BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY R. MURKINS,
 
         
 
              Claimant,                              File  Nos. 803246
 
                                                               809975
 
         vs.
 
                                                       A P P E A L
 
         IOWA DEPARTMENT OF
 
         TRANSPORTATION,                             D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           AUG 17 1989
 
         
 
         STATE OF IOWA,                            INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         claimant temporary total disability and medical benefits as a 
 
         result of an injury March 20, 1985, and denying any benefits as a 
 
         result of an alleged injury on November 8, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through Z and AA 
 
         through II; and defendants' exhibits 1 through 9.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUE
 
         
 
              The issue on appeal is whether claimant sustained an injury 
 
         on November 8, 1985, that arose out of and in the course of his 
 
         employment with defendant employer.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated December 17, 1987, adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and evidence.
 
         
 
                                ANALYSIS
 
         
 
              One preliminary matter should be discussed first.  Claimant 
 
         states in his appeal brief that the deputy incorrectly described 
 
                                                
 
                                                         
 
         the stipulations in this matter.  The deputy described one of the 
 
         stipulations as "any new or additional permanent partial 
 
         impairment [sic] would be attributable to the alleged injury of 
 
         November 8, 1985" (Emphasis in the original).  At the arbitration 
 
         hearing claimant's counsel stated:
 
         
 
              But I think the record indicates it's our position that 
 
              essentially this permanent disability that he has now came 
 
              out of that November 8th, '85, accident, because he never 
 
              went back after that one.  He went back after the other one. 
 
              And he was able to do his old job after the March incident.
 
         
 
         (Transcript, page 60, lines 1-7)
 
         
 
         The deputy properly concluded that claimant was seeking no 
 
         permanent disability benefits as a result of the March 20, 1985 
 
         injury.  The award of temporary total disability benefits for the 
 
         March 20, 1985 injury (March 20, 1985 through May 5, 1985) has 
 
         not been appealed by either party.  Even if the stipulation were 
 
         improperly stated, claimant has not proved that the March 20, 
 
         1985 injury was the cause of any amount of permanent disability. 
 
         Claimant had discontinued treatment from Mark A. Kruse, D.C., 
 
         from October 7, 1985 through September of 1986.  When David G. 
 
         Paulsrud, M.D., saw claimant after the November 8, 1985 alleged 
 
         injury claimant did not mention the incident in March 1985.  
 
         There is no reliable medical evidence that would demonstrate that 
 
         the March 20, 1985, incident was the cause of any permanent 
 
         disability.
 
         
 
              The issue that is dispositive of this appeal is whether 
 
         claimant sustained an injury on November 8, 1985, which arose out 
 
         of and in the course of his employment.  Claimant alleges the 
 
         following happened.  He was descending the.ladder of a piece of 
 
         equipment when he caught his left heel and fell six to eight feet 
 
         to the.ground. He landed flat on his back and hit the back of his 
 
         head.  He had "real, real bad jabs" in the lower back and 
 
         tingling sensations in the left leg.  He was not sure whether he 
 
         lost consciousness.  He let out a yell when he hit the ground 
 
         that his coworker would have heard.  He managed to drive a truck 
 
         back to Sioux City [distance unknown] and his back "hurt like 
 
         hell."  He did not go to see Dr. Kruse because the employer had 
 
         not been paying the medical bills of Dr. Kruse and he was scared 
 
         to run up a bill.  He has been unable to work since the November 
 
         8, 1985 incident.
 
         
 
              There are other facts in this case that do not support and 
 
         sometimes contradict claimant's allegations.  Also, there are 
 
         facts that are inconsistent with claimant's allegations.  As a 
 
         backdrop to claimant's alleged fall there is testimony from 
 
         several individuals (Thomas Brosamle, Jill Swanson, and Kathy 
 
         Duque) that the claimant's wife had indicated prior to the 
 
         alleged fall that claimant would have a fall.  While admittedly 
 
         Brosmale, Swanson (Brosmale's daughter) and Duque could be 
 
         characterized as somewhat hostile towards claimant's wife and 
 
         possibly claimant, that hostility, if any, cannot totally negate 
 
                                                
 
                                                         
 
         the common theme from three witnesses that claimant's wife 
 
         forecasted an accident by claimant.  Also, as a backdrop to the 
 
         alleged November 8, 1985 incident is the employer's attempt, 
 
         beginning apparently in a letter dated November 1, 1985, to 
 
         control medical treatment and to not authorize any further 
 
         treatment by Dr. Kruse.
 
         
 
              Claimant's coworker who was in the area at the time of the 
 
         alleged fall did not hear claimant yell.  This coworker, who was 
 
         the only other person present, did not see claimant fall.  
 
         Claimant had seen Dr. Kruse 34 times from March 23, 1985 through 
 
         October 7, 1985, and had seen him ten times from the date he had 
 
         returned to work from the March 20, 1985 injury (May 5, 1985) 
 
         until October 7, 1985.  Claimant had paid none of his bills from 
 
         Dr. Kruse but when the alleged injury occurred which by claimant's 
 
         own description caused him severe pain, he did not seek care from 
 
         Dr. Kruse.  He sought care from Dr. Paulsrud who, on November 14, 
 
         1985, diagnosed degenerative disc disease.  Dr. Paulsrud noted 
 
         tenderness over the lumbosacral junction and straight leg raising 
 
         positive on the left at about 50 degrees.  Dr. Paulsrud did not 
 
         note any bruising nor any problems with the head.  Claimant had a 
 
         history of low back pain and pain in his left leg.  Dr. Paulsrud 
 
         released claimant to light duty work as early as December 12, 
 
         1985, and gave claimant a work release for February 3, 1986.  
 
         Claimant apparently first mentioned having headaches to Dr. 
 
         Paulsrud December 23, 1985.
 
         
 
              Claimant has the burden of proving an injury that arose out 
 
         of and in the course of his employment on November 8, 1985. 
 
         Claimant has not met his burden.  There are too many 
 
         inconsistencies and contradictions to accept claimant's 
 
         allegation that an incident occurred on November 8, 1985, which 
 
         caused a work injury.  A scenario of claimant's wife predicting a 
 
         fall, an unseen fall, and claimant's failure to seek immediate 
 
         care from Dr. Kruse for an allegedly severely painful condition 
 
         simply lead to the conclusion that the fall did not happen.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant was born on May 1, 1954.
 
         
 
              2.  Claimant graduated from high school in 1972 and was a 
 
         poor student while attending high school.
 
         
 
              3.  Claimant started working for Iowa Department of 
 
         Transportation (IDOT) on April 25, 1975.
 
         
 
              4.  In 1975, claimant injured his back while working for 
 
         IDOT.
 
         
 
              5.  In 1976, claimant reinjured his back or aggravated his 
 
         1975 back injury.
 
         
 
              6.  In 1981, claimant entered into a special case settlement 
 
         regarding his 1975 and 1976 back injuries sustained while working 
 
                                                
 
                                                         
 
         for IDOT.
 
         
 
              7.  On March 20, 1985, claimant materially aggravated the 
 
         portion of his back that was injured at work in 1975 and 1976; 
 
         this material aggravation caused claimant to miss work from March 
 
         20, 1985 through May 5, 1985.
 
         
 
              8.  On November 8, 1985, claimant did not injure his back 
 
         while working for IDOT.
 
         
 
              9.  Claimant's stipulated rate of weekly compensation 
 
         regarding the material aggravation of March 20, 1985 is $187.02.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has proved entitlement to temporary total 
 
         disability benefits from March 20, 1985 through May 5, 1985.
 
         
 
              Claimant has not proved that he sustained an injury on 
 
         November 8, 1985, that arose out of and in the course of his 
 
         employment with IDOT.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
 
 
                             
 
                                                         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant temporary total disability 
 
         benefits at a rate of one hundred eighty-seven and 02/100 dollars 
 
         ($187.02) from March 20, 1985 through May 5, 1985.
 
         
 
              That defendants pay any contested medical bills regarding 
 
         the incident of March 20, 1985.
 
         
 
              That defendants pay.accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid.
 
         
 
              That each party pay their own costs of this action as 
 
         described in Division of Industrial Services Rule 343-4.33. 
 
         Claimant shall pay the costs of this appeal including the costs 
 
         of transcribing the arbitration hearing.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2) as requested 
 
         by the agency.
 
         
 
              That this case be returned to docket for resolution of the 
 
         Iowa Code section 86.13 penalty benefits issue regarding 
 
         temporary total benefits from March 20, 1985 through May 5, 1985 
 
         (File No. 803246).
 
         
 
              Signed and filed this 17th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jeffrey A. Sar
 
         Attorney at  Law
 
         Benson Building, Ste. 215
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Robert E. Ewald
 
         Attorney at  Law
 
         General Counsel Division
 
         Iowa Dept. of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa  50010
 
         
 
         
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20
 
                                            Filed August 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY R. MURKINS,
 
         
 
              Claimant,                            File Nos. 803246
 
                                                             809975
 
         vs.
 
         
 
         IOWA DEPARTMENT OF                          A P P E A L
 
         TRANSPORTATION,
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.20
 
         
 
              The issue on appeal was whether claimant sustained an injury 
 
         that arose out of and in the course of his employment.  Claimant 
 
         alleged a fall at work and injury to his back.  It was the second 
 
         alleged work injury to the back within eight months.  Three 
 
         witnesses testified that claimant's wife forecasted the fall. 
 
         Claimant did not seek immediate medical care despite the facts he 
 
         was in alleged severe pain and he had had continuous care from 
 
         his doctor for a previous work injury until just a month before 
 
         the alleged incident.  The fall was unseen and unheard by a 
 
         coworker. The facts lead to the conclusion that the fall did not 
 
         happen and no work injury occurred.  Deputy affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY L. ROWE,
 
         
 
              Claimant,                              File No. 803384
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         BLUNT LOGGING CO.,                          D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                      MAR 21 1989
 
         AMERICAN MUTUAL LIABILITY,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Terry L. Rowe, 
 
         claimant, against Blunt Logging Company, employer, and American 
 
         Mutual Liability, insurance carrier, defendants.  The case was 
 
         heard by the undersigned in Davenport, Iowa on September 14, 
 
         1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Lois Blunt and William 
 
         J. Blunt, owners.  The record also contains joint exhibit A; 
 
         claimant's exhibits 1 through 11; and, defendants' exhibits 1 
 
         through 7.
 
         
 
                                 ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on September 14, 1988, the issues presented by the 
 
         parties are:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              2.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits;
 
         
 
              3.  Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27; and,
 
         
 
              4.  Whether claimant can claim his son as an exemption.
 
         
 
                                                
 
                                                         
 
                               FACTS PRESENTED
 
         
 
              Claimant, at the time of the hearing, was 31 years old.  He 
 
         commenced his employment with defendant, employer on November 2, 
 
         1983.  For the duration of his employment, claimant was hired as 
 
         a logger.
 
         
 
              On November 16, 1983, while at work, a small tree fell onto 
 
         claimant's head, neck and back.  Claimant passed out as a result 
 
         of the work injury.  A coworker, J. D. Murphy, brought claimant 
 
         to the Davenport Osteopathic Hospital for treatment.  No X-rays 
 
         of the back were taken.  Claimant was released that afternoon by 
 
         the emergency room physician.  He advised claimant to rest for 
 
         the remainder of the day, but claimant was told he could return 
 
         to work on the following day.
 
         
 
              Claimant returned to work.  In June of 1985, he experienced 
 
         back problems.  According to the testimony of Lois Blunt, 
 
         claimant complained of back problems and could not work for a 
 
         period of time.  William J. Blunt testified claimant was off work 
 
         for seven or ten days during that time frame.  Claimant stated he 
 
         was off work for two weeks in June of 1985.  Claimant testified 
 
         that Mr. Blunt told him to see whomever he selected for his 
 
         medical care and Mr. Blunt would take care of it.  As a result, 
 
         claimant saw J. Richard Burns, D.O.  Later, claimant reported he 
 
         was told by Mr. Blunt to see Mr. Blunt's chiropractor, Earl Bull, 
 
         D.O.  Claimant, on direct examination, maintained he saw Dr. Bull 
 
         three times per week for a period of time.
 
         
 
              After his two week leave in June of 1985, claimant returned 
 
         to his logging responsibilities where he remained continuously 
 
         employed through April 4, 1986.  Claimant was then terminated 
 
         because of a dispute over vacation pay.  Claimant remained 
 
         unemployed for approximately eight months.
 
         
 
              At the time of the hearing, claimant had been hired as a 
 
         sanitation worker for one year and five months.  Claimant is 
 
         employed to clean a slaughtering operation at the IBP plant in 
 
         Jocelyn, Illinois.  He cleans with high pressure water hoses.  
 
         For a time period, claimant was promoted to lead man, but 
 
         according to the testimony of claimant, he was unable to handle 
 
         the position. Therefore, he voluntarily demoted.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 16, 1983, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
                                                
 
                                                         
 
              The claimant has the burden of proving by a preponderance of 
 
         the.evidence that the injury of November 16, 1983, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              In the case at hand, claimant has not established there is 
 
         the requisite causal connection between the injury of November 
 
         16, 1983 and his alleged disability.  Medical evidence does not 
 
         support claimant's testimony that his alleged back condition is 
 
         the result of his work injury on November 16, 1983.
 
         
 
              Firstly, claimant's injury resulted in a blow to his neck, 
 
         not to his lower back.  No mention in the record is made of back 
 
         problems or complaints which were allegedly voiced by claimant. 
 
         Hospital records for the date of the work injury reveal:
 
         
 
              Approx 1- ago - pt cutting down tree with chain saw was 
 
              struck down to ground by other falling tree.  Tree struck 
 
              pt's head/ to c/o throbbing headache, denies N/vomiting.  No 
 
              LOC.  Approx. 2.5 cm laceration between eyebrows from chain 
 
              saw.
 
         
 
                 ...
 
         
 
              ...Contusion to skull laceration of face.
 
         
 
              Next, claimant returned to work on the day following the 
 
         injury.  He remained continuously employed until June of 1985. 
 
         There were nearly 20 months where claimant was able to continue 
 
         his employment without missed work days.  At all times, claimant 
 
         worked as a logger.  Even after claimant's two week absence from 
 
         work, he was able to continue with his logging duties for ten 
 
         more months.  He had no additional absences.
 
         
 
              Also, other than the chiropractic treatments claimant 
 
         received for a period of time, claimant did not seek medical 
 
                                                
 
                                                         
 
         attention for his back until June 22, 1985.  On that date, 
 
         claimant saw Max J. Ebalo, Jr., M.D.  Dr. Ebalo's letter of 
 
         February 6, 1986 details the nature of claimant's visit.  Dr. 
 
         Ebalo reveals that:
 
         
 
              On 6-22-85 he came in for "back pains" stating that he was a 
 
              logger and works hard.  He was seeing a "chiropractor" 
 
              without too much help so he decided to come to see me - 
 
              positive finding consisted of spasm of muscle of the neck, 
 
              and thoracic area.  He was started on a muscle relaxant, 
 
              heating pad and pain medication.
 
         
 
              It is interesting to note that with reference to June 22, 
 
         1985, Dr. Ebalo makes no mention of a work related injury when 
 
         discussing claimant's "back pains."  It is also interesting to 
 
         note that claimant saw Dr. Ebalo on both April 2, 1984 and 
 
         September 7, 1984.  Nevertheless, there is no evidence in the 
 
         medical records that claimant discussed "back pains" with Dr. 
 
         Ebalo.  On an insurance questionnaire, Dr. Ebalo furthermore 
 
         places question marks near the blanks marked, "date of accident," 
 
         and "hour."  Dr. Ebalo also writes, "Back Pain?", next to the 
 
         blank marked, "State in patient's own words where and how 
 
         accident occurred."  It is evident, Dr. Ebalo had no indication 
 
         that the back complaints were allegedly related to the work 
 
         injury on November 16, 1983.
 
 
 
 
 
                        
 
                                                         
 
         
 
              If claimant had been having back difficulties on those 
 
         dates, it would appear his complaints would have been voiced to 
 
         his personal physician.  One can only assume that since the 
 
         record is devoid of back complaints on April 2, 1984 and on 
 
         September 7, 1984, claimant must,not have been having 
 
         difficulties.
 
         
 
              There is also the medical opinion of John E. Sinning, Jr., 
 
         M.D., an orthopedic surgeon, who was hired by defendants.  He 
 
         examined claimant on January 6, 1987, relative to this claim.  
 
         Dr. Sinning did not find a causal connection between the work 
 
         injury and the claimed disability.  He, in his letter to 
 
         defendants' attorney, writes:
 
         
 
              DISCUSSION:  Mr. Rowe has no objective findings of 
 
              impairment of function of his neck or back.  He has normal 
 
              strength, normal range of motion and no evidence of 
 
              neurological deficit.
 
         
 
              Mr. Rowe reports injuries in November 1983.  Sufficient time 
 
              has elapsed from that injury for any initially unrecognized 
 
              difficulties to now become apparent.  Had there been a 
 
              fracture it would have been apparent by way of x-ray 
 
              changes. If there was a significant disc injury I would have 
 
              expected either changes of the disc by x-ray three years 
 
              later or significant change by way of limited motion or 
 
              neurological deficit.  Such is not present.
 
         
 
              Next, there is the opinion of claimant's physician.  
 
         Claimant hired Raymond W. Dasso, M.D., for purposes of medical 
 
         evaluation. Dr. Dasso did not see claimant until two and one half 
 
         years after the work injury.  Even he writes in his initial 
 
         report of May 13, 1986:
 
         
 
              ...The patient states that he was injured while at work for 
 
              the Blunt Logging Company of Princeton, Iowa as a tree 
 
              cutter, logger.  The patient states that he cut a tree which 
 
              was attached to another tree by some vines and did not fall 
 
              the way he had anticipated and it fell on him instead.  He 
 
              states that it hit his hard hat and knocked him down; he was 
 
              knocked out.  He states that he was also cut on the forehead 
 
              by a chainsaw during this accident. The patient states that 
 
              he had stitches at the Davenport Orthopedic Associates of 
 
              Davenport, Iowa, in his forehead and had a skull x-ray 
 
              there. He was not hospitalized.  The patient states that the 
 
              date of the accident was February 24, 1984 and that his 
 
              first medical care was the same day.  The patient states 
 
              that he continued his work mostly except for two weeks as a 
 
              logger but had a considerable amount of pain all the time he 
 
              was working and had difficulty in sleeping because of the 
 
              pain.  The patient states his last day worked was about a 
 
              month and a half ago. (Emphasis added)
 
         
 
              Dr. Dasso's use of the phrase, "The patient states...," 
 
                                                
 
                                                         
 
         tends one to believe the physician is reluctant to causally 
 
         relate the work injury to the claimed disability.  He does not 
 
         initially offer an opinion concerning the alleged cause of 
 
         claimant's difficulties.  It is only upon reply to a written 
 
         inquiry from claimant's attorney that Dr. Dasso writes: "I do 
 
         feel that the problems Mr. Rowe is suffering can be causily [sic] 
 
         connected and is due to the accident which occurred on November 
 
         11, 1983." Additionally, Dr. Dasso discusses an injury in 
 
         February of 1984. He does not mention an injury in November of 
 
         1983.
 
         
 
              Then there is the report from Robert J. Chesser, M.D.  Dr. 
 
         Chesser addresses the issue of causation only briefly.  Not much 
 
         evidence on this issue is presented to the undersigned by 
 
         claimant.  Dr. Chesser opines in his letter of May 30, 1986 to 
 
         Dr. Dasso:
 
         
 
              IMPRESSION:  At this time, I suspect the patient's symptoms 
 
              are due to a muscular strain and injury.  I can see nothing 
 
              to indicate any neurological deficit and doubt whether there 
 
              would be any bony abnormality to account for his 
 
              symptoms....
 
         
 
              There is no evidence that the "injury" mentioned above is 
 
         the injury which occurred on' November 16, 1983.
 
         
 
              Finally, there is the report of Brian J. Crosser, D.C.  He 
 
         saw the patient for the first time on September 8, 1986.  This 
 
         was nearly three years after the work injury in question.  Dr. 
 
         Crosser does not state claimant's difficulties are caused by a 
 
         work injury on November 16, 1983.  All Dr. Crosser reports is:
 
         
 
              SUBJECTIVE FINDINGS:  Mr. Rowe stated that on November 11, 
 
              1983 he was cutting down a tree.  The tree pulled another 
 
              tree down which struck him on the head. and knocked him 
 
              unconscious.  He woke up and was laying flat on his back.  
 
              He was wearing a hard hat.
 
                   Mr. Rowe presently complains of low back pain that 
 
              radiates from 5L downward to the coccyx and upward into the 
 
              upper lumbars.  He also complains of neck pain at 
 
              approximate 6C level, and headaches that radiate from neck 
 
              over his head and into his eyes.
 
                   He states these symptoms began after the accident, on 
 
              November 11, 1983.  (Emphasis Added.)
 
         
 
              In summary, the undersigned finds claimant has not proven by 
 
         a preponderance of the evidence that his claimed disability is 
 
         caused by his work injury on November 16, 1983.  As demonstrated 
 
         above, medical evidence does not support claimant's contentions. 
 
         Medical personnel do not establish the requisite causal 
 
         connection.  Also, the actions of claimant do not support 
 
         causation.  More than twenty months transpired after the accident 
 
         on November 16, 1983, and during this time claimant was always 
 
         able to perform his duties as a logger.  It was not until June of 
 
         1985, that claimant missed work because of alleged back problems. 
 
                                                
 
                                                         
 
         It is difficult to comprehend how the November 1983 head injury 
 
         is the cause of alleged back complaints nearly two years later.  
 
         Then after the period in June of 1985, claimant was able to 
 
         return to work as a logger.  He held this job for nearly nine 
 
         more months. During this time, claimant voiced no back 
 
         complaints.  It is curious to note this action was only filed 
 
         after there was a dispute between claimant and his employer over 
 
         allegedly due vacation pay.  As a result of the foregoing, 
 
         claimant takes nothing from these proceedings.
 
         
 
                  FINDING OF FACT AND CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant did not sustain temporary or permanent 
 
         injuries to his neck or back as a result of a work related injury 
 
         which occurred on November 16, 1983.
 
         
 
              CONCLUSION.  Claimant has not established by a preponderance 
 
         of the evidence that he is entitled to any benefits under the 
 
         Iowa Workers' Compensation laws.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Defendants pay the costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael K. Bush
 
         Attorney at Law
 
         201 W. 2nd St.
 
         Suite 1000
 
         Davenport, Iowa  52801
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P. 0. Box 2746
 
         Davenport, Iowa  52809
 
         
 
                                                
 
                                                         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108
 
                                            Filed March 21, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY L. ROWE,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 803384
 
         
 
         BLUNT LOGGING CO.,                      A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         AMERICAN MUTUAL LIABILITY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and the work related injury.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIE FAULKNER
 
         
 
              Claimant,                              File No. 803531
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         COVENANT MEDICAL CENTER f/k/a               D E C I S I O N
 
         SCHOITZ MEDICAL CENTER,
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           MAY 24 1990
 
         
 
         ST. PAUL FIRE AND MARINE              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Julie Faulkner, against Covenant Medical Center, employer, and 
 
         St. Paul Fire and Marine Insurance Company, insurance carrier, 
 
         defendants, to recover benefits as a result of an alleged injury 
 
         occurring on February 4, 1985.  This matter came on for hearing 
 
         before the deputy industrial commissioner in Waterloo, Iowa on 
 
         March 7, 1990.  The record consists of the testimony of the 
 
         claimant and joint exhibits 1 through 83.
 
         
 
                                      ISSUE
 
         
 
              The issue the parties set out in the prehearing report for 
 
         resolution is:
 
         
 
              1.  The extent of claimant's healing period.
 
         
 
              The parties have agreed to other healing periods in this 
 
         matter.  The period that is in dispute involves the period of 
 
         February 2, 1987 to and including October 21, 1987.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she began working for the defendant 
 
         employer as a nurse's aide in 1971 and became an LPN in 1974 
 
         after going to night school and working during the day.  Claimant 
 
         described her duties as an LPN.
 
         
 
              Claimant further described how she injured her leg on 
 
         February 4, 1985.  She said she was helping a patient to get from 
 
         a chair to the bed and the patient's knees buckled hurting the 
 
         claimant's right knee.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant described her medical treatment and therapy and two 
 
         surgeries, the second surgery being October 8, 1986.  Claimant 
 
         said she continued therapy and her right knee did not improve.  
 
         She said she continued to have pain and her knee gave out.
 
         
 
              Claimant stated Arnold E. Delbridge, M.D., gave her a 
 
         release to work in February of 1987, with restrictions of no 
 
         squatting, lifting or working two days in a row.  He said she 
 
         could not do her regular job with those restrictions.  Claimant 
 
         was referred to joint exhibit 53.  Claimant acknowledged Dr. 
 
         Delbridge felt that she would not improve and gave her a 10 
 
         percent impairment to her right lower extremity.  Claimant said 
 
         her condition and symptoms had not changed.  Claimant said she 
 
         received a letter from the defendant insurance company 
 
         terminating healing period at the time of Dr. Delbridge's 
 
         release.  Claimant emphasized she was not well at that time and 
 
         she could not go back to the same or similar work.
 
         
 
              Claimant said she then applied for unemployment and told 
 
         them of her injury and related to them her restriction imposed by 
 
         Dr. Delbridge.  Claimant said she indicated she could work but 
 
         not as a nurse.  She said she must be able to sit down at a job.  
 
         Claimant said she still had complaints and requested to go to 
 
         Mayo Clinic. Claimant was sent to Scott B. Neff, D.O., who 
 
         suggested surgery.
 
         
 
              Claimant said defendant insurance company ultimately agreed 
 
         to send claimant to Mayo Clinic.  Claimant said she had 
 
         arthroscopy done September 1987 and her third surgery in November 
 
         of 1987.  She said that by July 7, 1988, the doctor released her 
 
         and she was able to do the work she had done before her February 
 
         4, 1985 right knee injury.  Claimant returned to work October of 
 
         1988.  Claimant related the reason she did not work between July 
 
         7, 1988 and October 1988 was because she could not get a 
 
         babysitter for her three small children so she waited until they 
 
         returned to school.  Claimant testified she is doing the same 
 
         work now that she did before her injury.  Claimant stated B. F. 
 
         Morrey, M.D., gave her 10 percent more impairment than she was 
 
         given previously thereby resulting in a 20 percent permanent 
 
         partial impairment to her right lower extremity.  She 
 
         acknowledged the insurance company paid her the 20 percent plus 
 
         the healing period benefits to February 2, 1987 and from October 
 
         22, 1987 to July 7, 1988.
 
         
 
              Claimant acknowledged that when Dr. Delbridge released her 
 
         she did not accept his conclusion that she was the best she could 
 
         be.  She said Dr. Delbridge said she should get ready for a 
 
         sedentary job.
 
         
 
              There are considerable medical exhibits which are not 
 
         material to this decision due to the limited issue of healing 
 
         period herein.  The parties have stipulated to all other matters, 
 
         therefore, there will be no reference or review set out herein as 
 
         to those medical records.  In February of 1986, Dr. Arnold 
 
         Delbridge, M.D., an orthopedic surgeon wrote:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              I talked extensively with the rehabilitation people from 
 
              North Central Rehabilitation who accompanied her.  I told 
 
              them that I felt that very soon she could work at a 
 
              sedentary type of position.  I'm hopeful that she can return 
 
              to a non-sedentary type position in May or June.  She may 
 
              however continue to have some residual discomfort in her 
 
              right knee area.
 
         
 
              If a satisfactory position could be worked out between her 
 
              and the hospital she could go back to sedentary work in the 
 
              reasonably near future.  However anything involving walking 
 
              or stair climbing would have to wait at least until May or 
 
              June.
 
         
 
         (Joint Exhibit 30, page 1)
 
         
 
              Claimant had her first surgery to her right knee on 
 
         September 4, 1985 (Jt. Ex. 10, p. 1).  Claimant had her second 
 
         surgery on the right knee on October 8, 1986 (Jt. Ex. 49, p. 1).  
 
         On January 9, 1987, Dr. Delbridge released claimant to return to 
 
         work on February 2, 1987, with restrictions of "no squatting, no 
 
         lifting over 25 pounds, no working two days in a row for 60 days 
 
         (Jt. Ex. 51, p. 1).  On February 18, 1987, Dr. Delbridge wrote:
 
         
 
              Julie Faulkner was seen on 2-11-87.  While she was not 
 
              completely discharged from care at that time, I did not feel 
 
              that she would improve additionally as far as her right 
 
              lower extremity was concerned.
 
         
 
              She has minimal decrease in motion and combined with her 
 
              intra-articular difficulties and persistent weakness, she 
 
              has a ten [sic] permanent impairment of her right lower 
 
              extremity.
 
         
 
         (Jt. Ex. 53)
 
         
 
              On June 1, 1987, Dr. Scott B. Neff, D.O., wrote:
 
         
 
              We have had a long talk today about the possibilities, and I 
 
              would recommend first an elmsly trolope patellar tendon 
 
              re-alignment associated with repeat retinacular release and 
 
              careful examination of the articular surface.  If this 
 
              didn't work, or if her symptoms recurred over a 10 or 15 
 
              year history, then patellectomy might be warranted.  I don't 
 
              believe there is a prosthesis acceptable at someone 36 years 
 
              of age.
 
         
 
              Certainly weight loss, nonsteroidal anti-inflammatory 
 
              medication and work alterations or restrictions would also 
 
              be required.  She apparently has tried diligently for over 
 
              two years to rehabilitate this leg, and because of 
 
              persistent pain this is not possible.
 
         
 
         (Jt. Ex. 55)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On June 8, 1987, Dr. Neff wrote:
 
         
 
              This patient, based on the records, had an acute lateral 
 
              displacement of the patella which occurred at work.  In my 
 
              opinion her symptoms in the current situation are directly 
 
              related to that injury.  Your understanding is correct about 
 
              her rehabilitation because it is very difficult for her to 
 
              rehabilitate this leg with the degree of pain that she is 
 
              having.  Unfortunately the longer the patient goes with a 
 
              significant problem such as this the more difficult it is to 
 
              overcome this situation.
 
         
 
         (Jt. Ex. 56)
 
         
 
              On June 27, 1987, Dr. Delbridge wrote:
 
         
 
              Basically at this time her knee is unchanged from the time 
 
              she was evaluated for permanency.  I have no particular 
 
              recommendations regarding further surgery on Julie's knee 
 
              except to say that I presented her with all the facts and 
 
              will let her make up her own mind regarding further 
 
              operations.  I don't think it would lower her permanency, 
 
              and it would require a considerable period of 
 
              rehabilitation.  I doubt if it would enhance her 
 
              employability to the extent that she could return to her old 
 
              job.
 
         
 
         (Jt. Ex. 59)
 
         
 
              On September 15, 1987, Dr. B. F. Morrey, M.D., at the Mayo 
 
         Clinic, wrote:
 
         
 
              Based on these studies, it is my opinion that Miss Faulkner 
 
              does have chondromalacia patellae and this is rather severe 
 
              in extent.  I feel as though the options are two:  (1) 
 
              continue with her present course and (2) consider the Maquet 
 
              procedure.  I would not perform the Maquet procedure unless 
 
              her knee were re-arthroscoped and the exact extent of the 
 
              degenerative changes documented.
 
         
 
         (Jt. Ex. 60)
 
         
 
              On October 23, 1987, claimant had an arthroscopy of her 
 
         right knee (Jt. Ex. 63, p. 1) and Maquet procedure (surgery was 
 
         performed on November 24, 1987) (Jt. Ex. 81, p. 60).  There are 
 
         other medical records on claimant subsequent to this date.  It is 
 
         obvious that the additional surgery and therapy improved claimant 
 
         over what she was at the time of her release in February of 1987. 
 
         Because of the nature of the dispute it is not necessary to set 
 
         out in this decision the medical process and progress of claimant 
 
         except to note that on May 31, 1988, Dr. Morrey of Mayo Clinic 
 
         noted:
 
         
 
              RECOMMENDATION:  I believe this patient can return to work 
 
              without any specific restrictions.  I have advised her to 
 
              avoid lifting from the stooped position.  She should also 
 
              avoid going up and downstairs particularly when carrying any 
 
              significant objects to the extent that she is able.  
 
              Otherwise I feel as though she can return to work without 
 
              any specific restriction limitation.  This was discussed 
 
              with her and her rehabilitation counselor.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 73, p. 2)
 
         
 
              On March 13, 1989, Dr. Morrey opined claimant has a 20 
 
         percent permanent partial impairment to her lower right 
 
         extremity.
 
         
 
              International Rehabilitation Associates Inc.'s report on 
 
         March 6, 1987, reflects, in part, the following:
 
         
 
              Contact with the claimant on 02-27-87 revealed that the 
 
              claimant has been looking for a job.  She stated that her 
 
              kids have had the chicken pox, and has limited her search.  
 
              We discussed having her take the GATB through Job Service, 
 
              and she stated that she has already applied for 
 
              unemployment.  She contacted me later that day, and 
 
              indicated that she was concerned about Ms. Stepella's 
 
              reaction to her return to work. The claimant stated that she 
 
              felt that there were jobs at Schoitz.  She stated that she 
 
              isn't 100%, but that a lot of their employees are not 100%.
 
         
 
              She mentioned that she has an attorney and that they may 
 
              decide to file a complaint against Schoitz.  She stated that 
 
              she had contacted Job Service on her own, and that since 
 
              she's a certified LPN, she doesn't need to take the GATB to 
 
              be placed on their computers.  She stated that she just 
 
              needs an orientation, and planned doing this on March 12th.
 
         
 
                   ...
 
         
 
              Contact with the claimant on 03-06-87 indicated that she had 
 
              found the form she needed for her hearing shortly after her 
 
              call to the account.  She feels that her employer is not 
 
              aware that she is no longer on workers comp.  She also 
 
              stated that she felt that they were insisting that she 
 
              wasn't available for work 24 hours per day.  She stated that 
 
              this was true, but she is available for the hours that she 
 
              had been hired for (3-11) every other weekend.  She stated 
 
              that she needs the unemployment to look for another job.  
 
              She stated that if she lost the hearing, she would involve 
 
              her attorney.
 
         
 
              (Jt. Ex. 81, p. 25)
 
         
 
              It appeared in April of 1987, that claimant wanted to work 
 
         only part-time (Jt. Ex. 81, p. 31).  In May of 1987, it appears 
 
         claimant desired to work a limited number of hours which was a 
 
         contributing factor to claimant's inability to return to work at 
 
         defendant employer (Jt. Ex. 81, p. 31).  On June 1, 1987, the 
 
         rehabilitation report reflects:  "Dr. Neff states that her knee 
 
         will not improve on its own."  (Jt. Ex. 81, p. 35)  On June 8, 
 
         1987, a report reflects:  "The claimant has indicated that she 
 
         has looked into a few part-time nursing jobs in Waterloo, but has 
 
         not followed through with them.  She stated that she was getting 
 
         use to not working weekends."  (Jt. Ex. 81, p. 36)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85.34(1) states as follows:
 
              
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 38 year old who injured her right knee at work 
 
         on February 4, 1985.  Claimant had considerable problems with 
 
         this knee resulting in several surgeries, pain, a lot of therapy 
 
         and work hardening.  The parties have recognized the work injury 
 
         and have stipulated to most of the facts thereby resolving all 
 
         issues except one.  Claimant contends she was still in the 
 
         healing period from February 2, 1987 to and including July 8, 
 
         1988.  Defendants contend that claimant was released by Dr. 
 
         Delbridge to return to work on February 2, 1987, thereby ending 
 
         claimant's healing period.
 
         
 
              It appears from the testimony of the claimant and claimant's 
 
         argument that because claimant was unable to return to employment 
 
         (nursing) substantially similar to the employment in which 
 
         claimant was engaged at the time of her injury, that claimant was 
 
         still in the healing period.  It is clear from the evidence that 
 
         claimant was not able to perform the duties of nursing on 
 
         February 2, 1987.  The greater weight of evidence in the case is 
 
         that claimant had reached the peak of her recovery on February 2, 
 
         1987. There is evidence that additional surgery was later 
 
         suggested which was intended to help claimant recover, return to 
 
         nursing, alleviate her pain and possibly decrease her right lower 
 
         extremity impairment of 10 percent.  Of course on February 2, 
 
         1987, this was speculative.  Obviously, there was a disagreement 
 
         among specialists.  There was always the risk of greater 
 
         impairment than the 10 percent if claimant had additional 
 
         surgery.
 
         
 
              Dr. Albert Delbridge was claimant's treating specialist for 
 
         a considerable length of time.  He opined a 10 percent impairment 
 
         to claimant's right lower extremity although the doctor did not 
 
         elaborate in detail.  When a doctor rates a scheduled member that 
 
         includes any pain also unless the doctor says otherwise.
 
              
 
              The evidence shows another surgery was performed on claimant 
 
         in November of 1987.  This seems to have resulted in claimant 
 
         recovering and returning to and performing her regular type 
 
         nursing job she had before the February 4, 1985 injury.  Although 
 
         claimant seems to have a remarkable recovery, she was given a 20 
 
         percent permanent partial impairment to her lower right 
 
         extremity. This is 10 percent more permanent impairment than when 
 
         claimant was released in February of 1987 by Dr. Delbridge.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The section 85.34 healing period provision provides three 
 
         alternatives in which healing period can cease.  Namely:  1) 
 
         until the employee is returned to work; 2) or it is medically 
 
         indicated that significant improvement from the injury is not 
 
         anticipated; or, 3),until the employee is medically capable of 
 
         returning to employment substantially similar to the employment 
 
         in which the employee was engaged at the time of injury, 
 
         whichever occurs first.  (Emphasis added)
 
         
 
              The medical evidence shows claimant was released to return 
 
         to work beginning February 2, 1987.  The fact that down the road, 
 
         another surgery was performed which increased claimant's 
 
         impairment which enabled claimant to return to her job as a nurse 
 
         with defendant employer does not mean claimant was in a healing 
 
         process.  It is clear and convincing from the medical evidence 
 
         that claimant had not improved during the time between February 
 
         2, 1987 and October 23, 1987.  Claimant was not getting better 
 
         during that period.  Claimant had reached maximum recovery under 
 
         the circumstances then existing on February 2, 1987.  Another 
 
         medical opinion suggests additional medical treatment.  Healing 
 
         period was paid while claimant went through another surgery in 
 
         November of 1987.  The law is clear that a person can have more 
 
         than one healing period during the sequence of an injury and 
 
         healing process.  In fact in this case, the period that is in 
 
         dispute would actually be the third period involved as the 
 
         parties already stipulated as to two other healing periods.  One 
 
         could argue that if claimant was in a healing period from 
 
         February 2, 1987 up to October 22, 1987, why is it claimant's 
 
         impairment is now 20 percent of the lower right extremity and she 
 
         is able to perform her job as she did before the February 4 
 
         injury rather than a lesser impairment than the 10 percent opined 
 
         on February 2, 1987? The undersigned finds claimant did not incur 
 
         a healing period beginning on February 2, 1987 and ending on 
 
         October 21, 1987 inclusive.  The findings and conclusion herein 
 
         are supported by a recent agency decision, Brown v. Weitz 
 
         Company, (Appeal Decision filed March 13, 1990, File No. 830840).  
 
         The parties have stipulated as to claimant's subsequent healing 
 
         period beginning October 22, 1987, and therefore it is not an 
 
         issue herein.
 
         
 
              Defendants filed a motion for adjudication of law points. 
 
         This motion is moot in light of the above decision.  There is no 
 
         necessity to further discuss the defendants, motion.  Said motion 
 
         is denied.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was released to return to work by her treating 
 
         physician beginning February 2, 1987 and also it was medically 
 
         indicated that significant improvement from the injury was not 
 
         anticipated.
 
         
 
              2.  Claimant was not able to return to her job and duties as 
 
         a licensed practical nurse with the defendant employer on 
 
         February 2, 1987, but claimant was able to return to work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  Claimant reached maximum recovery by February 2, 1987.
 
         
 
              4.  Claimant desired to work part-time or a limited number 
 
         of hours by her own choice during the period of February 2, 1987 
 
         to and including October 21, 1987.  This desire of claimant's 
 
         affected her ability to work full time.
 
         
 
                                    CONCLUSION
 
         
 
              Claimant did not incur a healing period beginning February 
 
         2, 1987 to and including October 21, 1987.
 
         
 
                                      ORDER
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants' motion for adjudication of law points is 
 
         overruled as being moot in line with the decision herein.
 
         
 
         
 
              Signed and filed this 24th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         First Nat'l Bldg, 6th Flr
 
         E 4th & Sycamore
 
         P 0 Box 2634
 
         Waterloo, IA  50704-2634
 
         
 
         Mr. Greg A. Egbers
 
         Mr. Mark A. Woollums
 
         Attorneys at Law
 
         600 Union Arcade Bldg
 
         111 E Third St
 
         Davenport, IA  52801-1596
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1802
 
                                            Filed May 24, 1990
 
                                            BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIE FAULKNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                       File No. 803531
 
         COVENANT MEDICAL CENTER f/k/a 
 
         SCHOITZ MEDICAL CENTER,                    A R B I T R A T I O N
 
         
 
              Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802
 
         
 
              Claimant received a 10 percent rating of permanent partial 
 
         impairment to her right lower extremity.  A later doctor's report 
 
         recommended surgery.  Claimant argued that her healing period did 
 
         not end at the time the rating was given, and that the 
 
         recommendation for surgery indicated her healing period had not 
 
         ended.  Claimant had another surgery resulting in a 20 percent 
 
         permanent partial impairment to her right lower extremity.  Held 
 
         that a permanent rating is just that--permanent.  The condition 
 
         was not expected to change.  Further surgery could be for 
 
         treatment or maintenance as well as improvement, and absent a 
 
         showing that further improvement was expected, the healing period 
 
         ended at the time the permanent rating was given.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        SUSAN K. WYATT,
 
        
 
           Claimant,
 
        
 
        vs.                              File No. 803544
 
        
 
        HOLIDAY INNS, INC., d/b/a           A P P E A L
 
        HOLIDAY INN DUBUQUE,
 
        
 
           Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        NORTHWEST NATIONAL INSURANCE
 
        COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying further 
 
        permanent partial disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; joint exhibits A through D; and 
 
        claimant's exhibits 1 through 13. Both parties filed briefs on 
 
        appeal. Claimant also filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
        Claimant failed to specify appeal issues in her brief. The appeal 
 
        will be considered generally and without reference to specific 
 
        issues.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally set forth herein.
 
        
 
        Briefly stated, claimant worked as a waitress for defendant. 
 
        Claimant was 48 years old at the time of the hearing. On 
 
        September 4, 1985 claimant tripped and fell forward onto the 
 
        floor. Claimant immediately felt pain in her elbows and wrists. 
 
        David S. Field, M.D., an orthopedic surgeon, stated that 
 
        claimant's injuries were a fracture dislocation of the right 
 
        elbow with
 
        
 
        WYATT V. HOLIDAY INNS, INC.
 
        Page 2
 
        
 
        
 
        considerable comminution of the right radial head of the right 
 
        wrist. The elbow dislocation fracture and the right wrist 
 
        comminution were repaired surgically. The right wrist required 
 
        the installation of a radial head implant.
 
        
 
        Over the next several weeks claimant developed increasing pain 
 

 
        
 
 
 
 
 
        and numbness in the median nerve distribution of the right hand. 
 
        In November 1985, claimant was diagnosed as suffering from carpal 
 
        tunnel syndrome of the right arm and hand. A surgical release of 
 
        the median nerve entrapment was performed on November 20, 1985. 
 
        Claimant was off work for her arm, wrist, and hand difficulties 
 
        from September 4, 1985 until February 15, 1986. Claimant had no 
 
        previous medical history of any arm or wrist problems before the 
 
        work injury in this case. Claimant received a rating of 39 
 
        percent impairment of her right arm.
 
        
 
        Claimant testified that beginning in February or March 1986 she 
 
        developed pain in her low back, shoulder, neck and legs along 
 
        with her arm and hand pain. However, claimant did not list these 
 
        complaints in an interrogatory answered by her on April 28, 1986. 
 
        Claimant sought medical treatment for these problems in June 1986 
 
        from a board certified neurologist, Patrick R. Sterrett, M.D. 
 
        Dr. Sterrett's notes indicate claimant told him she had first 
 
        experienced the pains seven weeks prior to her visit on June 22, 
 
        1986. Claimant was then hospitalized by Dr. Sterrett for a few 
 
        days in August 1986 to rule out spinal disc disease and a 
 
        possible condition of polymyalgia rheumatica. Tests during the 
 
        hospital stay which included a myelogram and a CT scan found 
 
        nothing unusual in claimant's spine. Dr. Sterrett consulted with 
 
        Dr. Field and a rheumatology specialist, Richard Pena, M.D. Upon 
 
        claimant's release from the hospital, Drs. Field, Sterrett, and 
 
        Pena agreed to a probable diagnosis of fibrositis and 
 
        myofascitis. Dr. Sterrett opined that the fibrositis and 
 
        myofascitis was causally related to the September 4, 1985 fall at 
 
        Holiday Inn. Dr. Pena stated that claimant's condition is 
 
        probably not related to the fall in September 1985. Dr. Sterrett 
 
        also stated that fibrositis and myofascitis fall more within Dr. 
 
        Pena's area of specialty than his own and that he would expect 
 
        the symptoms to occur closer in time to the trauma if myofascitis 
 
        were the cause of claimant's condition.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of September 4, 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
 
        
 
        WYATT V. HOLIDAY INNS, INC.
 
        Page 3
 
        
 
        
 
        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). 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).
 
        
 

 
        
 
 
 
 
 
                                      ANALYSIS
 
        
 
        Claimant has already received benefits for the injury to her 
 
        right arm. Defendants have acknowledged that the injury of 
 
        September 4, 1985 was in the course of and arose out of 
 
        claimant's employment. The issue on appeal appears to be whether 
 
        claimant is entitled to further benefits for the pain she now 
 
        experiences in her back, neck, shoulder and legs.
 
        
 
        Claimant is required to establish that the condition causing the 
 
        pain in her back, neck, shoulder and legs is causally connected 
 
        to her injury of September 4, 1985. The medical evidence on this 
 
        point is in conflict. Dr. Pena states claimant's present 
 
        condition in her back, neck, shoulder and legs is probably not 
 
        connected to her fall on September 4, 1985 while Dr. Sterrett, on 
 
        the other hand, opined that claimant's present condition is 
 
        related to her fall.
 
        
 
        Initially, it is to be noted that Dr. Sterrett does not make a 
 
        conclusive diagnosis or definite statement as to causal 
 
        connection. Rather, his deposition statements were in terms of 
 
        "probable", "may have", and "could be" in addition to "probable". 
 
        Taken as a whole, his testimony at most only established 
 
        claimant's fall as a possible cause of her present condition.
 
        
 
        Dr. Sterrett repeatedly asserted that the causes of either 
 
        fibrositis or myofascitis are not always definitely known. In 
 
        addition, Dr. Sterrett attributes claimant's condition to one of 
 
        two and possibly three causes, only one of which would be the 
 
        result of claimant's fall. Dr. Sterrett also stated that he would 
 
        expect claimant's symptoms to have appeared earlier than they did 
 
        if the condition had in fact been caused by her fall. Finally, 
 
        Dr. Sterrett acknowledged that he made a referral to Dr. Pena 
 
        because Dr. Pena's area of specialty was more closely related to 
 
        claimant's problems. The testimony of Dr. Pena will be given the 
 
        greater weight.
 
        
 
        WYATT V. HOLIDAY INNS, INC.
 
        Page 4
 
        
 
        
 
        Claimant bears the burden of proving a causal connection between 
 
        her present disability and the injury of September 4, 1985. A 
 
        possibility is insufficient, a probability is required. Claimant 
 
        has failed to carry her burden as to causal connection. Because 
 
        of this determination, it is not necessary to determine the 
 
        extent of claimant's disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant worked as a waitress for defendant employer.
 
        
 
        2. On September 4, 1985 claimant suffered a falling injury which 
 
        arose out of and was in the course of her employment.
 
        
 
        3. Claimant suffered injuries to her wrists and arms and received 
 
        workers' compensation benefits for those injuries.
 
        
 
        4. Subsequent to her return to work, claimant experienced pain in 
 
        her legs, shoulder, neck and back.
 
        
 
        5. Claimant's pain in her legs, shoulder, back and neck arose 
 
        after April 28, 1986.
 
        
 
        6. Claimant sought medical help for the pain in her legs, 
 
        shoulder, neck and back in June of 1986.
 

 
        
 
 
 
 
 
        
 
        7. Claimant's fall on September 4, 1985 did not cause her leg, 
 
        shoulder, back or neck pain or problems related thereto.
 
        
 
        8. Claimant's stipulated rate of compensation is $70.83.
 
        
 
        9. Claimant received a rating of impairment of her right arm of 
 
        39 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has failed to establish a causal connection between her 
 
        present disability of her legs, shoulder, neck and back and her 
 
        injury on September 4, 1985.
 
        
 
        Claimant is entitled to healing period benefits from September 4, 
 
        1985 until February 15, 1986.
 
        
 
        As a result of her injury of September 4, 1985 claimant has 
 
        permanent disability of her right arm of 39 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        WYATT V. HOLIDAY INNS, INC.
 
        Page 5
 
        
 
        
 
        That defendants are to pay unto claimant ninety-seven point five 
 
        (97.5) weeks of permanent partial disability benefits at a rate 
 
        of seventy and 83/100 dollars ($70.83) per week from February 15, 
 
        1986.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum.
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants are to be given credit for benefits previously 
 
        paid.
 
        
 
        That defendants are to pay the costs of the arbitration 
 
        proceeding and claimant is to pay the costs of the appeal 
 
        including the costs of the transcription or the hearing 
 
        proceeding.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        
 
        Signed and filed this 18th day of August, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         SUSAN K. WYATT,
 
                                                 File No. 803544
 
              Claimant,
 
                                              A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         HOLIDAY INNS INC., d/b/a 
 
         HOLIDAY INN DUBUQUE,
 
         
 
            Employer,
 
         
 
         and
 
         
 
         NORTHWEST NATIONAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Susan K. 
 
         Wyatt, claimant, against Holiday Inns Inc., employer, hereinafter 
 
         referred to as Holiday Inn, and Northwest National Insurance 
 
         Company, insurance carrier, defendants, for benefits as the 
 
         result of an alleged injury on September 4, 1985.  On January 20, 
 
         1987 a hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              Claimant is alleging in this proceeding that she injured her 
 
         shoulder, neck, head, and low back from a fall while working for 
 
         Holiday Inn.  Claimant seeks temporary total disability or 
 
         healing period benefits during the times she was off work for 
 
         treatment of these claimed injuries and permanent partial 
 
         disability benefits for an alleged permanent physical impairment.  
 
         In addition, claimant is seeking reimbursement for medical 
 
         expenses for treatment of these injuries.  Defendants admit to a 
 
         fall and to responsibility for an injury and disability to 
 
         claimant's right arm but deny the causal connection of claimant's 
 
         other problems to this work injury.
 
         
 
              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 Velma 
 
         Coohey.  The exhibits received into the evidence at the
 
         
 
         
 
         hearing are listed in the prehearing report.  All of the evidence 
 
         received at the hearing was considered in arriving at this 
 
         decision.
 
         
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   2
 
         
 
         
 
              The prehearing report contains the following stipulations of 
 
         facts:
 
         
 
              1.  On September 4, 1985 claimant received an injury which 
 
         arose out of and in the course of employment with Holiday Inn. 
 
         (Paragraph 2 of the prehearing report states otherwise.  However, 
 
         in defendants' description of disputes attached to the prehearing 
 
         report, defendants admitted to a work-related fall resulting in 
 
         an injury.  Obviously, paragraph 2 is in error.  The dispute 
 
         among the parties is not whether an injury occurred on September 
 
         4, 1985 but the causal connection of this injury to claimant's 
 
         chronic shoulder, neck, head, and low back difficulties beginning 
 
         in the summer of 1986.);
 
         
 
              2.  Claimant was off work from July 23, 1986 to September 9, 
 
         1986 and she is seeking temporary total disability or healing 
 
         period benefits for this period of time.  Claimant is not seeking 
 
         temporary total disability or healing period benefits for any 
 
         times of work prior to July 23, 1986;
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $70.83; 
 
         and,
 
         
 
              4.  The medical expenses for which claimant seeks 
 
         reimbursement in this proceeding are fair and reasonable and 
 
         causally connected to treatment for the medical conditions 
 
         arising in the summer of 1986, but that there issue of causal 
 
         connection to any work injury remains an issue to be decided 
 
         herein.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disabilities:
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying in a candid and truthful manner.
 
         
 
              2.  Claimant has been employed by Holiday Inn for the last 
 
         four years.
 
         
 
              Claimant initially started as part-time help but since April 
 
         1983 she has been a full-time employee of Holiday Inn in Dubuque, 
 
         Iowa.  Before her work injury, claimant was a waitress.  Upon her 
 
         return to work after the work injury, claimant became a hostess 
 
         and bartender because the waitress work was too heavy for her.
 
         
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   3
 
         
 
         
 
              3.  On September 4, 1985 claimant suffered an injury which 
 
         arose out of and in the course of her employment with Holiday 
 
         Inn.
 
         
 
              Claimant's credible testimony established that on September 
 
         4, 1985 while she was performing her duties as a waitress, she 
 
         tripped and fell forward onto the floor.  Claimant stated that 
 
         she immediately felt pain in her elbows and wrists and that her 
 
         knee was skinned.  According to the reports of claimant's primary 
 
         care physician immediately following this injury, David S. Field, 
 
         M.D., an orthopedic surgeon, claimant's injuries were described 
 
         at the time she was admitted to the hospital after the work 
 
         injury as a fracture dislocation of the right elbow with 
 
         considerable commination (broke or separated into pieces) of the 
 
         right radial head of the right wrist.  The elbow dislocation 
 
         fracture and the right wrist commination were repaired 
 
         surgically.  The right wrist required the installation of a 
 
         radial head implant.  Claimant also fractured the left radial 
 
         head but the fracture was treated conservatively.  After recovery 
 
         from the repair surgery, claimant over the next several weeks 
 
         developed increasing pain and numbness in the median nerve 
 
         distribution of the right hand.  Subsequent to nerve conduction 
 
         studies in November 1985, claimant was diagnosed as suffering 
 
         from carpal tunnel syndrome of the right arm and hand.  A 
 
         surgical release of the median nerve entrapment was performed on 
 
         November 20, 1985.  Claimant remained under follow-up care by Dr. 
 
         Field for her elbow, wrist, and carpal tunnel syndrome problems 
 
         until May 1986.  Claimant was off work for her arm, wrist, and 
 
         hand difficulties from September 4, 1985 until February 15, 
 
         1986.
 
         
 
              5.  The work injury of September 4, 1985 was a cause of a 
 
         thirty-nine percent permanent partial impairment to claimant's 
 
         right upper extremity.
 
         
 
              Claimant had no previous medical history of any arm or wrist 
 
         problems before the work injury in this case.  Claimant's past 
 
         medical records and claimant's credible testimony established 
 
         that she was in excellent health before the work injury.
 
         
 
              Claimant currently has permanent functional impairment to 
 
         her right upper extremity.  The specific finding as to the extent 
 
         of this impairment is based upon the uncontroverted opinion of 
 
         claimant's treating orthopedic surgeon for her elbow and wrist 
 
         problems, Dr. Smith.  According to the prehearing report, 
 
         claimant has been paid by defendants the sum of $6,920.55 in 
 
         permanent partial disability benefits for this disability.
 
         
 
              6.  A finding could not be made causally connecting 
 
         claimant's chronic shoulder, neck, head, leg, hip, and low back 
 
         pain to the work injury of September 4, 1985.
 
         
 
              Claimant testified that beginning in February or March 1986 
 
         she developed pain in her low back, shoulder, neck, and legs 
 
         along with her arm and hand pain.  These pains were unlike other 
 
         backaches of the past.  The medical records submitted indicated 
 
         that claimant first sought medical treatment for these problems 
 
         in June 1986 from a board certified neurologist, Patrick R. 
 
         Sterrett, M.D. Dr. Sterrett treated claimant with medication, bed 
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   4
 
         
 
         
 
         rest, and physical therapy.  Claimant returned a month later with 
 
         little improvement and Dr. Sterrett prescribed a more 
 
         comprehensive program of physical therapy, bed rest, and 
 
         traction.  This treatment, likewise, failed to improve claimant's 
 
         condition and she was then hospitalized by Dr. Sterrett for a few 
 
         days in August 1986 to rule out spinal disc disease and a 
 
         possible condition of polymyalgia rheumatics.  Tests during the 
 
         hospital stay which included a myelogram and a CT scan found 
 
         nothing unusual in claimant's spine.
 
         
 
              In attempting to find the cause of claimant's difficulties, 
 
         Dr. Sterrett consulted with Dr. Field and a rheumatology 
 
         specialist, Richard Pena, M.D. Upon claimant's release from the 
 
         hospital, Drs. Field, Sterrett, and Pena agreed to a probable 
 
         diagnosis of fibrositis and myofascitis although the polymyalgia 
 
         rheumatica was not totally ruled out.  In his deposition, Dr. 
 
         Sterrett described fibrositis as generalized soft tissue pain and 
 
         myofascitis as inflammation of the muscles and muscle linings.  
 
         The primary diagnosis was fibrositis.
 
         
 
              Claimant's condition improved with the use of Cortisone 
 
         injections during the hospital stay.  It is Dr. Sterrett's clear 
 
         opinion from the reports submitted into the evidence that the 
 
         fibrositis and myofascitis was causally related to the September 
 
         41 1985 fall at Holiday Inn.  However, the consulting 
 
         rheumatologist, Dr. Pena, disagrees with Dr. Sterrett and stated 
 
         in his consultation report during the hospital stay that 
 
         claimant's condition is "probably not related to the fall in 
 
         September 1985." Dr. Sterrett in his deposition stated that he 
 
         felt Dr. Pena's opinions are based upon the lack of evidence in 
 
         the medical literature to support an opinion that fibrositis is 
 
         caused by anything specifically.  Unfortunately, a deposition or 
 
         further reports were not sought from Dr. Pena concerning his 
 
         opinions.  The primary reason the undersigned deputy commissioner 
 
         was not able to find the requisite causal connection in this case 
 
         is Dr. Sterrett's statement in his deposition that the diagnosis 
 
         of fibrositis and
 
         myofascitis falls more within Dr. Pena's area of speciality than 
 
         his own.  Given this statement by Dr. Sterrett, the preponderance 
 
         of the medical opinion evidence does not support claimant's 
 
         contention in this matter.
 
         
 
              In light of the inability to make a causal connection 
 
         finding favorable to claimant, there is no need to make further 
 
         findings.  Claimant was basing her claim for temporary and 
 
         permanent disability benefits after July 23, 1986 upon such a 
 
         causal connection.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              In this case there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.  The foregoing findings of fact were made under 
 
         the following principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   5
 
         
 
         
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
             Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
         (Iowa 1974).  To establish compensability, the injury need 
 
         only be a significant factor, not be the only factor causing 
 
         the claimed disability.  Blacksmith, 290 N.W.2d 348, 354.  
 
         In the case of a preexisting condition, an employee is not 
 
         entitled to recover for the results of a preexisting injury 
 
         or disease but can recover for an aggravation thereof which 
 
         resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963).
 
         
 
              In the case sub judice, claimant has only shown a causal 
 
         connection between her permanent right upper extremity impairment 
 
         to the work injury.  The extent of such a disability was measured 
 
         pursuant to the law set forth below.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2). Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   6
 
         
 
         
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              Based upon a finding that claimant has suffered a 
 
         thirty-nine percent permanent partial impairment to her arm, 
 
         claimant is entitled as a matter of law to 97.5 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(m) which is thirty-nine percent of the 250 weeks 
 
         allowable for an injury to the arm in that subsection.  Given 
 
         claimant's stipulated rate of compensation, this would entitle 
 
         claimant to a total of $6,905.93 in permanent partial disability 
 
         benefits.  According to another stipulation in the prehearing 
 
         report, claimant has been paid a total of $6,920.55 in permanent 
 
         partial disability benefits.  Apparently, there has been some 
 
         sort of lump sum payment as less than 97.5 weeks has elapsed 
 
         since the time healing period benefits ended in February 1986.  
 
         At any rate, I must honor the parties' stipulations and claimant 
 
         is therefore entitled to no further benefits.
 
         
 
              Although claimant did not prevail in this proceeding, she 
 
              was sincere in her testimony at the hearing and her claim 
 
              was arguably supported by the medical evidence.  Therefore, 
 
              claimant shall be awarded the costs of this action.
 

 
         
 
         
 
         
 
         WYATT V. HOLIDAY INN
 
         Page   7
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED AS FOLLOWS:
 
         
 
               1.  Claimant's petition filed herein is dismissed.
 
         
 
               2.  Defendants shall pay the costs of this action pursuant
 
         to Division of Industrial Services Rule 343-4.33 (formerly 
 
         Industrial Commissioner Rule 500-4.33).
 
         
 
                Signed and filed this 19th day of March, 1987.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. William T. Connery
 
         Attorney at Law
 
         973 Main Street
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Brendan T. Quann
 
         Attorney at Law
 
         200 CyCare Plaza
 
         Dubuque, Iowa 52001
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108
 
                                                 Filed: March 19, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         SUSAN K. WYATT,
 
                                                 File No. 803544
 
              Claimant,
 
                                               A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         HOLIDAY INNS INC., d/b/a 
 
         HOLIDAY INN DUBUQUE,
 
         
 
             Employer,
 
         
 
         and
 
         
 
         NORTHWEST NATIONAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1108
 
         
 
              It was found that claimant failed to demonstrate by a 
 
         preponderance of the evidence a causal connection between the 
 
         work injury and neck, back, head, and leg complaints which 
 
         developed several months after the work injury.  Benefits were 
 
         denied accordingly.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT D. BEAMAN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 913228 & 803576
 
            THE ARMSTRONG RUBBER CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            D. Beaman, claimant, against The Armstrong Rubber Company, 
 
            employer (hereinafter referred to as Armstrong), and The 
 
            Travelers Insurance Company, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of alleged 
 
            injuries on August 22, 1985 and December 31, 1987.  On 
 
            October 17, 1990, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On August 22, 1985, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Armstrong.  It was agreed that claimant was an employee at 
 
            the time of the alleged second injury on December 31, 1987.
 
            
 
                 2.  As a result of the August 22, 1985 injury, claimant 
 
            is entitled to temporary total disability or healing period 
 
            benefits from August 22, 1985 through February 28, 1986.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole for both alleged injuries.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $303.22 for the August 22, 1985 injury and $349.48 for the 
 
            alleged December 31, 1987 injury.
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment on December 31, 1987.
 
            
 
                  II.  Whether claimant gave notice within 90 days as 
 
            required by Iowa Code section 85.23 to the employer.
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during the 
 
            proceeding as to the nature and extent of the injury and 
 
            disability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant worked for Armstrong from February 1969 until 
 
            his retirement on December 31, 1987.  Claimant performed 
 
            various tire building positions at Armstrong but for the 
 
            last six years he was operating a fork lift truck.  Claimant 
 
            earned $13.46 per hour in this job at the time of his 
 
            retirement.  Claimant left his employment at Armstrong when 
 
            he opted out under an early retirement program negotiated in 
 
            the union contract which provided for severance pay and 
 
            maintenance of health insurance policies.  This option was 
 
            provided to those employees who were dissatisfied with the 
 
            union contract at that time which lowered wages and benefits 
 
            in an attempt to prevent a plant closure.  Claimant contends 
 
            that his decision to leave was motivated by neck, back, 
 
            shoulder and arm difficulties as a result of the alleged 
 
            work injuries.
 
            
 
                 Claimant had several prior injuries which are relevant 
 
            to this case.  In October 1962, claimant fell from a car 
 
            onto the left side of his body.  The medical records state 
 
            that this occurred on the right side of claimant's body but 
 
            claimant testified that this was actually the left side.  
 
            Claimant's testimony is accepted as correct.  In August 
 
            1968, claimant fell from a pickup landing on his back and 
 
            buttocks.  In October 1970, claimant fell landing on his 
 
            bathtub.  In November 1971, claimant complained of right 
 
            arm, shoulder and wrist pain after pulling something at 
 
            work.  This condition was treated for approximately two 
 
            weeks.  In August 1973, claimant complained of lumbar back 
 
            problems.  At this time, claimant was x-rayed at the VA 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Hospital.  These x-rays revealed an old compression fracture 
 
            of the vertebra in the mid back, no right shoulder problems 
 
            but degenerative changes in the left shoulder.  In November 
 
            1975, a cervical sprain was diagnosed at the Armstrong 
 
            Medical Department.  Between October 1982 and December 1984, 
 
            claimant received regular chiropractic care from Ralph 
 
            Schramm, D.C., for chronic reoccurring cervical-thoracic 
 
            subluxation with associated myofascialfibrositis.  In 
 
            December 1984, an orthopedic surgeon, David McClain, D.O., 
 
            diagnosed the following conditions:  "Dupuytren's contrac
 
            ture on the right.  Degenerative joint disease of the cervi
 
            cal spine.  Adhesive capsulitis of the right shoulder."  
 
            There is no explanation in the record of these diagnoses.
 
            
 
                 On or about August 22, 1985, claimant injured his right 
 
            shoulder while "flipping" a roll of tire tread at Armstrong.  
 
            Claimant's problems were diagnosed as a rotator cuff tear of 
 
            the right shoulder and this injury was surgically repaired 
 
            by an orthopedic surgeon, Sinesio Misol, M.D.  After recov
 
            ery, claimant returned to work on February 28, 1987, to his 
 
            regular job of driving a fork lift truck.
 
            
 
                 As a result of the work injury of August 22, 1985, 
 
            claimant has a 31 percent permanent partial impairment to 
 
            the right arm.  Under the AMA Guides, which this agency 
 
            recognizes by rule, this rating converts to a 19 percent 
 
            permanent partial impairment to the body as a whole.  This 
 
            finding is based upon an average of two uncontroverted per
 
            manent impairment ratings by the treating orthopedic sur
 
            geon, Dr. Misol, and another orthopedic surgeon, Scott Neff, 
 
            M.D., made in conjunction with Dr. Neff's physical thera
 
            pist, Thomas Bower, L.P.T.  Despite recognition of decreased 
 
            use of the shoulder and arm, neither physician at that time 
 
            imposed work activity restrictions before claimant's return 
 
            to work.  Defendants in Dr. Misol's deposition point to a 
 
            finding of Dr. McClain eight months before the injury of a 
 
            25 percent loss of range of motion of the shoulder.  
 
            However, there is no indication from Dr. McClain's records 
 
            or in this deposition that this range of motion translates 
 
            to a reading of permanent partial impairment.  On the other 
 
            hand, Dr. Misol was clear that his rating was permanent 
 
            based upon the clinical knowledge of claimant's problems and 
 
            the aftermath of the surgery he performed.
 
            
 
                 As a result of the work injury of August 22, 1985, 
 
            claimant suffered a 10 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was not 
 
            excellent but no physician had opined that claimant had per
 
            manent functional impairment or ascertainable permanent dis
 
            abilities.  Claimant's problems did not require significant 
 
            treatment beyond regular chiropractic care until the injury 
 
            of August 1985.  Claimant was able to fully perform physical 
 
            tasks prior to this injury involving heavy lifting and 
 
            repetitive lifting, bending, twisting and stooping.  After 
 
            the injury, claimant never fully recovered and he was left 
 
            with permanent impairment and limited ability to perform 
 
            factory work.  However, this injury did not prevent a return 
 
            to the job he was performing at the time of the injury and 
 
            he suffered no loss of pay.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 On December 31, 1987, claimant suffered another work 
 
            injury to his right shoulder, arm, neck and back.  This 
 
            injury was accumulative trauma occurring over a period of 
 
            time between February 28, 1987 and December 31, 1987, while 
 
            performing the job of operating a fork lift truck.  The 
 
            physical requirements of this job aggravated the prior 
 
            existing shoulder, arm, neck and back conditions both as a 
 
            result of the prior work injury and as a result of the prior 
 
            conditions.  The injury arose out of and in the course of 
 
            claimant's employment at Armstrong.  The date of injury was 
 
            arrived at because this was the time claimant was compelled 
 
            to leave his work and retire as a result of the work injury.  
 
            These findings are based upon the uncontroverted views of 
 
            Scott Neff, M.D., who had first examined claimant in 1986.  
 
            Dr. Neff stated that he would not have allowed claimant to 
 
            return to the fork lift job in February 1986 had that job 
 
            been carefully described to him.  Dr. Misol also stated that 
 
            it was possible for claimant's work during this period of 
 
            time to have aggravated his shoulder and cervical spine 
 
            problems.
 
            
 
                 With reference to defendants' notice of the December 
 
            1987 injury, at the time of his retirement claimant told 
 
            Joyce Kain, Armstrong's personnel and benefits administra
 
            tor, that his physical problems at work were one of the rea
 
            sons for his retirement.  Kain could not specifically recall 
 
            this but did not dispute claimant's testimony.  Also, the 
 
            Armstrong Medical Department was aware of claimant's physi
 
            cal problems during the summer of 1987.
 
            
 
                 Defendants contend that claimant retired voluntarily to 
 
            take advantage of monetary inducements to do so.  Claimant 
 
            may have been motivated to retire at that specific time due 
 
            to the inducements, but the decision was primarily motivated 
 
            by claimant's desire to leave employment that was injuring 
 
            him and this injurious exposure at Armstrong is verified by 
 
            his physicians.  Claimant has attempted since that time to 
 
            remain in the labor market.  Claimant's motivation is fur
 
            ther evidenced by the dramatic cut in income he suffered 
 
            after his retirement.
 
            
 
                 The evidence fails to show that the injury of December 
 
            31, 1987, was a cause of a total absence from work during a 
 
            period of medical treatment and recovery from a work injury.  
 
            No evidence was offered to show that any physician antici
 
            pated improvement in claimant's condition from medical 
 
            treatment after December 31, 1987.
 
            
 
                 The injury of December 31, 1987, was a cause of a sig
 
            nificant additional permanent partial impairment and a spe
 
            cific physician imposed restrictions like physical activity 
 
            restrictions consisting of no repetitive activity at or 
 
            above shirt pocket level nor with the arm to the side.  This 
 
            injury also further restricts claimant from repetitive 
 
            push-pull activity or any forceful rotation of the shoulder, 
 
            including operation of a steering wheel.  This finding is 
 
            based upon the uncontroverted views of Dr. Neff.  A neuro
 
            surgeon, Robert Jones, M.D., further opined that claimant 
 
            has a five percent permanent partial impairment to the body 
 
            as a whole due to claimant's chronic cervical strain prob
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            lems.  Dr. Jones and Dr. Neff both agreed that claimant can
 
            not perform the work of fork lift operator at Armstrong.
 
            
 
                 The injury of December 31, 1987, was a cause of an 
 
            additional 30 percent loss of earning capacity, over that 
 
            which occurred as a result of the 1985 injury.  It was only 
 
            after the accumulative aggravation injury during the summer 
 
            and the fall of 1987 that claimant felt compelled to retire 
 
            and leave his highly paid job at Armstrong.  Only after this 
 
            latest work injury was Dr. Neff compelled to impose activity 
 
            restrictions which severely restricted claimant's access to 
 
            most jobs in the labor market and to his former job at 
 
            Armstrong.  Claimant's denial of access to the labor market 
 
            was verified by the uncontroverted views of Roger Marquardt, 
 
            a qualified vocational rehabilitation consultant.  Marquardt 
 
            also states that the jobs for which claimant is now quali
 
            fied pays approximately 55 percent less than claimant's work 
 
            at Armstrong.  Claimant's only work experience has been in 
 
            heavy construction, factory and mechanic work, the type of 
 
            work he can no longer perform.  Claimant has demonstrated 
 
            that he does desire to return to the work force and has 
 
            attempted several jobs.  He currently is working in seasonal 
 
            employment in the construction industry driving a water 
 
            truck.  For this work he receives $6.00 an hour without the 
 
            lucrative benefits that were available at Armstrong.  
 
            Claimant has attempted to find higher paying and more suit
 
            able employment without success.  On the other hand, 
 
            claimant admitted that he was aware of the light duty work 
 
            program at Armstrong at the time of his retirement and was 
 
            told at that time by Joyce Kain that he wanted to stay at 
 
            Armstrong she would find work for him.  However, claimant 
 
            chose to leave without further inquiry into the program.  
 
            Defendants point out that claimant, in all probability, 
 
            would be working today with little or no loss in income had 
 
            he remained at Armstrong.     Obviously, claimant's decision 
 
            in December 1987 not to participate in the program indeed 
 
            had an adverse impact on his earning capacity which is not 
 
            the responsibility of Armstrong.
 
            
 
                 Finally, claimant is 59 years of age and nearing the 
 
            end of his working career.  His loss of earnings is not as 
 
            severe as that would be the case for a younger individual 
 
            with the same physical disability.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance 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.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 It is not necessary that claimant prove that his dis
 
            ability results from a sudden unexpected traumatic event.  
 
            It is sufficient to show that the disability developed grad
 
            ually or progressively from work activity over a period of 
 
            time.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).  The McKeever court also held that the date of 
 
            injury in gradual injury cases is the time when pain pre
 
            vents the employee from continuing to work.  In McKeever the 
 
            injury date coincided with the time claimant was finally 
 
            compelled to give up his job.  This date was then utilized 
 
            in determining rate and the timeliness of claimant's claim 
 
            under Iowa Code section 85.26 and timely notice under Iowa 
 
            Code section 85.23.
 
            
 
                 In the case sub judice, given the uncontroverted views 
 
            of Dr. Neff, the undersigned could do little else but find 
 
            that a second injury occurred in December 1987.
 
            
 
                  II.  Defendants have raised the issue of lack of 
 
            notice of the work injury within 90 days from the date of 
 
            the occurrence of the injury under Iowa Code section 85.23.  
 
            A lack of such notice is an affirmative defense.  DeLong v. 
 
            Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  In 
 
            Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 
 
            (1941), the Iowa Supreme Court ruled that once claimant sus
 
            tains the burden of showing that an injury arose out of and 
 
            in the course of employment, claimant prevails unless 
 
            claimant can prove by a preponderance of the evidence an 
 
            affirmative defense.  Although an employer may have actual 
 
            knowledge of an injury, the actual knowledge requirement 
 
            under Iowa Code section 85.23 is not satisfied unless the 
 
            employer has information putting him on notice that the 
 
            injury may be work related.  Robinson v. Department of 
 
            Transp., 296 N.W.2d 809, 811 (Iowa 1980).
 
            
 
                 It was found that claimant told a management represen
 
            tative, Joyce Kain, that he was leaving due to his physical 
 
            problems.  It was found that these physical problems were 
 
            known to the Armstrong Medical Department in June of 1987.  
 
            Consequently, defendants have failed to show by a preponder
 
            ance of the evidence that they failed to receive notice as 
 
            required under the applicable code section.
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 Although asserted, the odd-lot doctrine was not applied 
 
            in this case as claimant failed to show a prima facie case 
 
            of entitlement to permanent total disability.  Claimant is 
 
            working at the present time in seasonal but full time 
 
            employment.  He also turned down the offer of light duty 
 
            work in lieu of retirement at Armstrong.
 
            
 
                 In the case sub judice, it was found that as a result 
 
            of the work injury of August 22, 1985, claimant suffered a 
 
            10 percent loss of earning capacity.  It was further found 
 
            that claimant suffered an additional 30 percent loss of 
 
            earning capacity as a result of the work injury of December 
 
            31, 1987.  Based upon these findings, claimant is entitled 
 
            as a matter of law to 50 and 150 weeks of permanent partial 
 
            disability benefits for the first and second injuries 
 
            respectively under Iowa Code section 85.34(2)(u) for each 
 
            injury which is 10 percent and 30 percent respectively of 
 
            500 weeks, the maximum allowable for an injury to the body 
 
            as a whole in that subsection.
 
            
 
                 Claimant failed to establish entitlement to weekly ben
 
            efits for healing period under Iowa Code section 85.34.  In 
 
            that code section claimants are entitled to such benefits 
 
            from the date of injury until they return to work; until 
 
            they are medically capable of returning to substantially 
 
            similar work to the work they were performing at the time of 
 
            injury; or, until it is indicated that significant improve
 
            ment from the injury is not anticipated, whichever occurs 
 
            first.  It could not be found that claimant was receiving 
 
            any treatment at the time of his retirement which was antic
 
            ipated to improve his condition.  There was no evidence to 
 
            suggest that claimant had been off work during the summer 
 
            and fall of 1987 to receive treatment.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred three and 22/l00 dollars ($303.22) per week 
 
            from February 28, 1986.  Defendants shall further pay to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant one hundred fifty (150) weeks of permanent partial 
 
            disability benefits at the rate of three hundred forty-nine 
 
            and 48/l00 dollars ($349.48) per week from January 1, 1988.  
 
            Claimant shall be paid his entitlement to healing period 
 
            benefits for the August 22, 1985 injury as stipulated by the 
 
            parties in the prehearing report.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this manner.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. J. Kelly
 
            Mr. Gregory T. Racette
 
            Attorneys at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            STE 600
 
            100 Court Ave
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed March 26, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT D. BEAMAN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 913228 & 803576
 
            THE ARMSTRONG RUBBER CO.,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
            Extent of permanent disability benefits.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER,
 
        
 
        
 
        WESLEY BERNARD,
 
        
 
            Claimant,                        File Nos. 803729
 
                                                        846943
 
        vs.
 
                                           A R B I T R A T I O N
 
        WILSON FOODS CORPORATION,
 
                                              D E C I S I O N
 
            Employer,
 
            Self-Insured,                       F I L E D
 
            Defendant.
 
                                                JAN 11 1989
 
        
 
                                            INDUSTRIAL SERVICES
 
        
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Wesley 
 
             Bernard, claimant, against Wilson Foods Corporation, employer, 
 
             and self-insured defendant, for benefits as the result of an 
 
             injury that occurred on August 23, 1985, when claimant was hit in 
 
             the right side of the head by a rack of hams (file no. 803729) 
 
             and an alleged injury on August 6, 1986, when claimant developed 
 
             carpal tunnel syndrome in the left hand or arm (file no. 846943). 
 
             A hearing was held in Storm Lake, Iowa, on November 1, 1988, and 
 
             the case was fully submitted at the close of the hearing. The 
 
             record consists of the testimony of Wesley Bernard, claimant, and 
 
             joint exhibits 1 through 28. Defendant's attorney submitted an 
 
             excellent brief. Claimant's attorney did not file a brief.
 
        
 
                      STIPULATIONS-Injury of August 23, 1985
 
        
 
            The parties stipulated to the following matters:
 
             
 
             That an employer-employee relationship existed between 
 
             claimant and employer at the time of the injury.
 
        
 
            That claimant sustained an injury on August 23, 1985, that 
 
        arose out of and in the course of his employment with employer.
 
        
 
            That the injury was the cause of temporary disability and 
 
        claimant is entitled to, and has been paid, temporary disability 
 
        benefits for the period from August 24, 1985 to September 8, 
 
        1985, and that temporary disability benefits.are no longer a 
 
        dispute in this case at this time.
 
        
 
             That the type of permanent disability, if the injury is 
 
             found to be a cause of permanent disability, is industrial 
 
             disability to the body as a whole.
 
        
 
             That the commencement date for permanent partial disability 
 
             benefits, in the event such benefits are awarded, is September 9, 
 
             1985.
 
        
 

 
        
 
 
 
 
 
            That medical benefits for this injury are no longer in 
 
        dispute.
 
        
 
             That defendant claims no credit for benefits paid prior to 
 
        hearing from an employee nonoccupational group health plan.
 
        
 
            That defendant has paid 2 weeks and 2 days of temporary 
 
        workers' compensation benefits prior to hearing at the rate of 
 
        $190.31 per week but have not paid any permanent partial 
 
        disability benefits prior to hearing.
 
        
 
            That there are no bifurcated claims.
 
        
 
                            ISSUES-Injury of August 23, 1985
 
        
 
             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, and if so, the extent of benefits.
 
        
 
                       STIPULATIONS-Injury of August 6, 1986
 
        
 
             The parties stipulated to the following matters at the time 
 
             of the hearing.
 
        
 
            That an employer-employee relationship existed between 
 
        claimant and employer at the time of the injury.
 
        
 
            That the type of permanent disability, if the injury is 
 
        found to be a cause of permanent disability, is scheduled member 
 
        disability, but it is disputed as to whether it is to the hand or 
 
        to the arm.
 
        
 
            That the rate of compensation, in the event of an award, is 
 
        $211.90 per week.
 
        
 
            That the provider of medical services would testify that the 
 
        fees charged are fair and reasonable and defendant is not 
 
        offering contrary evidence.
 
        
 
            That defendant claims no credit for employee nonoccupational 
 
        group health plan benefits paid prior to hearing or any workers' 
 
        compensation benefits paid prior to hearing.
 
        
 
            That there are no bifurcated claims.
 
        
 
                       ISSUES-Alleged injury of August 6, 1986
 
        
 
             The issues submitted by the parties for determination at the 
 
             time of the hearing are as follows:
 
        
 
            Whether claimant sustained an injury on August 6, 1986, 
 
        which arose out of and in the course of employment with employer.
 
        
 
            Whether the injury was the cause of either temporary or 
 
        permanent disability.
 
        
 
            Whether claimant is entitled to either temporary or 
 
        permanent disability benefits, and if so, the nature and extent 
 
        of benefits, to include whether the disability is to the hand or 
 
        to the arm.
 
        
 
            Whether claimant is entitled to medical benefits.
 

 
        
 
 
 
 
 
        
 
                            SUMMARY OF THE EVIDENCE
 
        
 
             Of all the evidence that was introduced, the following is a 
 
             summary of the evidence most pertinent to this decision.
 
        
 
            Claimant is 36 years old. He graduated from high school in 
 
        1971. He has no subsequent formal education or training.
 
        
 
            Claimant's past employments are construction, factory work, 
 
        welding, production employee and driving trucks and tractors.
 
        
 
            Claimant started to work for employer in May of 1985 on the 
 
        800 gang, which means, you go in or get called as work happens to 
 
        be available. They only work off and on. His various jobs were 
 
        packaging, slicing, cutting and boxing meat. He also worked on 
 
        clean-up. Claimant estimated that he only worked approximately 
 
        20 to 25 weeks from May of 1985 to December of 1985. He 
 
        acknowledged that he only worked approximately two weeks in 
 
        January and February of 1986 and then another two weeks in July 
 
        and August of 1986.
 
        
 
            On August 23, 1985, claimant was running a saw slicing off 
 
        two pound chunks from a larger 20 pound piece of ham. He was 
 
        standing at a table when another employee pushing a ham tree hit 
 
        him in the right side, sent his helmet flying, and laid his body 
 
        across the table. The ham tree had three rows of hams in socks, 
 
        with approximately 20 to 30 socks of hams per row. The hams 
 
        weigh approximately 20 to 30 pounds each. Claimant estimated 
 
        that the ham tree weighed between 2,000 and 3,000 pounds. The 
 
        full tree hit him a hard blow on his entire right side.
 
        
 
            Keith 0. Garner, M.D., the company physician, sent claimant 
 
        to the hospital for two days and then sent him to see Dean 
 
        Meylor, D.C., for treatments for two weeks. After that, claimant 
 
        continued to see his own chiropractor for three more weeks 
 
        because he was still having trouble in his neck. Claimant 
 
        testified that he has continued to have a stiff neck and 
 
        headaches all of the time. Dr. Garner told him that there was 
 
        nothing more that he could do. Claimant testified that he was 
 
        told to take his pills and to go back to work. Claimant 
 
        continued to work only sporadically for employer on the 800 gang 
 
        on an "as needed" basis. Claimant admitted that he had seen a 
 
        chiropractor for his neck prior to this injury because his neck 
 
        hurt from looking up all of the time at work. Also, claimant 
 
        admitted to another strain injury in 1977 to his neck when he was 
 
        hospitalized for two days. Claimant testified that he has had 
 
        neck pain ever since this injury and has just had to get used to 
 
        it.
 
        
 
             Claimant said that this injury caused him to have dizziness 
 
             like the dizziness he felt when he was laying on the examination 
 
             table in the hospital. Claimant said that approximately three 
 
             months after the injury he noticed that when he turns his head in 
 
             a certain way it causes the dizziness. Claimant related that one 
 
             night he ended up in the hospital vomiting and could not walk. 
 
             When he moves his head to a certain position, his head starts 
 
             spinning. There is pain at the base of the skull all of the time 
 
             like some one is pushing on it. His head doesn't move like it 
 
             should from side to side. It feels like his neck is grinding and 
 
             pulling when he moves his head forward and backward. Claimant 
 
             said that he stopped taking Darvocet and Motrin but he does take 
 
             aspirin for pain now.
 
        
 
            Early in 1986, the first week in 1986, claimant had trouble 
 
        with his right hand while making boxes in the wiener room. He 
 

 
        
 
 
 
 
 
        had swelling and pain in his right hand after only one or two 
 
        days of work, which he had never had before. He was treated 
 
        conservatively by Dr. Garner, and did lose some time from work. 
 
        In February of 1986, claimant was sent to see Scott B. Neff, 
 
        D.O., an orthopedic surgeon in Des Moines, who performed right 
 
        carpal tunnel surgery. Claimant was not called back to work 
 
        until July of 1986. Claimant settled the claim for the right 
 
        carpal tunnel on November 3, 1986 (Exhibit 26). After claimant 
 
        returned to work in July of 1986, he worked for two weeks on the 
 
        loin line pulling the eyes out of loins. In this job, claimant 
 
        operated a knife with his right hand. With his left hand he 
 
        pulled the loin off of the line, put his fingers in the meat, 
 
        made certain cuts with his right hand, and then pulled 15 pounds 
 
        of meat loose from the belly and then packed the loin. Claimant 
 
        testified that he did 175 of these per hour. After a week, he 
 
        was transferred to another job where he transferred loins from 
 
        one box to another.
 
        
 
            Claimant testified that with respect to the alleged injury 
 
        of August 6, 1986, to his left hand or arm, he first noticed
 
        pain on his second day back on the job. At first he only had 
 
        pain on the job and then it began to feel numb at home at night. 
 
        Eventually, his left hand went numb on the job when he had to lay 
 
        the knife down and use his right hand to pull the meat loose from 
 
        the belly. During his second week back on the job, he was unable 
 
        to sleep at night, even though he was not using his left hand to 
 
        pull the meat loose.
 
        
 
             Claimant testified that he did not work after August 10, 
 
             1986, for employer. He also stated that he had no employment 
 
             away from the plant at this time. He lived on rental income from 
 
             the farm he owns. He stated that he did not work at home other 
 
             than to do dishes and to drive the tractor for his tenant. 
 
             Claimant testified that he was sent to see Dr. Neff in Des Moines 
 
             for his left hand. Dr. Neff recommended carpal tunnel surgery on 
 
             the left hand. Employer told claimant that the left carpal 
 
             tunnel surgery was not authorized. Then, one day claimant's son 
 
             took a telephone call which instructed claimant to go to Des 
 
             Moines, but the child did not know who the call was from. 
 
             Claimant related that the plant nurse did not know what this was 
 
             all about, but told him to go to Des Moines and see what they 
 
             say. Claimant said that the nurse in Des Moines knew that the 
 
             left carpal tunnel surgery was not authorized but thought that it 
 
             might be covered as a part of the previous injury to his neck. 
 
             Claimant admitted that he knew that Dr. Neff took a CT scan of 
 
             his neck and had determined that the neck was not causing the 
 
             left carpal tunnel syndrome to his hand. Claimant said the nurse 
 
             in Des Moines contacted Dr. Neff and Dr. Neff told claimant that 
 
             he would perform the surgery. Claimant maintained that the 
 
             admitting desk said that the surgery was authorized by Wilson's, 
 
             so claimant allowed Dr. Neff to perform the surgery. Claimant 
 
             said that he clarified to the nurse in Des Moines that he did not 
 
             want the surgery unless it was authorized and the admission desk 
 
             told him it was alright. Dr. Neff did perform the surgery in 
 
             December of 1986.
 
        
 
            Claimant related that in the fall of the 1986, he worked as 
 
        a semi-driver for Sioux Rapids Feed and Grain, approximately 20 
 
        to 30 hours a week when he was not working for employer. 
 
        Claimant said that he lost three to four weeks of work from Sioux 
 
        Rapids Feed and Grain due to the left carpal tunnel surgery.
 
        
 
            Claimant stated that after the surgery he wore wrist bands, 
 
        braces and splints. He worked at whatever jobs he could find. 
 
        Since the left carpal tunnel surgery he does not have any staying 
 
        power with his left hand.
 

 
        
 
 
 
 
 
        
 
            Claimant examined the bills in exhibits 18 through 21 and 
 
        verified that they were all due to the left carpal tunnel 
 
        surgery. These were the amounts still due after his personal 
 
        insurance had paid what they would cover. The remaining bills 
 
        are:
 
        
 
             Des Moines Anesthesiologist      $203.00
 
            Central Iowa Orthopedics           48.00
 
            Central Iowa Pathologists           8.00
 
            Iowa Lutheran Hospital             91.49
 
                         TOTAL                         $350 49
 
        
 
             A review of the medical evidence follows. Dr. Garner 
 
             verified that claimant received a traumatic injury at work on 
 
             August 23, 1985, of a concussion and cervical strain (Ex. 11 ).
 
        
 
            Claimant was hospitalized at Sioux Valley Memorial Hospital 
 
        from August 23, 1985 to August 25, 1985, for concussion, acute 
 
        cervical strain with complaints of vertigo, intermittent blurred 
 
        vision and headaches. Claimant returned to the hospital on 
 
        August 27, 1985, complaining of increased stiffness in his neck, 
 
        occipital headaches and headaches behind the eyes. Skull x-rays 
 
        and x-rays of the cervical spine were essentially normal except 
 
        the neuroforamena between C-3 and C-4 on the right side was 
 
        slightly narrowed (Ex. 16).
 
        
 
            Dr. Garner noted on September 6, 1985, that claimant was 
 
        still reporting neck pain and inability to sleep at night (Ex. 
 
        11, p. 1). Dr. Garner noted on January 7, 1986, that claimant 
 
        still complained of headaches (Ex. 11, p. 3).
 
        
 
            At the time of claimant's right carpal tunnel examination on 
 
        February 4, 1986, a CT scan of claimant's cervical area was 
 
        normal (Ex. 6). On September 10, 1986, Horst G. Blume, M.D., a 
 
        neurosurgeon, examined and evaluated claimant and stated that 
 
        claimant had a cervical disc syndrome which is responsible for 
 
        the impairment in the C-7 and C-8 nerve root distribution 
 
        bilaterally. He cited the ham tree injury as the history for this 
 
        condition (Ex. 12). Another CT scan performed by Dr. Neff on 
 
        December 9, 1986, showed no obvious disc abnormality. (Ex. 9).
 
        
 
             On February 19, 1988, A. J. Wolbrink, M.D., an evaluation 
 
             physician, recited and appeared to accept the ham tree history. 
 
             Dr. Wolbrink concluded as follows:
 
        
 
             In my opinion, Mr. Bernard does have some residual muscular 
 
             neck pain and probably also has mild post-concussion 
 
             headaches as a result of his in jury. In my opinion, he has 
 
             a permanent impairment of 4 percent of the whole person due 
 
             to residuals of the cervical spine and head injury.
 
             
 
        (Ex. 13, p. 2)
 
        
 
             A great deal of evidence is directed to whether claimant's 
 
             left-carpal tunnel surgery of August 6, 1986, was caused by 
 
             claimant's employment or was caused by something other than his 
 
             employment. The exhibits demonstrate a prolonged dispute between 
 
             employer, claimant, Dr. Garner and Dr. Neff. This dispute became 
 
             quite heated (Exs. 1-15). The pertinent determinative evidence 
 
             on this issue is as follows:
 
        
 
             The workers' compensation director for employer, Larry 
 
             Flood, wrote to Dr. Neff on January 5, 1987 as follows:
 
        
 
            Dear Dr. Neff:
 

 
        
 
 
 
 
 
        
 
            RE: Wes Bernard
 
        
 
             There still seems to be some confusion with Mr. Bernard's 
 
             left carpal tunnel syndrome. I have enclosed a copy of Mr. 
 
             Bernard's work schedule for the last 53 weeks. As you can 
 
             see he worked a total of 4 weeks and 1 day. Six of those 
 
             days were prior to his right carpal tunnel surgery. We do 
 
             not have a record of Mr. Bernard complaining of left wrist 
 
             problems at the same time his right hand surgery was done. 
 
             He states that you have documentation that the left wrist 
 
             condition existed at the same time of the right wrist. Even 
 
             so, looking at his work record, would his left carpal tunnel 
 
             condition be due to his working 15 days, or would it 
 
             probably be due to his outside activities?
 
             
 
             There has definitely been some miscommunication in this 
 
             case. I hope this information will be helpful for you.
 
             
 
             Thank you for your time and professional opinion in this 
 
             case.
 
             
 
        (Ex. 27)
 
        
 
             Dr. Neff replied as follows:
 
             
 
            Att: Larry Flood
 
        
 
            RE: Wes Bernard
 
        
 
             Thank you for your letter of January 5, 1987. I apologize 
 
             for the delay in responding to your letter regarding Wes 
 
             Bernard.
 
             
 
             In my opinion, based on this documented work record, this 
 
             gentleman's left carpal tunnel syndrome was not the result 
 
             of his work activity, but the result of outside activities 
 
             away from Wilson Foods.
 
             
 
             Thank you for providing the work schedule.
 
             
 
        (Ex. 28)
 
        
 
             Dr. Blume did not specifically address the causal connection 
 
             issue in this case. Claimant had not received the carpal tunnel 
 
             surgery as of the time he saw Dr. Blume. In fact, he recommended 
 
             against it in September of 1986 (Ex. 12).
 
        
 
             Dr. Wolbrink assessed a 5 percent permanent impairment 
 
             rating for the left carpal tunnel surgery and resulting 
 
             condition, but indicated that it was predominantly due to or 
 
             necessitated by activities during the last six months of 1986. 
 
             Dr. Wolbrink's remarks are as follows:
 
        
 
             In my opinion, Mr. Bernard has a permanent impairment of 5 
 
             percent of the left upper extremity due to the residuals of 
 
             his carpal tunnel syndrome. It is worthy of note that he 
 
             was tested and showed to have grip strength of 66 Kg. on 
 
             June 2, 1986, which compares with the 56 Kg. at present. He 
 
             also does have the recurrent ganglion. It would be my 
 
             further opinion that carpal tunnel syndrome surgery was 
 
             predominantly due to or necessitated by activities during 
 
             the last 6 months of 1986. Some of the details of his work 
 
             history are in the letters and materials supplied to me. 
 
             However, I did not have actual report of hours worked at 
 
             which jobs during that period of time.
 

 
        
 
 
 
 
 
             
 
        (Ex. 13, p. 3)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of August 23, 1985, is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            As a claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
             Functional disability 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).
 
         of 1986 (Ex. 12).
 
        
 
             Dr. Wolbrink assessed a 5 percent permanent impairment 
 
             rating for the left carpal tunnel surgery and resulting 
 
             condition, but indicated that it was predominantly due to or 
 
             necessitated by activities during the last six months of 1986. 
 
             Dr. Wolbrink's remarks are as follows:
 
        
 
             In my opinion, Mr. Bernard has a permanent impairment of 5 
 
             percent of the left upper extremity due to the residuals of 
 
             his carpal tunnel syndrome. It is worthy of note that he 
 
             was tested and showed to have grip strength of 66 Kg. on 
 
             June 2, 1986, which compares with the 56 Kg. at present. He 
 
             also does have the recurrent ganglion. It would be my 
 
             further opinion that carpal tunnel syndrome surgery was 
 
             predominantly due to or necessitated by activities during 
 
             the last 6 months of 1986. Some of the details of his work 
 
             history are in the letters and materials supplied to me. 
 
             However, I did not have actual report of hours worked at 
 
             which jobs during that period of time.
 

 
        
 
 
 
 
 
             
 
        (Ex. 13, p. 3)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of August 23, 1985, is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            As a claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
             Functional disability 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).
 
         of 1986 (Ex. 12).
 
        
 
             Dr. Wolbrink assessed a 5 percent permanent impairment 
 
             rating for the left carpal tunnel surgery and resulting 
 
             condition, but indicated that it was predominantly due to or 
 
             necessitated by activities during the last six months of 1986. 
 
             Dr. Wolbrink's remarks are as follows:
 
        
 
             In my opinion, Mr. Bernard has a permanent impairment of 5 
 
             percent of the left upper extremity due to the residuals of 
 
             his carpal tunnel syndrome. It is worthy of note that he 
 
             was tested and showed to have grip strength of 66 Kg. on 
 
             June 2, 1986, which compares with the 56 Kg. at present. He 
 
             also does have the recurrent ganglion. It would be my 
 
             further opinion that carpal tunnel syndrome surgery was 
 
             predominantly due to or necessitated by activities during 
 
             the last 6 months of 1986. Some of the details of his work 
 
             history are in the letters and materials supplied to me. 
 
             However, I did not have actual report of hours worked at 
 
             which jobs during that period of time.
 

 
        
 
 
 
 
 
             
 
        (Ex. 13, p. 3)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of August 23, 1985, is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            As a claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
             Functional disability 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).
 
         of 1986 (Ex. 12).
 
        
 
             Dr. Wolbrink assessed a 5 percent permanent impairment 
 
             rating for the left carpal tunnel surgery and resulting 
 
             condition, but indicated that it was predominantly due to or 
 
             necessitated by activities during the last six months of 1986. 
 
             Dr. Wolbrink's remarks are as follows:
 
        
 
             In my opinion, Mr. Bernard has a permanent impairment of 5 
 
             percent of the left upper extremity due to the residuals of 
 
             his carpal tunnel syndrome. It is worthy of note that he 
 
             was tested and showed to have grip strength of 66 Kg. on 
 
             June 2, 1986, which compares with the 56 Kg. at present. He 
 
             also does have the recurrent ganglion. It would be my 
 
             further opinion that carpal tunnel syndrome surgery was 
 
             predominantly due to or necessitated by activities during 
 
             the last 6 months of 1986. Some of the details of his work 
 
             history are in the letters and materials supplied to me. 
 
             However, I did not have actual report of hours worked at 
 
             which jobs during that period of time.
 

 
        
 
 
 
 
 
             
 
        (Ex. 13, p. 3)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of August 23, 1985, is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection.