Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         KENNETH KETELSEN,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 808066
 
         HARNISCHFEGER CORPORATION,    :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         WAUSAU INSURANCE COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision filed 
 
         February 21, 1990 awarding claimant 75 percent permanent partial 
 
         disability benefits as a result of an injury of October 18, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, of joint exhibits 1 through 16 and 
 
         defendants' exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                      issues
 
         
 
              Defendants state the issues on appeal are:
 
         
 
              1) Whether a causal relationship exists between the work 
 
         injury and claimed disabilities or, more extensively, whether a 
 
         cause effect relationship exists between an incident occurring on 
 
         October 18, 1985 and subsequent need for medical care and 
 
         treatment, period of incapacity and permanent disability 
 
         involving claimant's neck, right shoulder, low back, and left 
 
         thumb; 2) whether claimant's injury of October 18, 1985 resulted 
 
         in permanent partial disability greater than 40 percent of the 
 
         left lower extremity or in industrial disability; and 3) whether 
 
         claimant is entitled to additional healing period benefits beyond 
 
         April 25, 1986.
 
         
 
                              review of the evidence
 
         
 
              The arbitration decision reflects the pertinent evidence.  
 
         It will not be totally reiterated here.
 
         
 
              Dr. Hugh P. MacMenamin, M.D., recorded, in claimant's 
 
         October 19, 1985 admission history, that claimant complained of 
 
         mid-thoracic pain especially on the right where claimant had a 
 
         large superficial abrasion.  Claimant's neck was then supple with 
 
         full range of motion.  Dr. MacMenamin's initial impression was of 
 
         fractured dislocation of the left knee, including the proximal 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         tibia; obesity; and chest injury, rule out fracture.
 
         
 
              A March 9, 1986 note, apparently of the Mercy Hospital 
 
         Emergency Department, indicates that claimant complained of pain 
 
         in his back where he was struck in his industrial accident since 
 
         that injury although the pain became much more acute that 
 
         evening.  Claimant then denied radicular pain and bowel or 
 
         bladder problems.  On physical examination, claimant had a healed 
 
         erythematous mark in the left lateral aspect of the lower 
 
         thoracic spine.  Most of his pain with palpations was in this 
 
         area.  No point tenderness was elicited; minimal tenderness was 
 
         elicited over the spinal process.  Claimant had no focal 
 
         neurologic deficit of the lower extremities.  Straight leg 
 
         raising was negative.  The assessment was of muscle strain of the 
 
         lower thoracic spine.
 
         
 
              Medical notes of Joseph F. Galles, M.D., indicate that Dr. 
 
         Galles saw claimant on September 7, 1984 after claimant had 
 
         visited the Mercy emergency room on September 5, 1984 complaining 
 
         of back pain.  Dr. Galles noted that claimant had first injured 
 
         [himself] in March when he sneezed when reaching and on September 
 
         4, 1984 had turned wrong with muscle cramping and spasms while 
 
         carrying a piece of sheet metal.  Dr. Galles noted that claimant 
 
         was having pain on movement below the shoulder blade.  Claimant 
 
         complained of right shoulder, rib cage and front body pain when 
 
         seen on September 24, 1984.  Darvocet N 100 was prescribed.  
 
         Claimant was advised to see an orthopedic physician.  Claimant 
 
         did not do so.  On October 9, 1984 Dr. Galles refilled claimant's 
 
         Darvocet N 100 prescription.
 
         
 
              On October 7, 1985, claimant called Dr. Galles' office and 
 
         stated claimant had pulled a muscle.  Dr. Galles was not then in 
 
         the office.  Claimant was advised to call another doctor.  On 
 
         November 21, 1985, Dr. Galles' notes state claimant woke that 
 
         morning very dizzy and had vomited.  Claimant had neither 
 
         headache nor head pressure.  On December 5, 1985, claimant 
 
         complained of slight dizziness upon getting up too fast and of a 
 
         headache upon resting too much.  On January 6, 1986 claimant 
 
         complained his back was sore from crutches and asked Dr. Galles 
 
         to order either Darvocet N 100 or Tylenol with codeine.  Dr. 
 
         Galles recorded an impression of shoulder strain with bilateral 
 
         scapulae pain which the doctor related to claimant using crutches 
 
         for his leg injury.  Darvocet N 100 was prescribed again.  On 
 
         January 15, 1986, claimant's shoulder was better; claimant was 
 
         using Darvocet N 100 as needed and was having no other problems.  
 
         On April 1, 1986, claimant complained of having right sided 
 
         headaches two or three times a week.  Dr. Galles reported that 
 
         claimant used Tylenol with codeine for back pain which medication 
 
         also treated the headaches.  No nausea or blurred vision was 
 
         reported "since accident 10-18-85".  On April 22, 1986, claimant 
 
         still complained of headaches but less dizziness.  He reported 
 
         his back pain was no better and that the Darvocet and Tylenol #3 
 
         helped very little.  Sectral was prescribed.  On May 5, 1986, 
 
         claimant's medication was changed from Sectral to DC Maxzide.  On 
 
         May 13, 1986 claimant reported continuing headache but no 
 
         dizziness.  On May 13, 1986, Vasotec was prescribed.  On May 27, 
 
         1986, claimant had nose bleeding and head pressure.  Claimant's 
 
         Vasotec was increased from 5 mg daily to 10 mg daily.  On June 
 
         27, 1986, claimant reported no problems.  Vasotec 10 mg daily was 
 
         prescribed again.  On August 8, 1986, claimant reported no 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         problems with his medication and his Vasotec was again increased 
 
         to 10 mg twice a day.  On September 8, 1986 claimant was feeling 
 
         good.  His Vasotec was continued at 10 mg twice a day.  On 
 
         December 5, 1986 claimant reported no new problems.  His Vasotec 
 
         was continued at 10 mg twice a day.  Claimant was advised to 
 
         continue medications Winthrop S. Risk, M.D., and Dr. MacMenamin 
 
         had prescribed.
 
         
 
              Claimant first saw Dr. Risk on June 9, 1986.  Dr. Risk's 
 
         primary diagnosis was a post-traumatic cervical occipital pains 
 
         with temporal headaches.  He recommended a trial of Clonazepam, 
 
         that claimant continue his Darvocet for back pain and Tylenol #3 
 
         for headaches.  When Dr. Risk saw claimant on June 18, 1986, he 
 
         reported that claimant believed his headaches were not as severe 
 
         although occurring with the same frequency.
 
         
 
              Claimant was again seen on July 14, 1986.  He was then 
 
         taking 4 mg of Clonazepam at bedtime.  Claimant was reporting 
 
         very good results at that dosage.  He had one headache every day 
 
         or every other day.  Neck pains were diminished substantially.  
 
         Claimant reported that if he went more than 24 hours without 
 
         taking Clonazepam, his symptoms worsened.  On September 8, 1986, 
 
         Dr. Risk reported that claimant's condition had stabilized; he 
 
         continued claimant on Clonazepam 4 mg at bedtime.  Claimant 
 
         reported his head and neck pains were substantially reduced but 
 
         not completely resolved.
 
         
 
              Dr. Risk again saw claimant on December 8, 1987 and December 
 
         15, 1987 for evaluation of neck and back pains with left lower 
 
         limb sensory motor impairment.  Claimant remained on Clonazepam 4 
 
         mg at bedtime as well as Tylenol #3, 1 to 2 times daily.  On 
 
         December 15, 1987, Dr. Risk opined with that regimen and with 
 
         Amitriptyline, 75 mg at bedtime, claimant's symptoms were 
 
         relatively improved but still present.  Claimant had had a lumbar 
 
         CAT scan.  The L3-4 disc space showed some central bulging more 
 
         to the left and some slight encroachment of the left neural 
 
         foramen.  The L5/Sl disc space showed mild degenerative changes, 
 
         spinal bifida occulta and unilateral left spondylolysis.  An MRI 
 
         scan of the cervical spine showed spondylosis, most pronounced 
 
         from C5 through C7, with compromise of the thecal sac but not the 
 
         cord and a questionable disc herniation at C5/C6 on the right.  
 
         Dr. Risk opined that findings on films correlated with claimant's 
 
         complaints of neck and back pain.  Medication for symptomatic 
 
         control of pain was recommended.  Dr. Risk reported that on 
 
         February 2, 1988, claimant remained on Desyrel 75 mg and 
 
         Clonazepam 4 mg at bedtime.  His pains and headaches were under 
 
         satisfactory control with limitations.  Dr. Risk reported that 
 
         claimant should not engage in activities requiring frequent 
 
         turning of his neck.
 
         
 
              John E. Sinning, Jr., M.D., evaluated claimant on August 27, 
 
         1987.  Claimant had weighed 330 pounds when injured.  He weighed 
 
         280 pounds when examined.  Claimant is 5 feet, 11 inches tall.  
 
         On physical examination, claimant had full range of motion of his 
 
         neck in a standing position.  His right shoulder motion was 30 
 
         degrees in overhead elevation; rotation was full and smooth.  Dr. 
 
         Sinning opined full rotation with limited elevation is an unusual 
 
         finding.  In the supine position, claimant had full range of 
 
         motion including full overhead elevation of the right shoulder.  
 
         Strength in both extremities was good.  Claimant, however, tended 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         to "let go" on performing the strength test using the right 
 
         shoulder.  Dr. Sinning stated that this meant claimant had good 
 
         strength and then responded as if [he had] [no right shoulder 
 
         strength] upon resistance.  Claimant had no deficit in upper 
 
         extremity strength.  Claimant had normal rotation of the back.  
 
         He had smooth, symmetrical, lateral flexion of the back.  
 
         Claimant had full right knee range of motion without swelling.  
 
         Ligaments were stable and rotary testing was unremarkable.  
 
         Claimant's back was soft without muscle spasm or irritability 
 
         although claimant squirmed, gasped, and extended as the back was 
 
         very superficially palpated.  In the supine position, claimant 
 
         had full passive range of motion of the neck with muscles found 
 
         to be soft and without spasms or irritability.  Upper extremity 
 
         reflexes were brisk with good strength in all muscle groups 
 
         tested.
 
         
 
              Dr. Sinning opined that the records indicate that most of 
 
         claimant's problems began after his April 25, 1986 work release.  
 
         He opined claimant had no objective or organic back or neck 
 
         impairment.  Dr. Sinning further noted that the [original] 
 
         medical record suggests a neck injury in that the notation that 
 
         claimant was struck on the neck appeared to be an addition to the 
 
         record made during 1986 which addition is not consistent with the 
 
         original clinic record.  Dr. Sinning's observation in this regard 
 
         is accepted as it is consistent with notations on the original 
 
         admission history.  Dr. Sinning further opined regarding the back 
 
         pain:
 
         
 
              Mr. Ketelsen initially described the back pain in 
 
              January 1986, coming on as he was using crutches.  It 
 
              is reasonable that he may have had some transient 
 
              problem using crutches but it is not consistent for 
 
              this to persist once the crutches have been 
 
              discontinued.  There is no evidence to suggest any 
 
              present impairment of function of the back.  There is 
 
              no suggestion in the three months following his injury 
 
              that he had any significant back pain problem.  The 
 
              pain that was present relating to crutch use was in the 
 
              upper back and according to Dr. Galles' notes of 
 
              January 15, 1986, was better.
 
         
 
              Dr. Sinning also opined relative to the neck pain:
 
         
 
              The neck pain with headache seemed to come on as part 
 
              of the problem with hypertension but there is no 
 
              suggestion in Dr. Galles' records that there was any 
 
              aspect of injury.
 
         
 
              Dr. Sinning opined relative to the right shoulder:
 
         
 
              Regarding the right shoulder, the injury would appear 
 
              to have occurred in July 1986 while Mr. Ketelsen was 
 
              lifting a bathtub and doing work around the bathtub 
 
              area.  Dr. MacMenamin's notes of July 23, 1986 refer to 
 
              this incident, lifting the bathtub with his examination 
 
              showing slight weakness in external rotation.  My 
 
              examination demonstrated initial limitation of motion 
 
              going up overhead but later on, full overhead range of 
 
              motion with excellent strength.  There is no sign of 
 
              impairment of function of the shoulder.
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              Richard F. Neiman, M.D., neurologist, evaluated claimant on 
 
         March 31, 1988.  On examination, claimant had definite limitation 
 
         of neck flexion and extension on lateral rotation.  Mild crepitus 
 
         was noted.  He had good strength in the upper extremities with no 
 
         loss of sensation and reflexes of 2/2.  No evidence of cervical 
 
         radiculopathy was noted.  In a report of May 12, 1988, Dr. Neiman 
 
         opined that claimant's neck problem was unrelated to his accident 
 
         and developed spontaneously from degenerative arthritis of the 
 
         cervical spine.  Dr. Neiman based his opinion on the fact that 
 
         neck pain was not reported in claimant's hospital records, nor in 
 
         nurse's notes or physical therapy notes made immediately 
 
         subsequent to his injury.  He stated:  "I personally know a 
 
         number of the physicians involved in this case and have no 
 
         question as to their competence.  Had Mr. Ketelsen complained of 
 
         pain in his neck, they certainly would have described this in 
 
         their records.  Such is not documented...."
 
         
 
              Dr. Neiman further opined that claimant's thoracic spine 
 
         condition appeared resolved.  He opined that claimant's lower 
 
         back pain related to claimant's gross obesity stating:  "I am 
 
         sure that his massive obesity may be an aggravating factor as to 
 
         the discomfort in his left leg and back problems."
 
         
 
              The following dialogue ensued between Dr. MacMenamin and 
 
         defense counsel at the time of Dr. MacMenamin's deposition on 
 
         July 2, 1987:
 
         
 
              Q. Now, Doctor, we've had a lot of discussion here this 
 
                 morning about the relationship between Mr. 
 
                 Ketelsen's incident of October, 1985, and subsequent 
 
                 complaints of pain and other problems to his 
 
                 shoulder, the thumb and the back.  Doctor, could you 
 
                 tell us -- Well, let me ask you this:  Would you not 
 
                 anticipate the manifestation of complaints to the 
 
                 shoulder, thumb and back in closer proximity to the 
 
                 incident or the insult than we, in fact, saw in this 
 
                 case?
 
         
 
              A. Well, I think the back was clearly delineated at the 
 
                 time of the incident and he had complained of back 
 
                 pain.  He had physical signs to show injury with the 
 
                 abrasions and that type of thing, so that I would 
 
                 see the back as being fairly clearly related to the 
 
                 initial incident.  The -- I think we've gone over 
 
                 and stated that the complaints of the shoulder and 
 
                 the thumb surfaced at a later time.  And it's hard 
 
                 for me to say exactly, but perhaps because of these 
 
                 other major overriding factors of the knee, et 
 
                 cetera, they were overshadowed for a while and then 
 
                 surfaced later.  But I -- That's the only answer I 
 
                 think I can give.
 
         
 
              Q. I guess my question ultimately comes down to, 
 
                 Doctor:  What is that time -- or how long a period 
 
                 of time is it reasonable from the standpoint of 
 
                 medical certainty to expect symptoms to become 
 
                 manifested after the alleged insult or injury?
 
         
 
              A. Well, it's very difficult to make a general 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
                 statement on something like that.  For example, you 
 
                 can have a congenitally dislocated hip and it 
 
                 doesn't cause pain until maybe the age of 25.  Now, 
 
                 in an incident like this, if you take specifically 
 
                 the injury to the thumb, I would presume it to have 
 
                 surfaced as a major -- as somewhat of a major 
 
                 complaint in close -- close to the time of the 
 
                 incident, in other words, within several weeks or a 
 
                 month or so.  Now, I'm not saying that it did or it 
 
                 didn't.  And with the shoulder similarly, I would 
 
                 think.
 
         
 
         (Joint Exhibit 1, page 40, line 10 through page 41, line 24)
 
         
 
                                  applicable law
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, its mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is 
 
         materially aggravated, accelerated, worsened or lighted up so 
 
         that it results in disability, claimant is entitled to recover.  
 
         Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 
 
         (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
         N.W.2d 299 (1961).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; his arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony.  Both parties may bring all this information to the 
 
         attention of the fact finder as either supporting or weakening 
 
         the physician's testimony and opinion.  All factors go to the 
 
         value of the physician's testimony as a matter of fact not as a 
 
         matter of law.  Rockwell Graphic Systems, Inc. v. Prince, 366 
 
         N.W.2d 176, 192 (Iowa 1985).
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner.  The opinion must be 
 
         weighed with other facts and circumstances presented, however.  
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              Creation of an equipoise does not discharge claimant's 
 
         burden of proof.  Volk v. International Harvester Company, 252 
 
         Iowa 298, 106 N.W.2d 649 (1960).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects or compensatory change, result in permanent impairment of 
 
         the body as a whole.  Such impairment may in turn be the basis 
 
         for a rating of industrial disability.  It is the anatomical 
 
         situs of the permanent injury or impairment which determines 
 
         whether the schedules in section 85.34(2)(a) - (t) are applied.  
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
         Blacksmith, 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
         Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores Co., 
 
         222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              The right of an employee to receive compensation for 
 
         injuries sustained is statutory. The statute conferring this 
 
         right can also fix the amount of compensation payable for 
 
         different specific injuries.  The employee is not entitled to 
 
         compensation except as the statute provides.  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
              Compensation for permanent partial disability begins at 
 
         termination of the healing period.  Section 85.34(2).  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. Simbro v. Delong's Sportswear, 332 N.W.2d 
 
         886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
         1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
         (1960).
 
         
 
              Additionally, we consider the following:
 
         
 
              We are cognizant of the fact that the compensation law 
 
              is for the benefit of workers and is to be liberally 
 
              administered to that end.  But it must be administered 
 
              by the application of logical and consistent rules or 
 
              formulas notwithstanding its benevolent purpose.  It 
 
              cannot be made to depend on the whim or sympathetic 
 
              sentiment of the current administrator or presiding 
 
              judge.  We apprehend every member of this court is 
 
              sympathetic to claimant in the instant case.  But the 
 
              compensation statute is not a charity.  It is a 
 
              humanitarian law to be administered, not by sympathy, 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              but by logical rules, evolved from the determination of 
 
              many cases under literally countless factual 
 
              variations.  Compensation is to be paid by the employer 
 
              (or his insurer) as a matter of contract, not as a 
 
              gratuity.  It is payable only when the facts show the 
 
              injury is within the contract--that it `arose out of 
 
              and in the course of the contracted employment.'  
 
              Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 
 
              495, 73 N.W.2d 27 (1955).
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
                                     analysis
 
         
 
              We shall consider separately whether claimant's injury 
 
         resulted in need for medical treatment and periods of incapacity 
 
         and permanent disability involving claimant's neck, right 
 
         shoulder, low back and left thumb respectively.
 
         
 
              As regards the neck, the record is clear that claimant had a 
 
         supple neck with full range of motion when hospitalized on 
 
         October 19, 1985.  Such findings are inconsistent with claimant 
 
         having sustained a significant blow to the neck on that date.  
 
         Further, the record is unclear as to exactly when claimant first 
 
         voiced complaints about the neck.  That also is inconsistent with 
 
         any injury to the neck directly relating to claimant's October 
 
         18, 1985 work injury.  Claimant's claim of neck injury apparently 
 
         also includes his complaint of headaches.  Dr. Risk diagnosed 
 
         claimant as having post-traumatic cervical occipital pains with 
 
         temporal headaches and treated claimant with muscle relaxants.  
 
         Dr. Galles noted the headaches without reference to neck pain and 
 
         treated them through administration of drugs designed to reduce 
 
         claimant's blood pressure.  After June 9, 1986, treatments were 
 
         concurrent.
 
         
 
              In that the treatments were concurrent, it cannot be argued 
 
         that one was efficacious and the other was not.  Therefore, the 
 
         record remains inconclusive as to the etiology of claimant's 
 
         headaches.  Likewise, the record does demonstrate that claimant 
 
         has degenerative changes in the cervical spine as well as some 
 
         possibility of a disc herniation.  The lack of any established 
 
         temporal relationship between the onset of neck complaints and 
 
         claimant's October 18, 1985, work injury mitigates against Dr. 
 
         Risk's and Dr. MacMenamin's opinions that claimant's injury 
 
         produced or materially aggravated claimant's preexisting 
 
         degenerative spinal condition.  Dr. Neiman and Dr. Sinning's 
 
         opinions of no causal relationship are accepted for that reason.
 
         
 
              As regards causal relationship between claimant's right 
 
         shoulder complaints and his October 18, 1885 work injury, 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         claimant has also failed to carry his burden.  Dr. Sinning was 
 
         incorrect in his observation that claimant first complained of 
 
         right shoulder pain in July of 1986.  The record demonstrates 
 
         that claimant had right shoulder complaints related to scapular 
 
         pain while using crutches on January 6, 1986.  By January 15, 
 
         1986, the shoulder was better, however.  Furthermore, claimant 
 
         had had shoulder complaints at substantially the same site in 
 
         September 1984.  Dr. Galles had then related such complaints to 
 
         an earlier injury in Spring 1984.  Dr. Galles, in September 1984, 
 
         had prescribed Darvocet N 100 for claimant and had felt that 
 
         claimant's shoulder complaints were significant enough that an 
 
         orthopedic referral was warranted.  Claimant did not then seek 
 
         referral but did seek a refill of his Darvocet N 100 on October 
 
         9, 1984.  On January 6, 1986, claimant, on his own initiative, 
 
         requested that Dr. Galles ordered Darvocet N 100 or Tylenol with 
 
         codeine for his scapular complaints.  That, of itself, suggests 
 
         that claimant had a working familiarity with shoulder pain as of 
 
         that date and indicates that claimant's shoulder pain subsequent 
 
         to his October 18, 1985 injury did not substantially differ from 
 
         his shoulder pain prior to October 18, 1985.  Objective findings 
 
         also do not suggest any substantial change in claimant's right 
 
         shoulder condition subsequent to the October 18, 1985 injury.  
 
         For this reason also, Drs. Sinning's and Neiman's opinions of a 
 
         lack of a causal relationship between claimant's right shoulder 
 
         complaints and his work injury of October 18, 1985 are accepted 
 
         over Dr. Risk's and Dr. MacMenamin's opinion of such causal 
 
         connection.
 
         
 
              Claimant has also not established the requisite causal 
 
         relationship between his complaints of low back and thoracic back 
 
         pain and his October 18, 1985 injury.  Early reference is to 
 
         thoracic back pain.  Claimant abrated that area in his injury.   
 
         The record contains no objective findings suggesting significant 
 
         injury to either the thoracic or the lumbosacral back, however.  
 
         Dr. Sinning notes that the record does not suggest claimant had 
 
         significant back pain in the three months following his injury.  
 
         Dr. Neiman opines that any current low back complaints likely 
 
         relate to claimant's obesity and not to his work injury.  That 
 
         opinion is consistent with claimant's lack of objective findings 
 
         relative to the back and his absence of low back complaints in 
 
         the period immediately subsequent to his injury.  Hence, while 
 
         claimant may have low back pain and may have such pain 
 
         concurrently with his work-related left leg condition, claimant 
 
         has not established that that pain is causally related to the 
 
         October 18, 1985 work injury.
 
         
 
              As regards claimant's left thumb, in that the record has not 
 
         demonstrated that claimant's cervical problems relate to his 
 
         October 18, 1985 work injury and in that the record does not 
 
         indicate claimant has loss of strength in the upper extremities, 
 
         evidence supporting the conclusion that claimant's injury of 
 
         October 18, 1985 was the proximate cause of claimant's left thumb 
 
         complaints is de minimis at best.  Claimant does not prevail in 
 
         showing the requisite causal relationship between his injury and 
 
         his left thumb complaints.
 
         
 
              Claimant has not shown that his injury has resulted in 
 
         permanent disability greater than the 40 percent permanent 
 
         partial disability of the left lower extremity which defendants 
 
         concede.  The record does not show that aftereffects or 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         compensatory changes from the injury resulted in permanent 
 
         impairment to the body as a whole.  Likewise, for reasons noted 
 
         above, the record has not demonstrated that claimant's neck, 
 
         right shoulder, low and thoracic back and left thumb complaints 
 
         have resulted in permanent disability related to the October 18, 
 
         1985 work injury.  All doctors agree that claimant has some level 
 
         of impairment to the left lower extremity.  Drs. Neiman and 
 
         MacMenamin concur on a 40 percent impairment rating for the left 
 
         lower extremity.  As both the treating orthopedic surgeon and an 
 
         evaluating neurologist concur on that assessment of impairment, 
 
         that assessment is accepted over Dr. Sinning's assessment of a 24 
 
         percent permanent impairment of a left lower extremity.  Iowa 
 
         Code section 85.34(2)(o) speaks of loss or loss of use of the leg 
 
         and not of loss of the lower extremity.  The claimant's actual 
 
         loss is to the leg as defined in that subsection, however.  Full 
 
         loss of the leg results in weekly compensation during 220 weeks.  
 
         Hence, claimant is entitled to weekly compensation for a 40 
 
         percent loss of use of the leg or for permanent partial 
 
         disability compensation for 88 weeks.
 
         
 
              We reach the question of claimant's healing period 
 
         entitlement.  Dr. MacMenamin released claimant to return to work 
 
         from his left leg injury on April 25, 1986.  Claimant has not 
 
         established that his myriad other complaints or his treatment for 
 
         those complaints relate back to his original October 18, 1985 
 
         work injury.  Further, nothing in the record indicates that there 
 
         was a reasonable expectation of improvement of claimant's 
 
         disabling leg condition after April 25, 1985.  Thus, claimant can 
 
         be considered to have reached maximum medical recovery relative 
 
         to his left leg condition on that date.  Claimant's healing 
 
         period extends from his date of injury through April 25, 1986.
 
         
 
                                 findings of fact
 
         Claimant was injured on October 18, 1985 while welding at work 
 
         when a boom weighing approximately 2000 pounds struck claimant.
 
         Claimant sustained a fracture of his left leg.
 
         Claimant also had a large superficial abrasion to his 
 
         mid-thoracic spine on the right.
 
         Claimant was hospitalized for surgical reduction and internal 
 
         fixation of the left leg fracture.
 
         Claimant had preexisting back pain treated with prescription 
 
         medications prior to October 18, 1985.
 
         Claimant used crutches on his hospital release.
 
         Crutch use resulted in back pain and a diagnosis of shoulder 
 
         strain in early January 1986.
 
         Claimant's complaints resolved with prescribed pain medication by 
 
         mid-January 1986.
 
         Claimant visited the emergency department on March 9, 1986 
 
         complaining of back pain.
 
         Claimant next had shoulder complaints in July 1986 while 
 
         attempting to install a shower unit at home.
 
         Claimant is 5 feet, 11 1/2 inches tall and weighs 280 pounds.
 
         Claimant had a supple neck with full range of motion when 
 
         hospitalized on October 19, 1985.
 
         Claimant has headaches.
 
         Claimant has degenerative changes in the cervical spine.
 
         Claimant has a possible cervical disc herniation.
 
         Claimant has high blood pressure.
 
         Claimant's headaches were treated both by reduction of his blood 
 
         pressure and with muscle relaxers concurrently.
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         The etiology of claimant's headaches and neck complaints is 
 
         unknown.
 
         Claimant does not have objective findings suggesting significant 
 
         thoracic or lumbar sacral back injury.
 
         Claimant's obesity is likely a factor in his back pain.
 
         Claimant has no loss of strength in the left upper extremity.
 
         Claimant's neck, right shoulder, lower and thoracic back and left 
 
         thumb complaints are claimant's headaches do not result from his 
 
         October 18, 1885 injury.
 
         Claimant's injury has resulted in a 40 percent permanent partial 
 
         impairment of the left leg.
 
         
 
                                conclusions of law
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that his injury of October 18, 1985 
 
         is the cause of the claimed disability to his left leg.
 
         
 
              Claimant has not established that his injury of October 18, 
 
         1985 is the cause of claimed disability to his neck, including 
 
         claimed disabling headaches, claimed disability to his right 
 
         shoulder, claimed disability to his lower and thoracic back, and 
 
         claimed disability to his left thumb.
 
         
 
              Claimant is entitled to healing period benefits from October 
 
         18, 1985 through April 25, 1986.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of October 18, 1985 of 40 percent of 
 
         the left leg.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants pay claimant eighty-eight (88) weeks of permanent 
 
         partial disability benefits at the rate of three hundred 
 
         twenty-five and 19/l00 dollars ($325.19) with benefits commencing 
 
         on April 26, 1986.
 
         
 
              Defendants pay claimant healing period benefits from October 
 
         18, 1985 through April 25, 1986 at the rate of three hundred 
 
         twenty-five and 19/l00 dollars ($325.19) per week.
 
         
 
              Defendants pay any accrued weekly benefits in a lump sum.
 
         
 
              Defendants receive credit for all benefits previously paid.
 
         
 
              Defendants pay interest on accrued benefits as set forth in 
 
         Iowa Code section 85.30.
 
         
 
              Defendants pay costs of this action including the cost of 
 
         the transcript of the arbitration hearing.
 
         
 
              Defendants file claim activity reports pursuant to rule 343 
 
         IAC 3.1(2).
 
         
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309-1398
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111 Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       1108.50; 1803; 1803.1
 
                                       Filed December 3, 1992
 
                                       BYRON K. ORTON
 
                                       LPW
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         KENNETH KETELSEN,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 808066
 
         HARNISCHFEGER CORPORATION,    :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         WAUSAU INSURANCE COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1108.50; 1803; 1803.1
 
         Found claimant had not established causal connection between his 
 
         complaints of low and thoracic back pain, thumb pain, neck pain, 
 
         shoulder pain, headache and work injury.  Objective findings did 
 
         not support claimant's complaints.  Record did not establish 
 
         claimant had significant back pain immediately subsequent to his 
 
         injury.  Examining neurologist opined claimant's low back 
 
         complaints likely related to claimant's obesity (5 feet, 11 inch 
 
         claimant weighed variously 330 lbs and 280 lbs).  Claimant had a 
 
         supple neck with full range of motion when hospitalized 
 
         immediately subsequent to injury.  Claimant had shoulder pain 
 
         complaints several months after his injury.  Record showed these 
 
         related to his use of crutches and resolved after crutch use 
 
         ended.  Subsequent shoulder complaints occurred approximately 
 
         nine months after the injury and after a lifting incident at 
 
         home.  Claimant had had medical treatment for shoulder pain prior 
 
         to the injury as well.  Claimant received treatment relief of 
 
         hypertension and treatment with muscle relaxants concurrently.  
 
         Both treatments were intended to relieve his headaches.  Record, 
 
         therefore, was inconclusive as regards the etiology of claimant's 
 
         headaches.  No evidence is recorded to support thumb complaints.
 
         Injury found causally related to disability to left leg.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH KETELSEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 808066
 
         HARNISCHFEGER CORPORATION,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
          Insurance Carrier,
 
          Defendants.
 
          
 
          
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kenneth 
 
         Ketelsen, claimant, against Harnischfeger Corporation, employer 
 
         (hereinafter referred to as Harnisch) , and Wausau Insurance 
 
         Companies, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on October 
 
         18, 1985.  On July 24, 1989, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. oral testimony 
 
         and written exhibits were received during the hearing from the 
 
         parties.  The exhibits offered into the evidence are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On October 18, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with Harnisch.
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION
 
         Page 2
 
         
 
         
 
              2. Claimant is seeking temporary total disability or healing 
 
         period benefits from October 18, 1985 and it was agreed that this 
 
         is the day claimant last worked in any capacity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant's  rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be
 
         $325.19.
 
              4. All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether there is a causal relationship between the work 
 
         injury and the claimed disabilities; and.,
 
         
 
              II. The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Harnisch from February 
 
         11, 1974 until the work injury.  Initially, claimant was a class 
 
         C machinist operating drill presses.  Later on he was promoted to 
 
         a class B machinist and began operating mills and lathes.  
 
         Claimant then was offered a class A machinist job operating 
 
         automatic machines but he turned it down and transferred to 
 
         welding.        Claimant was performing the welding job at the 
 
         time of the work injury herein.  Claimant testified that his job 
 
         at Harnisch was the best paying job he ever had in his life.  The 
 
         Harnisch plant, in the Cedar Rapids, Iowa area where claimant had 
 
         been working, was permanently closed for economic reasons by the 
 
         company during claimant's recovery from the injury.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified that while welding on a large boom weighing 
 
         over 2,000 pounds, the boom slipped from its moorings striking 
 
         the claimant; driving him down to the floor;
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 3
 
         
 
         
 
         and pinning his left foot underneath him.  Claimant said that the 
 
         various parts of the boom struck his middle and low back, the 
 
         base of his neck and his right shoulder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was immediately hospitalized for two weeks.  
 
         According to his treating physician, Hugh P. MacMenamin, M.D., an 
 
         orthopedic surgeon, initial treatment involved claimant's left 
 
         leg injury.    This was diagnosed as a fracture requiring 
 
         surgical reduction and internal fixation.  Follow-up treatment 
 
         after the surgery consisted of medicine and physical therapy.    
 
         Claimant was placed into braces and used crutches for several 
 
         weeks following the injury.  Dr. MacMenamin stated on April 1, 
 
         1986, that claimant's knee condition had stabilized and on April 
 
         14, 1986, he gave claimant a permanent partial impairment rating 
 
         to the lower leg.  Dr. MacMenamin then released claimant to 
 
         return to work with no excessive or prolonged standing or walking 
 
         with avoidance of squatting and crawling.  Claimant was still 
 
         wearing a knee brace at the time of his release.
 
         
 
              Shortly after the release in May 1986, Dr. MacMenamin 
 
         reported claimant's complaints of persistent low back pain.  In 
 
         July 1986, claimant reported  thumb and right shoulder pain, neck 
 
         pain and dizziness.  Although such complaints were not noted 
 
         earlier in Dr. MacMenamin's written reports, the doctor explained 
 
         in his deposition testimony that claimant did complain of back, 
 
         shoulder and neck pain after the injury but was not treated until 
 
         later as his primary focus was on the initial treatment of 
 
         claimant's leg.  Claimant testified that his primary injury and 
 
         pain was located in his leg.  He said that it was not until his 
 
         leg began to feel better that he noticed the other pains and 
 
         problems in his body.  Claimant's back and right shoulder 
 
         problems were diagnosed by Dr. MacMenamin as an aggravation of a 
 
         preexisting degenerative joint disease.  The doctor treated 
 
         claimant with medication and physical  therapy.  Claimant was 
 
         referred by Dr. MacMenamin to a neurologist, Winthrop S. Risk, 
 
         M.D., for treatment of the neck pain and dizziness in June 1986.  
 
         Dr. MacMenamin indicated that claimant did not report any thumb 
 
         pain until July 1987.  At that time claimant also began to 
 
         complain of right knee problems.  Claimant states that he 
 
         believes this is due to the injury because of the overuse of the 
 
         right leg caused by the left leg work injury.  Dr. MacMenamin has 
 
         not rendered an opinion as to the causal  relationship of the 
 
         right leg difficulties.  On March 12, 1987, Dr. MacMenamin opined 
 
         that claimant has a 28 percent permanent partial impairment to 
 
         the body as a whole under AMA Guidelines due to his left leg, 
 
         left thumb, low back and right shoulder problems, all of which he 
 
         attributes to the work injury.  In his rating he stated that he 
 
         excluded claimant's preexisting problems in
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 4
 
         
 
         
 
         the shoulder and back.  In September 1986, Dr. MacMenamin states 
 
         that it was obvious that due to his disabilities, claimant would 
 
         not be able to return to his former welding and machinist work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Risk treated claimant upon a diagnosis of post-traumatic 
 
         cervical pain with temporary headaches.  He stated that claimant 
 
         reached maximum healing from his treatment of this condition on 
 
         September 8, 1986, and that claimant suffers from a 5-10 percent 
 
         permanent partial impairment due to these problems which he 
 
         attributes to the October 18, 1985 injury.  Dr. Risk has imposed 
 
         a 30 pound lifting restriction upon claimant's activities.       
 
         According to the records of Joseph Galles, M.D., specialty 
 
         unknown, claimant complained to him of back and shoulder pain on 
 
         one occasion in September 1984.     Treatment at that time 
 
         appeared to end early in October 1984.
 
         
 
              John R. Sinning, M.D., an orthopedic surgeon, evaluated 
 
         claimant in November 1987.       Dr. sinning has opined that 
 
         there is no causal connection between claimant's work injury and 
 
         his right leg, neck, back and shoulder difficulties.  He rates 
 
         claimant as having only a 24 percent permanent partial impairment 
 
         to the left leg as a result of the work injury.  James R. 
 
         LaMorgaese, M.D., stated in April of 1988, that claimant has a 
 
         small disc herniated at C5-6 level and that "may have been 
 
         aggravated by the previous injury."  In May 1988, claimant was 
 
         evaluated by Richard Neiman, M.D., a neurologist in Iowa City, 
 
         Iowa, who disagrees with the causal connection of the work injury 
 
         to claimant's shoulder, neck and left arm problems from his 
 
         review of the medical records.  Dr. Neiman basis his opinion on 
 
         the lack of reports of such pain soon after the injury.  Dr. 
 
         Neiman states that claimant may have injured his back in his work 
 
         injury, but his current back problems are due to his massive 
 
         obesity.  Claimant testified at hearing that he weighs the same 
 
         now as he did at the time of the work injury.
 
         
 
              Claimant testified that he has looked for work in the area 
 
         of his residence but employers are  not interested when they 
 
         learn of his physical problems.  Claimant has been taking several 
 
         retraining courses at a local community college.  At the time of 
 
         hearing he was involved in an engineering/draftsman training 
 
         program.  Claimant said that jobs in this field, according to his 
 
         investigation, pay approximately $8.00 an hour.  Claimant had 
 
         only just begun this two year course of study at the time of the 
 
         hearing.
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION
 
         Page 5
 
         
 
         
 
              Claimant states that he continues to have all of his leg, 
 
         back, neck and shoulder pain with activity and cannot walk or sit 
 
         for prolonged periods of time without taking medication.
 
         
 
              Claimant is 43 years of age and has a high school education.   
 
         Claimant's only past employment has been in semi-skilled manual 
 
         labor factory work and glass installation, all of which required 
 
         heavy lifting, repetitive bending, twisting and prolonged 
 
         standing and sitting.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There was no evidence offered as to claimant's potential for 
 
         a successful completion of his current retraining efforts.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note: A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant will be 
 
         found credible.
 
         
 
              I. The claimant has the burden of proving by a preponderance 
 
         of the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury, was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury.  Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 6
 
         
 
         
 
         of the premise given the expert and other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.      Anderson V..Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
         (Iowa 1974).  To establish compensability, the injury need only 
 
         be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.     In the 
 
         case of a preexisting condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, defendants are primarily relying 
 
         upon the evaluations by two nontreating physicians.  Both of 
 
         these physicians base their opinions upon a lack of back, 
 
         shoulder and neck complaints at the time or soon after the 
 
         injury.  However, Dr. MacMenamin clearly testified in his 
 
         deposition that claimant did report such complaints and he simply 
 
         did not put them down in his office notes because his primary 
 
         focus of treatment at the time was with claimant's left leg.  
 
         Drs. Sinning and Neiman also are not satisfied with the results 
 
         of their subjective testing of claimant.  However, such testing 
 
         at a single point in time does not have the same weight and 
 
         credibility as the extensive clinical experience of both Dr. 
 
         MacMenamin and Dr. Risk.  The opinions of Dr. MacMenamin and Dr. 
 
         Risk are clear and were unshakeable at the time of the deposition 
 
         testimony.  Therefore, the greater weight of the credible 
 
         evidence indicates that there is a causal connection between the 
 
         work injury and permanent disability as a result of claimant's 
 
         left leg, back, left thumb and right shoulder difficulties.  The 
 
         findings in this decision will be based upon the ratings of Dr. 
 
         macmenamin and Dr. Risk.
 
         
 
              II. Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34 (2) (u) . However, unlike scheduled member 
 
         disabilities, the degree of
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 7
 
         
 
         
 
         disability under this provision is not measured solely by the 
 
         extent of a functional impairment or loss of use of a body 
 
         member.  A disability to the body as a whole or an "industrial 
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 
 
         258 N.W. 899 (1935).  A physical impairment or restriction on 
 
         work activity may or may not result in such a loss of earning 
 
         capacity.                The extent to which a work injury and a 
 
         resulting medical condition has resulted in an industrial 
 
         disability is determined from examination of several factors.  
 
         These factors include the employee's medical condition prior to 
 
         the injury, immediately after the injury and presently; the situs 
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although he was very obese and had a prior back and shoulder 
 
         difficulty complaint in 1984., claimant's overall medical 
 
         condition before the work injury according to the evidence 
 
         submitted was excellent and he had no ascertainable functional 
 
         impairments or disabilities.  Claimant was able to fully perform 
 
         physical tasks involving heavy lifting, repetitive lifting, 
 
         bending, twisting and stooping and prolonged sitting and 
 
         standing.       Claimant's physicians after the work injury have 
 
         given claimant a very high permanent impairment rating to the 
 
         body as a whole.  They have also severely restricted claimant's 
 
         physical activities.  Claimant's primary treating physician, Dr. 
 
         MacMenamin, advises claimant not to return to his former 
 
         machinist and welding work.  Claimant's unsuccessful job search 
 
         is not surprising.  He understandably has arrived at the 
 
         conclusion that the only pathway back to the work force is 
 
         through retraining.  Unfortunately, defendants have rendered 
 
         little assistance in this effort.
 
         
 
              Consequently, claimant has suffered a very significant 
 
         permanent loss of actual earnings as a result of his disability.  
 
         Claimant is 43 years of age and should  be in the most productive 
 
         years of his working life.  His loss of
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 8
 
         
 
         
 
         earnings from employment due to his disability is more severe 
 
         than would be the case for a younger or oldest individual.
 
         
 
              Claimant has shown considerable motivation to seek other 
 
         employment and to attempt a retraining effort.
 
         
 
              The fact that the Cedar Rapids plant, where claimant was 
 
         working at the time of the work injury, has been closed due to 
 
         economic reasons is really not relevant to claimant's disability 
 
         rating.  Regardless of this closure, claimant is unable to return 
 
         to work to the work he performed in the plant.
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at hearing, little is shown to indicate 
 
         claimant's potential for vocational rehabilitation.  In any 
 
         event, this agency has held that predicting the success of any 
 
         vocational retraining effort. and/or any future employment 
 
         searches is speculation and not a proper factor in measuring an 
 
         injured worker's current industrial disability.   See Umpress v. 
 
         Armstrong Rubber Co., Appeal Decision filed August 27, 1987 and 
 
         Stewart v. Crouse Cartage Co., Appeal Decision filed February 20, 
 
         1987.  This agency, however, is available upon proper application 
 
         in the future to review such matters when more facts become 
 
         available as to claimant's retraining efforts.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              . Claimant today remains unemployed after almost five years 
 
         following the work injury.  The odd-lot doctrine was not relied 
 
         upon by claimant and not applied.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 75 percent loss in 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 375 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 75 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant may be entitled to weekly benefits during 
 
         his healing period under Iowa Code section 85.34 from the date of 
 
         injury until he returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work he 
 
         was performing at the time of injury, or until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION
 
         Page 9
 
         
 
         
 
              Dr. MacMenamin was a little unclear as to when claimant 
 
         reached maximum healing from all of his injuries.  He initially 
 
         released claimant for the leg injury but then began a new period 
 
         of treatment for his shoulder and back problems.  However, the 
 
         best indicator of such a time when the doctor felt-that claimant 
 
         had. reached maximum healing is when he issued his final 
 
         permanent partial impairment rating.  This occurred with Dr. 
 
         Macmenamin's rating on March 12, 1987.  Dr. Risk's maximum 
 
         healing time occurred prior to that time.  Therefore, claimant 
 
         will be awarded healing period benefits from the date of injury 
 
         until March 12, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated he was testifying truthfully.
 
         
 
              2. The work injury of October 18, 1985, was a cause of a 
 
         period of disability from work beginning on October 18, 1985 
 
         through March 12, 1987, at which time claimant reached maximum 
 
         healing.  During this time, claimant received extensive treatment 
 
         of his work injuries involving the left leg, low back, left 
 
         thumb, neck, head and right shoulder.  Treatment consisted of 
 
         various treatment moda lities such as limitations on activities, 
 
         medication for pain and inflammation, home exercises, supervised 
 
         physical therapy and surgery.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. The work injury of October 18, 1985, is a cause of a 28 
 
         percent permanent partial impairment to the body as a whole 
 
         arising from the loss of use of the left leg, left thumb, right 
 
         shoulder and low back.  The work injury of October 18, 1985, is 
 
         also a cause of a 5-10 percent permanent partial impairment to 
 
         the body as a whole arising from the loss of use of the neck and 
 
         head.  Claimant has been restricted by his physicians from 
 
         prolonged  walking, standing and lifting over 30 pounds.  
 
         Claimant experiences pain from any strenuous activity.  Claimant 
 
         experiences pain from prolonged sitting and standing without 
 
         taking medication.  Claimant had no chronic pain problems with 
 
         any portion of his body before October 18, 1985.
 
         
 
              4. The work injury of October 18, 1985 and the resulting 
 
         permanent partial impairment is a cause of a 75 percent loss of 
 
         earning capacity.      Claimant is 43 years of age and has a high 
 
         school education.  Claimant has no ascertainable loss of earning 
 
         capacity prior to the work injury.  Claimant's physician imposed 
 
         work restrictions prevent a return to the job he was performing 
 
         at the time of the injury.  Claimant is also unable to return to 
 
         any of the
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION 
 
         Page 10
 
         
 
         
 
         manual labor jobs he has held in the past.  Claimant's employment 
 
         in manual labor occupations is the type of occupation for which 
 
         he is best suited given his work history and education.  Despite 
 
         good motivation and effort to return to gainful employment, 
 
         claimant has not been successful in doing so.    Claimant has 
 
         suffered a severe loss in actual earnings from his injury.   
 
         claimant is currently attempting to complete a retraining course 
 
         as a draftsman but the success of this venture is unknown at this 
 
         time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 73 weeks 
 
         of healing period benefits and 375 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant three hundred 
 
         seventy-five (375) weeks of permanent partial disability benefits 
 
         at the rate of three hundred twenty-five and 19/100 dollars 
 
         ($325.19) from March 13, 1987.
 
         
 
              2. Defendants shall pay healing period benefits to claimant 
 
         from October 18, 1985 through March 12, 1987 at the rate of three 
 
         hundred twenty-five and 19/100 dollars ($325.19) per week.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         KETELSEN V. HARNISCHFEGER CORPORATION
 
         Page 11
 
         
 
         
 
              Signed and filed this 21st day of February, 1990.
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines IA 50309-1398
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803
 
                                         Filed February 21, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH KETELSEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 808066
 
         HARNISCHFEGER CORPORATION,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803. - Extent of permanent partial disability benefits.
 
         
 
              Seventy-five percent permanent partial disability benefits 
 
         awarded as claimant has failed to return to work and must seek 
 
         retraining to find suitable but lower paying work.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JACKIE E. GARBERDING,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            MID STATES PETROLEUM          :         File No. 808137
 
            ENGINEERING, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL OF DEWITT,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Jackie E. Garberding against defendant employer Mid States 
 
            Petroleum Engineering, Inc., defendant insurance carrier 
 
            Iowa Mutual of DeWitt and defendant Second Injury Fund of 
 
            Iowa to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of an injury sustained 
 
            October 25, 1985.  This matter came on for hearing before 
 
            the undersigned in Storm Lake, Iowa, on December 27, 1989, 
 
            and was considered fully submitted at the close of hearing.  
 
            Both parties subsequently filed briefs.
 
            
 
                 The record in this proceeding consists of claimant's 
 
            exhibits 1 through 3, Second Injury Fund exhibits 1 through 
 
            3, and the testimony of claimant.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at hearing, the parties have stipulated that 
 
            claimant sustained an injury on October 25, 1985 which 
 
            caused a permanent 30 percent loss of the use of claimant's 
 
            left leg and that claimant sought no further relief against 
 
            defendants Mid States Petroleum Engineering, Inc., and Iowa 
 
            Mutual of DeWitt.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The sole issue presented for resolution is the extent 
 
            to which claimant is entitled to compensation from the 
 
            Second Injury Fund of Iowa.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified that he was seriously injured in an 
 
            automobile accident on May 28, 1977.  A vehicle driven by 
 
            claimant rolled over several times after a tire blowout.
 
            
 
                 Claimant sustained numerous broken bones and was 
 
            immobilized for a substantial time, in body traction for 
 
            three months.
 
            
 
                 Claimant testified to breaking bones in his left leg 
 
            and knee, right leg, chest and, he believed, one arm.  He 
 
            underwent surgery with insertion and eventual removal of a 
 
            pin in his left leg and knee and both legs were casted 
 
            several times.
 
            
 
                 Claimant testified to seeing his treating physician, 
 
            Alan Pechacek, M.D., in December, 1977.  At that time he had 
 
            a bad limp in the left leg, had a sore right leg, and sore 
 
            ribs.  He testified that Dr. Pechacek imposed limitations of 
 
            "no lifting, no climbing."
 
            
 
                 Claimant also testified that as of the time of hearing 
 
            he had very few problems with his right leg, but had 
 
            numerous problems with his left leg, the leg that was 
 
            re-injured in October, 1985.
 
            
 
                 Claimant also testified to being genetically a dwarf, 
 
            standing approximately four feet tall.
 
            
 
                 Admission records of St. Lukes Medical Center dated May 
 
            30, 1977 reflect that claimant suffered rib fractures, a 
 
            comminuted left femoral condylar fracture, and a fracture of 
 
            the right tibial plateaus.  Secondary diagnosis was 
 
            achondroplasia.  Those records and the records of Dr. 
 
            Pechacek show a lengthy rehabilitation with a Steinmann pin 
 
            inserted in the left lower tibia with application of 
 
            skeletal traction.  A radiologist's report of May 31, 1977 
 
            shows numerous fractured ribs, a fracture at the base of the 
 
            fourth metacarpal of the left hand, a comminuted fracture of 
 
            the metaphysis of the right tibia extending into the plateau 
 
            surface with fragments in good position and apparent chronic 
 
            deformity of the knee and a severely comminuted fracture of 
 
            the intracondular region of the left femur with an 
 
            associated fracture of the left patella without 
 
            displacement.
 
            
 
                 Progress notes of July 5, 1977 show that the left femur 
 
            was united and overall alignment was good.  Bilateral long 
 
            leg walking casts were applied and claimant was discharged 
 
            as ambulatory on July 8, 1977.  Dr. Pechacek's notes of July 
 
            7 stated that claimant should be able to get around all 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            right at home except for steps.
 
            
 
                 Claimant was seen again by Dr. Pechacek on October 28, 
 
            1977, five months post-injury.  He then complained of an 
 
            aching left leg which was stiff in the morning.  Right knee 
 
            was doing well.  There was no problem with claimant's hand.  
 
            X-rays of the knees showed satisfactory union of both 
 
            fractures with incomplete consolidation of the left femur 
 
            fracture.
 
            
 
                 Claimant was seen again on December 30, 1977.  He was 
 
            described as generally doing quite well.  Both knees were 
 
            generally doing well with no aching or swelling, but 
 
            claimant did suffer some tiredness.  Claimant complained of 
 
            some crepitation of the left patella towards the end of 
 
            extension, although no swelling or effusion.  Dr. Pechacek 
 
            noted mild subpatellar crepitation at the end of extension 
 
            on the left.  Both knees had full range of motion.  The 
 
            right knee had no crepitation.
 
            
 
                 Dr. Pechacek wrote Assistant Attorney General Robert 
 
            Wilson on November 3, 1988:
 
            
 
                 I am responding to your letter of October 5, 1988, 
 
                 regarding Mr. Garberding and any resultant 
 
                 functional disability or permanent physical 
 
                 impairments that he may have sustained as a result 
 
                 of injuries that occurred in 1977.  Your letter 
 
                 indicates that you have already received copies of 
 
                 my records regarding Mr. Garberding and his 
 
                 injuries, care, and treatment.  As you will note, 
 
                 I have not seen Mr. Garberding since December 30, 
 
                 1977.  At that time, he appeared to have made very 
 
                 satisfactory recovery from his injuries and had 
 
                 been released back to his job in construction.
 
            
 
                 I have not seen him since then for re-evaluation 
 
                 or treatment for any problems related to his 
 
                 injuries of 1977.  Therefore, I have to assume 
 
                 that he continued to do well and had no permanent 
 
                 functional difficulties, or permanent physical 
 
                 impairments resulting from those injuries.  If he 
 
                 had any problems, he must have received evaluation 
 
                 and treatment from some other physician.  However, 
 
                 that information would have to be obtained from 
 
                 Mr. Garberding.
 
            
 
                 The voluminous medical reports in evidence (it should 
 
            be pointed out that claimant submitted numerous duplicate 
 
            copies in violation of paragraph 10(2) of the hearing 
 
            assignment order filed July 19, 1989) make frequent 
 
            reference to claimant's status as an achondroplastic dwarf 
 
            with characteristic bowed and foreshortened long bones.  For 
 
            example, the radiologist's report of June 26, 1977 (the 
 
            signature is difficult to read, but appears to be that of 
 
            Dr. Selander) notes congenital deformity of the distal femur 
 
            and proximal tibia and fibula.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was also seen for evaluation by Jessie K. 
 
            Easton, M.D.  Dr. Easton wrote claimant's counsel on January 
 
            27, 1989.  Dr. Easton's findings included the following:
 
            Range of motion was estimated using a goniometer for neck, 
 
            shoulders, elbows, wrists, hips, knees and ankles; also 
 
            lumbar rotation and lateral bend.  His lumbar spine did not 
 
            flex or extend, being relatively fixed in extension with 
 
            perhaps some lessening of extension in supine hip flexed 
 
            position.  Extension tended to increase with legs extended 
 
            as he was not able to get either leg down flat.  This seemed 
 
            to be bony development abnormality rather than true flexion 
 
            contracture attributable to soft-tissue tightness.  He had 
 
            limitation of shoulder motion, elbow extension, wrist 
 
            flexion and extension, ankle inversion and eversion, hip 
 
            rotation and some lack of knee extension on the right most 
 
            of which seemed to be due to his achondroplasia.  Finger and 
 
            thumb motion were also slightly limited.  He had unequal leg 
 
            lengths; measuring from the anterior superior iliac spine to 
 
            the medial malleolus and going around his bent knees, he had 
 
            about 1/2 inch difference in length.  Measuring from the 
 
            umbilicus, the leg length difference was more marked with 
 
            approximately 2 cms shorter on the left.  Circumference of 
 
            the calves 12 cms. above the medial malleolus was 35 cms. on 
 
            the left compared to 35 1/2 on the right.
 
            
 
                 Claimant's injury of October 23, 1985 occurred when he 
 
            was struck by collapsing scaffolding.  Claimant suffered a 
 
            fracture of the skull and a refracture of his left leg above 
 
            the knee.  Claimant underwent an extensive course of 
 
            treatment to the left leg with delayed healing.  The parties 
 
            have stipulated and the second treating physician, A. J. 
 
            Wolbrink, M.D., opined that claimant sustained a 30 percent 
 
            permanent partial disability of the left leg resulting from 
 
            this work incident.
 
            
 
                           applicable law and analysis
 
            
 
                 The Iowa Second Injury Compensation Act is set forth in 
 
            Iowa Code sections 85.63, et seq.  The pivotal threshold 
 
            issue as to liability of the Fund arises from the language 
 
            set forth in Iowa Code section 85.64:
 
            
 
                 If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 
                 disability.  In addition to such compensation, and 
 
                 after the expiration of the full period provided 
 
                 by law for the payments thereof by the employer, 
 
                 the employee shall be paid out of the "Second 
 
                 Injury Fund" created by this division the 
 
                 remainder of such compensation as would be payable 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 for the degree of permanent disability involved 
 
                 after first deducting from such remainder the 
 
                 compensable value of the previously lost member or 
 
                 organ.
 
            
 
                 Therefore, in order to find liability on the part of 
 
            the Fund, it must be concluded that claimant has previously 
 
            lost the use of one hand, arm, foot, leg or eye and then has 
 
            suffered the loss or loss of use of "another such member or 
 
            organ."
 
            
 
                 The evidence in this case shows that claimant has not 
 
            met this threshold showing.  Claimant's 1977 injury resulted 
 
            in damage to his thorax and both legs.  The subject injury 
 
            resulted in damage to claimant's left leg.  Any permanent 
 
            injury in 1977 to claimant's body as a whole or to his left 
 
            leg does not result in a triggering of the Second Injury 
 
            Fund Act because the 1985 injury was not to "another such 
 
            member" as required by the statute.  Anderson v. Second 
 
            Injury Fund, 262 N.W.2d 789 (Iowa 1978) specifies that a 
 
            second loss to the same scheduled member is not compensable 
 
            under the Second Injury Fund Act; the thorax, of course, is 
 
            not a scheduled member at all.
 
            
 
                 For claimant to recover benefits from the Second Injury 
 
            Fund, he must therefore show that his "first" injury 
 
            resulted in the loss or loss of use of his right leg.  The 
 
            only physician to have expressed an opinion on this issue is 
 
            the treating physician, Alan Pechacek, M.D.  Dr. Pechacek 
 
            found that claimant had made a very satisfactory recovery 
 
            and had been released back to his job in construction.  He 
 
            assumed that claimant had no permanent functional 
 
            difficulties or permanent physical impairments resulting 
 
            from his injuries.  Of course, this would also indicate that 
 
            claimant suffered no permanent impairment to his left leg as 
 
            a result of the 1977 injury.
 
            
 
                 Claimant's brief points out that the evidence includes 
 
            the evaluation of Dr. Easton.  Claimant further states that 
 
            the evaluation includes disability ratings for both right 
 
            and left extremities and the body as a whole.  As has been 
 
            seen, evidence of functional impairment to the left leg or 
 
            the body as a whole cannot trigger Second Injury Fund 
 
            liability.  With respect to claimant's right leg, it should 
 
            be noted that Dr. Easton does not attribute any functional 
 
            impairment to the 1977 injury as opposed to claimant's 
 
            status as an achondroplastic dwarf.  Dr. Easton found that 
 
            claimant had limitation of shoulder motion, elbow extension, 
 
            wrist flexion and extension, ankle inversion and eversion, 
 
            hip rotation and some lack of knee extension on the right, 
 
            most of which seemed to be due to achondroplasia.  In the 
 
            last paragraph of his report, Dr. Easton found that claimant 
 
            had some residual problems with the left leg, neck and 
 
            shoulders relating to the 1985 injury.  He does not specify 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that any residual problems relating to claimant's right leg 
 
            relate to the 1977 injury as opposed to achondroplasia.
 
            
 
                 A congenital condition may qualify as a prior "loss" 
 
            for purposes of Second Injury Fund compensation.  Shank v. 
 
            Mercy Hospital Medical Center, file number 719627 (App. 
 
            Decn., August 28, 1989).  But, as shown by Dr. Easton's 
 
            evaluation, claimant's achondroplasia affects the body as a 
 
            whole (e.g., hip, shoulder) rather than only a scheduled 
 
            member.
 
            
 
                 Claimant himself testified that while he continues 
 
            having serious problems with his left leg, he has very few 
 
            problems with the right leg.  Absent any medical evidence 
 
            that claimant sustained a permanent impairment to his right 
 
            leg in 1977, and considering further claimant's own 
 
            testimony on that issue, it must be held that claimant has 
 
            failed to meet his burden of proof in establishing the 
 
            threshold requirement of a first injury to one of several 
 
            specified members and a second injury to "another such 
 
            member."  Accordingly, the Second Injury Fund of Iowa has no 
 
            liability on this claim.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  Claimant sustained an injury on May 28, 1977 in an 
 
            automobile accident.  He suffered fractures to the hand, 
 
            numerous ribs, and both legs.
 
            
 
                 2.  Although claimant testified that he now suffers 
 
            considerable problems with his left leg and very few to his 
 
            right leg, the only medical evidence as to residuals of the 
 
            1977 injury are to the effect that claimant suffered no 
 
            permanent impairment.
 
            
 
                 3.  As stipulated, claimant sustained an injury arising 
 
            out of and in the course of his employment with Mid States 
 
            Petroleum Engineering, Inc., on October 25, 1985.
 
            
 
                 4.  In that injury, claimant suffered a stipulated loss 
 
            of 30 percent of the use of his left leg.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusions of law are made:
 
            
 
                 1.  Liability of the Second Injury Fund is triggered 
 
            when there has been a loss or loss of use of one of several 
 
            specified scheduled members and a subsequent loss to another 
 
            such member.
 
            
 
                 2.  Claimant has failed to meet his burden of proof in 
 
            establishing a loss or loss of use of two of the specified 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            scheduled members set forth in Iowa Code section 85.64; 
 
            accordingly, the Second Injury Fund bears no liability on 
 
            this claim.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs of this action shall be assessed to claimant 
 
            pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Willis Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Douglas W. Hansen
 
            Attorney at Law
 
            316 East Sixth Street
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3202
 
                           Filed November 28, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JACKIE E. GARBERDING,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :
 
            MID STATES PETROLEUM     :         File No. 808137
 
            ENGINEERING, INC.,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            IOWA MUTUAL OF DEWITT,   :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3202
 
            In first injury, claimant injured ribs and fractured both 
 
            legs, left worse than right.  No medical proof of permanent 
 
            impairment was offered, although claimant testified to 
 
            continuing left leg problems.
 
            Second injury was to left leg, another fracture.  Absent 
 
            proof of prior loss to "another such member" Fund liability 
 
            was not triggered.
 
            Distinguishing Shank v. Mercy Hospital Medical Center, file 
 
            number 719627 (App. Decn. 1989), claimant had prior 
 
            congenital "loss" (as an achondroplastic dwarf), but loss 
 
            was to body as a whole, not "another such member."
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THEODORE DONOVAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 808148
 
         PLIBRICO SALES AND SERVICE,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Theodore 
 
         Donovan, claimant, against Plibrico Sales and Service, employer 
 
         (hereinafter referred to as Plibrico), and Liberty Mutual 
 
         Insurance Company, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on October 15, 1985.  
 
         On April 29, 1988 a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Homer Loghry, Larry Byers and Patrick 
 
         Black.  The exhibits received into the evidence at the hearing 
 
         are listed in the prehearing report.  According to the prehearing 
 
         report the parties have stipulated to the following matters:
 
         
 
              1.  On October 15, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with 
 
         Plibrico;
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $349.22;
 
         
 
              3.  Claimant is seeking temporary total or healing period 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   2
 
         
 
         benefits from October 18, 1985 to May 16, 1986 and from June 3, 
 
         1986 to April 7, 1987 and defendants agree that he was not 
 
         working during these periods of time;
 
              4.  It the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole;
 
         
 
              5.  if permanent disability benefits are awarded, they 
 
         shall begin as of April 7, 1987;
 
         
 
              6.  Claimant is seeking payment of the medical bills 
 
         listed in the prehearing report.  It was agreed that the 
 
         provider of those services would testify that their charges are 
 
         fair and reasonable and defendants are not offering contrary 
 
         evidence.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             II.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
              In the prehearing report, claimant attempts to raise an 
 
         issue of entitlement to penalty benefits under Iowa Code section 
 
         86.13 for an unreasonable termination of weekly benefits in this 
 
         case.  No such issue was raised at the prehearing conference and 
 
         no such issue was listed as a contested issue on the hearing 
 
         assignment order of January 25, 1988.  There has been no request 
 
         from claimant to amend this hearing assignment order in the 
 
         months prior to hearing.  It states clearly in the instructions 
 
         in the prehearing report form given to the parties prior to the 
 
         hearing that the prehearing report cannot raise issues not raised 
 
         at the prehearing conference.  Therefore, an 86.13 penalty issue 
 
         will not be dealt with in this decision.
 
         
 
              Furthermore, Iowa Code section 86.13 penalty benefits was 
 
         not raised in the original petition nor in any amendment to the 
 
         petition prior to the hearing.  Consequently, such an issue will 
 
         not be set back into assignment for further proceedings after 
 
         this decision.
 
         
 
                             SUMMARY OF THE EVIDENCE
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   3
 
         
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         it any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has been working as a millwright 
 
         out of a union hall for the last 28 years.  Claimant said that a 
 
         millwright performs work involving all forms of machinery such as 
 
         large turbines and mills.  Claimant described the work as very 
 
         heavy at times requiring the manhandling and lifting of materials 
 
         weighing up to 150 pounds.  Claimant also said that despite the 
 
         heavy nature of the work, a millwright's job can involve very low 
 
         tolerances (or margin for error) while working in such machines 
 
         as electric turbines.  Claimant has worked as a first line 
 
         manager or supervisor much of the time over the last 28 years.  
 
         Despite his supervisory work, claimant states that a millwright 
 
         supervisor must assume a "hands on" approach to the job in 
 
         assisting and training his subordinates.  Claimant said that 
 
         bending, stooping, lifting, crawling, walking and climbing 
 
         ladders are a regular part of his millwright supervisory work.  
 
         Claimant earned between $15 and $16 per hour in his job at the 
 
         time of the alleged injury.  After the alleged injury, claimant 
 
         returned to work for a different employer between May 16, 1986 
 
         and June 3, 1986.  Claimant said that he was then laid off at his 
 
         own request because he could not physically perform the duties of 
 
         his job.  Claimant has not worked in any capacity since that 
 
         time.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified at the hearing and in his 
 
         depositions that on the date of injury his crew was working on a 
 
         coal mill at the Plibrico plant and needed a work platform.  
 
         Claimant said that he placed such a platform next to the mill 
 
         with a forklift.  In an attempt to point out the location of the 
 
         platform to his men, claimant said that he tripped on a ladder 
 
         and fell severely skinning one of his legs.  After the incident, 
 
         claimant said that his back began to feel stiff but he felt that 
 
         the problem was only temporary.  The next morning after getting 
 
         out of bed claimant took one step and felt severe low back pain 
 
         at the belt line which radiated into his left leg.
 
         
 
              Claimant first sought treatment from a chiropractor, L. M. 
 
         Jacobs, D.C., whose treatment consisted of adjustments and 
 
         ultrasound therapy over the next several: weeks.  After claimant 
 
         continued to experience symptoms despite this treatment, Dr. 
 
         Jacobs referred claimant to Samar K. Ray, M.D., an orthopedic 
 
         surgeon, on December, 1985.  Upon a diagnosis of lumbar strain, 
 
         Dr. Ray treated claimant conservatively and ordered a CT scan and 
 
         a myelogram test.  Dr. Ray stated in his reports that the results 
 
         of these tests were "essentially negative."  Claimant was 
 
         referred back to the chiropractor on December 19, 1985.  Claimant 
 
         was then sent by the insurance company to another orthopedic 
 
         surgeon in January, 1986, Lonnie Mercier, M.D.  Dr. Mercier 
 
         interpreted the CT scan and myelogram as showing a bulging disc 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   4
 
         
 
         at L4-5 but no herniation.  Dr. Mercier also treated claimant 
 
         conservatively with medication, a lumbosacral corset, physical 
 
         therapy which included flexion exercises, diathermy, massage and 
 
         "work hardening."  On March 31, 1986, Dr. Mercier reported that 
 
         claimant had reached maximum medical improvement in that claimant 
 
         should return to "some light work" with a "fair" prognosis of 
 
         relief of symptoms.      The doctor did not recommend further 
 
         treatment.  In April, 1986, the doctor opined that claimant 
 
         suffered a five percent permanent partial impairment to the body 
 
         as a whole and released claimant to return to work on May 5, 
 
         1986.   According to Dr. MercierOs reports, claimant was to avoid 
 
         prolonged standing and lifting over 25 pounds when he returned to 
 
         work.  Claimant testified that although he continued to have back 
 
         and leg pain and numbness, he returned to work at the insistence 
 
         of Dr. Mercier that he try.
 
         
 
              Claimant testified that through the assistance of his local 
 
         business agent, he secured work in May, 1986 from another 
 
         employer, Kellogg, performing lighter layout work.  Claimant said 
 
         that despite this lighter duty, he continued to experience low 
 
         back and leg pain and numbness after his return to work.  
 
         Claimant then returned to Dr. Jacobs in June, 1986 stating that 
 
         such activities at Kellogg such as climbing ladders, crawling, 
 
         twisting, turning and carrying objects up to 38 pounds aggravated 
 
         his back causing pain and stiffness.  At hearing claimant stated 
 
         that the long hours and prolonged walking also aggravated his 
 
         back. In June, 1986 claimant returned to Dr. Ray who recommended 
 
         that he continue with chiropractic care.  Dr. Jacobs then took 
 
         claimant off work and treated him with additional adjustments and 
 
         ultrasound therapy until July, 1986 at which time he referred 
 
         claimant to a neurosurgeon, R. S. Gooding, M.D., stating that 
 
         claimant could no longer benefit from his chiropractic care.
 
         
 
              After his review of the CT scans and myelograms in 1985 and 
 
         after consulting with an associate, M. P. Margules, M.D., another 
 
         neorosurgeon, Dr. Gooding concluded that claimant had a herniated 
 
         disc at the L4-5 and that surgical intervention was necessary.  A 
 
         lumbar laminectomy was performed by Dr. Gooding on July 29, 1986.  
 
         After a lengthy period of recovery Dr. Gooding felt that claimant 
 
         reached maximum medical improvement following the surgery on 
 
         April 7, 1986 and gave claimant a 20 percent permanent partial 
 
         impairment rating.  Dr. Gooding explained that the long recovery 
 
         was due to the long period of time claimant suffered from back 
 
         nerve compression prior to the surgery.  Dr. Gooding does riot 
 
         recommend that claimant return to any type of employment that 
 
         would place significant stress on the lower back.
 
         
 
              Claimant indicated to his physicians in this case that the 
 
         success of surgery was limited.  Claimant states that he 
 
         initially felt good after the surgery but later the low back and 
 
         leg pain and numbness returned.  In January, 1987 claimant 
 
         reported to William Hamsa, M.D., a disability examiner for the 
 
         Social Security Administration, that the surgery only helped to 
 
         relieve right leg pain.  Claimant was also examined by Lyal 
 
         Leibrock, M.D., a neurosurgeon from the University of Nebraska 
 
         Medical Center, in February, 1987.  All these doctors agree that 
 
         claimant is unable to return to heavy work and should seek 
 
         vocational rehabilitation.
 
         
 
              James Rogers, a vocational consultant retained by submitted 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   5
 
         
 
         a report which indicated, at the time of his interview in March 
 
         of 1987, that claimant was not a good candidate for employment 
 
         without resolution of his medical problems.  However, he noted 
 
         claimant's keen interest in returning to some form of gainful 
 
         employment.  Rogers also recommend claimant seek psychological 
 
         evaluation due to his observations of a depressed state of mind.
 
         
 
              In March, 1987 claimant was evaluated by Mary Ann Strider, 
 
         Ph.D., a clinical psychologist.  Dr. Strider found claimant 
 
         severely depressed along with chronic pain syndrome as a result 
 
         of the injury on October, 1985.  She explained that claimant's 
 
         depression was a product of his chronic pain, financial distress 
 
         (from an inability to return to work), incapacitation and fear of 
 
         the future.  She recommended hospitalization for psychiatric 
 
         treatment but claimant refused and preferred outpatient therapy.  
 
         Strider felt that such outpatient therapy would last several 
 
         months in duration.  No further reports were submitted from Dr. 
 
         Strider.
 
         
 
              According to claimantOs testimony and the report from 
 
         Rogers, claimant's past employment primarily consists of 
 
         millwright work predominately in a supervisory capacity.  
 
         Claimant is 58 years of age and married.  Claimant dropped out of 
 
         high school in the eleventh grade but obtained a GED in the 
 
         military service.  Claimant appears to possess above average 
 
         intelligence.
 
         
 
              Claimant admits to two medical problems unrelated to the 
 
         October, 1985 injury.  Approximately one year prior to October, 
 
         1985, claimant injured his neck while working for Plibrico when 
 
         he fell backwards onto a railing.  No medical records were 
 
         submitted with reference to this injury.  In his deposition, 
 
         claimant stated that he was off work for treatment of his 
 
         condition for approximately six months and received permanent 
 
         partial impairment ratings for a three percent loss of use of his 
 
         hand and a ten percent loss of "my nerves and stuff."  Claimant 
 
         thought it was for a loss of smell and taste.
 
         
 
              Claimant also admitted to problems with rheumatoid arthritis 
 
         in his upper body.  This was apparently diagnosed by the VA a 
 
         month and a halt prior to the deposition in September, 1987.  
 
         Claimant felt that the pain in his arms, shoulder, neck and down 
 
         his back were attributable to this arthritis.  When asked by the 
 
         defense counsel as to what part of his problems now are 
 
         attributable to the arthritis and not to the lower back surgery, 
 
         claimant responded that it was "hard for me to determine it." 
 
         Again no reports were submitted from any physician with reference 
 
         to the nature, extent and current treatment, if any, for this 
 
         arthritic condition.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              1.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   6
 
         
 
         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 or 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 9111, 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, there is little real dispute that 
 
         claimant has at least some extent of permanent disability from 
 
         the October, 1985 incident.  The preponderance of the evidence 
 
         shows that the views of Dr. Gooding, the last physician to render 
 
         an opinion on the extent of claimant's impairment are probably 
 
         the most descriptive of claimant's disability.  Although Dr. 
 
         Mercier only gave claimant a five percent rating, this rating was 
 
         given prior to his last unsuccessful return to work in May, 1966.  
 
         Mercier never examined claimant subsequent to his laminectomy 
 
         surgery later that summer.  Therefore, claimant has shown by the 
 
         preponderance of the evidence a 20 percent permanent partial 
 
         impairment as a result of the October, 1985 injury.
 
         
 
              Defendants claim that the intervening work at Kellogg in 
 
         May, 1986 and not the original injury was the cause of this 
 
         additional impairment.  Aside from the fact that defendants have 
 
         no medical expert testimony to back up their position, the facts 
 
         by themselves do not support the defendants' theory.  Claimant 
 
         simply was not released to go back to the type of work he was 
 
         required to perform as a millwright supervisor and it was not at 
 
         all surprising that he would experience a recurrence of symptoms 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   7
 
         
 
         from crawling, climbing, twisting, walking, and lifting.  
 
         Although the subsequent work at Kellogg was, in part, caused by 
 
         the recurrence of symptoms, this was only an aggravation of the 
 
         preexisting injury caused by the original work injury.  The 
 
         original work injury of October, 1985 remained to be a major 
 
         contributing factor to the condition which precipitated not only 
 
         the recurrence of symptoms but additional disability and 
 
         subsequent treatment resulting in a laminectomy surgery.
 
         
 
              Defendants also emphasized that claimant admits to having 
 
         rheumatoid arthritis as a cause of his disability.  Claimant does 
 
         not have to show that his disability is the sole cause of a work 
 
         injury, only that the work injury was a substantial factor.  A 20 
 
         percent rating by Dr. Gooding demonstrates that the work injury 
 
         was such a substantial contributing factor.
 
         
 
              To what extent claimant's physical incapacity is caused by 
 
         his depressed psychological state is unimportant as the 
 
         depression condition was the result of the work injury which lead 
 
         to financial problems precipitated by an inability to return to 
 
         work and a delay in receiving workers' compensation benefits.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury. 
 
         after the injury and potential for rehabilitation; the employee's 
 
         (qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant had some medical problems before the work injury 
 
         but these problems did not appear to cause a loss of work or a 
 
         loss of earning capacity.  Claimant credibly testified that he 
 
         was able to fully perform physical tasks involving heavy lifting, 
 
         repetitive lifting, bending, twisting and stooping along with 
 
         prolonged standing and sitting before October, 1985.
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   8
 
         
 
         
 
              A question arises in this case as to whether there should be 
 
         an apportionment of industrial disability due to claimant's neck 
 
         and upper body problems.  First, there is little question that 
 
         claimant has established that the work injury is and remains to 
 
         be a substantial contributing factor to his current disability.  
 
         After successfully satisfying this burden of causal connection 
 
         between the disability and the work injury, does claimant assume 
 
         an additional burden to establish a lack of a preexisting or 
 
         other non-work related disability or does the burden of 
 
         persuasion shift to defendants to establish a preexisting or 
 
         other disability for purposes of apportionment.  There is no 
 
         agency precedent as to this precise point of law.  However, 
 
         drawing from the general law of Torts, the undersigned believes 
 
         that the correct law is that the claimant has no such additional 
 
         burden after establishing a prima facie case for disability.  The 
 
         plaintiff in a personal injury case is not normally charged with 
 
         a burden of proof as to the actual apportionment of damages.  Any 
 
         burden of that nature must be assumed by the defendant, since the 
 
         defendant is the party to stand to gain by litigating the 
 
         apportionment issue. 2 Damages and Tort Actions, section 
 
         15.34(l)(a); Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 
 
         1973).  If no apportionment can be made the defendant is 
 
         responsible for the entire damages.  Becker v. D & E Distributing 
 
         Co., 247 N.W.2d 727, 731 (Iowa 1976).  In this case defendants 
 
         have not shown in what manner and to what extent the neck or 
 
         arthritic conditions are disabling.  Therefore, no apportionment 
 
         will be made in this case.
 
         
 
              Claimant's physicians have restricted claimant's work 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE   9
 
         
 
         activities by prohibiting tasks such as heavy lifting, repetitive 
 
         lifting, bending, twisting and stooping and prolonged sitting and 
 
         standing.  Therefore, claimant's medical condition prevents him 
 
         from returning to his former work as a millwright supervisor or 
 
         any other type of heavy work that he has performed in the past.  
 
         Therefore, claimant must change vocations to more suitable light 
 
         sedentary type of work.
 
         
 
              With reference to the availability of suitable light duty 
 
         work, claimant has chosen not to rely upon the so-called odd-lot 
 
         doctrine.  This is a doctrine to shift to the employer the burden 
 
         of going forward with the evidence on the issue of availability 
 
         of suitable work.  The industrial commissioner has directed that 
 
         this doctrine cannot be applied by a hearing deputy unless it is 
 
         identified as an issue in the last prehearing conference and 
 
         listed as an issue on the hearing assignment order.  Therefore, 
 
         the odd-lot doctrine was not applied in this case. in this case 
 
         claimant has failed to demonstrate that suitable light duty work 
 
         is not available to him.
 
         
 
              Claimant is 58 years old and nearing the end of his working 
 
         career.  His loss of future earnings from employment due to his 
 
         disability is not as severe as would be the case for a younger 
 
         individual.  See Becke v. Turner-Busch, Inc., Thirty-Fourth 
 
         biennial Reports of the Iowa Industrial Commissioner 34 (Appeal 
 
         Decision 1979).  However, there is no evidence that claimant had 
 
         any plans for early retirement in October, 1985 nor has it been 
 
         shown that he has any desire to leave the work force apart from 
 
         his disability.  Indeed, what the evidence does show is that 
 
         claimant does have a very strong motivation to return to work.
 
         
 
              Claimant has average intelligence and significant work 
 
         experience as a supervisor over the last 20 years.  However, 
 
         given his age and lack of formal education, vocational 
 
         rehabilitation for any sedentary work position at a salary level 
 
         comparable to that of a millwright supervisor is highly 
 
         unlikely.
 
         
 
              After all of the factors are examined, it is found as a 
 
         matter of fact that claimant has suffered a 60 percent loss in 
 
         his earning capacity from his work injury. based upon such a 
 
         finding, claimant is entitled as a matter of law to 300 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of the 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until significant improvement from the injury is no longer 
 
         anticipated, whichever occurs first.  According to Dr. Gooding, 
 
         maximum medical improvement was achieved after the laminectomy 
 
         surgery on April 7, 1987 which terminates claimant's healing 
 
         period benefits.  It has long been held by this agency that there 
 
         may be a reinstitution of healing period benefits upon additional 
 
         disability for treatment which is expected to improve claimant's 
 
         condition rather than simply maintain the condition.  Willis v. 
 
         Leheigh Portland Cement Co., II-1 Iowa Industrial Commissioner 
 
         Decisions 485 (1985); Clemens v. Iowa Veterans Home, I-1 Iowa 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE  10
 
         
 
         Industrial Commissioner Decisions 35 (1984); Van Bundy v. 
 
         Meredith Corporation, III Iowa Industrial Commissioner Reports 
 
         268 (1963); Riesselman v. Carroll Health Center, III Iowa 
 
         Industrial Commissioner Reports 209 (1982).  The parties 
 
         stipulated in the prehearing report that claimant was off work 
 
         during the two healing periods requested by claimant.
 
         
 
              III.  Pursuant to Iowa Code section 85.27 an employer is 
 
         obligated to pay the reasonable medical expenses incurred by 
 
         claimant for treatment of a work injury.  Claimant is entitled to 
 
         an order of reimbursement only for those expenses which he has 
 
         previously paid.  Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  A 
 
         review of the list of expenses requested by claimant in the 
 
         prehearing report shows that all of those expenses are causally 
 
         connected to the October, 1985 injury for the same reasons given 
 
         above on the issue of the causal connection of claimant's 
 
         disability.
 
         
 
              Defendants claim that treatment under the direction of Dr. 
 
         Gooding was not authorized and claimant is not entitled to 
 
         reimbursement for those expenses under Iowa Code section 85.27 
 
         which provides employers with the right to choose the care.  
 
         However, section 85.27 applies only to injuries compensable under 
 
         chapters 85 and 85A of the Code and obligates the employers to 
 
         furnish reasonable medical care.  This agency has held that it is 
 
         inconsistent to deny liability and the obligation to furnish care 
 
         on one hand and at the same time claim the right to choose the 
 
         care.  Kindhart v. Fort Des Moines Hotel, I Iowa Industrial 
 
         Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. 
 
         MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal 
 
         decision 1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for an injury or for a 
 
         certain medical condition either by admission or a final agency 
 
         decision.  Iowa Code section 85.27 does not give an employer the 
 
         right to chose the care without affording claimant the right to 
 
         petition the commissioner to resolve disputes concerning such 
 
         care.  However, this agency does not have authority to order an 
 
         employer to furnish any particular care unless the employer's 
 
         liability for an injury or condition under Chapters 85, 85A or 
 
         85B has been established.  Therefore, the right to control the 
 
         care must be coincided with this agency's jurisdiction over the 
 
         matter.
 
         
 
              Defendants' in this case throughout these proceedings have 
 
         denied liability for claimant's condition subsequent to his 
 
         return to work in May of 1986.  For that reason and absent a 
 
         future change in defendants' legal position on the issue of 
 
         liability, defendants will not have the right to chose the 
 
         medical care for claimantOs post May, 1986 back condition until a 
 
         decision of this agency establishing the compensability of such a 
 
         condition becomes final.  Therefore, the expenses of Dr. 
 
         Gooding"s treatment are reimbursable.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On October 15, 1985 claimant suffered an injury to the 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE  11
 
         
 
         low back after tripping on a ladder which arose out of and in the 
 
         course of his employment with Plibrico.  Claimant suffered a 
 
         herniation of the disc at the L4-5 level of his lower spine 
 
         necessitating treatment in the form of eventual surgery in July, 
 
         1986.
 
         
 
              3.  The work injury of October 15, 1985 was a cause of a 
 
         period of disability from work beginning on October 18, 1985 to 
 
         May 16, 1986 and from June 3, 1986 to April 7, 1987 at which time 
 
         claimant reached maximum healing.
 
         
 
              4.  The work injury of October 15, 1985 was a cause of a 20 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no heavy lifting, repetitive lifting, standing, 
 
         bending, twisting or stooping or prolonged walking and standing. 
 
          Although claimant has a prior problem with his neck unrelated to 
 
         the October 15, 1985 injury and currently mutters from upper body 
 
         rheumatoid arthritis, the work injury of October 15, 1985 remains 
 
         a substantial contributing factor in claimant's current permanent 
 
         impairment and disability.
 
         
 
              5.  The work injury of October 15, 1985 was also a cause of 
 
         psychological depression, the current state of which is unknown.
 
         
 
              6.  The work injury of October 15, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 60 percent loss of 
 
         earning capacity.  Claimant is 58 years of age but had no 
 
         retirement plans at the time of the injury and no retirement 
 
         plans at the present time unrelated to his disability.  Claimant 
 
         desires to return to gainful employment but cannot return to the 
 
         type of work for which he is best suited - millwright or 
 
         millwright supervisory work.  Claimant cannot return to other 
 
         heavy manual labor.  Claimant has only a eleventh grade education 
 
         but has a GED.  Claimant has above average intelligence.  Given 
 
         claimant's age and lack of formal education, vocational 
 
         rehabilitation into a sedentary work which would pay $15 per hour 
 
         is highly unlikely.  Claimant failed to show that suitable 
 
         sedentary light duty work was not available to him but such work 
 
         would remain to be low paying.
 
         
 
              7.  The medical expenses listed by claimant in the 
 
         prehearing report are fair and reasonable and were incurred by 
 
         claimant for reasonable and necessary treatment of his low back 
 
         condition as a result of the work injury on October 15, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability, healing period and 
 
         medical benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred forty-nine and 22/100 dollars ($349.22) per week 
 
         from April 7, 1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 

 
         
 
         
 
         
 
         DONOVAN V. PLIBRICO SALES AND SERVICE
 
         PAGE  12
 
         
 
         from October 18, 1985 to May 16, 1986 and from June 3, 1986 to 
 
         April 7, 1967 at the rate of three hundred forty-nine and 22/100 
 
         dollars ($349.22) per week.
 
         
 
              3.  Defendants shall pay claimant the medical expenses 
 
         listed in the prehearing report which total twelve thousand six 
 
         hundred ninety-nine and 82/100 dollars ($12,699.82). Defendants 
 
         shall pay the provider directly, or pay the expense to claimant 
 
         if claimant has paid the bill.  ClaimantOs attorney shall have a 
 
         lien to the extent of thirty-three and one-third percent (33 
 
         1/3%) on all of these expenses prior to any direct payment of the 
 
         expenses to the medical provider.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file an activity report on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         803 3rd Ave.
 
         P. O. Box 1588
 
         Council Bluffs, Iowa 51102
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P. O. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1303
 
                                                   Filed August 24, 1988
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THEODORE DONOVAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 808148
 
         PLIBRICO SALES AND SERVICE,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1303
 
         
 
              It was found that claimant had a 60 percent permanent 
 
         partial disability due to an inability to return to millwright 
 
         work subsequent to the work injury.  Despite prior existing 
 
         medical conditions it was held that once claimant had established 
 
         that the work injury was a substantial contributing causation 
 
         factor of the current disability, defendants' have the burden to 
 
         show by a preponderance of the evidence that the disability award 
 
         should be apportioned due to any prior existing condition.  The 
 
         defendants failed to show such a prior existing condition 
 
         affected claimant's earning capacity and no apportionment was 
 
         made.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          __________________________________________________________________
 
                 
 
          CLIFFORD WILSON,
 
 
 
               Claimant,
 
                                                   File No. 808308
 
          VS.
 
                                                A R B I T R A T I 0 N
 
           J.I. CASE CORPORATE FLEET,
 
                                                   D E C I S I 0 N
 
               Employer,
 
               Self-Insured,
 
               Defendant. 
 
          __________________________________________________________________
 
                         
 
                              INTRODUCTION
 
 
 
               This is a proceeding in arbitration brought by the claimant, 
 
          Clifford L. Wilson, against his self-insured employer, J.I. Case 
 
          Corporate Fleet, to recover benefits under the Iowa Workers' 
 
          Compensation Act as a result of an injury sustained August 26, 
 
          1985.  This matter came on for hearing before the undersigned 
 
          deputy industrial commissioner in Burlington, Iowa, on March 18, 
 
          1987.  The record was considered fully submitted at close of 
 
          hearing.  A first report of injury was filed January 23, 1986.  
 
          Pursuant to the prehearing report, the parties agreed that 
 
          claimant had been paid benefits to March 14, 1987 at the 
 
          stipulated rate of $271.41.
 
 
 
               The record in this proceeding consists of the testimony of 
 
          claimant and of Marian Jacobs, as well as of exhibits 1 through 
 
          27 as identified on the submitted exhibit list.
 
 
 
                                    ISSUES
 
 
 
               Pursuant to the prehearing report, the parties stipulated 
 
          that claimant did receive an injury which arose out of and in the 
 
          course of his employment on the alleged injury date, and that 
 
          that injury is causally related to temporary total disability to 
 
          claimant.  They further stipulated that the commencement date for 
 
          any permanency benefits due claimant is March 18, 1986, and that 
 
          defendant is to receive a $560 credit for Wisconsin workers' 
 
          compensation benefits overpaid to claimant.  The issues remaining 
 
          for resolution are:
 
 
 
               1)  Whether claimant is entitled to permanent partial 
 
          disability benefits; and
 
 
 
               2)  Whether a causal relationship exists between claimant's
 
          alleged injury and any permanent disability.
 
 
 

 
 
 
 
 
 
 
          WILSON V. J.I. CASE CORPORATE FLEET
 
          Page   2
 
 
 
 
 
                                REVIEW OF THE EVIDENCE
 
 
 
               Thirty-nine year old claimant was a dock worker for the J.I. 
 
          Case Corporate Fleet on August 26, 1985.  He was injured when a 
 
          semi driver moved the trailer on which he was riding a forklift.  
 
          Claimant, while in the forklift, fell approximately six feet.  
 
          Claimant described himself as in a paralytic state for 
 
          approximately ten to fifteen minutes following the incident.  He 
 
          stated he developed sharp pain and burning sensation in his right 
 
          leg within an hour.  Claimant saw a variety of physicians and was 
 
          advised to lose seventy-five pounds, to do exercises, and to wear 
 
          a back brace.  Claimant stated that the back brace was too 
 
          uncomfortable to wear; that he was unable to do the exercises and 
 
          that he had reduced his weight from 300 pounds to 228 pounds from 
 
          May 1985 to approximately time of hearing.  Claimant weighed 233 
 
          pounds and was five feet ten inches tall at time of hearing.  He 
 
          agreed his physicians had told him that his weight affected his 
 
          back.  Claimant self-described himself as having poor hearing in 
 
          both ears and as being unable to see well enough to read.
 
 
 
               Various medications were prescribed for claimant; he 
 
          subsequently sought chiropractic treatment with Raymond Hanks, 
 
          Jr., D.C. Neurological examination was performed by Mark Hines, 
 
          M.D., upon referral of Dr. Hanks.  Claimant reported that Dr. 
 
          Hines recommended surgery, but that claimant, himself, decided 
 
          against such because claimant had had a severe asthmatic type 
 
          allergetic reaction to IVP dye on a prior occasion.  Claimant 
 
          understood the dye was needed for a myelogram.  On 
 
          cross-examination, it became apparent that medical records 
 
          establishing claimant's allergetic reaction to the dye were not 
 
          readily available.  Claimant's description of his reaction with 
 
          the dye administered on a prior occasion was consistent with a 
 
          subsequent description of a like reaction contained in Dr. Hines' 
 
          deposition, however.  Claimant did agree that he had elected not 
 
          to have surgery for other reasons as well.
 
 
 
               Claimant is a high school graduate who self-described 
 
          himself as an average student with C's, D's and F's.  Claimant is 
 
          now taking a gunsmithing course at Southeast Community College.  
 
          He has completed two semesters, but reported that the courses 
 
          were getting harder and that he would likely not be able to 
 
          complete them.  Claimant stated that were he to complete the 
 
          course, he could earn from minimum wage to approximately  $5.00 
 
          per hour as a gunsmith.  Claimant stated that his past history is 
 
          all as a manual laborer with prior work experience involving 
 
          lifting from 65 to 110 pounds while loading and unloading 
 
          freight.  He has also worked as a diesel mechanic and as a farm 
 
          laborer.  Claimant reported that he has difficulty driving his 
 
          pickup, mowing the lawn, splitting wood, raking his lawn, snow 
 
          shoveling, changing oil, climbing stairs, and walking.  He stated 
 
          he has no problems driving his van.  Claimant now lives with his 
 
          girlfriend and stated he runs her gunsmithing business with her.  
 
          He agreed he has participated in gun shows outside Iowa and has 
 
          also visited relatives in Missouri following his incident 
 
          Claimant reported he receives no income from his gunsmithing 
 
          activities, but simply helps out in the shop. claimant agreed 
 
          that he had a prior upper back injury in 1979 for which he 
 
          received a ten percent body as a whole settlement while 
 
          continuing to work for J.I. Case.
 

 
 
 
 
 
 
 
          WILSON V. J.I. CASE CORPORATE FLEET
 
          Page   3
 
 
 
 
 
 
 
               Marian Jacobs, a rehabilitation placement specialist, opined 
 
          that if claimant did not complete his gunsmithing course, there 
 
          were no heavy manual labor or medium or very heavy labor jobs for 
 
          which claimant qualifies.  She reported that claimant could do 
 
          specific sedentary work not requiring all day sitting or standing 
 
          or lifting of over 25 pounds.  She indicated he could be a self 
 
          service gas station attendant, a security guard with periodic 
 
          walkabouts, or small establishment bartender, or an auto or light 
 
          parts salesperson.  She indicated that the medium wage for such 
 
          provisions range from minimum wage to $4.20 per hour.  She 
 
          indicated that gunsmithing would also be available for claimant 
 
          should he complete the course and that he could then earn 
 
          approximately $8.00 per hour.  She characterized gunsmithing as 
 
          seasonal. work only, however.  Jacobs characterized claimant as 
 
          highly motivated regarding his gunsmithing.  She opined that the 
 
          job market was such that claimant would be competing with healthy 
 
          persons seeking the same jobs as he is.  Claimant earned $ll.50 
 
          per hour when injured.  Jacobs' written report in evidence was 
 
          consistent with her oral testimony.
 
 
 
               University of Iowa clinical notes of May 17, 1982 note that 
 
          claimant has chronic thoracic pain with mild degenerative changes 
 
          in the thoracolumbar junction on x-ray.  Mild wedging of the T12 
 
          vertebral body is revealed.  A May 9, 1983 examination revealed 
 
          similar complaints with claimant remaining neurologically intact.  
 
          Notes of J. J. Kivlahan, M.D., F.A.C.S., also note mild mid-back 
 
          and lumbar problems pre-August 26, 1985.  On November 13, 1985, a 
 
          Dr. Weinstein, of the University of Iowa Hospitals and Clinics, 
 
          noted an impression that claimant had a combination soft tissue 
 
          injury from the accident and degenerative disc disease with the 
 
          possibility of spondyloylsis related to his injury.
 
 
 
               On April 21, 1986, Marc E. Hines, a board certified 
 
          neurologist, stated that an EMG revealed upper motor, neuron-type 
 
          pattern as frequently seen with spinal cord contusion.  He 
 
          advised that lower extremity distal denervation worsening as 
 
          present in claimant's case may have related to claimant's 
 
          borderline diabetes or to a subclinical neuropathy.
 
 
 
 
 
               On March 19, 1987, R. G. Day, M.D., a radiologist, 
 
          interpreted an x-ray as showing mild diffuse degenerative 
 
          arthritic changes throughout the lumbar spine with slight 
 
          progression [of such changes] when compared with October 27, 1979 
 
          films.
 
 
 
               In his deposition of September 25, 1986, Raymond Hanks, Jr., 
 
          D.C., opined that claimant reached maximum medical improvement on 
 
          March 18, 1986 with a 30 percent body as a whole permanent 
 
          partial impairment rating under the AMA Guides without including 
 
          any impairment values for thoracic 10, thoracic 11, since 
 
          claimant had previous subjective symptoms in that area.  The 
 
          doctor noted that even had he included such symptoms, the rating 
 
          would not change from 30 percent.  The doctor's impairment rating 
 
          included loss of range of motion in the cervical area and the 
 
          thoracic lumbar area as well as impairment for intervertebral 
 
          disc lesions and sensory impairments.  Dr. Hanks reported that a 
 
          CT scan advised by Dr. Hines had revealed a central herniated 
 

 
 
 
 
 
 
 
          WILSON V. J.I. CASE CORPORATE FLEET
 
          Page   4
 
 
 
 
 
          disc at the L4, L5 level.  He opined that a central disc 
 
          herniation is most severe and opined that if claimant's stage 3 
 
          central disc herniation were to progress to a stage 4 disc 
 
          herniation, surgery would be required or claimant would lose 
 
          bladder function and would probably be paralyzed from the point 
 
          where the nerves were affected.  Dr. Hanks advised that claimant 
 
          not lift over 25 pounds; not work in a flex position; not stand 
 
          over one-half hour without resting for approximately ten minutes; 
 
          not ride over one hour; not sit over thirty minutes on a firm 
 
          surface; not receive jolts or jars; and not operate equipment 
 
          with foot controls for over fifteen minutes without resting.
 
 
 
               In his deposition of July 3, 1986, Marc E. Hines, M.D., 
 
          opined that claimant's spinal cord contusion and his L4, L5 disc 
 
          herniation resulted from the August 26, 1985 incident.  He 
 
          reported his understanding that claimant had an allergy problem 
 
          regarding the IVP dye which might produce additional risk for 
 
          standard procedures in treating disc herniation.  The doctor 
 
          opined that it was reasonable for claimant to elect not to have a 
 
          myelogram, but stated that were he claimant, he might choose 
 
          differently.  Dr. Hines agreed that regardless of whether the 
 
          myelogram was performed, claimant was unwilling to have either 
 
          chymopapain injections or back surgery.  The doctor stated that 
 
          the actual incident of IVP reaction in myelogram was much lower 
 
          than incident of reaction when IVP dye is injected into the vein; 
 
          the risk of an asthma-like reaction and heart stoppage can be 
 
          reduced considerably with medication given either at the time of 
 
          the reaction or prior to testing.  Dr. Hines opined that 
 
          overzealous chiropractic manipulations can produce further disc 
 
          protrusion.  In July 1986, claimant was receiving chiropractic 
 
          manipulations every other day and apparently had been receiving 
 
          them every day initially following his incident.  Hines reported 
 
          that weight loss would improve the long term outcome for back 
 
          pain and arthritis.  Dr. Hines saw claimant on four occasions.
 
 
 
               The balance of the evidence was reviewed in the disposition
 
          of this matter.
 
 
 
                           PPLICABLE LAW AND ANALYSIS
 
 
 
               We consider the causal connection issue.
 
 
 
               The claimant has the burden of proving by a preponderance of 
 
          the evidence that the injury of August 26, 1985 is causally 
 
          related to the disability on which he now bases his claim.  
 
          Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
          Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607.(1945). A 
 
          possibility is insufficient; a probability is necessary. Burt v. 
 
          John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N..W.2d 732 
 
          (1955).  The question of causal connection is essentially within 
 
          the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
          Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
 
 
               However, expert medical evidence must be considered with all 
 
          other evidence introduced bearing on the causal connection.  
 
          Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
          not be couched in definite, positive or unequivocal language.  
 
          Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
          the expert opinion may be accepted or rejected, in whole or in 
 

 
 
 
 
 
 
 
          WILSON V. J.I. CASE CORPORATE FLEET
 
          Page   5
 
 
 
 
 
          part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
          be given to such an opinion is for the finder of fact, and that 
 
          may be affected by the completeness of the premise given the 
 
          expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
          516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
          Co., 261 Iowa 352, 154 N.W.2d 128 (1967) .
 
 
 
               While a claimant is not entitled to compensation for the 
 
          results of a preexisting injury or disease, the mere existence at 
 
          the time of a subsequent injury is not a defense.  Rose v. John 
 
          Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
          (1956).  If the claimant had a preexisting condition or 
 
          disability that is aggravated, accelerated, worsened or lighted 
 
          up so that it results in disability, claimant is entitled to 
 
          recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
          N.W.2d 812, 815 (1962).
 
 
 
               Claimant had preexisting left thoracic and lumbar back 
 
          problem.  Dr. Hines has opined that claimant had a spinal cord 
 
          contusion and L4, L5 disc herniation as a result of the August 
 
          1985 incident.  Dr. Weinstein's impression was that claimant had 
 
          a combination soft tissue injury from the accident and 
 
          degenerative disc disease with the possibility of spondylolysis 
 
          related to his injury.  An x-ray of March 1987 noted mild diffuse 
 
          degenerative arthritic changes throughout the lumbar spine but 
 
          only slight progression of those changes when compared with films 
 
          of October 25, 1979.  Claimant's prior medical records are 
 
          replete with evidence of complaints of thoracic and lumbar 
 
          problems prior to the August 1985 incident.  Hence, we are unable 
 
          to find that all of claimant's lumbar complaints relate to the 
 
          incident or were activated by the incident.  We do find that 
 
          problems related to the spinal cord contusion and the L4, L5 disc 
 
          herniation as well as any soft tissue damage relate to that 
 
          incident.  Because we do not find that virtually all of 
 
          claimant's complaints relate to his injury, we also reject Dr. 
 
          Hanks' impairment rating of 30 percent permanent partial 
 
          impairment as a result of the injury. we do believe that the L4, 
 
          L5 disc hernation and soft tissue damage would generally result 
 
          in a moderate to moderately severe permanent partial impairment.
 
 
 
               We consider the permanent impairment question.
 
 
 
               An injury is the producing cause; the disability, however, 
 
          is the result, and it is the result which is compensated.  Barton 
 
          v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961), 
 
          Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
          (1943).
 
 
 
               Functional impairment is an element to be considered in 
 
          determining industrial disability which is the reduction of 
 
          earning capacity, but consideration must also be given to the 
 
          injured employee's age, education, qualifications, experience and 
 
          inability to engage in employment for which he is fitted.  Olson 
 
          v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
          257 (1963).
 
 
 
               In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
          (1980) the Industrial Commissioner, after analyzing the decisions 
 
          of McSpadden v. Biq Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 

 
 
 
 
 
 
 
          WILSON V. J.I. CASE CORPORATE FLEET
 
          Page   6
 
 
 
 
 
          Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
          stated:
 
 
 
               Although the court stated that they were looking for 
 
               the reduction in earning capacity it is undeniable that 
 
               it was the "loss of earnings" caused by the job 
 
               transfer for reasons related to the injury that the 
 
               court was indicating justified a finding of "industrial 
 
               disability."  Therefore, if a worker is placed in a 
 
               position by his employer after an injury to the body as 
 
               a whole and because of the injury which results in an 
 
               actual reduction in earning, it would appear this would 
 
               justify an award of industrial disability.  This would 
 
               appear to be so even if the worker's "capacity" to earn 
 
               has not been diminished.
 
 
 
               We are unable to determine from the record whether claimant 
 
          voluntarily left his position with the employer or whether 
 
          claimant ever sought to return to his position or whether 
 
          defendants ever attempted to accommodate claimant's restrictions.  
 
          The record does suggest that claimant and Ms. Jacobs are correct 
 
          in stating that claimant can no longer do heavy manual labor.  
 
          Despite his two semesters in gunsmithing courses and his 
 
          attainment of straight A grades at one time, he made several 
 
          attempts at hearing to present his condition as far worse than it 
 
          objectively appears.  We note that claimant testified he is 
 
          unable to read without his glasses. medical evidence suggests, 
 
          however, that within the last decade, claimant's vision was near 
 
          
 

 
 
 
 
 
 
 
        WILSON V. J.I. CASE CORPORATE FLEET
 
        Page   7
 
 
 
 
 
          normal.  Claimant presented no explanation for that discrepancy.  
 
          Hence, we find claimant's credibility as far as his actual life 
 
          restrictions also lacking.  We note that while claimant suggests 
 
          he has trouble driving his pickup, he has not had problems 
 
          traveling long distances in his van.  Likewise, we note that 
 
          claimant has remained involved in his girlfriend's gun shop 
 
          business.  We do not accept claimant's assertion that his work in 
 
          that business is purely gratis and does not result in any income.  
 
          We believe that that fact and the employment options Ms. Jacobs 
 
          outlined indicate claimant has abilities and could use them more 
 
          productively than he currently presents himself as able to do.  
 
          Likewise, while claimant may have restrictions related to his 
 
          preexisting thoracic and lumbar complaints, we do not consider 
 
          those in assessing any industrial disability resulting from his 
 
          August 26, 1985 injury.  When that injury alone is considered, 
 
          claimant appears to be a younger worker with both business acumen 
 
          as evidenced in his ability to work in a gun shop and run gun 
 
          shows and mechanical ability as evidenced in his ability to 
 
          complete two semesters of gunsmithing course.  We find, however, 
 
          that claimant's lack of credibility as well as his attempts to 
 
          attribute all of his conditions to the August 26, 1985 incident 
 
          make it difficult to assess exactly what claimant's earnings and 
 
          employment potentials are.  We do not find it unreasonable, 
 
          however, for claimant to refuse back surgery, chymopapain 
 
          injections, or myelographic treatment under the circumstances.  
 
          Claimant's overall lack of credibility is troubling, however.  We 
 
          find that, at best, claimant's moderate severe permanent partial 
 
          impairment and any work restrictions imposed on claimant wholly 
 
          as a result of the August 26, 1985 incident are such that 
 
          claimant has shown a loss of earnings capacity related to that 
 
          incident of 30 percent.
 
 
 
                                   FINDINGS OF FACT
 
 
 
               WHEREFORE, IT IS FOUND:
 
 
 
               Claimant was injured in the course of his employment on 
 
          August 26, 1985 when the forklift he was driving fell 
 
          approximately six feet from a semi tractor trailer to the 
 
          ground.
 
 
 
               Claimant sustained a spinal cord contusion and an L4-L5 disc 
 
          herniation as well as soft tissue injury in his work injury.
 
 
 
               Claimant had preexisting thoracic and lumbar back complaints 
 
          and degenerative arthritic changes not attributable to his 
 
          injury.
 
 
 
               Not all conditions Dr. Hanks considered in assessing 
 
          claimant's permanent partial impairment are attributable to 
 
          claimant's injury.
 
 
 
               Claimant has had a prior reaction to IVP dye, which reaction 
 
          is consistent with allergic reaction to IVP dye.
 
 
 
               IVP dye is used in myelographic studies.
 
 
 
               The dangers of IVP reaction are less in myelographic studies 
 
          than in direct vein injection procedures and those dangers can be 
 

 
 
 
 
 
 
 
        WILSON V. J.I. CASE CORPORATE FLEET
 
        Page   8
 
 
 
 
 
          lessened by appropriate medical procedures.
 
 
 
               Claimant chose to forego back surgery or chymopapain 
 
          injections for a number of reasons, some of which are not related 
 
          to his IVP dye reaction.
 
 
 
               Claimant's decision to forego myelographic studies, back 
 
          surgery, or chymopapain injections was reasonable.
 
 
 
               Claimant has a moderate to moderately severe permanent 
 
          partial impairment related to his spinal cord contusion, his 
 
          L4-L5 disc herniation, and his injury-produced soft tissue 
 
          damage.
 
 
 
               Claimant is 39 years old.
 
 
 
               Claimant is a high school graduate.
 
 
 
               Claimant is enrolled in a gunsmithing course and received 
 
          straight A's in the course one semester.
 
 
 
               Claimant works in his girlfriend's gun shop and has driven 
 
          his van long distances to participate in gun shows since his 
 
          injury.
 
 
 
               Dr. Hanks has advised claimant not to lift over 25 pounds; 
 
          not to work in a flex position; not to stand over one-half hour 
 
          without ten minutes rest; not to ride over an hour; not to sit 
 
          over thirty minutes; not to receive jolts or jars; and not to 
 
          operate equipment with foot controls for over fifteen minutes 
 
          without rest.
 
 
 
               The restrictions relate to both claimant's work injury and 
 
          to his unrelated preexisting conditions.
 
 
 
               Claimant cannot return to heavy manual labor.
 
 
 
               Claimant lacks credibility in his self-description of his 
 
          post injury work and life restrictions.
 
 
 
 
 
 
 
                             CONCLUSIONS OF LAW
 
 
 
               THEREFORE, IT IS CONCLUDED:
 
 
 
               Claimant has established that his injury of August 26, 1985 
 
          is the cause of the permanent disability on which he bases his 
 
          claim.
 
 
 
               Claimant is entitled to permanent partial disability 
 
          resulting from his injury of August 26, 1985 of thirty percent 
 
          (30%).
 
 
 
               Defendant is entitled to a credit for benefits already paid 
 
          on or after the permanent partial disability commencement date of 
 
          March 18, 1986.
 
 
 
               Defendant is entitled to a credit of five hundred sixty 
 

 
 
 
 
 
 
 
         WILSON V. J.I. CASE CORPORATE FLEET
 
         Page   9
 
 
 
 
 
          dollars ($560) for Wisconsin Workers' Compensation benefits 
 
          overpaid.
 
 
 
                                     ORDER
 
 
 
               THEREFORE, IT IS ORDERED:
 
 
 
               Defendant pay claimant permanent partial disability benefits 
 
          for one hundred fifty (150) weeks at the rate of two hundred 
 
          seventy-one and 41/100 dollars ($271.41) with those payments to 
 
          commence on March 18, 1986.
 
 
 
               Defendant receive credit for permanent partial disability 
 
          payments made on or after March 18, 1986.  Defendant receive 
 
          credit for overpayment of Wisconsin Workers' Compensation 
 
          benefits paid claimant in the amount of five hundred sixty 
 
          dollars ($560).
 
 
 
               Defendant pay accrued amounts in a lump sum.
 
 
 
               Defendant pay interest pursuant to section 85.30.
 
 
 
               Defendant pay costs pursuant to Division of Industrial 
 
          Services Rule 343-4.33.
 
 
 
               Defendant file claim activity reports as required by the 
 
          agency
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    
 
               Signed and filed this 13th day of July, 1987
 
 
 
 
 
 
 
 
 
 
 
                                             HELEN JEAN WALLESER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
          Copies to:
 
 
 
          Mr. James Hoffman
 
          Attorney at Law
 
          P.O. Box 1066
 
          Middle Road
 
          Keokuk, Iowa 52632-1066
 
 
 
          Mr. William J. Cahill
 
          Attorney at Law
 
          P.O. Box 1105
 
          200 Jefferson Street
 
          Burlington, Iowa 52601
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108; 1803
 
                                                 Filed 7-13-87
 
                                                 Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         CLIFFORD WILSON,
 
         
 
              Claimant,
 
                                                 File No. 808308
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         J.I. CASE CORPORATE FLEET,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1108; 1803
 
         
 
              Claimant, with spinal cord contusion and disc herniation at 
 
         L4/L5, awarded 30% permanent partial disability.  Claimant had a 
 
         number of preexisting conditions not related to injury.  Claimant 
 
         lacked credibility in regard to his self-description of his 
 
         limitations.  Claimant's refusal of myelogram, surgery, or 
 
         chymopapain injections reasonable where claimant had prior 
 
         reaction consistent with allergic reaction to IVP dye.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        EUGENE K. KANOUR,
 
        
 
            Claimant
 
        
 
        vs.                              File No. 808320
 
        
 
        FISHER CONTROLS,                   A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        CIGNA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying all 
 
        compensation. The record on appeal consists of the transcript of 
 
        the arbitration hearing and joint exhibits A through D. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether claimant sustained an injury 
 
        arising out of and in the course of his employment and whether 
 
        claimant gave timely notice of his injury under Iowa Code section 
 
        85.23.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The deputy's analysis of the evidence in conjunction with the law 
 
        is adopted. Even assuming that claimant had given timely notice 
 
        of his injury pursuant to section 85.23 and that he 
 
        had-established an injury arising out of and in the course of his 
 
        employment, he has presented no medical evidence that
 
        
 
        KANOUR V. FISHER CONTROLS
 
        Page 2
 
        
 
        
 
        he suffers any permanent disability. In short, claimant has not 
 
        met his burden on any of the issues presented.
 
        
 
        The findings of fact, conclusions of law and order of the deputy 
 
        are adopted herein.
 
        
 

 
        
 
 
 
 
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant did not give a history of a December 1983 work 
 
        incident to Dr. Terrill when he visited the doctor on January 4, 
 
        1984.
 
        
 
        2. Claimant saw Dr. Terrill for respiratory infection-like 
 
        symptoms and as he was leaving mentioned that he had right 
 
        inguinal hernia pain on coughing.
 
        
 
        3. Dr. Terrill then examined claimant and discovered his right 
 
        inguinal hernia.
 
        
 
        4. Claimant's individual medical record with Fisher Controls does 
 
        not record claimant reporting experience of either pain or 
 
        pulling sensation on picking up a unit to assemble in December 
 
        1983. The individual medical record does report a minor 
 
        electrical unit incident in December 1983.
 
        
 
        5. Claimant first reported the alleged work lifting incident to 
 
        Drs. Mandsager and Foley in October 1984.
 
        
 
        6. Claimant told Camilla Smith, R.N., the Fisher industrial 
 
        nurse, of his hernia condition on January 9, 1984 and on November 
 
        1, 1984 but did not indicate that the hernia was work related.
 
        
 
        7. Claimant denied that his disability resulted from his 
 
        employment on disability application forms which he completed in 
 
        order to receive health benefits and disability benefits while 
 
        hospitalized and disabled on account of repair of his hernia.
 
        
 
        8. Claimant was smoking up to three packs of cigarettes per day 
 
        in January 1984.
 
        
 
        9. Claimant had worked as a stock car mechanic for fifteen years 
 
        and was working as a stock car mechanic in 1983.
 
        
 
        10. Excessive smoking or coughing related to a respiratory 
 
        infection could have produced an inguinal hernia.
 
        
 
        11. The physical maneuvers and lifting required of a stock car 
 
        mechanic are not significantly different from the physical 
 
        maneuvers and lifting required in claimant's job as an electric 
 
        hydraulic assembler at Fisher Controls. Claimant would likely be 
 
        using similar tools with twisting and pul]ing maneuvers in both 
 
        activities.
 
        
 
        KANOUR V. FISHER CONTROLS
 
        Page 3
 
        
 
        
 
        12. Claimant was not a credible witness.
 
        
 
        13. Camilla Smith, R.N. was a credible witness.
 
        
 
                                 CONCLUSION OF LAW
 
                                                
 
        Claimant has not established an injury discovered on January 4, 
 
        1984, arose out of and in the course of his employment.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 

 
        
 
 
 
 
 
        That claimant take nothing from these proceedings.
 
        
 
        That claimant pay the costs of the arbitration proceeding and the 
 
        appeal including the costs of the transcription of the hearing 
 
        proceeding.
 
        
 
        Signed and filed this 19th day of August, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         EUGENE K. KANOUR,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         FISHER CONTROLS,
 
                                                   File No. 808320 
 
         
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation.  The record on appeal consists of the transcript of 
 
         the arbitration hearing and joint exhibits A through D.
 
         
 
              Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether claimant sustained an 
 
         injury arising out of and in the course of his employment and 
 
         whether claimant gave timely notice of his injury under Iowa Code 
 
         section 85.23.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in file arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's analysis of the evidence in conjunction with 
 
         the law is adopted.  Even assuming that claimant had given timely 
 
         notice of his injury pursuant to section 85.23 and that he had 
 
         established an injury arising out of and in the course of his 
 
         employment, he has presented no medical evidence that he suffers 
 
         any permanent disability.  In short, claimant has not met his 
 
         burden on any of the issues presented.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 

 
         
 
         
 
         
 
         KANOUR V. FISHER CONTROLS
 
         PAGE   2
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant did not give a history of a December 1983 work 
 
         incident to Dr. Terrill when he visited the doctor on January 4, 
 
         1984.
 
         
 
              2.  Claimant saw Dr. Terrill for respiratory infection-like 
 
         symptoms and as he was leaving mentioned that he had right 
 
         inguinal hernia pain on coughing.
 
         
 
              3.  Dr. Terrill then examined claimant and discovered his 
 
         right inguinal hernia.
 
         
 
              4.  Claimant's individual medical record with Fisher 
 
         Controls does not record claimant reporting experience of either 
 
         pain or pulling sensation on picking up a unit to assemble in 
 
         December 1983.  The individual medical record does report a minor 
 
         electrical unit incident in December 1983.
 
         
 
              5.  Claimant first reported the alleged work lifting 
 
         incident to Drs. Mandsager and Foley in October 1984.
 
         
 
              6.  Claimant told Camilla Smith, R.N., the Fisher industrial 
 
         nurse, of his hernia condition on January 9, 1984 and on November 
 
         1, 1984 but did not indicate that the hernia was work related.
 
         
 
              7.  Claimant denied that his disability resulted from his 
 
         employment on disability application forms which he completed in 
 
         order to receive health benefits and disability benefits while 
 
         hospitalized and disabled on account of repair of his hernia.
 
         
 
              8.  Claimant was smoking up to three packs of cigarettes per 
 
         day in January 1984.
 
         
 
              9.  Claimant had worked as a stock car mechanic for fifteen 
 
         years and was working as a stock car mechanic in 1983.
 
         
 
             10.  Excessive smoking or coughing related to a respiratory 
 
         infection could have produced an inguinal hernia.
 
         
 
              11.  The physical maneuvers and lifting required of a stock 
 
         car mechanic are not significantly different from the physical 
 
         maneuvers and lifting required in claimants job as an electric 
 
         hydraulic assembler at Fisher Controls.  Claimant would likely be 
 
         using similar tools with twisting and pulling maneuvers in both 
 
         activities.
 
         
 
              12.  Claimant was not a credible witness.
 
         
 
              13.  Camilla Smith, R.N., was a credible witness.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established an injury discovered on January 
 
         4, 1984, arose out of and in the course of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 

 
         
 
         
 
         
 
         KANOUR V. FISHER CONTROLS
 
         PAGE   3
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay the costs of the arbitration proceeding 
 
         and the appeal including the costs of the transcription of the 
 
         hearing proceeding.
 
         
 
         
 
              Signed and filed this 19th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.20; 1402.30
 
                                                    Filed August 19, 1988
 
                                                    David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EUGENE K. KANOUR,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 808320
 
         
 
         FISHER CONTROLS                                A P P E A L
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20; 1402.30
 
         
 
              Claimant failed to establish an injury arising out of and in 
 
         the course of his employment.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
          __________________________________________________________________
 
                      
 
          EUGENE K. KANOUR,
 
 
 
               Claimant,
 
                                                  File No. 808320
 
          VS.
 
                                                A R B I T R A T I 0 N
 
          FISHER CONTROLS,
 
                                                  D E C I S I 0 N
 
               Employer,
 
 
 
          and
 
 
 
          CIGNA,
 
 
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          __________________________________________________________________
 
          
 
 
 
                                  INTRODUCTION
 
 
 
               This is a proceeding in arbitration brought by the claimant, 
 
          Eugene K. Kanour, against his employer, Fisher Controls, and its 
 
          insurance carrier, Cigna, to recover benefits under the Iowa 
 
          Workers' Compensation Act as a result of an injury allegedly 
 
          discovered January 4, 1984.  This matter came on for hearing 
 
          before the undersigned deputy industrial commissioner in Des 
 
          Moines, Iowa, on January 7, 1987.  The record was considered fully 
 
          submitted at close of hearing.  A first report of injury was filed 
 
          December 18, 1985.  No weekly benefits have been paid.
 
 
 
               The record in this case consists of the testimony of 
 
          claimant and Camilla Smith, R.N., as well as of joint exhibits A 
 
          through D. Joint exhibit A is medical records from Marshalltown 
 
          Area Community Hospital regarding treatment of claimant.  Joint 
 
          exhibit B is medical records of Ron C. Terrill, M.D., regarding 
 
          treatment of claimant.  Joint exhibit C is medical records of 
 
          Thomas M. Foley, M.D., regarding treatment of claimant.  Joint 
 
          exhibit D is the personnel file from Fisher Controls regarding
 
          claimant.
 
 
 
                                 ISSUES
 
 
 
               Pursuant to the prehearing report, the parties stipulated 
 
          that claimant's rate of weekly compensation in the event of an 
 
          award is $335.95; that claimant was off work from November 15, 
 
          1984 through January 2, 1985; and that the commencement date for 
 
          any permanent partial disability would be January 3, 1985.  The 
 
          issues remaining for resolution are:
 
 
 
               1)  Whether claimant received an injury which arose out of 
 
          and in the course of his employment;
 
 
 
               2)  Whether a causal relationship exists between claimant's 
 

 
          claimed injury and his claimed disability;
 
 
 
               3)  Whether claimant is entitled to benefits and the nature 
 
          and extent of any benefit entitlement; and
 
 
 
               4)  Whether claimant gave his employer timely notice of his 
 
          injury pursuant to section 85.23.
 
 
 
                             REVIEW OF THE EVIDENCE
 
 
 
               Fifty-four year old claimant testified that he has worked as 
 
          an electronic hydraulic assembler at the Fisher plant for the 
 
          past five years.  He described his work as piece work assembly in 
 
          which he uses heavy wrenches and air guns and lifts from 80 to 
 
          120 pounds.  Claimant reported that he uses the department hoist 
 
          when it is available but otherwise lifts by hands.  Claimant 
 
          testified that in December 1983, he bent over to hand lift an 
 
          SS100 weighing between 80 and 100 pounds from a flat onto a bench 
 
          approximately 35 inches high and in doing so felt a sharp pain in 
 
          his groin.  Claimant testified that he continued work and that he 
 
          told the plant substitute nurse what had happened and that she 
 
          referred him to Ron C. Terrill, M.D.
 
 
 
               Dr. Terrill's notes of January 4, 1984 indicate that he saw 
 
          claimant on that date for nondescript symptoms, worse with 
 
          coughing and sneezing, and gagging the last few days.  
 
          Apparently, on leaving, claimant mentioned right inguinal pain 
 
          after coughing.  Dr. Terrill then checked him and found he had a 
 
          hernia.  Dr. Terrill instructed claimant in the reduction of the 
 
          hernia and then recommended hernia repair.  Claimant subsequently 
 
          wore a hernia support until October 17, 1984 when Dr. Terrill 
 
          again saw him with complaints of increase of symptomatic inguinal 
 
          hernia.
 
 
 
               Dr. Terrill referred claimant to Thomas M. Foley, M.D., and 
 
          Robert L. Mandsager.  Per Dr. Mandsager, claimant underwent a 
 
          bilateral inguinal hernioplasty on November 16, 1984.  Claimant 
 
          had a diverticular hernia on the right and was found to have a 
 
          small direct hernia on the left as well.  Claimant was discharged 
 
          on November 19, 1984, and made an uneventful recovery.  On 
 
          December 28, 1984, Thomas M. Foley, M.D., released him to return 
 
          to work as of January 2, 1985 "full speed ahead."
 
 
 
               Claimant testified that he told a number of persons working 
 
          with him about the incident in December 1983, but stated he 
 
          couldn't recall whom he told since a lot of people were taken 
 
          from the area.  He later stated that he had told a union 
 
          president and the union shop committee chair of the incident in 
 
          January 1984.  On cross-examination, claimant agreed that in 
 
          response to interrogatory number 12 asking for the names of 
 
          individuals with whom the December 1983 incident had been 
 
          discussed, he had reported nothing concerning speaking with a 
 
          company nurse.
 
 
 
               Claimant received employer-provided disability pay while 
 
          recuperating.  Claimant reported that a company nurse completed 
 
          the medical information required for disability forms.  He 
 
          testified that he told the company substitute nurse involved that 
 
          his pain had begun at work, but stated he could,not remember what 
 
          her response to that statement was.  Claimant agreed that he had 
 
          checked "no" in response to a question on the disability benefit 
 
          form as to whether his disability had resulted from his 
 
          employment.  Claimant explained that he did so because his union 
 
          told him that he should use his disability to get his hospital 
 
          
 

 
 
 
 
 
 
 
          KANOUR V. FISHER CONTROLS
 
          Page   3
 
 
 
 
 
          and disability paid and then "go back" for workers' 
 
          compensation.
 
 
 
               Claimant testified that he was smoking approximately three 
 
          packs of cigarettes per day when seen by Dr. Terrill in January 
 
          1984.  He has worked as a stock car mechanic for approximately 
 
          fifteen years and was doing so during 1983.  He also owned and 
 
          rode motorcycles until Spring 1986.
 
 
 
               Camilla Smith, R.N., industrial nurse for Fisher Controls 
 
          testified that she is in charge of workers' compensation, sick 
 
          benefits, and insurance papers.  She indicated that under plant 
 
          procedure injured employees report their injury to the nurse who 
 
          then records it on the individual's medical record.  Ms. Smith 
 
          had reviewed claimant's medical chart and had found no report of 
 
          claimant advising the medical department of an injury on the job 
 
          relative to his hernia.  She recalled discussing claimant's 
 
          hernia with him on both January 9, 1984 and November 1, 1984, but 
 
          stated that on neither occasion had claimant indicated that the 
 
          hernia was work related.  She reported that it was probable that 
 
          a report of pain in the right groin would be put on the 
 
          employee's chart although it was possible that such a subjective 
 
          complaint would not be charted.  On rebuttal, claimant stated 
 
          that he had told Ms. Smith about his hernia, but reported that in 
 
          response she had told him it was not work related and didn't 
 
          happen here.
 
 
 
               Dr. Terrill's initial note of January 4, 1984 gives no 
 
          history of claimant's right inguinal pain having an onset at 
 
          work.  Dr. Terrill specifically states claimant "... mentioned 
 
          right inguinal pain after coughing." on October 17, 1984, Dr. 
 
          Terrill reported to Doctors Mandsager and Foley that claimant 
 
          "mentioned on the way out the door something about how this 
 
          should be a workmen's [sic] comp deal since it happened at work."  
 
          Dr. Terrill stated a case could be made that claimant's hernia 
 
          was caused by his smoking and respiratory tract infection.  
 
          Hospital summaries dictated by both Doctors Mandsager and Foley 
 
          indicate that claimant reported a history of lifting a housing 
 
          off a pallet at Fisher Controls in December 1983 and noticing a 
 
          pulling sensation in his right groin but no pain.  The note of 
 
          Dr. Foley further states that a couple of days later claimant 
 
          developed a cold and had coughing and a lot of pain in the right 
 
          groin.  He reported that claimant then saw Dr. Terrill who 
 
          confirmed the diagnosis of right inguinal hernia.  In a report to 
 
          Dr. Terrill of October 31, 1984, Dr. Foley stated that "from what 
 
          he tells me" maybe the episode of a year ago could have had 
 
          something to do with it, "although it wasn't that definite to me.  
 
          It may be his cold and cough that could have done it also."
 
 
 
               Claimant is currently working at the same job he held in 
 
          December 1983.  He has no medical restrictions but subjectively 
 
          reported that he can't and doesn't lift like he use to and that 
 
          when he uses big wrenches he sometimes feels a pulling sensation 
 
          as he pulls too hard toward himself.  He reported that he is 
 
          afraid to motorcycle and that he no longer lifts at home, plays 
 
          softball, or works on stock cars.
 
 
 
                             APPLICABLE LAW AND ANALYSIS
 
 
 

 
 
 
 
 
 
 
          KANOUR V. FISHER CONTROLS
 
          Page   4
 
 
 
 
 
               We first consider whether claimant has established an injury 
 
          which arose out of and in the course of his employment.
 
 
 
               Claimant has the burden of proving by a preponderance of the 
 
          evidence that he received an injury on January 4, 1984 which 
 
          arose out of and in the course of 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 words "out of" refer to the cause or source of the 
 
          injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
          N.W.2d 63 (1955).
 
 
 
               The words "in the course of" refer to the time and place and 
 
          circumstances of the injury.  McClure v. Union et al. Counties, 
 
          188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
          246 Iowa 402, 68 N.W.2d 63 (1955).
 
 
 
               Claimant has not sustained his burden.  Initially, we find 
 
          that claimant is not a credible witness.  His unsubstantiated 
 
          testimony is replete with inconsistencies and further 
 
          explanations.  Claimant could not remember whom he had told of 
 
          his work injury' other than the substitute nurse.  Following Ms. 
 
          Smith's testimony, he agreed, on rebuttal, that he had twice 
 
          discussed the incident with her but stated that she had told him 
 
          that it was not a work injury.  We believe that had the 
 
          conversations that claimant testified to actually taken place, it 
 
          is more likely than not that claimant would have testified as to 
 
          them on direct testimony rather than on rebuttal.  Likewise, 
 
          contrary to claimant's testimony, claimant did not see Dr. 
 
          Terrill in January 1984 for examination on account of pain 
 
          resulting from any December 1983 incident.  He saw Dr. Terrill 
 
          for coughing and cold-like symptoms.  Dr. Terrill only examined 
 
          claimant for hernia after claimant mentioned almost in passing 
 
          that he had right inguinal pain on coughing.  Likewise, Dr. 
 
          Terrill never reported a history of a lifting incident at work 
 
          with onset of pain.  That history only appears in Dr. Foley's and 
 
          Dr. Mandsager's notes of November 1984 after claimant belatedly 
 
          asserted to Dr. Terrill that it should be workers' compensation 
 
          since it happened at work.  Similarly, claimant denied that his 
 
          disability was employment related on the disability forms he 
 
          signed in November 1984 and collected company sponsored medical 
 
          and disability benefits on account of his hernia.  Claimant 
 
          testified that he did this on the advice of his union with the 
 
          intent of later collecting workers' compensation.  Even if this 
 
          were true, however, that action shows a reckless disregard for 
 
          the truth and a blatant attempt to defraud others.  It further 
 
          undermines claimant's credibility as a witness.  Claimant's 
 
          individual medical record reports no complaint of either pain or 
 
          pulling sensation in and around December 1983.  We note that 
 
          claimant does report a relatively minor incident in which he was 
 
          unable to see for a few seconds after working on an electrical 
 
          unit that shorted out.  We suspect that had claimant reported the 
 
          incident he testified to, that incident, even if viewed as 
 
          apparently minor, would also have been recorded.  Hence, the 
 
          objective evidence does not support claimant's contention that he 
 
          reported his work incident to a substitute nurse.  Likewise, no 
 
          physician has stated conclusively that the incident described, 
 
          even if it had happened, would have resulted in claimant's 
 

 
 
 
 
 
 
 
         KANOUR V. FISHER CONTROLS
 
         Page   5
 
 
 
 
 
          hernia.  His physicians believe claimant's excessive smoking and 
 
          his respiratory infection with coughing could also have produced 
 
          his hernia.  Similarly, claimant has worked as a stock car 
 
          mechanic for approximately fifteen years.  Auto mechanic work 
 
          involves lifting and other physical maneuvers, such as twisting 
 
          and pulling, as well as tools not significantly different from 
 
          those claimant described as involved in his work-related 
 
          assembly.  Such activities could also have produced claimant's 
 
          hernia.  Claimant simply has not sustained his burden.
 
 
 
               Because claimant has failed to establish this threshold 
 
          issue, we need not reach the other issues of notice, causation, 
 
          and disability entitlement raised.  We note that claimant would 
 
          also have difficulty prevailing as regards each of those issues.  
 
          Claimant at latest discovered his hernia on January 4, 1984.  No 
 
          evidence credibly suggests that he reported a work injury to his 
 
          employer prior to filing his petition.  Claimant is sufficiently 
 
          intelligent that he can be changed with recognizing the nature, 
 
          seriousness and probable compensability of his injury well before 
 
          then.  Likewise, as noted above, no physician has conclusively 
 
          stated that claimant's alleged work incident produced his hernia.  
 
          Each physician has noted other possibilities from which the 
 
          hernia could have resulted.  Hence, claimant, at best, would have 
 
          established a possibility of a relationship between any work 
 
          incident and his hernia.  Furthermore, under the relevant factors 
 
          governing industrial disability, claimant simply has not shown a 
 
          loss of earning capacity as a result of the alleged work 
 
          incident.  He has no stated functional impairment.  He has 
 
          returned to the same job and is apparently earning equal wages.  
 
          His restrictions are only as personally reported and, like his 
 
          other testimony, found lacking by his general lack of 
 
          credibility.
 
 
 
                              FINDINGS OF FACT
 
 
 
               WHEREFORE, IT IS FOUND:
 
 
 
               Claimant did not give a history of a December 1983 work 
 
          incident to Dr. Terrill when he visited the doctor on January 4, 
 
          1984.
 
 
 
               Claimant saw Dr. Terrill for respiratory infection-like 
 
          symptoms and as he was leaving mentioned that he had right 
 
          inguinal hernia pain on coughing.
 
 
 
               Dr. Terrill then examined claimant and discovered his right 
 
          inguinal hernia.
 
 
 
               Claimant's individual medical record with Fisher Controls 
 
          does not record claimant reporting experience of either pain or 
 
          pulling sensation on picking up a unit to assemble in December 
 
          1983.  The individual medical record does report a minor 
 
          electrical unit incident in December 1983.
 
 
 
               Claimant first reported the alleged work lifting incident to 
 
          Drs.  Mandsager and Foley in October 1984.
 
 
 
               Claimant told Camilla Smith, R.N., the Fisher industrial 
 
          nurse, of his hernia condition on January 9, 1984 and on November 
 

 
 
 
 
 
 
 
          KANOUR V. FISHER CONTROLS
 
          Page   6
 
 
 
 
 
          1, 1984 but did not indicate that the hernia was work related.
 
 
 
               Claimant denied that his disability resulted from his 
 
          employment on disability application forms which he completed in 
 
          order to receive health benefits and disability benefits while 
 
          hospitalized and disabled on account of repair of his hernia.
 
 
 
               Claimant was smoking up to three packs of cigarettes per day 
 
          in January 1984.
 
 
 
               Claimant had worked as a stock car mechanic for fifteen 
 
          years and was working as a stock car mechanic in 1983.
 
 
 
               Excessive smoking or coughing related to a respiratory 
 
          infection could have produced an inguina hernia.
 
 
 
               The physical maneuvers and lifting required of a stock 
 
          car mechanic are not significantly different from the 
 
          Physical maneuvers and lifting required in claimant's job as 
 
          an electric hydraulic assembler at Fisher Controls.  
 
          Claimant would likely be using similar tools with twisting 
 
          and pulling maneuvers in both activities.
 
 
 
               Claimant was not a credible witness.
 
               Ms. Smith was a credible witness.
 
 
 
                                   CONCLUSIONS OF LAW
 
 
 
               THEREFORE, IT IS CONCLUDED:
 
 
 
               That claimant has not established an injury discovered on 
 
          January 4, 1984 which arose out of and in the course of his 
 
          employment.
 
 
 
                                   ORDER
 
 
 
               THEREFORE, IT IS ORDERED:
 
 
 
               Claimant take nothing from this proceedings.
 
 
 
               Claimant pay costs of this proceeding.
 
 
 
                                    
 
               Signed and filed this day of January, 1987.
 
 
 
 
 
 
 
 
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
          Copies to:
 
 
 
          Mr. Theodore R. Hoglan
 
          Attorney at Law
 
          34 South First Avenue
 
          Marshalltown, Iowa 50158
 
 
 
          Mr. E. J. Giovannetti
 

 
 
 
 
 
 
 
         KANOUR V. FISHER CONTROLS
 
         Page   7
 
 
 
 
 
          Attorney at Law
 
          1040 Fifth Avenue
 
          Des Moines, Iowa 50314
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100
 
                                                   Filed 1-29-87
 
                                                   Helen Jean Walleser
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         EUGENE K. KANOUR,
 
              
 
              Claimant,
 
                                                 File No. 808320
 
         VS.
 
                                              A R B I T R A T I 0 N
 
         FISHER CONTROLS,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1100
 
         
 
              Claimant found to be a noncredible witness such that his 
 
         testimony alone insufficient to establish injury which arose out 
 
         of and in the course of his employment.