
 
              Claimant,                           File Nos. 803214
 
                                                           767270
 
         vs.
 
                                                    A P P E A L
 
         FRENCH & HECHT,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108
 
         
 
              Claimant was found to have shown a causal connection between 
 
         his disability and his work injury where physician who was aware 
 
         of claimant's non-work injuries nevertheless connected his 
 
         disability to his work injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN GRAVES,
 
         
 
              Claimant,                    File Nos. 803214 & 767270
 
         
 
         vs.                                A R B I T R A T I O N
 
         
 
         FRENCH & HECHT,                       D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John Graves, 
 
         claimant, against French & Hecht, self-insured employer 
 
         (hereinafter referred to as French), for workers' compensation 
 
         benefits as a result of alleged injuries on June 12, 1984 and 
 
         August 13, 1985.  On May 6, 1988, 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 was received during the hearing 
 
         from claimant and John Hayes.  The exhibits received into the 
 
         evidence at the hearing are listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On June 12, 1984, claimant received an injury which 
 
         arose out of and in the course of his employment with French;
 
         
 
              2.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits i.n this proceeding;
 
         
 
              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 $265.03 
 
         for the June 12, 1984 injury and $192.62 for the August 13, 1985 
 
         alleged injury,; and,
 
         
 
              5.  The medical bills submitted by claimant at hearing and 
 
         listed in the prehearing report are fair and reasonable and 
 
         causally connected to the June 12, 1984 injury.  The only issue 
 
         with reference to these expenses is whether they were authorized 
 
         by defendant.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   2
 
         
 
         
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment on August 13, 1985;
 
         
 
             II.  Whether there is a causal relationship between any of 
 
         the alleged work injuries and the claimed disability;
 
         
 
            III.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for French from September, 
 
         1972 until August 26, 1986, at which time claimant was fired.  
 
         Claimant stated that his duties during the French employment 
 
         consisted of mostly manual labor involving the lifting and 
 
         stacking of parts.  Claimant earned $8.00 per hour in his job at 
 
         the time of the alleged injury.  Claimant stated at hearing that 
 
         he left his employment at French after being terminated for 
 
         excessive absenteeism.  Claimant testified that there was a 
 
         personality conflict between himself and tile plant manager who 
 
         he said did not like his beard or long hair.  Claimant and the 
 
         plant manager apparently argued several times about claimant's 
 
         failure to wear his back brace while working at French.  John 
 
         Hayes, the former Industrial Relations.Director at French, 
 
         verified claimant's testimony that there were several conflicts 
 
         between claimant and the plant manager concerning the back brace 
 
         and the medical care he was receiving.  Hayes testified that he 
 
         suspected from claimant's appearance at work that claimant had a 
 
         chemical abuse problem and felt that French should not have 
 
         terminated claimant without providing more assistance to him for 
 
         this problem.  French had referred claimant to a local chemical 
 
         dependency program but claimant dropped out of the program.  
 
         Hayes added, however, that it was never established that claimant 
 
         had a problem and claimant never admitted to such a problem.  He 
 
         confirmed that the only drug testing of claimant prior to his 
 
         termination at French occurred in 1984.  The results of this test 
 
         were negative.  One treating physician in this case, William 
 
         Irey, M.D., noted in a history taken in June of 1984 that 
 
         claimant was hospitalized one or two years previously for alcohol 
 
         abuse.  At hearing, claimant denied that he had any drug or 
 
         alcohol problem.  He admitted that he left the chemical 
 
         dependency program knowing that he could be fired for doing so.  
 
         Claimant also said at hearing that he was fired for being absent 
 
         for three days.  One day, during this time, he saw another 
 
         attorney; the next day he had to leave work to deal with a shut 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   3
 
         
 
         off of his electrical power at his residence; and, the third day 
 
         he had to take off work to pick up a garnished paycheck which 
 
         occurred as a result of an unpaid medical bill.
 
         
 
              Claimant bases his claim upon two back injuries allegedly 
 
         occurring at work on June 12, 1984 and August 13, 1985.  Claimant 
 
         also discussed at hearing other injuries to his back both at work 
 
         and at home.  Claimant asserts that he had no back problems until 
 
         1978 while lifting parts and pallets on the paint line at French.  
 
         Claimant stated that he never made a complete recovery from this 
 
         injury and continued having intermittent back problems over the 
 
         ensuing years.  On January 4, 1984, claimant said that he slipped 
 
         and fell on ice outside of his home.  Claimant was off work as a 
 
         result of this fall for a week or two under the care of his 
 
         family physician, Michael R. DeBlois, D.O.  It was Dr. DeBlois's 
 
         diagnosis that claimant suffered from acute lumbosacral strain 
 
         and pain.  When claimant's symptoms continued, claimant was 
 
         referred by Dr. DeBlois to Anthony D'Angelo, D.O., who took 
 
         claimant off work for a week in early April, 1984.  Claimant 
 
         returned to work for two days and then was hospitalized for tests 
 
         by Dr. D'Angelo between April 12, 1984 and April 17, 1984.  
 
         Myelograms and CT scans at that time revealed a bulging but not a 
 
         herniation of the disc in the lower spine.  Claimant was again 
 
         hospitalized for manipulation therapy and steroid injections on 
 
         May 11, 1984.  Claimant then returned to work under temporary 
 
         restrictions against lifting, bending and stooping.
 
         
 
              On June 12, 1984, claimant testified that he slipped and 
 
         fell on the floor in the men's locker room at French.  Claimant 
 
         experienced again acute back strain and contusion of his lower 
 
         back from falling on his "buckknife."  At that, claimant was 
 
         hospitalized overnight by Jan 0. Koehler, M.D., and William Irey, 
 
         M.D., an orthopedic surgeon, both of whom were retained by 
 
         defendant.  Dr. Irey released claimant to return to light duty 
 
         work on July 2, 1984.  On July 10, 1984, claimant returned to Dr. 
 
         Irey for a "recheck" and it was noted that two days previous he 
 
         had fallen down steps at home.  Dr. Irey indicated in his records 
 
         that after claimant's discharge from the hospital on June 14, 
 
         1984, it was recommended by him that he receive follow-up care by 
 
         his family physician.  Dr. Irey indicated in a note of September 
 
         7, 1984, that follow-up care by claimant with his family 
 
         physician was "satisfactory."  Claimant did in fact, at the 
 
         suggestion of Dr. Irey, return to his family physician, Dr. 
 
         DeBlois, and received follow-up care.  Upon a diagnosis of 
 
         probable herniated disc, Dr. DeBlois in June, 1985, referred 
 
         claimant to Dr. D'Angelo who admitted claimant to Davenport 
 
         Osteopathic Hospital for five days of tests and treatment.  
 
         Claimant was dismissed with a final diagnosis of acute 
 
         lumbosacral strain and sprain and a deep contusion of the low 
 
         back.  The expenses of Dr. DeBlois and at the osteopathic 
 
         hospital are the disputed expenses in this case.  Claimant was 
 
         returned to work by Dr. DeBlois on August 6, 1984, to unlimited 
 
         work on a "trial basis."
 
         
 
              In April, 1985, claimant returned to Dr. Koehler for an 
 
         evaluation of his back explaining that he was considering a job 
 
         change where the amount of lifting at work would increase.  Dr. 
 
         Koehler stated at that time as follows:
 
         
 
              I feel,.... that with the history of multiple injuries 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   4
 
         
 
              and chronically recurring pain, he is at a significant 
 
              risk for sustaining further back injuries with any type 
 
              of heavy lifting.
 
         
 
              Claimant testified that he returned to heavy labor at 
 
         French.  On August 13, 1985, while lifting a 50 pound rack, 
 
         claimant suffered another injury to his back and was referred by 
 
         defendant to another orthopedic surgeon, John Sinning, M.D., an 
 
         associate of Dr. Irey's.  Dr. Sinning treated claimant over the 
 
         next few months with physical therapy and exercise programs.  
 
         Claimant was also advised to wear a "flexion type brace" to 
 
         prevent painful hyperextended positions.  In November, 1985, 
 
         claimant complained to Dr. Sinning that the brace was bothering 
 
         him but he failed to bring it in for adjustment prior to March, 
 
         1986.  Dr. Sinning indicated in a report dated December 31, 1986 
 
         that claimant had stabilized at that time.  However, claimant 
 
         continued to experience a persistence of symptoms.
 
         
 
              After leaving French's employment, claimant reinjured his 
 
         back while working for another employer while carrying buckets of 
 
         plaster weighing up to 65 pounds.  Claimant said that he was 
 
         "laid up" for five days as a result of this incident.  Claimant 
 
         admits to several problems since that time but not as serious as 
 
         the bucket carrying incident.
 
         
 
              According to Dr. Sinning, the likely diagnosis of claimant's 
 
         condition is "chronic hyperextension and back strain" which 
 
         constitutes a five percent permanent partial impairment to 
 
         claimant's body as a whole.  Dr. Sinning has imposed upon 
 
         claimant permanent activity restrictions consisting of no regular 
 
         lifting above 50 pounds, only occasional lifting from 75 to 100 
 
         pounds, and an ability to change positions in a work place.  Dr. 
 
         Sinning indicated that standing in one place while working at 
 
         shoulder height or above should be avoided.  Also, twisting and 
 
         bending should be limited.  Continued use of the back brace is 
 
         recommended although Dr. Sinning did not believe that this would 
 
         be a permanent part of claimant's treatment in the future.
 
         
 
              In a letter dated July 26, 1988, Dr. Sinning opined that 
 
         from his review of claimant's history that claimant had been 
 
         returned to work without permanent restrictions following all 
 
         work injuries prior to August 13, 1985.  He concluded from this 
 
         fact that claimant's permanent partial impairment was the result 
 
         of the August, 1985, injury and that this injury also 
 
         precipitated claimant's permanent restrictions.  In 
 
         cross-examination of claimant by defense, claimant stated that he 
 
         did not,know whether Dr. Sinning was aware of all of claimant's 
 
         falls at home.  Claimant also admitted that he had no lost time 
 
         as a result of the August, 1985, injury at work.
 
         
 
              Claimant indicated at hearing that his only significant 
 
         employment in the past has been his employment with French.  
 
         Claimant stated at hearing that he is 34 years of age and has a 
 
         high school education.  Claimant has been employed only briefly 
 
         in two jobs since leaving French.  In the fall of 1987, claimant 
 
         was a housekeeper at a local college receiving a minimum wage of 
 
         $3.35 per hour.  In the winter of 1987/88 claimant worked as a 
 
         pipe insulator but said he had to quit the job for lack of 
 
         transportation.  Claimant testified that he has applied for over 
 
         100 jobs in the quad cities metro area but has been unable to 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   5
 
         
 
         secure employment from such effort.  Claimant said that he must 
 
         tell prospective employers about his back problem and that he 
 
         does not feel that he is able to get a good paying job without 
 
         performing heavy lifting activity.
 
         
 
              Claimant testified that his back problem has not improved 
 
         but that he generally is able to lift up to 50 pounds.  He states 
 
         that riding in a car and performing any work involving overhead 
 
         work would bother him.
 
         
 
              Claimant's appearance and demeanor at hearing failed to 
 
         support claimant's credibility.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  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 
 
         therein.
 
         
 
              Despite his lack of credibility, claimant has established by 
 
         uncontroverted testimony and supportive medical records a work 
 
         injury on August 13, 1985.  French offered no evidence to 
 
         controvert claimant's story.  It is clear from Dr. Sinning's 
 
         report that he believed claimant's account of the incident.
 
         
 
              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 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   6
 
         
 
         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 has shown by a 
 
         preponderance of the evidence a causal connection between the 
 
         work injury of August 13, 1985 and claimant's permanent partial 
 
         impairment.  The June, 1984, injury does not appear to have 
 
         caused any permanent impairment.  The opinion of Dr. Sinning is 
 
         virtually uncontroverted in the record and appears to be quite 
 
         logical.  Although he may have had intermittent problems, 
 
         claimant was able to return to full duty at work prior to the 
 
         August, 1985, injury.  To the extent Dr. Koehler's opinions are 
 
         conflicting, the undersigned must give the greater weight to the 
 
         views of the orthopedic specialist, Dr.Sinning. Defendant, in 
 
         cross-examination of claimant, pointed out that Dr. Sinning may 
 
         not have been given the complete history, especially of the 
 
         January, 1985 fall.  However, Dr. Sinning is Dr. Irey's associate 
 
         and it is apparent from Dr. Sinning's reports that he has 
 
         reviewed Dr. Irey's records.  Dr. Irey's records clearly indicate 
 
         the nature of claimant's problems and hospitalizations prior to 
 
         Dr. Irey's treatment in June, 1984.
 
         
 
              To the extent that claimant's problems are the result of a 
 
         combined effect of all of the various work and non-work related 
 
         injuries, claimant still has made the necessary showing to 
 
         establish a prima facie case for compensability.  Claimant only 
 
         has to demonstrate that his work was a significant causative 
 
         factor.  Claimant does not have the burden to show that his 
 
         disability was solely caused by his work activity.
 
         
 
              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 of work activity may or may not result 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   7
 
         
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity.and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury, and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition prior to August 13, 1985, was 
 
         certainly far from excellent but according to Dr. Sinning 
 
         claimant had no functional impairment or ascertainable 
 
         disabilities.  Claimant was able to perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping and prolonged standing and sitting.. At the present 
 
         time, claimant's treating physicians have given claimant a 
 
         significant permanent partial impairment rating to the body as a 
 
         whole.  Any impairment prior to that work injury is not important 
 
         as the record does not indicate that such impairment resulted in 
 
         any work disability.  Apportionment of disability between a 
 
         preexisting condition and an injury is proper only when there is 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   8
 
         
 
         some ascertainable disability which existed independently before 
 
         the injury occurred.  Varied Enterprises Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as heavy lifting, repetitive 
 
         lifting, bending, twisting and stooping and prolonged sitting and 
 
         standing.  Claimant's medical condition prevents him from 
 
         returning to his former work or any other work which requires 
 
         claimant to violate his work restrictions.
 
         
 
              Apart from his lost earnings during his healing period, 
 
         claimant has suffered a significant permanent loss in actual 
 
         earnings as a result of his termination at French.  However, the 
 
         termination cannot be blamed upon the work injury.  Claimant's 
 
         absenteeism which resulted in the loss of his job at French was 
 
         for the most part not related to the work injury.  Claimant 
 
         simply was not credible in order to justify a finding that the 
 
         termination was the result of a work injury.  Furthermore, 
 
         although there may have been reason to suspect claimant was 
 
         leaving a problem with substance abuse, the evidence submitted in 
 
         this case does not show that claimant has such a problem.
 
         
 
              Regardless of the reasons for his termination from French, 
 
         it is clear that his current unemployment is in part due to his 
 
         disability and he is not able to physically return to heavy work, 
 
         the type of work for which he is best suited given his age, 
 
         education and work history.  Claimant remains unemployed and he 
 
         has testified that he made a reasonable effort to seek 
 
         alternative employment.  However, claimant is not found to be 
 
         credible and therefore there is no independent verification of 
 
         his attempts to secure alternate employment.
 
         
 
              Claimant is 34 years of age and relatively young.  Although 
 
         claimant has a high school education and exhibited average 
 
         intelligence at the hearing, little was shown to indicate 
 
         claimant's potential for vocational rehabilitation.  On the other 
 
         hand no vocational rehabilitation counseling was offered by 
 
         French at any time despite the imposition of permanent 
 
         restrictions by Dr. Sinning which clearly effected his 
 
         employability.
 
         
 
              After examination of all the factors, it is found that 
 
         claimant has only demonstrated from his evidence a 30 percent 
 
         loss of earning capacity from his work injury.  As a result of 
 
         such a finding, claimant is entitled as a matter of law to 
 
         150.weeks of permanent partial disability benefits under Iowa 
 
         Code section 85.34(2)(u) which is 30 percent of 500 weeks, the 
 
         maximum allowable number of weeks for an injury to the body as a 
 
         whole in that subsection.  Dr. Sinning stated that claimant's 
 
         condition stabilized on December 31, 1985.  Therefore, permanent 
 
         partial disability benefits will begin on that date.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of his reasonable medical expenses for 
 
         treatment of a work injury.  However, claimant is only entitled 
 
         to an order of reimbursement for those expenses which he has 
 
         previously paid.  Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Defendant argues that the treatment by Dr. DeBlois and at 
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE   9
 
         
 
         the osteopathic hospital was not authorized.  However, it is 
 
         clear that Dr. Irey, who was an authorized physician according to 
 
         the defendant, clearly states that he recommended to claimant 
 
         follow-up care by Dr. DeBlois who is claimant's family physician. 
 
          Claimant's hospitalization at the Davenport Osteopathic Hospital 
 
         was the result of this follow-up care.  Therefore, claimant has 
 
         shown that the care was authorized by defendant.  Referred care 
 
         is generally held to be authorized care.  See Lawyer & Higgs, 
 
         Iowa Workers' Compensation - Law and Practice section 15-2, page 
 
         136.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On August 13, 1985, claimant suffered an injury to his 
 
         low back which arose out of and in the course of his employment 
 
         with French while lifting at work.
 
         
 
              2.  The work injury of August 13, 1985, was a cause of five 
 
         percent permanent partial impairment to the body as whole and of 
 
         permanent restrictions upon claimant's physical activity 
 
         consisting of no repetitive lifting over 50 pounds and no 
 
         occasional lifting over 100 pounds.  Claimant must be able to 
 
         change positions and cannot stand continuously while working at 
 
         shoulder height or above.  Bending and twisting must also be 
 
         limited.
 
         
 
              3.  The work injury of August 13, 1985, and the resulting 
 
         permanent partial impairment and work restrictions, was a cause 
 
         of a 30 percent loss of earning capacity.  Claimant is unable to 
 
         return to his former heavy work at French and to other heavy work 
 
         generally.  Heavy work is the employment to which claimant is 
 
         best suited given his work history, age and education.  Claimant 
 
         is currently unemployed but only in part due to his disability.  
 
         Claimant was terminated at French for absenteeism unrelated to 
 
         his work injury.  Claimant is not credible and no finding could 
 
         be made that he has made a reasonable attempt to look for 
 
         replacement employment.  Claimant's potential for rehabilitation 
 
         employment is unknown but claimant is relatively young and has a 
 
         high school education.  Claimant has not been offered vocational 
 
         rehabilitation by French.  Claimant reached maximum healing on 
 
         December 31, 1985.
 
         
 
              4.  The medical expenses listed in the prehearing report, 
 
         which total $1,577.20 were authorized by defendant.  The expenses 
 
         were incurred as a result of a referral by a physician authorized 
 
         by defendant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the permanent partial disability benefits and 
 
         medical benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1. Defendant shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred ninety-two and 62/100 dollars ($192.62) per week from 
 
         December 31, 1985.
 
         
 

 
         
 
         
 
         
 
         GRAVES V. FRENCH & HECHT
 
         PAGE  10
 
         
 
              2.  Defendant shall pay to Michael R. DeBlois, D.O., the sum 
 
         of two hundred thirty-nine and no/100 dollars ($239.00) plus any 
 
         late payment charges authorized by law and the sum of one 
 
         thousand three hundred thirty-eight and 20/100 dollars 
 
         ($1,338.20) to the Davenport Osteopathic Hospital plus any late 
 
         payment charges authorized by law.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and still receive credit against this award for any permanent 
 
         partial disability benefits previously paid.
 
         
 
              4.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendant shall file activity reports on payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 30th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      LARRY P. WALSHIRE
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         STE 102, Executive Square
 
         400 Main St.
 
         Davenport, Iowa 52801
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed September 30, 1988
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN GRAVES,
 
         
 
              Claimant,                   File Nos. 803214 & 767270
 
         
 
         vs.                                A R B I T R A T I O N
 
         
 
         FRENCH & HECHT,                      D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant's evidence demonstrated an industrial disability of 
 
         30 percent and benefits were awarded accordingly.  Authorized 
 
         care also includes referred care by an authorized physician.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAVONDA SPARROW,              :
 
                                          :
 
                 Claimant,                :      File No. 803234
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARMOUR-DIAL, INC.,            :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case, with the following additional analysis:
 
            The deposition of Dr. Jochims was properly admitted pursuant 
 
            to Risius v. Todd Corporation, (Remand Order, October 17, 
 
            1989).  
 
            The impairment rating of Dr. Jochims is given weight only to 
 
            the extent that it describes claimant's present physical 
 
            impairment.
 
            Defendants shall pay the costs, including the costs of the 
 
            appeal. 
 
            Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P. O. Box 1066
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Larry Shepler
 
            Attorney at Law
 
            Executive Square, Ste. 102
 
            400 Main Street
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2906
 
                                          Filed July 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAVONDA SPARROW,              :
 
                                          :
 
                 Claimant,                :      File No. 803234
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARMOUR-DIAL, INC.,            :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2906
 
            Summary affirmance of deputy's decision awarding 20% 
 
            industrial disability, and admitting doctor's deposition 
 
            taken lesst than 15 days before hearing pursuant to holding 
 
            in Risius v. Todd Corp., Remand Decision, October 17, 1989.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAVONDA SPARROW,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File.No. 803234
 
         ARMOUR-DIAL, INC.,
 
         
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
         
 
              Self-Insured,                             D E C I S I 0 N
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Lavonda 
 
         Sparrow, claimant, against Armour-Dial, Inc., employer and 
 
         self-insured defendant for benefits as the result of an injury 
 
         that occurred on March 14, 1985.  A hearing was held in 
 
         Burlington, Iowa, on July 19, 1988, and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Lavonda Sparrow, claimant; joint exhibits 1 
 
         through 42 and defendant's exhibit A, pages 13 through 19.  
 
         Defendant supplied the industrial commissioner with a transcript. 
 
         claimant's attorney submitted an excellent posthearing brief.  
 
         Defendant's attorney did not file a brief.
 
                                        
 
                                   STIPULATIONS
 
                                        
 
              The parties stipulated to the following matters:
 
         
 
              That and employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on March 14, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability from 
 
         September 18, 1985 to January 6, 1986; that claimant was paid and 
 
         has received temporary disability benefits for that period of 
 
         time; and that claimant's entitlement to temporary disability 
 
         benefits is not an issue in dispute in this case at this time.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is January 7, 
 
         1986.
 
         
 
         SPARROW VS. ARMOUR-DIAL, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the weekly rate of compensation, in the event of an 
 
         award of benefits, is $225.67 per week.
 
         
 
              That claimant's entitlement to medical benefits is not a 
 
         matter in dispute in this case at this time.
 
         
 
              That defendant claims no credit for benefits paid prior to 
 
         hearing under (1) an employee nonoccupational group health plan 
 
         or (2) as workers' compensation permanent disability benefits.
 
         
 
              That there are no bifurcated claims.
 
                                        
 
                                      ISSUES
 
                                        
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, to include whether claimant is entitled to benefits for 
 
         a scheduled member injury or whether claimant is entitled to 
 
         industrial disability for an injury to the body as a whole.
 
                                        
 
          RULING ON THE ADMISSIBILITY OF EXHIBIT 41, DEPOSITION OF JERRY
 
                        JOCHIMS, M.D., DATED JULY 8, 1988
 
                                        
 
              Defendant objected to the admissibility of exhibit 41, the 
 
         deposition of Jerry Jochims, M.D., taken on July 8, 1988, 
 
         approximately 11 days prior to hearing, because it seeks to 
 
         accomplish through deposition what would not be allowed in 
 
         writing because paragraph six of the hearing assignment order 
 
         requires all written exhibits to be filed no later than 15 days 
 
         prior to hearing.  In a deposition on February 25, 1986, Dr. 
 
         Jochims said claimant had not sustained a permanent impairment.  
 
         In the deposition on July 8, 1988, he determined there was a 5 
 
         percent permanent impairment.  Defendant claimed surprise, 
 
         hardship and unfairness because in the remaining ten days 
 
         defendant did not have time to obtain an alternate opinion on 
 
         permanency.  Defendant did not, however, ask for a continuance.  
 
         Based on his experience, the industrial commissioner's office 
 
         does not grant continuances except in the case of a sickness of a 
 
         party or an attorney.  He determined that a motion for 
 
         continuance would be a meaningless and unfruitful gesture.
 
         
 
              Claimant's counsel responded that at the time of his 
 
         February 25, 1986 deposition, Dr. Jochims said claimant had not 
 
         sustained a permanent impairment, but he would change that 
 
         opinion if her condition of not being able to lift her arm above 
 
         shoulder height persisted for six months after the surgery.  
 
         Counsel for claimant further contended that as far back as
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SPARROW,VS. ARMOUR-DIAL, INC.
 
         Page 3
 
         
 
         
 
         February 26, 1986, he served a list of witnesses on defendant's 
 
         counsel stating that for witnesses he planned to call claimant 
 
         and Dr. Jochims by deposition.  Counsel for claimant further 
 
         contended that the deposition of Dr. Jochims was admissible 
 
         because paragraph seven of the..hearing assignment order 
 
         specifically treats depositions differently from exhibits by 
 
         stating, "All evidentiary depositions shall be taken by the date 
 
         of the hearing."
 
         
 
              At the request of defendant's counsel, the deputy agreed not 
 
         to rule until the entire case was decided.
 
         
 
              Wherefore, it is now determined that defendant's objection 
 
         to exhibit 41, is overruled and the deposition is admitted into 
 
         evidence.
 
                                        
 
                             SUMMARY OF THE EVIDENCE
 
                                        
 
              Claimant, born September 17, 1942, was 41  years old at the 
 
         time of the injury and was 45 years old at the  time of the 
 
         hearing.  She started to work for employer on February 8, 1973, 
 
         and worked continuously for employer for approximately 15 years 
 
         doing various production line jobs.  She was employed by employer 
 
         at the time of the hearing in various jobs within her 
 
         restrictions (transcript page 49).  Prior to that she performed 
 
         production line work for another manufacturer.  Claimant's 
 
         education was not placed in evidence.
 
         
 
              On March 14, 1985, claimant was working as a closer.  A 
 
         closer puts lid's on the top of cans.  A coemployee ran out of 
 
         lids and requested claimant to give her some lids.  Claimant 
 
         reached up on top of her pile of lids and pulled off three 
 
         sleeves (tubes) of lids.  When she went to pull them off, they 
 
         slipped, it.jerked her right arm and claimant felt a sharp pain 
 
         go up through her right arm, shoulder and neck.  Claimant 
 
         reported the injury to her foreman, who sent her to first aid, 
 
         where she made out a report of the injury.  The nurse sent her to 
 
         see James Kannenberg, M.D. He treated her for a period of time 
 
         and sent her to see Jerry Jochims, M.D., an orthopedic surgeon.
 
         
 
              There was evidence that claimant had injured her right 
 
         shoulder on April 29, 1977, when she slipped on & wet floor and 
 
         again on August 25, 1979, while reaching into a case packer to 
 
         remove a bent pad (exhibit 31, p. 80, ex. 3, p. 3).  Claimant 
 
         admitted to intermittent pain in the right shoulder from time to 
 
         time, but contended it was not serious or continuous until just 
 
         prior to her right shoulder surgery on September 18, 1986 (ex. 
 
         12, p. 23; tr. pp. 34-56).  Claimant countered that she had never 
 
         lost any time from work, from either of these two prior episodes 
 
         and was never referred to an orthopedic surgeon until this injury 
 
         of March 14, 1985 (tr. pp. 57-59).  On July 25, 1986, Dr. Jochims
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         SPARROW VS. ARMOUR-DIAL, INC.
 
         Page 4
 
         
 
         
 
         diagnosed bicipital tendonitis, probably an over strain, overuse 
 
         syndrome, possibly related to work (ex. 12, p. 23).
 
         
 
              Dr. Jochims performed a resection of the bicipital tendon in 
 
         groove at the Burlington Medical".Center on September 18, 1985 
 
         (ex. 12, p. 23 through Ex. 22, p. 62).
 
         
 
              Subsequent to this injury of March 14, 1985, claimant struck 
 
         a dog while riding a moped on June 8, 1986, and fractured her 
 
         left clavicle and may have received some fine line fractures of 
 
         her left ribs (ex. 23, p. 63).
 
         
 
              Dr. Jochims testified by deposition on February 25, 1986, 
 
         that he first saw claimant on May 23, 1985, with.complaints of 
 
         right shoulder pain.  She had two prior episodes with her right 
 
         shoulder in 1977 and 1979 which seemed to spontaneously improve.  
 
         She was having difficulty raising her right arm overhead.  A 
 
         cortisone shot and Naprosyn gave some relief, but she was back 
 
         again on June 18, 1985, with recurrence of pain in her right, 
 
         shoulder.  He recommended resecting a part of the tendon and 
 
         stabilizing it with a staple to prevent its transit across the 
 
         shoulder joint.  A reinjection of cortisone on July 9, 1985, was 
 
         not effective.  Dr. Jochims did not find any permanent impairment 
 
         that he could describe on the basis of loss of motion or loss of 
 
         function, but technically speaking if you excise part of a tendon 
 
         which has some element of control of the shoulder joint, one 
 
         would surmise that there would be a potential weakness or a 
 
         little loss of the stability around the shoulder joint for 
 
         certain extremes of activity (ex. 37, p. 8).  The following 
 
         dialogue then transpired;
 
                                        
 
              Q.  Now, she described a situation where she can only lift 
 
              her arm up to about, oh,.shoulder height.  Could you explain 
 
              or tell us what she can expect with regard to that?
 
              
 
              A.. At this point I think that that motion should improve or 
 
              continue to loosen up.  It is probably too early to assume 
 
              that that's the final point,of improvement or stabilization.  
 
              If, in fact, that does not improve, then I would probably 
 
              reverse my prior statement in terms of permanency, but I 
 
              don't anticipate there should be loss of motion in the long 
 
              run.
 
              
 
              Q.  How long should one wait to know whether that will
 
              or will not improve?
 
              
 
              A.  Well, I think you have to be looking at a minimum
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              of six months.
 
              
 
              
 
              
 
         SPARROW VS. ARMOUR-DIAL, INC.
 
         Page 5
 
         
 
         
 
              Q.  Is that six months from the surgical process?
 
              
 
              A.  Yes.
 
         
 
         (Ex. 37, pp. 8 & 9)
 
         
 
              The doctor said pulling the sleeves of lids and jerking her 
 
         arm could possibly have caused the injury.  It was his impression 
 
         that push-pull tasks, especially those that involved going up 
 
         over chest level, were a chronic aggravation to her.  He said 
 
         that the activities she related were consistent with being 
 
         causally connected to the injury that occurred in terms of 
 
         aggravating a preexisting condition (ex. 37, p. 11; ex. 41, p. 
 
         19).
 
         
 
              The doctor believed she suffered inflammation in 1977 and 
 
         1979 from overuse syndrome which spontaneously healed. on March 
 
         14, 1985, either the condition was either beyond the ability to 
 
         heal or that a tear through the tendon was greater than natural 
 
         healing could remedy (ex. 37, p. 14).  Claimant either had a 
 
         chronic problem that was aggravated or an injury to an extent 
 
         greater than nature could heal (ex. 37, p. 17).  Sleeping with 
 
         the arm elevated overhead had the same stretching effect on the 
 
         sore tendon as work activities with the arm overhead (ex. 37, pp. 
 
         14 & 15).
 
         
 
              After he last saw claimant on February 3, 1986, postsurgery, 
 
         claimant returned again on four occasions: October 2, 1987; 
 
         November 3, 1987; December 15, 1987 and December 17, 1987 for 
 
         right hand numbness, tingling and aching, recurrence and 
 
         persistence of pain (ex. 41, p. 4).  In her right arm he 
 
         suspected the staples in the arm and degenerative changes 
 
         demonstrated on x-rays were the possible causes.  He determined 
 
         that job modifications would be more helpful than additional 
 
         surgery (ex. 38).
 
         
 
              Dr. Jochims gave a second deposition on July 8, 1988.  His 
 
         curriculum vitae show that he is board certified and has a number 
 
         of other distinguished credits.  He said her recurrence and 
 
         persistence of pain in the shoulder were consistent with a 
 
         narrowing of the shoulder joint and degenerative arthritis of the 
 
         margins of the shoulder joint and were a continuum and residual 
 
         of the same process that he had treated before.  He stated that 
 
         she was now ratable with a 5 percent permanent impairment based 
 
         on mild restriction of motion and that since this was a 
 
         progressive condition it might advance in the future to 10 
 
         percent permanent impairment.  Dr. Jochims did not say whether 
 
         his impairment rating applied to the arm, the right upper 
 
         extremity or to the body as a whole and neither counsel elicited 
 
         this information from the doctor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SPARROW,VS. ARMOUR-DIAL, INC.
 
         Page 6
 
         
 
         
 
              He added that he placed a permanent limitation on her.  She 
 
         should avoid overhead lifting of 20 pounds or more (ex. 41, pp. 5 
 
         & 6).
 
         
 
              He decided that risk of additional surgery to remove the 
 
         staples that might be contributing to her pain would immobilize 
 
         the shoulder and serve counterproductively to aggravate the 
 
         stiffness and arthritis.  Therefore, he chose not to recommend 
 
         another surgical procedure (ex. 41, pp. 6 & 7).
 
         
 
              Dr. Jochims opined that the moped accident of June 8, 1986 
 
         did not affect claimant's right shoulder (ex. 41, pp. 11-17).
 
         
 
              Dr. Jochims said claimant's current impairment was 5 percent 
 
         based on motion.  However, he did not feel the AMA Guides awarded 
 
         the amount of impairment that actually exists due to pain of an 
 
         arthritic condition.  His 10 percent impairment figure was a 
 
         projection into the future (ex. 41,. p. 1) .
 
         
 
              Claimant testified she continued to have pain and weakness 
 
         in her shoulder.  If she accidentally gets her arm above her head 
 
         it wakes her up at night.  The pain is in the top of her shoulder 
 
         and back.  She has difficulty making her bed, washing windows and 
 
         cannot do exercises with her hands overhead.  She cannot move 
 
         furniture.  She cannot swim, ski or bowl.  She cannot reach up in 
 
         the cupboard overhead.  She cannot wear cloths that button up the 
 
         back.
 
         
 
              Claimant contended there are several jobs at work t hat she 
 
         previously performed, but can no longer perform because of her 20 
 
         pound weight restriction.  These jobs are: relief job, chili 
 
         line, slurring, mixer and smokehouse, most of which required 
 
         lifting of about 100 pound more or less.  Out of six lines, she 
 
         can only work three of them now (tr. pp. 24-34).  These jobs may 
 
         have caused her problems in the past, but she was always able to 
 
         do them.  She contended that out of 350 jobs at employer's plant, 
 
         that she was now unable to perform only two-thirds of them.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              The claimant has the burden of proving by a preponderance of 
 
         the ' evidence that the injury of March 14, 1985, is causally 
 
         related to the disability on which she now bases her claim. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SPARROW,VS. ARMOUR-DIAL, INC.
 
         Page 7
 
         
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in.definite, positive or.unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion,'.may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the. 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone, 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              If 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.2d 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 sustained an injury to her shoulder.  The shoulder 
 
         is considered to be a part of the body and a whole.  Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); 
 
         Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
         Report 281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial 
 
         Commissioner Report 170 (1981); Lauhoff Grain v. McIntosh, 395
 
         N.W.2d 834 (Iowa 1986).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There was no evidence or argument that the injury was 
 
         limited to the right arm alone.
 
         
 
         
 
         
 
         SPARROW.VS. ARMOUR-DIAL, INC.
 
         Page 8
 
         
 
         
 
              Claimant sustained a 5 percent permanent impairment for her 
 
         current loss of motion and loss of function based on the AMA 
 
         Guides according to Dr. Jochims.  He added that the Guides do not 
 
         ascribe any percentage to pain caused by aggravated arthritis 
 
         which does in fact exist and he implied was the cause of some 
 
         disability.
 
         
 
              Claimant described several jobs that  she performed for 
 
         employer in the past, but could no longer  perform due to her 
 
         permanent restriction that she cannot lift more than 20 pounds 
 
         overhead.  There was no evidence that the loss of these other 
 
         jobs affected her actual earnings with employer.  Claimant does 
 
         continue to be employed in jobs that she can perform on the 
 
         production line.  At the same time, the 20 pound restriction 
 
         against lifting overhead restricts and reduces her employability 
 
         in the competitive labor market as well as at employer's place of 
 
         business.
 
         
 
              Claimant's disability is tolerated well by employer, but 
 
         that does not mean such toleration would transfer to another job.  
 
         Claimant's 5 percent permanent impairment and restriction of no 
 
         lifting more than 20 pounds overhead reduce her ability to 
 
         compete in the competitive job marketplace.  Hartwig v. Bishop 
 
         Implement Co., IV Iowa Industrial Commissioner Report 159 (Appeal 
 
         Decision June 28, 1984).  Claimant might not find other new 
 
         employers so gracious with her.restrictions. Todd v. Department 
 
         of General Services, Buildings and Grounds, IV Iowa Industrial 
 
         Commissioner Report 373 (1983).
 
         
 
              Claimant is foreclosed from the most plentiful and easiest 
 
         jobs to obtain which often pay more because they involve 
 
         strenuous work.  Michael v. Harrison County, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 218, 220 (Appeal 
 
         Decision January 30, 1979); Rohrberg v. Griffin Pine Products Co.
 
         , I Iowa Industrial Commissioner Report 282 (1984).
 
         
 
              Claimant's permanent impairment of 5 percent and restriction 
 
         in lifting of no more than 20 pounds overhead comes at an age 
 
         when she should be at the peak of her earning capacity and 
 
         therefore, is more detrimental than it would be to a.younger or 
 
         older employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 34 (Appeal 
 
         Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., 
 
         file numbers 752670 & 805300 (Appeal Decision April 28, 1989).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Neither party made a point of claimant's education and 
 
         therefore, they must not consider it a factor seriously affecting 
 
         her earning capacity.  Claimant's counsel, in his posthearing 
 
         brief, contended that claimant had only an eighth grade 
 
         education.
 
         
 
         
 
         
 
         
 
         SPARROW VS. ARMOUR-DIAL, INC.
 
         Page 9
 
         
 
         
 
              Wherefore, based upon the foregoing factors, all of the 
 
         factors used to determine industrial disability, and employing 
 
         agency expertise [Iowa Administrative Procedure Act 17A.14(5)] it 
 
         is determined that claimant has sustained a 20 percent industrial 
 
         disability to the body as a whole.
 
                                        
 
                                 FINDINGS OF FACT
 
                                        
 
              Wherefore, based upon the evidence,presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant has been employed by employer in repetitive 
 
         type of production line work for approximately 15 years from 
 
         February 8, 1973 until the date of the hearing on July 19, 19138.
 
         
 
              That claimant sustained an injury of bicipital tendonitis to 
 
         her right shoulder March 14, 1985.  That claimant received 
 
         surgery on her shoulder on September 18, 1985.
 
         
 
              That claimant was off work from September 18, 1985 until 
 
         January 6, 1986, a period of approximately three and one-half 
 
         months after surgery.
 
         
 
              That Dr. Jochims, the treating physician and the only 
 
         orthopedic surgeon in this case, determined that the injury was 
 
         caused by claimant's employment either from chronic push-pull 
 
         activities of the employment or else from a tear while engaged 
 
         in" these activities.
 
         
 
              That Dr. Jochims assessed that claimant sustained a 5 
 
         percent permanent impairment.according to the AMA Guides based on 
 
         loss of motion and function and he implied an additional amount 
 
         should be considered for the aggravation of her degenerative 
 
         arthritis that causes current disabling pain.
 
         
 
              That Dr. Jochims imposed a permanent restriction of no 
 
         lifting more than 20 pounds overhead.
 
         
 
              That claimant was 41 years old at the time of the injury, 
 
         and, 45 years old at the time of hearing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant's educational background was not emphasized, 
 
         but possibly she may only have an eighth grade education.
 
         
 
              That claimant continued to work for employer at jobs she 
 
         could do within her restrictions at the time of hearing.
 
         
 
              That claimant is foreclosed from many jobs that she 
 
         previously performed with employer that require lifting heavy 
 
         weights' over 20 pounds overhead.
 
         
 
         
 
         
 
         SPARROW VS. ARMOUR-DIAL, INC.
 
         Page 10
 
         
 
         
 
              That claimant's restrictions of.no lifting over 20 pounds 
 
         overhead forecloses her to many readily obtainable jobs in the 
 
         competitive labor market.
 
         
 
              That claimant's age, possible eighth grade education, 
 
         employment background of production line work for 20 years, 5 
 
         percent impairment and 20 pound overhead lifting restriction 
 
         diminish her employability in the competitive job market now and 
 
         in the future.
 
                                        
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of March 14, 1985 was the cause of permanent 
 
         disability.
 
         
 
              That claimant sustained a 20 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of Two Hundred 
 
         Twenty-five and 67/100 Dollars ($225.67) per week in the total 
 
         amount of Twenty-two Thousand Five Hundred Sixty-seven Dollars 
 
         ($22,567) commencing on January 7, 1986 as stipulated by the 
 
         parties.
 
         
 
              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 claims no credit for permanent partial 
 
         disability benefits paid to claimant prior to hearing.
 
         
 
              That the costs of this action are charged to defendants 
 
         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.
 
         
 
         
 
         
 
         SPARROW.VS. ARMOUR-DIAL, INC.
 
         Page 11
 
         
 
         
 
              Signed and filed this 18th day of December, 1989.
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1066
 
         Keokuk, IA 52632
 
         
 
         Mr. Larry Shepler
 
         Attorney.at Law
 
         Executive Square STE 102
 
         400 Main St.
 
         Davenport, IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51401; 51402.40; 51803;
 
                                       51803.10; 52206; 52209
 
                                       Filed December 18, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAVONDA SPARROW,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.  803234
 
         ARMOUR-DIAL, INC.,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
               Self-Insured,                      D E C I S I 0 N
 
               Defendant.
 
         
 
         
 
         51401; 51402.40; 51803; 51803.10; 52206; 52209
 
         
 
              Shoulder injury was determined to be industrial disability 
 
         rather than scheduled member.  Although designated an issue, 
 
         there was no evidence or argument that it was scheduled member 
 
         injury.
 
         
 
              Claimant developed bicepital tendonitis from repetitive 
 
         factory work with the upper extremities which aggravated 
 
         preexisting degenerative arthritis, received shoulder surgery, 
 
         and was awarded 5 percent permanent functional impairment and 
 
         restricted from lifting 20 pounds overhead.  Claimant's age of 
 
         mid-forties were her peak years of earnings.  Although employer 
 
         continued to employ her at the same wage and found work within 
 
         her restrictions, this employer's tolerance was not transferable 
 
         to other employers who might not be so gracious.  Claimant was 
 
         foreclosed from a number of the easier to get and sometimes 
 
         higher paying jobs in the competitive labor market due to her 
 
         impairment of 5 percent and restriction of not lifting more than 
 
         20 pounds overhead.
 
         
 
              No new precedents, but analysis contains brief'application 
 
         of existing cited precedents.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BEVERLY MARLOWE,
 
        
 
            Claimant,
 
                                          File No. 803238
 
        
 
        vs.                                  A P P E A L
 
        
 
        AMERICAN HONDA MOTOR CO.,          D E C I S I O N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        CNA INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying all 
 
        compensation because no causal connection was found between 
 
        claimant's alleged disability and her work injury.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing, claimant's exhibit 1 and joint exhibits A 
 
        through K. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
                                                
 
        Claimant states the following issues on appeal:
 
        
 
        1. Whether there is a causal relationship between Claimant's work 
 
        related injury of January 3, 1984 and her asserted disability;
 
        
 
        2. The nature and extent of disability and date when permanent 
 
        partial disability would commence; and
 
        
 
        2. Whether Defendants owe three medical bills submitted as 
 
        Exhibit 1.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
                                                
 
        The arbitration decision adequately and accurately reflects
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 2
 
        
 
        
 
        the pertinent evidence and it will not be totally reiterated 
 
        herein.
 
        
 
        Claimant injured her back when she fell down some stairs at her 
 
        home during Easter 1983 and as a result of this incident missed 
 
        30 days of work. Four days after she returned to work following 
 
        the Easter injury, claimant reinjured her back at work and was 
 
        off work from May 27, 1983 through August 21, 1983. Claimant did 
 
        not file a petition or claim for workers' compensation benefits 
 
        for the May 1983 injury.
 
        
 

 
        
 
 
 
 
 
        Claimant hurt her back at work on January 3, 1984 when she was 
 
        stacking boxes of floor mats. She had to be taken from work in an 
 
        ambulance to the hospital where she remained for nine days. 
 
        Claimant has not returned to work since the January 1984 work 
 
        injury.
 
        
 
        Joint.exhibit G contains the results of a CT scan taken on June 
 
        14, 1983 which reveals: "IMPRESSION: l) Probable herniation of 
 
        L5-Sl with a less likely problem at L4-5."
 
        
 
        Claimant was examined by Eugene Collins, M.D., on August 26, 
 
        1983. Dr. Collins reports in an August 29, 1983 letter:
 
        
 
        On pertinent neurological examination the patient stands about 
 
        5'5" and weighs approximately 150 pounds. There is a mild 
 
        decreased range of motion of the back especially in flexion and 
 
        extension with a mild hyperlordosis. There is some point 
 
        tenderness about L5. There is no significant [sic] spasm. The 
 
        patient can balance on either leg. Gait is satisfactory on heels, 
 
        toes and tandem. Straight leg raising is negative in the sitting 
 
        and lying positions. No focal weakness including dorsi and 
 
        plantar flexors of the feet. No atrophy or fasciculations. 
 
        Reflexes show ankle jerks and knee jerks 2+ and equal. Plantars 
 
        flexor. Sensation intact to pin, touch and position throughout.
 
        
 
        This patient has a grossly unremarkable neurological exam at 
 
        present. Her main complaint is low back pain per se and not 
 
        radiculopathy type pattern. She may indeed have some bulging 
 
        discs confirmed on CT scan. I have discussed the option of 
 
        chemonucleolysis and surgery with her and have stressed to her 
 
        that these in general do not improve back pain alone. Since her 
 
        radiculopathy pain is significantly improved I do not think the 
 
        above mentioned procedures are indicated for her "back pain" at 
 
        this time. I told her that I feel this should improve in time but 
 
        I
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 3
 
        
 
        cannot give an exact estimate. I have explained to her the 
 
        various conservative treatments for such.
 
        
 
        (Joint Exhibit H)
 
        
 
        John Sunderbruch, M.D., was claimant's treating physician for 
 
        claimant's period of hospitalization for the January 1984 work 
 
        injury. Dr. Sunderbruch opines in the discharge report:
 
        
 
        Final Diagnosis:
 
        
 
        This patient was admitted from the Emergency Room where she had 
 
        been brought from American Honda where she had been working and 
 
        fell injuring her back. I saw her shortly thereafter in bed. She 
 
        did demonstrate some spasm of the lumbar spiny mass, her pain was 
 
        all radiating down the left side of her back and questionable 
 
        radiation in the sciatic region. It was not like her previous 
 
        injury that involved the right side. Lumbosacral X rays were 
 
        within normal limits. The CT scan showed the bulging in the L5-Sl 
 
        area as on the previous exam on June 14, 1983 but did not show 
 
        any other abnormalities. Conservative treatment was utilized in 
 
        the way of ultrasound, exercises and Hubbard bath and Motrin 
 
        orally and Darvocet N p.r.n. Finally Dr. Irey was called in 
 
        consultation, he agreed with the treatment and continued as we 
 
        had been. We gradually increased her activity and now she is 
 
        taking exercises and she decided this evening that she would like 
 
        to go home because she felt she was doing well enough. I gave her 
 

 
        
 
 
 
 
 
        a series of exercises and gave her Motrin and Darvocet N 
 
        prescriptions. Will follow her in the home.
 
        
 
        Her condition is improved. She will be followed regularly and 
 
        encouraged to continue her exercises. Her prognosis is good.
 
        
 
        (Jt. Ex. Al)
 
        
 
        Dr. Sunderbruch continued to see claimant and opines in a June 
 
        20, 1984 letter that his efforts to evaluate claimant for full 
 
        duty has been a "real problem" and that he does not expect 
 
        claimant to return to work for an extended period of time." See 
 
        Joint Exhibit B3.
 
        
 
        Claimant was also seen by John C. Van Gilder, M.D., Professor of 
 
        Neurosurgery at University of Iowa Hospitals, on October 30, 
 
        1984. Dr. Van Gilder opines in an October 31, 1984 letter:
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 4
 
        
 
        
 
        Review of her lumbar spine films is unremarkable in my 
 
        interpretation. A CT scan in 1983 and 1984 demonstrates no 
 
        evidence of root impingement and I cannot clearly see a disc. A 
 
        myelogram from 1983 which is of excellent quality demonstrates no 
 
        abnormality to suggest a herniated disc in my interpretation.
 
        
 
        In summary, I can see no evidence of neurological deficit. I 
 
        think her pain is principally muscular in origin. Because of her 
 
        intractability to conservative measures, I have suggested 
 
        Feldene, 10 mg. b.i.d. which has been helpful in the past. I have 
 
        also recommended swimming, 20 minutes on a daily basis which I 
 
        think would be effective for physical therapy. She is also to 
 
        continue her low back exercises which are in essence the Williams 
 
        exercise program. Thirdly, I have suggested she lose 
 
        approximately 20-25 pounds of excess weight which I think would 
 
        be helpful.
 
        
 
        I think if the patient initiated these rehabilitation 
 
        suggestions, she should be able to return to work in 
 
        approximately two months. I feel there is no indication for 
 
        surgery based on her examination and review of her studies.
 
        
 
        (Jt. Ex. C2)
 
        
 
        Dr. Van Gilder released claimant for return to work with a 40 
 
        pound lifting restriction on July 17, 1985. 
 
        
 
        John E. Sinning, M.D., examined claimant on September 19, 1984. 
 
        Dr. Sinning begins his report with the history of claimant's back 
 
        problem: "I went over the history in some detail, both as 
 
        reported by Mrs. Marlowe and as recorded in our record. her 
 
        problem began in the spring of 1983 when she fell down the stairs 
 
        at home." See Joint Exhibit E. In conclusion, Dr. Sinning opines:
 
        
 
        It is my conclusion that Mrs. Marlowe has no impairment of 
 
        function. There are no physical findings to justify her remaining 
 
        on a "healing status" on workmens [sic] compensation. If she is 
 
        unable to return to work because of a continued pain problem, 
 
        then psychiatric evaluation of that pain problem is an essential 
 
        part of her evaluation.
 
        
 
        (Jt. Ex. E)
 
        
 
        Stephen C. Rasmus, M.D., examined claimant on October
 

 
        
 
 
 
 
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 5
 
        
 
        
 
        29, 1985. Dr. Rasmus states his impression in an October 31, 1985 
 
        letter:
 
        
 
        IMPRESSION: The neurological examination is objectively 
 
        unremarkable. The sensory exam showed decreased pinprick on the 
 
        right side of the foot which would coincide with an Sl level. The 
 
        straight leg raising was fairly unimpressive. We talked about the 
 
        approach at this time. She basically wants somebody to tell her 
 
        why she has pain and what to do to to get rid of it. I doubt that 
 
        I am going to be able to satisfy that. The Ct scans were 
 
        reviewed. The last one is almost two years old, but her symptoms 
 
        have not changed much. What I have decided, at this point, is to 
 
        get my records from the previous time that I saw her, and she was 
 
        scheduled for an EMG. If there is evidence of denervation on the 
 
        EMG, we could consider repeating a CT scan.
 
        
 
        (Jt. Ex. F2)
 
        
 
        The EMG to which Dr. Rasmus referred was normal, and he 
 
        recommended no further studies. See Joint Exhibit F4.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of January 3, 1984 is causally related 
 
        to the disability on which she now bases her claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
        However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. Burt, 
 
        247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
        opinion may be 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).
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 6
 
        
 
        
 
        Expert testimony that a condition could be caused by a given 
 
        injury coupled with additional, non-expert testimony that 
 
        claimant was not afflicted with the same condition prior to the 
 
        injury was sufficient to sustain an award. Giere v. Aase Haugen 
 
        Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
        
 
                                      ANALYSIS
 
        
 
        Claimant tried to establish by the greater weight of evidence 
 
        that she suffers a permanent disability as a result of her injury 
 

 
        
 
 
 
 
 
        on January 3, 1984. Claimant has not done so on this record. 
 
        Although claimant presents some medical evidence that she has a 
 
        herniated disc, Dr. Van Gilder opines that he does not find any 
 
        abnormality to suggest a herniated disc, Dr. Sinning opines that 
 
        claimant suffers no impairment of function, and Dr. Rasmus states 
 
        that neurological examination is objectively unremarkable. The 
 
        greater weight of evidence indicates that claimant's condition 
 
        after her injury is similar to what it was prior to her injury.
 
        
 
        That medical evidence which suggests that claimant should not 
 
        return to full duty does not causally connect claimant's 
 
        condition to the January 3, 1984 work injury. Dr. Collins in his 
 
        deposition testimony was not able to causally connect claimant's 
 
        condition to any one of the three back injuries alleged. See 
 
        Joint Exhibit I, pages 13-14. Although Dr. Van Gilder released 
 
        claimant for return to work with a 40 pound lifting restriction, 
 
        he offered no opinion as to causal connection. Finally, Dr. 
 
        Sunderbruch's reports suggest that claimant's complaints are 
 
        subjective and should be treated psychiatrically or through a 
 
        pain clinic. See Joint Exhibit B5.
 
        
 
        Claimant may have sustained some temporary disability as a result 
 
        of the January 3, 1984 work injury, but it is impossible to 
 
        determine the extent of this disability on this record as no 
 
        medical testimony was able to causally connect claimant's back 
 
        condition to the January 3, 1984 injury.
 
        
 
        This is not a case in which apportionment of a disability as 
 
        suggested by claimant need be considered. This case involves the 
 
        question of whether claimant had any permanent disability which 
 
        was causally connected to her January 3, 1984 work injury.
 
        
 
        Claimant has not established by the greater weight of evidence 
 
        that she suffers any permanent disability as the result of the 
 
        January 3, 1984 work injury.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury to her back at home during
 
        
 
        MARLOWE V. AMERICAN HONDA MOTOR CO.
 
        Page 7
 
        
 
        
 
        Easter 1983.
 
        
 
        2. Claimant sustained an injury at work in May 1983.
 
        
 
        3. Claimant sustained an injury at work on January 3, 1984.
 
        
 
        4. Claimant suffered no permanent disability as a result of the 
 
        January 3, 1984 work injury.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant failed to establish that she was entitled to any further 
 
        healing period benefits as a result of the January 3, 1984 
 
        injury.
 
        
 
        Claimant failed to establish that she sustained any permanent 
 
        disability as a result of the January 3, 1984 injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 

 
        
 
 
 
 
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from these proceedings.
 
        
 
        That claimant pay the costs of this proceeding including the cost 
 
        of the transcription on appeal.
 
        
 
        Signed and filed this 20th day of September, 1988.
 
        
 
        
 
        
 
                                        DAVID E LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         BEVERLY MARLOWE,
 
         
 
              Claimant,
 
                                                 File No. 803238
 
         vs.
 
                                                   A P P E A L
 
         AMERICAN HONDA MOTOR CO.,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because no causal connection was found between 
 
         claimant's alleged disability and her work injury.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibit 1 and joint exhibits A 
 
         through K.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether there is a causal relationship between 
 
              Claimant's work related injury of January 3, 1984 and 
 
              her asserted disability;
 
         
 
              2.  The nature and extent of disability and date when 
 
              permanent partial disability would commence; and
 
         
 
              3.  Whether Defendants owe three medical bills 
 
              submitted as Exhibit 1.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant injured her back when she fell down some stairs at 
 
         her home during Easter 1983 and as a result of this incident 
 
         missed 30 days of work.  Four days after she returned to work 
 
         following the Easter injury, claimant reinjured her back at work 
 
         and was off work from May 27, 1983 through August 21, 1983.  
 
         Claimant did not file a petition or claim for workers' 
 
         compensation benefits for the May 1983 injury.
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   2
 
         
 
         
 
         
 
              Claimant hurt her back at work on January 3, 1984 when she 
 
         was stacking boxes of floor mats.  She had to be taken from work 
 
         in an ambulance to the hospital where she remained for nine days. 
 
          Claimant has not returned to work since the January 1984 work 
 
         injury.
 
         
 
              Joint.exhibit G contains the results of a CT scan taken on 
 
         June 14, 1983 which reveals:  "IMPRESSION:  1) Probable 
 
         herniation of L5-Sl with a less likely problem at L4-5."
 
         
 
              Claimant was examined by Eugene Collins, M.D., on August 26, 
 
         1983.  Dr. Collins reports in an August 29, 1983 letter:
 
         
 
                 On pertinent neurological examination the patient 
 
              stands about 5'5" and weighs approximately 150 pounds. 
 
               There is a mild decreased range of motion of the back 
 
              especially in flexion and extension with a mild 
 
              hyperlordosis.  There is some point tenderness about 
 
              L5. There is no significant [sic] spasm.  The patient 
 
              can balance on either leg.  Gait is satisfactory on 
 
              heels, toes and tandem.  Straight leg raising is 
 
              negative in the sitting and lying positions.  No focal 
 
              weakness including dorsi and plantar flexors of the 
 
              feet.  No atrophy or fasciculations.  Reflexes show 
 
              ankle jerks and knee jerks 2+ and equal.  Plantars 
 
              flexor.  Sensation intact to pin, touch and position 
 
              throughout.
 
         
 
                 This patient has a grossly unremarkable neurological 
 
              exam at present.  Her main complaint is low back pain 
 
              per se and not radiculopathy type pattern.  She may 
 
              indeed have some bulging discs confirmed on CT scan.  I 
 
              have discussed the option of chemonucleolysis and 
 
              surgery with her and have stressed to her that these in 
 
              general do not improve back pain alone.  Since her 
 
              radiculopathy pain is significantly improved I do not 
 
              think the above mentioned procedures are indicated for 
 
              her "back pain" at this tune.  I told her that I feel 
 
              this should improve in time but I cannot give an exact 
 
              estimate.  I have explained to her the various 
 
              conservative treatments for such.
 
         
 
         (Joint Exhibit H)
 
         
 
         
 
              John Sunderbruch, M.D., was claimant's treating physician 
 
         for claimant's period of hospitalization for the January 1984 
 
         work injury.  Dr. Sunderbruch opines in the discharge report:
 
         
 
              Final Diagnosis:
 
         
 
                 This patient was admitted from the Emergency Room 
 
              where she had been brought from American Honda where 
 
              she had been working and fell injuring her back.  I saw 
 
              her shortly thereafter in bed.  She did demonstrate 
 
              some spasm of the lumbar spiny mass, her pain was all 
 
              radiating down the left side of her back and 
 
              questionable radiation in the sciatic region.  It was 
 
              not like her previous injury that involved the right 
 
              side.  Lumbosacral X rays were within normal limits.  
 
              The CT scan showed the bulging in the L5-Sl area as on 
 
              the previous exam on June 14, 1983 but did not show any 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   3
 
         
 
         
 
              other abnormalities.  Conservative treatment was 
 
              utilized in the way of ultrasound, exercises and 
 
              Hubbard bath and Motrin orally and Darvocet N p.r.n.  
 
              Finally Dr. Irey was called in consultation, he agreed 
 
              with the treatment and continued as we had been.  We 
 
              gradually increased her activity and now she is taking 
 
              exercises and she decided this evening that she would 
 
              like to go home because she felt she was doing well 
 
              enough.  I gave her a series of exercises and gave her 
 
              Motrin and Darvocet N prescriptions.  Will follow her 
 
              in the home.
 
         
 
                 Her condition is improved.  She will be followed 
 
              regularly and encouraged to continue her exercises.  
 
              Her prognosis is good.
 
         
 
         (Jt. Ex. Al)
 
         
 
              Dr. Sunderbruch continued to see claimant and opines in a 
 
         June 20, 1984 letter that his efforts to evaluate claimant for 
 
         full duty has been a "real problem" and that he does not expect 
 
         claimant to return to work for an extended period of time."  See 
 
         Joint Exhibit B3.
 
         
 
              Claimant was also seen by John C. Van Gilder, M.D., 
 
         Professor of Neurosurgery at University of Iowa Hospitals, on 
 
         October 30, 1984.  Dr. Van Gilder opines in an October 31, 1984 
 
         letter:
 
         
 
                 Review of her lumbar spine films is unremarkable in 
 
              my interpretation.  A CT scan in 1983 and 1984 
 
              demonstrates no evidence of root impingement and I 
 
              cannot clearly see a disc.  A myelogram from 1983 which 
 
              is of excellent quality demonstrates no abnormality to 
 
              suggest a herniated disc in my interpretation.
 
         
 
                 In summary, I can see no evidence of neurological 
 
              deficit.  I think her pain is principally muscular in 
 
              origin.  Because of her intractability to conservative 
 
              measures, I have suggested Feldene, 10 mg. b.i.d. which 
 
              has been helpful in the past.  I have also recommended 
 
              swimming, 20 minutes on a daily basis which I think 
 
              would be effective for physical therapy.  She is also 
 
              to continue her low back exercises which are in essence 
 
              the Williams exercise program.  Thirdly, I have 
 
              suggested she lose approximately 20-25 pounds of excess 
 
              weight which I think would be helpful.
 
         
 
                 I think if the patient initiated these 
 
              rehabilitation suggestions, she should be able to 
 
              return to work in approximately two months.  I feel 
 
              there is no indication for surgery based on her 
 
              examination and review of her studies.
 
         
 
         (Jt. Ex. C2)
 
         
 
              Dr. Van Gilder released claimant for return to work with a 
 
         40 pound lifting restriction on July 17, 1985.
 
         
 
              John E. Sinning, M.D., examined claimant on September 19, 
 
         1984.  Dr. Sinning begins his report with the history of 
 
         claimant's back problem:  "I went over the history in some 
 
         detail, both as reported by Mrs. Marlowe and as recorded in our 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   4
 
         
 
         
 
         record.  Her problem began in the spring of 1983 when she fell 
 
         down the stairs at home."  See Joint Exhibit E.  In conclusion, 
 
         Dr. Sinning opines:
 
         
 
                 It is my conclusion that Mrs. Marlowe has no 
 
              impairment of function.  There are no physical findings 
 
              to justify her remaining on a "healing status" on 
 
              workmens [sic] compensation.  If she is unable to 
 
              return to work because of a continued pain problem, 
 
              then psychiatric evaluation of that pain problem is an 
 
              essential part of her evaluation.
 
         
 
         (Jt. Ex. E)
 
         
 
              Stephen C. Rasmus, M.D., examined claimant on October 29, 
 
         1985.  Dr. Rasmus states his impression in an October 31, 1985 
 
         letter:
 
         
 
                   IMPRESSION:  The neurological examination is 
 
              objectively unremarkable.  The sensory exam showed 
 
              decreased pinprick on the right side of the foot which 
 
              would coincide with an Sl level.  The straight leg 
 
              raising was fairly unimpressive.  We talked about the 
 
              approach at this time.  She basically wants somebody to 
 
              tell her why she has pain and what to do to to get rid 
 
              of it.  I doubt that I am going to be able to satisfy 
 
              that.  The Ct scans were reviewed.  The last one is 
 
              almost two years old, but her symptoms have not changed 
 
              much.  What I have decided, at this point, is to get my 
 
              records from the previous time that I saw her, and she 
 
              was scheduled for an EMG. if there is evidence of 
 
              denervation on the EMG, we could consider repeating a 
 
              CT scan.
 
         
 
         (Jt. Ex. F2)
 
         
 
              The EMG to which Dr. Rasmus referred was normal, and he 
 
         recommended no further studies.  See Joint Exhibit F4.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 3, 1984 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be 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 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   5
 
         
 
         
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Expert testimony that a condition could be caused by a given 
 
         injury coupled with additional, non-expert testimony that 
 
         claimant was not afflicted with the same condition prior to the 
 
         injury was sufficient to sustain an award.  Giere v. Aase Haugen 
 
         Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant tried to establish by the greater weight of 
 
         evidence that she suffers a permanent disability as a result of 
 
         her injury on January 3, 1984.  Claimant has not done so on this 
 
         record.  Although claimant presents some medical evidence that 
 
         she has a herniated disc, Dr. Van Gilder opines that he does not 
 
         find any abnormality to suggest a herniated disc, Dr. Sinning 
 
         opines that claimant suffers no impairment of function, and Dr. 
 
         Rasmus states that neurological examination is objectively 
 
         unremarkable.  The greater weight of evidence indicates that 
 
         claimant's condition after her injury is similar to what it was 
 
         prior to her injury.
 
         
 
              That medical evidence which suggests that claimant should 
 
         not return to full duty does not causally connect claimant's 
 
         condition to the January 3, 1984 work injury.  Dr. Collins in his 
 
         deposition testimony was not able to causally connect claimant's 
 
         condition to any one of the three back injuries alleged.  See 
 
         Joint Exhibit I, pages 13-14.  Although Dr. Van Gilder released 
 
         claimant for return to work with a 40 pound lifting restriction, 
 
         he offered no opinion as to causal connection.  Finally, Dr. 
 
         Sunderbruch's reports suggest that claimant's complaints are 
 
         subjective and should be treated psychiatrically or through a 
 
         pain clinic.  See Joint Exhibit B5.
 
         
 
              Claimant may have sustained some temporary disability as a 
 
         result of the January 3, 1984 work injury, but it is impossible 
 
         to determine the extent of this disability on this record as no 
 
         medical testimony was able to causally connect claimant's back 
 
         condition to the January 3, 1984 injury.
 
         
 
              This is not a case in which apportionment of a disability as 
 
         suggested by claimant need be considered.  This case involves the 
 
         question of whether claimant had ally permanent disability which 
 
         was causally connected to her January 3, 1984 work injury.
 
         
 
              Claimant has not established by the greater weight of 
 
         evidence that she suffers any permanent disability as the result 
 
         of the January 3, 1984 work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury to her back at home during 
 
         Easter 1983.
 
         
 
              2.  Claimant sustained an injury at work in May 1983.
 
         
 
              3.  Claimant sustained an injury at work on January 3, 
 
         1984.
 
         
 
              4.  Claimant suffered no permanent disability as a result of 
 
         the January 3, 1984 work injury.
 
         
 
                                
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   6
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant failed to establish that she was entitled to any 
 
         further healing period benefits as a result of the January 3, 
 
         1984 injury.
 
         
 
              Claimant failed to establish that she sustained any 
 
         permanent disability as a result of the January 3, 1984 injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay the costs of this proceeding including the 
 
         cost of the transcription on appeal.
 
         
 
         
 
              Signed and filed this 20th day of September, 1988.
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         PAGE   7
 
         
 
         
 
                                               
 
         
 
         
 
         Copies to:
 
         
 
         Mr. John O. Moeller
 
         Attorney at Law
 
         601 Brady St
 
         Suite 215
 
         Davenport, IA 52801
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, IA 52809
 
         
 
 
            
 
 
 
                                             
 
                                             1402; 1108.50;
 
                                             1804; 1801
 
                                             Filed September 20, 1988
 
                                             David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BEVERLY MARLOWE,
 
         
 
              Claimant,
 
                                               File No. 803238
 
         vs.
 
         
 
         AMERICAN HONDA MOTOR CO.,               A P P E A L
 
         
 
              Employer,                        D E C I S I O N
 
         
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402; 1108.50
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that her present disability was causally connected to 
 
         any of her injuries.  The medical evidence offered by three 
 
         physicians does not causally connect her present condition to her 
 
         injuries.
 
         
 
         1804; 1402
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that she suffers a permanent disability.  The greater 
 
         weight of the medical evidence indicates that claimant does not 
 
         suffer any permanent effects of her injuries.
 
         
 
         1801
 
         
 
              Claimant may have suffered temporary total disability but 
 
         the extent of this could not be determined on the record where 
 
         there was no medical record of causal connection to her injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         BEVERLY MARLOWE,
 
         
 
              Claimant,
 
                                                 File No. 803238
 
         VS.
 
         
 
         AMERICAN HONDA MOTOR CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I O N
 
         
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Beverly 
 
         Marlowe, claimant, against American Honda Motor Co. (American 
 
         Honda), employer, and CNA Insurance Companies, insurance carrier, 
 
         for benefits as a result of an alleged injury on January 3, 1984.  
 
         A hearing was held in Davenport, Iowa, on March 4, 1987 and the 
 
         case was submitted on that date.  Claimant was allowed to amend 
 
         paragraph 10 of her petition at time of hearing.
 
         
 
              The record consists of the testimony of claimant, Terry 
 
         Marlowe, and Kathleen L. Negaard; claimant's exhibit 1; and joint 
 
         exhibits A through K. Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $254.29; that claimant never returned to work at 
 
         American Honda after January 3, 1984; that the contested medical 
 
         bills of $90.00 and $25.00 are reasonable in amount; that 
 
         claimant's injury arose out of and in the course of her 
 
         employment with American Honda; and that claimant sustained a 
 
         whole body injury in the event an award is made in this case.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal relationship between 
 
         claimant's work-related injury of January 3, 1984 and her 
 
         asserted disability;
 
         
 
              2)  Nature and extent of disability; claimant asserts the 
 
         odd-lot doctrine; the parties were unable to stipulate to a date 
 
         when permanent partial disability would commence, if awarded; 
 
         and
 
         
 
              3)  Whether defendants owe the three medical bills that have 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO..
 
         Page   2
 
         
 
         
 
         been marked as exhibit 1. Defendants assert a causal connection 
 
         argument, an authorization argument, and argue that the treatment 
 
         or care was not necessary.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that prior to working for American Honda 
 
         she did warehouse work, factory work, worked at a bakery, worked 
 
         for Oscar Mayer, and worked for Hy-Vee.  She started work at 
 
         American Honda in August 1980 on a full-time basis.  Prior to 
 
         starting at American Honda her health was good and in particular 
 
         she had no back problems.
 
         
 
              Claimant testified that she "went through the tenth grade"; 
 
         however, she obtained a GED in June 1980.
 
         
 
              Claimant testified that prior to January 3, 1984 she had 
 
         fallen down at home on "Easter of 1983" and went to a 
 
         chiropractor as a result.  She had gone to a chiropractor prior 
 
         to this Easter incident for headaches and her back.  She missed 
 
         thirty days of work because of this Easter incident and then 
 
         returned to work at American Honda.  She was back to work for 
 
         four days and was then injured again and missed sixty days as a 
 
         result.  She returned to work in August 1983.  She was working as 
 
         a stacking and material handler at American Honda.
 
         
 
              Claimant testified regarding the incident of January 3, 1984 
 
         which caused back pain that went into her legs.  This incident 
 
         was "close to the Easter injury" but her pain was on a "different 
 
         side of her body." The leg sensation or pain was new and a 
 
         bladder problem was new.  The incident of January 3, 1984 
 
         involved the lifting of heavy boxes; she did not slip and then 
 
         fall.  She was not able to complete her day on January 3, 1984.  
 
         She was hospitalized for nine days as a result of the incident of 
 
         January 3, 1984.  She injured her low back on Easter 1983 and 
 
         injured her back in January 1984 at American Honda.  After the 
 
         January 1984 injury claimant enrolled in a program to improve her 
 
         lifting ability.  Claimant testified that she would now have 
 
         trouble doing her 'old job' at American Honda.  She would like to 
 
         go back to work for American Honda but has been told by them that 
 
         she 'would have to perform work like everybody else."
 
         
 
              Claimant obtained a "career assessment/planning inventory" 
 
         just prior to hearing.  See exhibit K. She has not sought 
 
         employment since January 1984 because she "did not feel she could 
 
         really do a good day's work with my back."
 
         
 
              Claimant testified that standing bothers her legs and her 
 
         back starts to hurt 'real bad.' Sitting causes her back to hurt 
 
         "real bad." She keeps moving to keep pressure off her back.  Her 
 
         back hurts "real bad" by the time the evening comes.  Prior to 
 
         Easter 1983 claimant weighed 150-155 pounds; she now weighs 
 
         between 180-185 pounds.
 
         
 
              Claimant testified that as a result of her injury of January 
 
         3, 1984 she has pain in the middle of her back all the time.  As 
 
         a result of the January 3, 1984 injury the pain in her right leg, 
 
         after too much activity, "feels like it wants to come out the 
 
         toe." The Easter 1983 incident did not cause this problem.
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO..
 
         Page   3
 
         
 
         
 
         
 
              On cross-examination, claimant acknowledged that prior to 
 
         coming to work for American Honda her jobs generally lasted less 
 
         than one year.  She worked for American Honda for about three and 
 
         one-half years.  After the Easter 1983 incident claimant went 
 
         back to work and did the "same job" but was a little slower.  
 
         After the Easter 1983 incident she worked that week but had some 
 
         problems.  She was then off work from April 11, 1983 through May 
 
         23, 1983 because of her Easter 1983 injury.  She then returned to 
 
         work for four days and then missed about three months of work.
 
         
 
              Claimant testified that her trouble "really started" in 
 
         1983.  It was determined that Easter in 1983 was on March 27, 
 
         1983, not in April 1983.  Claimant was off work at American Honda 
 
         from May 27, 1983 through August 21, 1983.
 
         
 
              Terry Marlowe testified he is claimant's spouse.  He stated 
 
         that in May 1983 his wife received short-term private disability 
 
         benefits, but not weekly workers' compensation benefits.  
 
         Claimant also testified that since Easter 1983 she has limited 
 
         her woodcutting activity and such.  Prior to Easter 1983 claimant 
 
         would do what he asked her to do.  He also stated that since 
 
         January 1984 she has "slowed way down." Claimant recovered from 
 
         the Easter 1983 stairs incident in his opinion; however, it took 
 
         her longer to recover from the May 1983 incident.  In his opinion 
 
         claimant has not recovered from the January 1984 incident; 
 
         however, her condition has been stable for about the last year.
 
         
 
              Kathleen L. Negaard testified that she is a rehabilitation 
 
         specialist.  She first worked on claimant's file in October 1984 
 
         and stayed with the file for about one year.  She stopped working 
 
         with claimant in the fall of 1985.  She was put back on the case 
 
         in January 1987.
 
         
 
              Exhibit A, page 3, reads in part:
 
         
 
              Although she has had trouble with her upper back in 
 
              previous years she really has had no problems with her 
 
              lower back until this summer in about June of 1983.  At 
 
              that time she had an episode of back pain with 
 
              radiation of pain down the right leg.  At that time she 
 
              was evaluated by Dr. Kreiter and by a neurologist.  She 
 
              eventually did return to work in August of 1983 and did 
 
              quite well until this most recent episode. (Emphasis 
 
              added.)
 
         
 
              Exhibit E, page 1 (dated November 8, 1984), is authored by 
 
         John E. Sinning, Jr., M.D., and reads in part:
 
         
 
              I went over the history in some detail, both as 
 
              reported by Mrs. Marlowe and as recorded in our record.  
 
              Her problem began in the spring of 1983 when she fell 
 
              down the stairs at home.  Following chiropractic 
 
              treatment for a time she returned to work, had 
 
              increasing trouble and then was seen by Dr. John 
 
              Sunderbruch.  Because of increasing pain in the right 
 
              buttock and leg, she was sent to our office by Dr. 
 
              Sunderbruch and seen on June 3, 1983 by Dr. Richard 
 
              Kreiter.  X-rays which Mrs. Marlowe brought in were 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO..
 
         Page   4
 
         
 
         
 
              reviewed by Dr. Kreiter with findings of no obvious 
 
              abnormality.  A CT scan [sic] was performed in June 
 
              1983 with findings of a probable herniation of the 5th 
 
              lumbar disc, possibly the 4th disc. (Emphasis added.)
 
         
 
              Dr. Sinning stated on page 3 of exhibit E:
 
         
 
              It is my conclusion that Mrs. Marlowe has no impairment 
 
              of function.  There are no physical findings to justify 
 
              her remaining on a "healing status" on workmen's [sic] 
 
              compensation.  If she is unable to return to work 
 
              because of a continued pain problem, then psychiatric 
 
              evaluation of that pain problem is an essential part of 
 
              her evaluation.
 
         
 
              Exhibit F, page 1 (dated October 31, 1984), is authored by 
 
         Stephen C. Rasmus, M.D., and reads in part:
 
         
 
              She is here because of a back problem that started 
 
              around Easter in 1983.  She fell down stairs while at 
 
              home.  She had back pain afterwards with, as she 
 
              recalls, some pain into the right leg.  She worked at 
 
              America [sic] Honda and over the course of two weeks 
 
              the pain got worse.  She saw a chiropractor and was off 
 
              work for about six weeks.  She then returned to work.  
 
              While picking up a head cylinder, she had sudden onset 
 
              of numbness and paresthesias in both legs.  She then 
 
              saw a number of physicians including Dr. Richard 
 
              Kreiter and myself when I was working in Clinton.  I do 
 
              not recall my findings then, and I will have to send 
 
              for my records.  Evidently I told her that she had some 
 
              evidence of nerve damage.  With conservative therapy, 
 
              she eventually improved to the point that she returned 
 
              to work in August 1983.  In January, 1984, she was 
 
              holding a box and had sudden sharp pain in her back.  
 
              She had some urge to go to the bathroom.  On the way, 
 
              some friends noticed the right leg dragging, according 
 
              to history.  She could not get up from the toilet 
 
              because of pain.  She got help and eventually required 
 
              an ambulance ride to the hospital.  She was 
 
              hospitalized by Dr. Sunderbruch.  According to his 
 
              record then, she had more pain on the left side.  She 
 
              was also seen by Dr. Irey and Dr. Sinning.  The left 
 
              sided pain improved, but the low back pain and 
 
              intermittent right leg pain has persisted.  She was 
 
              evaluated by Dr. VanGilder in Iowa City.  He did not 
 
              think that surgery was recommended.  Dr. Eugene Collins 
 
              also agreed with that.  Currently, her pain is 
 
              primarily in the middle of the back.  She has some 
 
              discomfort in the right leg down the posterolateral 
 
              aspect to the toes.  That is most noticeable with 
 
              walking, vacuuming or packing things up.  Coughing 
 
              causes increased back pain.  She has some paresthetic 
 
              feelings in the right leg that she describes as "bugs 
 
              crawling." (Emphasis added.)
 
         
 
              Exhibit I is the deposition of Dr. Eugene Collins.  On page 
 
         14 he stated as follows regarding whether the incident of January 
 
         3, 1984 aggravated claimant's back situation:
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO..
 
         Page   5
 
         
 
         
 
         
 
              A.  If she had previously injured her back and this was 
 
              an aggravation of that.  It can be temporary, it can be 
 
              cumulative, more or less.  It depends on, if she pulled 
 
              the muscles and ligaments out, that certainly may have 
 
              made it a little worse.  It may have not.  It's -- I 
 
              can't say one way or the other.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of January 3, 1984 
 
         is causally related to the disability on which she now bases her 
 
         claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965). Lindahl v. L. 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).
 
         
 
              Claimant filed a petition on October 7, 1985 and stated in 
 
         paragraph 10 thereof: 'Injury is the result of a slip and fall at 
 
         place of employment.  At hearing, claimant testified that, in 
 
         fact, she slipped and fell at home and, as a result, an amendment 
 
         to her petition was sought and granted.
 
         
 
              Claimant sustained an injury in March 1983 (Easter 1983), an 
 
         injury in May 1983, and another injury in January 1984.  The May 
 
         1983 injury occurred at work as did the January 1984 injury.  
 
         Claimant did not file a timely arbitration petition seeking 
 
         workers' compensation benefits because of the May 1983 incident.  
 
         She did receive private disability monies because of the May 1983 
 
         incident, however.
 
         
 
              As stated above, claimant has the burden of proof on the 
 
         issue of causal connection between the stipulated work-related 
 
         injury of January 3, 1984 and her asserted disability.  She must 
 
         establish the requisite causal connection by a preponderance of 
 
         the evidence.  This, she has failed to do.  It is just as likely 
 
         that her current physical problems are related to the Easter 1983 
 
         incident at home and/or May 1983 work incident as it is the 
 
         stipulated work incident of January 3, 1984.  Therefore, she has 
 
         failed in her burden of proof and as a result takes nothing from 
 
         this proceeding.
 
         
 
              II.  It is unnecessary to reach the nature and extent issue 
 
         in this case given the resolution of the causal connection issue 
 
         set out in Division I.
 
         
 
              III.  Claimant also failed to establish by a preponderance 
 
         of the evidence that the contested medical bills (marked Exhibit 
 
         1) are causally related to the incident of January 3, 1984.
 
         
 
                             FINDINGS OF FACT
 
         
 
               1.  Claimant injured her back at home on March 27, 1983.
 
         
 
              2.  Claimant sustained a work-related injury at American 
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO..
 
         Page   6
 
         
 
         
 
         Honda and was off work from May 27, 1983 through August 21, 1983 
 
         as a result.
 
         
 
              3.  Claimant sustained a work-related injury on January 3, 
 
         1984.
 
         
 
              4.  Claimant currently suffers from some whole body 
 
         permanent partial impairment.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence a causal connection between the work-related incident of 
 
         January 3, 1984 and her whole body permanent partial impairment.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 30th day of April, 1987.
 
         
 

 
         
 
         
 
         
 
         MARLOWE V. AMERICAN HONDA MOTOR CO.
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          T. J. McSWEENEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. John 0. Moeller
 
         Attorney at Law
 
         601 Brady Street
 
         Suite 303
 
         Davenport, Iowa 52801
 
         
 
         Mr. Elliott R. McDonald Jr.
 
         Attorney at Law
 
         3432 Jersey Ridge Rd
 
         Davenport, Iowa 52807
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.40
 
                                                Filed 4-30-87
 
                                                T.J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         BEVERLY MARLOWE,
 
         
 
              Claimant,
 
                                                 File No. 803238
 
         VS.
 
         
 
         AMERICAN HONDA MOTOR CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40
 
         
 
              Held in arbitration that claimant took nothing from the 
 
         proceeding because she failed to show a causal connection between 
 
         a stipulated work-related injury of January 3, 1984 and her 
 
         asserted disability.  Claimant had fallen down some stairs at 
 
         home in March 1983 injuring her back and had sustained a 
 
         work-related injury (other than the one at issue) but did not 
 
         file a timely claim for this injury that occurred in May 1983.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LEO WATERS,
 
         
 
              Claimant,
 
                                                 File No. 803244 
 
         VS.
 
         
 
         AUTO CONVOY COMPANY,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
         and
 
                                                 D E C I S I 0 N
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier, Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Leo Waters 
 
         against Auto Convoy Company, employer, and Liberty Mutual 
 
         Insurance Company, the employer's insurance carrier.  Claimant 
 
         seeks benefits as a result of an alleged injury that occurred 
 
         March 4, 1985 in Stronghurst, Illinois.
 
         
 
              The case was heard at Des Moines, Iowa on April 23, 1987 and 
 
         was fully submitted upon conclusion of the hearing.  The record 
 
         in the proceeding consists of testimony from Leo Waters and joint 
 
         exhibit one.
 
         
 
                                     ISSUES
 
         
 
              The sole issue presented by the parties is whether or not 
 
         the state of Iowa has subject matter jurisdiction over this 
 
         claim.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence.  
 
         All evidence received at the hearing was considered when deciding 
 
         the case.
 
         
 
              The evidence submitted by claimant in his testimony stands 
 
         uncontradicted.  The matters of which he testified which were 
 
         based upon his own personal observation are accepted as correct.
 
         
 
              Claimant is a resident of Des Moines, Iowa and has lived 
 
         for 14 years at 1810 34th Street, Des Moines, Iowa.  
 
         On May 29, 1974 claimant commenced employment as a truck 
 
         driver for Leroy Wade.  His duties consisted of driving a 
 
         tractor-trailer and delivering new cars.  He worked from 
 
         the Des Moines terminal of Leroy Wade
 
         
 
         
 
         
 
         
 
         and was a member of the Teamsters Union.
 
         
 
              In July, 1982, Leroy Wade merged with Associated, a company 
 
         owned by Leroy Wade.  Associated assumed the contractual 
 
         obligations of Leroy Wade with the union.  Claimant continued to 
 
         work from the Des Moines terminal.
 
         
 
              In 1983, Associated was purchased by Auto Convoy.  Auto 
 
         Convoy, as successor to Associated and Leroy Wade, assumed the 
 
         contractual obligations of Associated with the union.  Claimant 
 
         continued to work from the Des Moines terminal until September, 
 
         1984, when the Des Moines terminal was closed.  Auto Convoy 
 
         continued to operate a terminal in Council Bluffs, Iowa.
 
         
 
              From September, 1984 through the date of the injury on March 
 
         4, 1985, claimant has worked from the Kansas City terminal.  
 
         Dispatch for Auto Convoy during this period was described by 
 
         claimant to be "A, B, C dispatch."  Dispatch for destination A is 
 
         from Kansas City and destinations B and C are from central 
 
         dispatch in Dallas, Texas.  Pay was received from the office of 
 
         Auto Convoy in Dallas, Texas.  State income taxes for Iowa were 
 
         withheld by Auto Convoy as reflected by the W-2 form for 1985.
 
         
 
              Claimant estimated that more than 40% of the work for Auto 
 
         Convoy was performed in Iowa.  The remainder work was performed 
 
         in other states which included Minnesota, Illinois, Wisconsin, 
 
         Nebraska, Kansas, Missouri, Texas and Oklahoma.  The percentage 
 
         of work performed in these states ranged from 20% to only a few 
 
         percent.
 
         
 
              On March 4, 1985, claimant left Des Moines at approximately 
 
         5:00 a.m. with a load of new cars.  He dropped cars off in the 
 
         Quad Cities area and in Illinois.  He sustained an injury at 
 
         Stronghurst, Illinois which is the subject of this litigation.  
 
         Following the injury, he went to Fort Madison, Iowa and delivered 
 
         cars.  After staying overnight in Fort Madison, he returned to 
 
         the Kansas City terminal and sought medical treatment.
 
         
 
              Joint exhibit one is a copy of claimant's W-2 statement for 
 
         calendar year 1985.  It shows claimant's address to be within the 
 
         state of Iowa, income tax withholding for the state of Iowa and 
 
         the employer's address to be in Dallas, Texas.
 
         
 
         
 
         
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The jurisdiction of the subject matter is the power to hear 
 
         and determine cases of the general class to which the proceedings 
 
         belong.  Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970).  When 
 
         a court acts without legal authority to do so, it lacks 
 
         jurisdiction of the subject matter.  In Re Adoption of Gardiner, 
 
         287 N.W.2d 555, 559 (Iowa 1980).  Jurisdiction of the subject 
 
         matter cannot be conferred by waiver, estoppel or consent. it can 
 
         therefore be raised at any time and need not be pled. Steffens v. 
 
         Proehl, 171 N.W.2d 279 (Iowa 1969).  The issue of subject matter 
 
         jurisdiction is not a typical affirmative defense.  In Federal 
 
         practice, a plaintiff is required to specifically plead the 
 
         statutory basis for the court's subject.matter jurisdiction of 
 
         the case.  No such rule exists in the Iowa courts or before this 
 
         agency.  The lack of a pleading requirement, however, does not 
 
         relieve the claimant from the burden of proving that the agency 
 
         has subject matter jurisdiction to determine his claim.  The 
 

 
         
 
         
 
         
 
         WATERS V. AUTO CONVOY COMPANY
 
         Page   3
 
         
 
         
 
         proposition that the burden of proving an entitlement to anything 
 
         rests on the proponent is so well settled that Rule 14(f)(5) of 
 
         the Rules of Appellate Procedure provides that the citation of 
 
         authority for that proposition is not necessary.  The same rule 
 
         regarding burden of proof applies to administrative proceedings.  
 
         Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973).  If the 
 
         facts necessary to establish subject matter jurisdiction are 
 
         absent, an order dismissing the petition is the only appropriate 
 
         disposition.  Lloyd v. State, 251 N.W.2d 551, 558 (Iowa 1977).
 
         
 
              The Iowa Industrial Commissioner has subject matter 
 
         jurisdiction over all injuries suffered by employees within the 
 
         geographical boundaries of the state of Iowa. [Code section 
 
         85.3(2)]. Where an employee is injured outside the territorial 
 
         limits of this state, the Iowa Industrial Commissioner has 
 
         subject matter jurisdiction only if one of the four criteria 
 
         established in Code section 85.71 is present.  Those four 
 
         criteria provide as follows:
 
         
 
                   1.  His employment is principally localized in 
 
              this state, that is, his employer has a place of 
 
              business in this or some other state and he regularly 
 
              works in this state, or if he is domiciled in this 
 
              state, or
 
         
 
                   2.  He is working under a contract of hire made in 
 
              this state in employment not principally localized in 
 
              any state, or
 
         
 
                   3.  He is working under a contract of hire made in 
 
              this state in employment principally localized in 
 
              another state, whose workers' compensation law is not 
 
              applicable to his employer, or
 
         
 
                   4.  He is working under a contract of hire made in 
 
              this state for employment outside the United States.
 
         
 
              The test for determining whether or not the Iowa statute 
 
         applies to an out-of-state injury is whether Iowa has sufficient 
 
         interest based upon its statutes.  George H. Wentz, Inc. v. 
 
         Sabasta, 337 N.W.2d 495, 498 (Iowa 19-82).  In that case the Iowa 
 
         Supreme Court stated:
 
         
 
              ...a state where the employment is principally 
 
              localized ...is the state where the employee spends 
 
              most of his time while on the job.
 
         
 
              Further, the Court stated:
 
         
 
              Although the legislature clearly contemplated a 
 
              claimant's employment may not be localized in any 
 
              state, see Iowa Code E85.71(2), we think it similarly 
 
              contemplated a claimant's employment may be localized 
 
              in but one principal state.  See Iowa Code  85.71(3); 
 
              Council of State Governments Model Act commentary; 
 
              Restatement (Second) of conflict of Laws at E181, 
 
              comment a.
 
         
 
              It is concluded that if the majority of an employee's 
 

 
         
 
         
 
         
 
         WATERS V. AUTO CONVOY COMPANY
 
         Page   4
 
         
 
         
 
         working hours are spent in one state, then the employment is 
 
         principally localized in that state.  If there is no one state 
 
         within which a majority of the employee's working time is spent, 
 
         then the employment is not principally localized in any state.
 
         
 
              The term "principally localized" refers to a majority rather 
 
         than a plurality of the working time.  Any other interpretation 
 
         would result in section 85.71(2) being applicable in only those 
 
         rare cases where the employee worked a precisely equal amount of 
 
         time in each of the two or more states where the greater portion 
 
         of work was performed.
 
         
 
              In Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530
 
         (Iowa 1981), the court seems to rule that the employee's 
 
         performance of the primary portion of his work in a state is the 
 
         test and that the location of the employer's place of business or 
 
         the employee's domicile is of no effect.  There is some authority 
 
         to the effect that the job of an over-the-road trucker, by its 
 
         very nature, is not principally localized in any state.  
 
         Albertson v. I-29 Country Diesel, IV Iowa Industrial 
 
         Commissioner Report, 5 (1984).
 
         
 
              It can be reasonably argued that the employment of an 
 
         over-the-road truck driver is principally localized at the place 
 
         of the terminal from which he is dispatched.  It can be argued 
 
         that the employment of an over-the-road truck driver is 
 
         principally localized at his place of residence or such other 
 
         place, if any, to which he returns when there is no work to be 
 
         performed and from which he leaves when a work assignment is 
 
         issued.  It is believed, however, that the better rule is the one 
 
         followed herein.
 
         
 
              While Auto Convoy Company did maintain a place of business 
 
         in the state of Iowa at Council Bluffs at the time of injury, 
 
         claimant did not work from that place of business.  This is a 
 
         similar situation to that which existed in the case of Iowa Beef 
 
         Processors, Inc. v. Miller, 312 N.W.2d 530 (Iowa 1981) since the 
 
         employer in that case had one or more places of business in the 
 
         state of Iowa, but Miller was not employed at any of those 
 
         places.
 
         
 
              Waters estimated that 40% of the work he performed for Auto 
 
         Convoy was performed in Iowa.  He estimated that the figure could 
 
         be as high as 50%.  He did not introduce any evidence whatsoever 
 
         that the figure would exceed 50%.  The remainder of the work was 
 
         performed in other states.  While more of claimant's working time 
 
         was spent in the state of Iowa than in any other state, there is 
 
         no one state in which more than 50% of his work was performed.  
 
         Accordingly, claimant's employment by Auto Convoy Company was not 
 
         principally localized in any state. if subject matter 
 
         jurisdiction exists, it exists under section 85.71(2).
 
         
 
              The direct evidence in the case contains little about the 
 
         manner in which claimant became employed by Leroy Wade.  The 
 
         evidence does reflect, however, that claimant resided in Des 
 
         Moines, Iowa at the time he commenced working for Leroy Wade and 
 
         that his job was hauling automobiles from Wade's Des Moines, Iowa 
 
         terminal.  It can therefore be reasonably inferred that claimant 
 
         was hired by Wade in or near Des Moines, Iowa. it would be highly 
 

 
         
 
         
 
         
 
         WATERS V. AUTO CONVOY COMPANY
 
         Page   5
 
         
 
         
 
         unlikely for claimant and Wade to have somehow met and created an 
 
         employer-employee relationship in some state other than Iowa 
 
         since there is no evidence in the record to indicate that 
 
         claimant and Wade ever communicated with each other at any place 
 
         other than the Des Moines, Iowa area in establishing the 
 
         employer-employee relationship.
 
         
 
              The merger with "Associated" apparently did not terminate 
 
         the prior employer-employee relationship, and, if it did, a new 
 
         one was apparently immediately created, again, with such 
 
         occurring in the Des Moines, Iowa area, since claimant continued 
 
         to reside in Des Moines, Iowa and to work out of the employer's 
 
         Des Moines, Iowa terminal.
 
         
 
              The purchase of Associated by Auto Convoy Company, in which 
 
         the contractual obligations were apparently assumed, appears to 
 
         have transferred, rather than terminated the employer-employee 
 
         relationship which was then in existence.  If there was in fact 
 
         some sort of termination, a new employer-employee relationship 
 
         was again created since there was no substantial change in 
 
         claimant's working conditions.  If a new employer-employee 
 
         relationship was created, it is again inferred that such occurred 
 
         in Des Moines, Iowa the place of claimant's residence and the 
 
         place of the terminal out of which he worked.  The closing of the 
 
         Des Moines terminal and the transfer of its operations to Kansas 
 
         City did not terminate the employer-employee relationship between 
 
         claimant and Auto Convoy Company.    Under the evidence 
 
         introduced, it appears more likely than not that claimant was 
 
         working under a contract of hire made in the state of Iowa at the 
 
         time of his injury that occurred in Stronghurst, Illinois.  It is 
 
         therefore concluded that this agency has subject matter 
 
         jurisdiction of this proceeding under the provisions of Code 
 
         section 85.71(2).
 
                                        
 
                                 FINDINGS OF FACT
 
         
 
              1.  On March 4, 1985 Leo Waters was a resident of the state 
 
         of Iowa.
 
         
 
              2.  On March 4, 1985 Leo Waters was injured in a fall that 
 
         occurred at Stronghurst, Illinois.
 
         
 
              3.  At the time of injury, claimant was employed as a truck 
 
         driver working for Auto Convoy Company, dispatched out of its 
 
         Kansas City terminal.
 
         
 
              4.  Claimant's contract of hire with Auto Convoy Company was 
 
         made in the state of Iowa.
 
         
 
              5.  Claimant spent more of his working time in the state of 
 
         Iowa than in any other state, but there is no one state in which 
 
         a majority of his work was performed.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  If the majority of an employee's working time is spent 
 
         in one state, then the employment is principally localized in 
 
         that state.  If there is no one state within which a majority of 
 
         the employee's working time is spent, then the employment is not 
 

 
         
 
         
 
         
 
         WATERS V. AUTO CONVOY COMPANY
 
         Page   6
 
         
 
         
 
         principally localized in any state.
 
         
 
              2.  This agency has jurisdiction of the subject matter of 
 
         this proceeding under the provisions of section 85.71(2) based 
 
         upon claimant's contract of hire having been made in the state of 
 
         Iowa and the employment not being principally localized in any 
 
         state.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         compensation for healing period at the appropriate rate for the 
 
         stipulated period of from March 5, 1985 through January 12, 1986, 
 
         a period of forty-four and six-sevenths (44 6/7) weeks.
 
         
 
              IT IS FURTHER ORDERED that defendants shall receive credit 
 
         for all benefits previously paid on this claim in the state of
 
         Illinois and that any past due amounts be paid in a lump sum 
 
         together with interest pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services' Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the agency pursuant to Division of 
 
         Industrial Services' Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that this file be assigned for 
 
         prehearing on the claim made under section 86.13 of the Code.
 
         
 
         
 
              Signed and filed this 16th day of September, 1987.
 
         
 
         
 
         
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis  Hanssen
 
         Attorney at Law 
 
         Suite 111, Terrace Center 
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2301, 2303
 
                                                 Filed September 16, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LEO WATERS,
 
         
 
              Claimant,
 
                                                 File No. 803244 
 
         VS.
 
         
 
         AUTO CONVOY COMPANY,
 
                                              A R B I T R A T I 0 N 
 
              Employer,
 
         
 
         and
 
                                                 D E C I S I 0 N 
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier, 
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         2301, 2303
 
         
 
              Claimant was an over-the-road truck driver who had initially 
 
         been hired in the state of Iowa.  A series of mergers and 
 
         acquisitions led him to his status of employment with the current 
 
         employer.  At the time he entered into employment with the 
 
         current employer, he resided in the state of Iowa and worked out 
 
         of a terminal in the state of Iowa.  Approximately one year later 
 
         the terminal to which he was assigned was relocated to Kansas 
 
         City, but claimant continued to reside in the state of Iowa.  He 
 
         was injured in the state of Illinois while making a delivery for 
 
         the employer.
 
         
 
              It was held that employment is not principally localized in 
 
         any state if the employee spends less than one-half of his time 
 
         in each state.  Subject matter jurisdiction over the claim was 
 
         found to exist under Code section 85.71(2).
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 1803.1
 
                      Filed December 11, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEO WATERS,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 803244
 
            vs.                           :                 837030
 
                                          :
 
            AUTO CONVOY COMPANY,          :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :             A N D
 
                                          :
 
            and                           :         R E V I E W -
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :       R E O P E N I N G
 
            COMPANY,                      :
 
                                          :        D E C I S I O N
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 20% industrial disability as a result of a 
 
            March 4, 1985 work injury causing 11% permanent impairment 
 
            to claimant's body as a whole.
 
            
 
            5-1803
 
            Claimant awarded 15% industrial disability as a result of a 
 
            September 5, 1986 work injury causing a 10% permanent 
 
            impairment to claimant's body as a whole.
 
            In March 4, 1985 injury, parties stipulated that the right 
 
            shoulder injury was to claimant's body as a whole.
 
            
 
            1803.1
 
            In the September 5, 1986 injury, deputy found the left 
 
            shoulder injury was also to claimant's body as a whole even 
 
            though Dr. Neff rated it to left upper extremity.  The 
 
            operations were similar in both injuries and the extensive 
 
            surgery scars were in identical places in respect to the 
 
            particular arm involved.  Visually, the scars were on 
 
            claimant's body as a whole area.