BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JESSE FIGGINS,
 
         
 
              Claimant,                               File No. 809299
 
         
 
         vs.                                       A R B I T R A T I O N
 
                                                 
 
         AGRI-PRO,                                    D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 15 1990
 
         FIREMAN'S FUND INSURANCE CO.,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Jesse Figgins, 
 
         claimant, against Agri-Pro, employer, and its insurance carrier, 
 
         Fireman's Fund Insurance Company, defendants.  The case was heard 
 
         on March 30, 1989, in Des Moines, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Mary E. Figgins, wife of 
 
         claimant.  Additionally, the record consists of claimant's 
 
         exhibits 1-6 and defendants' exhibits A and B.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
              
 
              2.  That claimant sustained an injury on November 8, 1985 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4.  That in the event of an award of weekly benefits, the 
 
         rate of weekly compensation is stipulated to be $220.42 per week; 
 
         and,
 
         
 
              5.  Defendants paid claimant 83.714 weeks of compensation at 
 
         the rate of $220.42 per week prior to hearing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on March 30, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits; and,
 
              
 
              2.  Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
              
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 34-years-old.  He is married with two children. 
 
         Claimant holds a bachelors of science degree in botany from Iowa 
 
         State University.  Additionally, claimant has taken courses at 
 
         Iowa State in occupational and traffic safety education.
 
         
 
              At the time of the hearing, claimant had commenced 
 
         employment with the National Animal Disease Lab.  The job began 
 
         on March 13, 1989.  It is due to end in March of 1990.
 
         
 
              Claimant testified he commenced his employment with 
 
         defendant, Agri-Pro, in July of 1980.  His duties included taking 
 
         charge of the corn bore department, taking data from corn 
 
         samples, taking corn from the field, dealing with sales and 
 
         lifting 25 pounds to 200 pounds.  Claimant also testified he 
 
         engaged in frequent bending, twisting and lifting.  Claimant 
 
         reported he worked seven days a week.
 
         
 
              On the day in question, claimant testified he injured 
 
         himself when he lifted a bucket of corn cobs into a dumpster.  
 
         According to his testimony he felt something snap and then felt a 
 
         pain in his leg.  Claimant had to have a co-employee drive him 
 
         home. Claimant was treated at Mary Greeley Hospital by Joseph T. 
 
         Michels, Jr., M.D.
 
         
 
              Claimant testified that during his hospital stay he was 
 
         treated for low back pain and during his stay he developed a 
 
         virus with a high fever.
 
         
 
              Claimant testified he missed two weeks of work subsequent to 
 
         his injury of November 8, 1985 and that he was compensated with 
 
         temporary total disability/healing period benefits.  Claimant 
 
         explained he returned to work on November 25, 1985 and worked 
 
         until November 9, 1986.  Claimant stated that as of the ninth of 
 
         November, he was no longer able to do the work he was hired to 
 
         perform and that the ninth was the last day he worked for 
 
         defendant-employer.
 
         
 
              Claimant reported that after November 9, 1986, he attended 
 
         classes at Iowa State University and made application to over 50 
 
         companies.  Claimant indicated his one year position with the 
 
         National Disease Animal Lab started in March of 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mary E. Figgins, wife of claimant, testified at the hearing. 
 
         She testified she has observed a dramatic change in claimant 
 
         since November 8, 1985.  Prior to that date, Mrs. Figgins stated 
 
         claimant was strong and physically active.  However, she reported 
 
         claimant's condition had degenerated since November 8, 1985.
 
         
 
              Allen G. Lang, M.D., testified by way of deposition.  He 
 
         reported he initially visited with claimant on July 14, 1986.  
 
         Dr. Lang testified he reviewed radiographic studies of claimant's 
 
         back.  Dr. Lang opined claimant had a congenital spinal anomaly 
 
         known as spina bifida occulta.  Dr. Lang stated spina bifida 
 
         occulta is a condition where "the spine remains in two bones 
 
         instead of having formed together into one in this particular 
 
         area."  (Claimant's Exhibit 5, page 7, lines 7-8)
 
         
 
              Dr. Lang testified that in July of 1986, he diagnosed 
 
         claimant as having "a lumbosacral strain superimposed on this 
 
         congenital anomaly."  (Cl. Ex. 5, p. 7, 11. 24-25)
 
         
 
              In his deposition, Dr. Lang testified he recommended the 
 
         following for claimant:
 
         
 
              I recommended that he continue his exercise program that he 
 
              had been instructed in in [sic] physical therapy.  He was 
 
              also wearing a brace as part of his treatment, and I 
 
              suggested that he try and gradually wean himself away from 
 
              that, and I recommended that he not make any attempt to 
 
              return to the same type of work activities that he had been 
 
              involved in previously.
 
         
 
         (Cl. Ex. 5, p. 9, 11. 15-22)
 
         
 
              Dr. Lang also testified in his deposition:
 
         
 
              Well, as I said, I felt he was permanently completely 
 
              disabled regarding returning to the level of work that he 
 
              was involved in previously, which required--long hours and 
 
              significant amounts of lifting I think specifically I placed 
 
              some limitations on.
 
         
 
         (Cl. Ex. 5, pp. 10-11, 11. 22-2)
 
         
 
              In a letter dated September 9, 1986, Dr. Lang restricted 
 
         claimant from repetitively lifting weights greater than 20 pounds 
 
         and from working more than 40 hours per week.  Dr. Lang stated he 
 
         also restricted claimant from prolonged standing or walking.
 
         
 
              Dr. Lang testified the last date on which he saw claimant 
 
         was February 17, 1987.
 
         
 
              Kirby R. Hotchner, D.O., testified by deposition.  He 
 
         testified he first treated claimant on July 7, 1987.  Dr. 
 
         Hotchner testified he observed the following symptoms in claimant 
 
         on that date:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Okay.  He was having mid and lower back pain which was worse 
 
              on the right side of the lumbar area, pain going down the 
 
              right leg, down to the knee and at times down to the ankle, 
 
              especially the lateral side of the leg.  He had difficulty 
 
              laying on his right side, difficulty sitting, difficulty 
 
              riding in a car, difficulty bending over.  He had been off 
 
              work for a long time, and at that time he was using a TENS 
 
              unit for pain control and a back brace for support.
 
         
 
         (Cl. Ex. 6, p. 6, 11. 1-9)
 
         
 
              Dr. Hotchner testified he ordered a standing pelvic x-ray of 
 
         claimant.  The physician determined claimant had one leg which 
 
         was shorter than the other.  Dr. Hotchner placed a quarter inch 
 
         heel lift in claimant's right shoe.  Dr. Hotchner opined:
 
         
 
              He had one of the most severe cases I've seen of fibrotic 
 
              changes in the musculature of the lower back.  On the right 
 
              side from about the first lumbar vertebra to the fifth 
 
              lumbar vertebra in the paralumbar muscles, they're entirely 
 
              fibrose, which means they're hard, and there are chronic 
 
              muscle changes from chronic muscle spasm.  He had severely 
 
              restricted range of motion in the lumbar area and in all the 
 
              muscles of the abdomen and in the lower extremities.  
 
              There's basically hardly any motion in the long restrictors 
 
              of the lower extremity.
 
         
 
         (Cl. Ex. 6, pp. 7-8, 11. 19-5)
 
         
 
              Dr. Hotchner diagnosed claimant as having:
 
         
 
              Yes.  I would say he has a fibromyositis of the lumbar 
 
              spine. He has a lumbar radiculopathy, which is radiating 
 
              nerve pain. I believe he has a herniated disk, according to 
 
              the CT scan, at the L4 level which is putting some pressure 
 
              on the nerve roots as they come out on the L4 level at the 
 
              right.  That's what's causing the right-sided leg pain, 
 
              weakness, and atrophy.  (Cl. Ex. 6, pp. 10-11, 11. 22-4)
 
         
 
              Dr. Hotchner, in his deposition, testified he placed 
 
         restrictions on claimant.  The physician described the 
 
         restrictions as:
 
         
 
              A.  I would personally put a weight limit restriction of 
 
              about 25 pounds for lifting.  It really would not be good 
 
              for him to lift over that amount.  In terms of sitting, you 
 
              know, it probably wouldn't be good for him to sit, you know, 
 
              in one place for more than an hour at a time without getting 
 
              up and stretching.
 
         
 
              Q.  How about the repetitive type motion of bending or 
 
              twisting?
 
         
 
              A.  I don't think he would be able to do that for more than, 
 
              you know, maybe a half hour at the most without having a lot 
 
              of problems.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl. Ex. 6, p. 14, 11. 1-12)
 
         
 
              Dr. Hotchner also opined claimant had a congenital condition 
 
         but not a degenerative disk disease.  The physician stated 
 
         claimant had been making progress since he began his treatments. 
 
         Dr. Hotchner expected claimant to make progress until he was 
 
         better.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).  The expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the causal connection 
 
         between the injury and the disability.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
         regard to medical testimony, the commissioner is required to 
 
         state the reasons on which testimony is accepted or rejected.  
 
         Sondag, 220 N.W.2d 903 (1974).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 8, 1985, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt, 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, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact. Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments and a work connected injury which more 
 
         than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Factors to be considered in determining industrial 
 
         disability 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.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              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, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is whether claimant's claimed 
 
         disability is causally related to the work injury of November 8, 
 
         1985.  Both Dr. Lang and Dr. Hotchner testified claimant suffers 
 
         from congenital anomalies. claimant's right leg is shorter than 
 
         his left leg.  Additionally, claimant has spina bifida occulta. 
 
         However, claimant had no outward symptoms of either preexisting 
 
         condition until claimant sustained his work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While claimant did sustain low back pain complaints in 1984 
 
         and in 1985, the complaints did not result in any permanent 
 
         problems.  Claimant was able to return to work without 
 
         complications.
 
         
 
              The work injury, however, aggravated claimant's preexisting 
 
         conditions.  Dr. Lang proximately relates claimant's alleged 
 
         condition to claimant's work injury.  Dr. Lang testified:
 
         
 
              I don't think I can say with certainty how much of the 
 
              restrictions are due to one or to the other.  He apparently 
 
              had not had significant symptoms from this anomaly prior to 
 
              the injury.  To that extent, it may be the major cause of 
 
              his limitations.  On the other hand, this same kind of thing 
 
              could have occurred had he not had that congenital anomaly. 
 
              Still, it is likely that that was a contributing factor 
 
              here, so I believe his total impairment is due to 
 
              aggravation of the congenital anomaly or a preexisting 
 
              condition.
 
         
 
         (Ex. 5, p. 13, 11. 8-18)
 
         
 
              Dr. Lang continued by describing the aggravation of the 
 
         preexisting condition as:
 
         
 
              Well, based on--even based on experience with similar cases 
 
              and experience in dealing with back problems, this would 
 
              have to be somewhat conjectural, but it would appear that 
 
              with this type of congenital anomaly, there is a lack of 
 
              full bone formation and instead a replacement, where there 
 
              would normally be bone, with fibrous tissue or gristle; and, 
 
              in addition, the cushion between the bottom vertebra and the 
 
              top of the pelvis was less than normal in depth and height 
 
              and presumably not as good a cushion as normal.
 
         
 
                   Therefore, any type of bending, lifting activities, 
 
              which in all people result in a large amount of stress in 
 
              this area, would not be taken through normal structures in 
 
              Mr. Figgins' case; and, therefore, these stresses may cause 
 
              then some shifting in the relationship of these bones and of 
 
              this vertebra to the extent that it causes muscular 
 
              irritation, nerve irritation and the type of severe spasm 
 
              and stiffness that was seen in his case.
 
         
 
         (Cl. Ex. 5, pp. 16-17, 11. 25-19)
 
         
 
              Dr. Hotchner also testified in his deposition that claimant 
 
         had preexisting conditions which were aggravated by claimant's 
 
         work injury.  Dr. Hotchner opined:
 
         
 
              Q.  Okay.  Now Doctor, you've testified that in your opinion 
 
              a disk can be predisposed to additional injury or 
 
              herniation-by a traumatic event.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A.  Yes.
 
         
 
              Q.  I'd like you to assume that Mr. Figgins was injured at 
 
              work on November 8, 1985, while lifting a heavy box of 
 
              apparently corn cobs --
 
         
 
              A.  Right.
 
         
 
              Q.  -- and that a few hours later he went to the Mary 
 
              Greeley Clinic and saw Doctor Michaels and Doctor Michaels 
 
              did an examination and completed a report which you now have 
 
              before you.
 
         
 
                   Based upon those facts, do you have an opinion as to 
 
              whether the herniated disk that developed in Mr. Figgins was 
 
              causally related to the injury of November 8, 1985?
 
         
 
              A.  I believe that it was.  I believe that's the only 
 
              significant enough trauma in his history that could have 
 
              caused that.
 
         
 
              Q.  Okay.
 
         
 
              A.  And since these restrictions and pain started up right 
 
              at that time and the severe restriction in straight leg 
 
              raising which could have been a disk, which he even said 
 
              there, I think that was the proximate cause.
 
         
 
         (Ex. 6, pp. 43-44, 11. 8-7)
 
         
 
              In light of the above, it is the determination of the 
 
         undersigned that claimant has established the requisite causal 
 
         connection between the work injury of November 8, 1985 and 
 
         claimant's alleged condition.  Claimant has proven by a 
 
         preponderance of the evidence that he aggravated his preexisting 
 
         conditions by his work injury.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         permanent partial disability benefits.  Both Dr. Lang and Dr. 
 
         Hotchner have found permanent functional impairment.as a result 
 
         of claimant's work injury.  Dr. Lang found:
 
         
 
              His examination shows 0 to 80 degrees of spinal flexion, 
 
              side bending to 15 degrees to both the right and left, and 
 
              rotations of 20 degrees to the right and 25 degrees to the 
 
              left.  These limitations, associated with his radiographic 
 
              findings, warrant a 13 percent permanent physical impairment 
 
              of the whole person, according to the "Guidelines to the 
 
              Evaluation of Permanent Impairment" of the American Medical 
 
              Association.  Functionally, he is capable of only sedentary 
 
              or light duty activities and I have recommended that he 
 
              retrain into a field which will not stress the low back. 
 
              Since his previous job required bending, lifting, and 
 
              activities that he should not be participating in, he is and 
 
              will remain 100 percent disabled in regards to that line of 
 
              work.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl. Ex. 1, p. 5)
 
         
 
              Dr. Hotchner determined claimant had an eight percent to ten 
 
         percent functional impairment.  The physician felt claimant would 
 
         reach full recovery because:
 
         
 
              I guess my feeling is if it's the soft tissue injury that's 
 
              causing the majority of his problems -- and there's no way 
 
              of knowing what part is due to the nerve and what part is 
 
              due to the soft tissue -- we should be able to bring him 
 
              back to normal.  If the nerve problem which is being 
 
              compressed by the disk is severe enough, that may arrest us 
 
              at a certain point.  I'm sort of perplexed myself why none 
 
              of the orthopedic surgeons wanted to do surgery on that.
 
         
 
         (Cl. Ex. 6, p. 35, 11. 17-25)
 
         
 
              Defendants sent claimant to David J. Boarini, M.D., for 
 
         purposes of an examination and an evaluation in August of 1986. 
 
         This was Dr. Boarini's only examination.  Dr. Boarini did not 
 
         provide a functional impairment rating.  He did write in his 
 
         letter of August 8, 1986:
 
         
 
              Upon examination, the patient has a normal range of motion 
 
              and negative straight leg raising.  Strength testing was 
 
              somewhat difficult as the patient clearly had some 
 
              functional overlay and embellished his difficulties a good 
 
              deal.  With repeated testing, I was able to get him to 
 
              demonstrate normal strength in all groups.  There was no 
 
              muscular atrophy. Sensation was normal.  Reflexes were 
 
              symmetric and physiologic.
 
         
 
              I think this patient has chronic myofascial back pain with a 
 
              bit of functional overlay.  Normally I would consider nine 
 
              months well beyond the period of maximum medical benefit but 
 
              in view of the fact that the patient did return to work and 
 
              worked until three weeks ago, it might be worthwhile to 
 
              continue with conservative treatment a bit longer before 
 
              trying to make a final decision on his ability to return to 
 
              this type of work.
 
         
 
              Overall the patient does not seem as if he himself feels he 
 
              will be able to return to this work and I'm afraid that is 
 
              rather discouraging for his long term prospects.  I might 
 
              also add that the patient has some disagreement with the 
 
              amount of heavy lifting that it [sic] is involved in his job 
 
              as compared to that in the job description.
 
         
 
              I have no further suggestions for new therapy, and as I 
 
              said, I am somewhat doubtful that the patient will return to 
 
              his previous job.  I would, however, because of his fairly 
 
              brief time off work during this episode, recommend at least 
 
              some attempt at further physical therapy before a final 
 
              decision is made.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is the determination of the undersigned that claimant has 
 
         a functional impairment of ten percent.  It is also the 
 
         determination of the undersigned that claimant has sustained an 
 
         industrial disability.  First of all, claimant is permanently 
 
         restricted.
 
         
 
              Dr. Lang, in a note of August 30, 1986, imposed the 
 
         following permanent restrictions on claimant:
 
         
 
              Because of this condition, however, it is not recommended 
 
              that he resume his previous level of activity at work even 
 
              after he has recovered.  He should be limited to a 40 hour 
 
              week for any type of job which requires prolonged standing 
 
              or walking.  He should be permanently restricted from 
 
              lifting greater than 20 pounds of weight repetitively.  
 
              Accordingly, my understanding of his previous work duties 
 
              would indicate that a job change is required.
 
         
 
              Dr. Lang also indicated, "I felt he was permanently 
 
         completely disabled regarding returning to the level of work that 
 
         he was involved in previously, which required--long hours and 
 
         significant amounts of lifting I think specifically I placed some 
 
         limitations on."
 
         
 
         (Cl. Ex. 5, pp. 10-12, 11. 22-2)
 
         
 
              Dr. Hotchner testified claimant had made a great deal of 
 
         improvement since spring of 1988.  The physician expected the 
 
         total recovery of claimant.  Evidence submitted to the 
 
         undersigned indicates claimant began applying for positions in 
 
         July and August of 1988.  One can infer that at least by July 7, 
 
         1988, claimant believed he was capable of working full time.  
 
         Therefore, it is the decision of the undersigned that claimant 
 
         was in the healing period from November 8, 1985 to November 25, 
 
         1985 and from November 9, 1986 to July 7, 1988.  This period 
 
         involves 89.285 weeks.
 
         
 
              The last issue to address is whether claimant is entitled to 
 
         certain medical benefits.  Claimant is requesting payment of the 
 
         following:
 
         
 
              1.  Radiology Professional Corp       $   75.00       Ex.A
 
              2.  Neurological Assoc. of DM            410.00       Ex.B
 
              3.  University of Osteopathic
 
                     Medicine (Dr. K. Hotchner)      1,509.00.      Ex.C
 
              4.  University of Iowa
 
                     Hospitals and Clinics             327.50       Ex.D
 
              5.  Iowa Methodist Med. Center           430.20       Ex.E
 
              6.  Excel Medical
 
                     (formerly Miller Medical)         270.00       Ex.F
 
              
 
              Total Unpaid Medicals to Date.........$3,021.70
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified all of the above were prescribed by his 
 
         treating physician, Dr. Hotchner.  Claimant had been referred to 
 
         Dr. Hotchner by Dr. Lang, the authorized treating physician.  The 
 
         employer and its insurance carrier have the right to choose a 
 
         treating physician, but section 85.27 does not give them the 
 
         right to invade the province of medical professionals in 
 
         determining what diagnostic tests and/or methods of treatment are 
 
         to be utilized.  Martin v. Armour Dial Co., Inc., File No. 754732 
 
         (Arbitration Decision filed July 31, 1985).  Here, Dr. Hotchner 
 
         was recommended by Dr. Lang.  The employer cannot now challenge 
 
         the wisdom of Dr. Lang in referring claimant to Dr. Hotchner for 
 
         manipulative therapy.  Therefore, it is the determination of the 
 
         undersigned that defendants are liable for the aforementioned 
 
         medical expenses.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence and principles of law 
 
         presented, the following findings of fact and conclusions of law 
 
         are made:
 
         
 
              Finding 1.  Claimant sustained an injury to his back on 
 
         November 8, 1985, and the injury arose out of and in the course 
 
         of his employment.
 
         
 
              Finding 2.  Claimant had congenital anomalies prior to his 
 
         work injury of November 8,'1985.
 
         
 
              Finding 3.  As a result of the work injury on November 8, 
 
         1985, claimant has an attributable functional impairment of eight 
 
         to 15 percent of the body as a whole.
 
         
 
              Finding 4.  Claimant's medical condition after the work 
 
         injury of November 8, 1985, precluded him from working for 
 
         defendant as of November 9, 1986.
 
         
 
              Finding 5.  Claimant has permanent medical restrictions 
 
         placed upon him.
 
         
 
              Finding 6.  Claimant was unemployed from November 9, 1986 to 
 
         March 13, 1989.
 
         
 
              Finding 7.  On March 13, 1989, claimant was hired for a one 
 
         year temporary position.
 
         
 
              Conclusion A.  Claimant has met his burden of proving he has 
 
         a 25 percent permanent partial disability as a result of his 
 
         injury on November 8, 1985.
 
         
 
              Conclusion B.  Claimant has met his burden of proving he was 
 
         in the healing period from November 8, 1985 to November 25, 1985 
 
         and from November 9, 1986 to July 7, 1988.
 
         
 
              Finding 8.  Claimant incurred medical expenses as a result 
 
         of his work injury on November 8, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Conclusion C.  Defendants are liable for medical expenses in 
 
         the sum of $3,021.70.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant one hundred 
 
         twenty-five (125) weeks of permanent partial disability benefits 
 
         at the rate of two hundred twenty and 42/100 dollars ($220.42) 
 
         per week as a result of the injury on November 8, 1985.
 
         
 
              Defendants are to pay unto claimant eighty-nine point 
 
         two-eight-five (89.285) weeks of healing period benefits at the 
 
         rate of two hundred twenty and 42/100 dollars ($220.42) per week 
 
         as a result of the injury on November 8, 1985.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are liable for medical expenses incurred in the 
 
         sum of three thousand twenty-one and 70/100 dollars ($3,021.70) 
 
         and for future reasonable medical expenses.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid to claimant.
 
         
 
              Costs of this action are assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 15th day of February, 1990.
 
         
 
         
 
         
 
         
 
                                        
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacques D. Schira
 
         Attorney at Law
 
         Suite 500
 
         First Interstate Bank Bldg.
 
         Des Moines, IA  50309
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2209
 
                                            Filed February 15, 1990
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JESSE FIGGINS,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 809299
 
         
 
         AGRI-PRO,                                 A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-2209
 
         
 
              Claimant awarded a permanent partial disability of 25 
 
         percent.  Claimant has a bachelor's of science degree in botany 
 
         and is capable of handling a desk job where he can get up and 
 
         walk around the office.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS McMAHON,
 
         
 
              Claimant,
 
                                                 File No. 809375
 
         vs.
 
                                              A R B I T R A T I O N
 
         OSCAR MAYER FOODS
 
         CORPORATION,                            D E C I S I O N
 
         
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dennis 
 
         McMahon, claimant, against Oscar Mayer Foods Corporation, 
 
         self-insured employer, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an alleged injury of 
 
         January 6, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner July 14, 1988.  The 
 
         record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant and Vernon Keller; joint exhibits 1 through 16,, 
 
         inclusive; and defendant's exhibit A.  Claimant's objection to 
 
         defendant's exhibit A is overruled.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved July 14, 1988, the following issues are presented for 
 
         resolution:  (1) Whether the claimant sustained an injury which 
 
         arose out of and in the course of his employment on January 6,, 
 
         1985; (2) whether the alleged injury is the cause of temporary 
 
         and/or permanent disability; and (3) claimant's entitlement, if 
 
         any, to permanent partial disability benefits stipulated to be a 
 
         scheduled member disability.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified he was hired by defendant employer August 
 
         21, 1972 and that some time at the beginning of January 1985, he 
 
         began working in the ham boning and pre-rigger department where 
 
         he cut away the bones and skinned the fat on as many as 100 or 
 
         more hams per day.  Claimant explained that on January 6, 1985, 
 
         while boning, his hands became numb and painful and, after 
 
         reporting this condition to his foreman, he was sent to the 
 
         medical department and then to Robert Chesser, M.D. Claimant 
 
         stated that Dr. Chesser ran an EMG which suggested carpal tunnel 
 
         syndrome and that he was referred to John Sinning, M.D., for 
 
         surgery in both wrists in March 1985.  Claimant testified that he 
 
         was off work from March through June 1985 and that he received 
 
         workers' compensation benefits for this period of time.  Claimant 
 
         explained that since the surgery his pain has eased but he still 
 
         gets numbness, tingling and swelling in his hands, wrists and 
 
         forearms, left worse than right, and that he indiscriminately 
 
         gets the "dropsies" even while engaged in his regular activities.  
 
         Claimant acknowledged that prior to this surgery he had had 
 
         problems with his hands, wrists and arms but had not missed any 
 
         work as a result thereof and never had any surgery prior to that 
 

 
         
 
         McMAHON V. OSCAR MAYER FOODS CORPORATION
 
         PAGE 2
 
 
 
 
 
         
 
         done in March of 1985.
 
         
 
              Claimant acknowledged he has tenosynovitis in his left 
 
         extremity (for which he is not making any claim herein) which 
 
         causes pain and numbness in his left hand.  On cross-examination, 
 
         claimant revealed he was in a motorcycle accident in July of 1986 
 
         wherein he was thrown into his motorcycle, fracturing his sternum 
 
         and causing his wrists to swell.  He denied seeking any medical 
 
         attention but did miss some work as a result of this incident.  
 
         Claimant maintained he is unable to engage in any repetitive 
 
         work, but since his return to work he has frequently visited the 
 
         medical department with complaints of hands, wrist, and arm pain 
 
         and that although he is unable to perform his current job, his 
 
         pain and complaints vary with the type of work he is doing.
 
         
 
              Vernon Keller, who identified himself as the safety and 
 
         security manager who supervises the medical department and 
 
         administers the workers' compensation program for Oscar Mayer, 
 
         testified that a review of the medical department records 
 
         revealed claimant had one complaint "rt. wrist swollen" on 
 
         October 28, 1986, although he acknowledged it was possible 
 
         claimant could have visited the medical department without it 
 
         being noted in the record.
 
         
 
              In a letter dated January 29, 1985, to Gordon Flynn, M.D., 
 
         of the Oscar Mayer medical department, Robert J. Chesser, M.D., 
 
         stated he first saw claimant in May of 1984 for EMG and nerve 
 
         conduction study at which time there was evidence of right carpal 
 
         tunnel entrapment.  After further evaluation, testing and 
 
         examination, Dr. Chesser concluded:
 
         
 
              ... there is definite evidence of a right carpal 
 
              tunnel entrapment.  At this time, there is also 
 
              evidence compatible with a left carpal tunnel 
 
              entrapment, however, this is very borderline at 
 
              this time compared to the study which was done in 
 
              May of 1984.  There does not appear to be any 
 
              significant change although the findings would 
 
              suggest some worsening of the slowing.  I do feel 
 
              that this is compatible with the patient's 
 
              symptoms.  I feel he should be considered for a 
 
              surgical release on the right and depending on the 
 
              results of this, to consider a release on the 
 
              left.
 
         
 
         (Joint Exhibit 2)
 
         
 
              In May of 1985, John E. Sinning, Jr., M.D., reported that 
 
         claimant was recovering "nicely" from his bilateral wrist surgery 
 
         for carpal tunnel.  By July 8, 1985 claimant had returned to work 
 
         and Dr. Sinning reported that he was getting along satisfactorily 
 
         in his present limited duty job.  On November 20, 1985, Dr. 
 
         Sinning reported to the medical department of Oscar Mayer Foods 
 
         that claimant had no evidence of impaired function as a result of 
 
         the bilateral carpal tunnel surgery.  Claimant returned for 
 
         evaluation at the request of the defendant in May 1986, at which 
 
         time Dr. Sinning stated that claimant had recovered, "in a 
 
         splendid way from the medial nerve decompression, but continues 
 
         to suffer recurrent tenosynovitis of the flexor tendons of the 
 
         fingers and wrist secondary to rapid alternate work.  Cybex 
 
         testing demonstrated that claimant had significant weakness in 
 
         the grip of both hands in terms of power grip and therefore, in 
 
         October 1986, Dr. Sinning recommended a trial of physical therapy 
 
         and strengthening for the hands.  On November 24, 1986 Dr. 
 
         Sinning reported, "Dennis McMahon had sufficient conflicts that a 
 
         worthwhile program in physical rehabilitation for strengthening 
 
         of his hands and forearms has not worked out.  My own examination 
 
         today is normal in terms of range of motion and grip strength."  
 
         On August 14, 1987, Dr. Sinning explained that based on full 
 

 
         
 
         
 
         
 
         McMAHON V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
         range of motion, no tenderness and good grip, the claimant has 
 
         sustained no impairment of function as a result of the carpal 
 
         tunnel surgery.
 
         
 
              Claimant was also evaluated by Raymond W. Dasso, M.D., on 
 
         January 21, 1986, who opined:
 
         
 
              I feel this patient has about 7% disability of each 
 
              wrist permanent partial because he is unable to carry 
 
              on his work in a normal manner and there are several 
 
              jobs that he cannot perform now that he was able to do 
 
              before he developed this condition.  I feel that the 
 
              condition is work related because his work required 
 
              rapid repetative [sic] motion of his wrist and hands 
 
              and over a period of time this developed carpal tunnel 
 
              entrapment.
 
         
 
         (Jt. Ex. 7)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
          Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 6, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 47 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974) . The 
 
         expert opinion
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 

 
         
 
         
 
         
 
         McMAHON V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   4
 
         
 
         
 
         
 
              Iowa Code section 85.34(2)"s" provides in part: "The loss of 
 
         both arms, or both hands, or both feet, or both legs, or both 
 
         eyes, or any two thereof, caused by a single accident, shall 
 
         equal five hundred weeks...."
 
         
 
                                     ANALYSIS
 
         
 
              Of first concern is the determination of whether or not 
 
         claimant sustained an injury which arose out of and in the course 
 
         of his employment.  It is accepted that the greater weight of 
 
         evidence establishes that claimant's bilateral carpal tunnel 
 
         syndrome came about as a result of the work claimant was 
 
         performing for defendant employer.  The record establishes 
 
         claimant began his employment with Oscar Mayer in August 1972 and 
 
         for some period of time had been experiencing discomfort in his 
 
         arms, wrists and hands.  There appears to be no question in the 
 
         medical evidence submitted that claimant's condition and 
 
         subsequent surgery were caused by his employment.  There was no 
 
         traumatic event which caused this condition and clearly, it 
 
         developed gradually over a period of time first causing claimant 
 
         to miss work on January 6, 1985.  Therefore, it is found 
 
         claimant, on January 6, 1985, sustained an injury which hose out 
 
         of and in the course of his employment and that the work injury 
 
         is causally connected to the disability on which claimant now 
 
         bases his claim.
 
         
 
              The record establishes that claimant, as a result of the 
 
         surgery, was unable to work for the stipulated period of March 
 
         13, 1985 through June 3, 1985.  Claimant has been paid for this 
 
         period of time and there is no question of further entitlement to 
 
         these weekly benefits.  The essential question for resolution 
 
         then is whether or not claimant is entitled to any permanent 
 
         partial disability benefits.
 
         
 
              Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was the cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  As claimant has sustained an injury to a scheduled 
 
         member, the functional method of evaluating disability must be 
 
         employed.  The record establishes there were two physicians who 
 
         saw claimant either for the purposes of treatment or for the 
 
         purposes of evaluation who rendered an opinion on permanent 
 
         impairment.  Dr. Dasso, who saw claimant January 21, 1986, opined 
 
         claimant has a 7% disability" of each wrist.  Dr. Dasso does not 
 
         appear to base his opinion on claimant's functional impairment 
 
         but rather bases his opinion on the fact that claimant is "unable 
 
         to carry on his work in a normal manner and there are several 
 
         jobs that he cannot perform now that he was able to do before he 
 
         developed this condition."  It appears that Dr. Dasso is thus 
 
         rating claimant's "industrial disability" rather than rating his 
 
         functional impairment.  It is a well settled principle of 
 
         workers' compensation law in the state of Iowa that it is within 
 
         the province of the industrial commissioner to determine 
 
         disability.  Furthermore, the rating of disability in this case 
 
         is particularly inappropriate in light of the fact that claimant 
 
         has an injury to a scheduled member and not to the body as a 
 
         whole.  Dr. Dasso does not indicate that claimant has any 
 
         functional impairment as a result of the carpal tunnel syndrome 
 
         and resulting surgery.  Furthermore, Dr. Dasso saw claimant in 
 
         January of 1986.  Dr. Sinning, who was claimant's treating 
 
         physician, appears to have last seen claimant in August of 1987.  
 
         Dr. Sinning finds that claimant has no impairment of function 
 

 
         
 
         
 
         
 
         McMAHON V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   5
 
         
 
         
 
         based on a full range of motion, no tenderness and a good grip.  
 
         It is concluded that the opinion of Dr. Sinning, who last saw 
 
         claimant, who treated claimant over an extended period of time 
 
         and who was in a position to watch claimant's progress, is 
 
         entitled to greater weight and the undersigned cannot conclude 
 
         that claimant has any functional impairment as a result of the 
 
         bilateral carpal tunnel syndrome.  It does appear, however, that 
 
         Dr. Sinning places some work restrictions on claimant.  A review 
 
         of the medical evidence establishes, notwithstanding, that Dr. 
 
         Sinning's restrictions are based more on claimant's tenosynovitis 
 
         than the carpal tunnel syndrome.  Dr. Sinning continually refers 
 
         to claimant's good recovery from the carpal tunnel release 
 
         surgery and, in fact, in November 1985 released claimant to 
 
         return to his regular duty with no work restrictions.  It was not 
 
         until May of 1986 when the tenosynovitis was diagnosed that Dr. 
 
         Sinning made any recommendation that claimant's job assignments 
 
         be modified.  Claimant made it clear during the course of his 
 
         testimony that he was not making any claim with regard to the 
 
         tenosynovitis.  Accordingly, it is found that the greater weight 
 
         of evidence also establishes that the claimant has not suffered 
 
         any permanent restrictions and work activity as a result of the 
 
         work injury of January 6, 1985.  Claimant has failed to establish 
 
         he sustained any permanent partial disability as a result of the 
 
         work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant began working for defendant employer August 21, 
 
         1972, and in 1984 tests showed evidence of carpal tunnel 
 
         entrapment.
 
         
 
              2.  In January 1985, claimant began working in the ham 
 
         boning department where he cut away the bones and skinned the fat 
 
         on as many as one hundred (100) or more hams per day.
 
         
 
              3.  On January 6, 1985, while boning hams, claimant's hands 
 
         became numb and painful and he reported to defendant's medical 
 
         department after which he was referred to Robert J. Chesser, 
 
         M.D., for evaluation.
 
         
 
              4.  Based on the evaluation conducted by Dr. Chesser, there 
 
         was evidence of right carpal tunnel entrapment and left carpal 
 
         tunnel entrapment.
 
         
 
              5.  Claimant underwent bilateral carpal tunnel release in 
 
         March 1985, and was unable to work, as a result, from March 13 
 
         through June 3, 1985, inclusive, during which time he received 
 
         workers' compensation benefits.
 
         
 
              6.  Claimant's condition was caused by his employment.
 
         
 
              7.  Claimant has tenosynovitis of the left upper extremity 
 
         for which he makes no claim.
 
         
 
              8.  As a result of the work injury, claimant has no 
 
         permanent impairment or permanent work restrictions.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based on the principles of law previously stated, 
 

 
         
 
         
 
         
 
         McMAHON V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   6
 
         
 
         
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on January 6,1985, which resulted in 
 
         bilateral carpal tunnel release surgery.
 
         
 
              2.  Claimants condition was the cause of temporary 
 
         disability for the period from March 13, 1985 through June 3, 
 
         1985.
 
         
 
              3.  Claimant has failed to establish that the work injury 
 
         resulted in any permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As claimant has been paid all benefits to which he is 
 
         entitled, he shall take nothing further from these proceedings.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of July, 1988.
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Building
 
         Davenport, Iowa 52801
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         111 East Third Street, Suite 600
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.30; 1803
 
                                                   Filed July 29, 1988
 
                                                   DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS McMAHON,
 
         
 
              Claimant,
 
                                                  File No. 809375
 
         vs.
 
                                               A R B I T R A T I O N
 
         OSCAR MAYER FOODS
 
         CORPORATION,                             D E C I S I O N
 
         
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.30; 1803
 
         
 
              Claimant suffered from bilateral carpal tunnel syndrome for 
 
         which he underwent surgery.  Claimant was released to return to 
 
         work without restriction and no functional impairment was found. 
 
          Claimant later was placed under work restrictions but these were 
 
         found to be imposed as a result of a non-related condition.  No 
 
         award of permanent partial disability made although it was found 
 
         claimant sustained an injury which arose out of and in the course 
 
         of employment.
 
         
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                           
 
         JIM GREIF,
 
         
 
              Claimant,
 
                                                      File No. 809549
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         FIRESTONE TIRE & RUBBER CO.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and                                               F I L E D
 
         
 
         CIGNA INSURANCE COMPANIES,                       JUN 6 1989
 
         
 
              Insurance Carrier,                     INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Jim 
 
         Greif against defendant employer Firestone Tire & Rubber Company 
 
         and defendant insurance carrier Cigna Insurance Companies to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury sustained on November 8, 1985.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner in Des Moines, Iowa, on October 5, 1988.  The matter 
 
         was considered fully submitted at the close of hearing.  Both 
 
         parties subsequently filed briefs.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and joint exhibits 1 through 7.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy, the following issues have been 
 
         stipulated:  That an employment relationship existed at the time 
 
         of the injury; that claimant sustained an injury on November 8, 
 
         1985, arising out of and in the course of that employment; that 
 
         the injury did not cause temporary disability; that claimant is 
 
         not entitled to compensation for temporary total disability or 
 
         healing period; that claimant's permanent disability, if any, is 
 
         an industrial. disability to the body as a whole; that the rate 
 
         of weekly compensation is $307.72; that affirmative defenses are 
 
         not applicable or are waived; that all requested medical benefits 
 
         have been or will be paid by defendants; that defendants are not 
 
         entitled to credit for benefits paid or under Iowa Code section 
 
         85.38(2).
 
         
 
              Presented as issues for resolution are:  Whether the work 
 
         injury caused permanent disability; the extent of claimant's 
 
         entitlement to permanent disability; the commencement date for 
 
         permanent partial. disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was 46 years old at the time of 
 
         hearing and that his educational background included a high 
 
         school diploma in 1959 and a supervisor's training course as a 
 
         janitor taken with defendant Firestone.  His work experience 
 
         includes employment with a local farmer until approximately 1961 
 
         with varied farm duties and work as a general employee for a 
 
         poultry farm.  This was until approximately 1965.  Claimant also 
 
         worked on a part-time basis for the first local farmer until 
 
         approximately 1967.  Thereafter, claimant was hired in December 
 
         of 1965 by defendant in the tuber department, but was laid off 
 
         after approximately one and one-half months.  He worked for a 
 
         fertilizer company for about six months, then was recalled by 
 
         defendant in 1966.
 
         
 
              Claimant worked first as a janitor for about seven years, 
 
         then bid into the tractor tire room in approximately 1973. 
 
         Claimant continued in that employment for 1-3 years until 1986. 
 
         His duties in the latter work included reading plans, twisting, 
 
         bending and lifting heavy weights.  The job also involved 
 
         standing on concrete all day.  For the last two years, claimant 
 
         has been employed as a forklift driver.
 
         
 
              Claimant noted that his earlier injuries included a hand 
 
         injury in 1982 and shoulder injury in approximately 1982, along 
 
         with other minor injuries that did not involve permanency, lost 
 
         time or a change in work duties.
 
         
 
              Claimant testified further that the work injury occurred 
 
         when he was carrying tread in a tray to his tire station.  He 
 
         indicated that he was struck suddenly with a sharp pain such as 
 
         he had never felt before in his upper back.  Claimant indicated 
 
         that this occurred on November 5, 1985 and that three to four 
 
         days later he noticed pain in his lower back with numbness in the 
 
         right leg.
 
         
 
              As stipulated, claimant has missed no work by reason of the 
 
         work incident.
 
         
 
              Claimant first saw the company doctor, John Gustafson, M.D. 
 
         Dr. Gustafson treated claimant with muscle relaxants and 
 
         permitted him,to return to work.
 
         
 
              Claimant continued work as a tire builder until 
 
         approximately October or November, 1986, but worked at a reduced 
 
         pace with the employer's permission by reason of what he 
 
         described as recurrent pains in the low back and numbness in the 
 
         right leg.  Claimant advised that he felt well on some days, but 
 
         not on others.
 
         
 
              Claimant eventually saw David J. Boarini, M.D., who 
 
         performed x-rays and a CT scan.  Claimant testified that Dr. 
 
         Boarini found or diagnosed a ruptured disc, although the medical 
 
         records in evidence do not bear out this claim.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that his symptoms did not change from 
 
         fall, 1985 until fall, 1986, at which time he changed jobs per 
 
         the company placement.  Claimant was given permanent restrictions 
 
         by Dr. Gustafson on November 18, 1987.  The restrictions are 
 
         against lifting in excess of 40 pounds and repetitive bending and 
 
         twisting.  A permanent restriction against bending and twisting 
 
         had been imposed by Dr. Gustafson on August 25, 1986.
 
         
 
              Claimant complains now of trouble lifting or standing for a 
 
         long time (due to leg numbness) and notes that he cannot jostle 
 
         children or kneel well at church.  He stated that he does alright 
 
         on most days at work, but still has problems with prolonged 
 
         sitting.  He develops a pain in his back which is helped if he 
 
         gets up and walks.  Claimant stated that he could not return to 
 
         his tire-building job.
 
         
 
              On cross-examination, claimant stated that his initial pain 
 
         was a sharp pain just below the shoulder blades and agreed that 
 
         he had a previous back injury in the same area.  Claimant further 
 
         agreed that he suffered prior pulled muscle problems in the lower 
 
         back in 1980, 1981 and 1982.
 
         
 
              On redirect examination, claimant stated that he does not 
 
         now suffer any pain in the region of his upper back, and has not 
 
         since a few weeks after the original injury.
 
         
 
              Dr. Boarini wrote Dr. Gustafson on October 23, 1986 after 
 
         seeing claimant on October 20.  He found claimant to have a 
 
         normal gait and range of motion in the lower back with normal 
 
         strength and reflexes, but a "very mild bit of hypesthesia in the 
 
         right L-5 distribution."  He stated his belief that claimant had 
 
         chronic low back pain and a mild radiculitis.
 
         
 
              Dr. Boarini wrote Dr. Gustafson again on December 4, 1986. 
 
         He found claimant to be neurologically intact and that a CT 
 
         scan showed only some degenerative changes.  Nonetheless, he 
 
         felt that a reasonable weight restriction such as 50 pounds 
 
         with no prolonged repetitive lifting and bending would probably 
 
         be appropriate.
 
         
 
              In another letter to Dr. Gustafson of February 6, 1987, Dr. 
 
         Boarini noted that claimant had an entirely normal gait with a 
 
         very slight limitation in extension and flexibility of the low 
 
         back.  He stated claimant had a minimal L-5 hypesthesia on the 
 
         right with entirely normal strength and symmetrical reflexes. 
 
         Based on claimant's slight limitation and extension and not on 
 
         the minimal hypesthesia which was not causing disability, Dr. 
 
         Boarini rated claimant as suffering a 1-2 percent permanent 
 
         partial impairment.
 
         
 
              Claimant was also seen by Douglas W. Brenton, M.D.  His 
 
         notes of July 18, 1986 indicated that examination showed no 
 
         pathologic responses in the reflexes, motor strength of 100 
 
         percent throughout, sensory exam intact to all modalities, that 
 
         the finger to nose, heel to shin gait and station were all within 
 
         normal limits and that claimant was able to walk on his heel and 
 
         toes without difficulty.  Dr. Brenton's impression was of 
 
         probable low-grade right-sided lumbar radiculopathy secondary to 
 
         spondylosis. Dr. Brenton suggested conservative management.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              EMG and nerve conduction studies of November 21, 1985 
 
         performed by a physician of illegible signature were normal with 
 
         no evidence for a radiculopathy.
 
         
 
              Medical records maintained by defendant Firestone indicate a 
 
         history of back ailment complaints.  Claimant complained of back 
 
         strain on April 21, 1978.  On July 29, 1980, claimant complained 
 
         of upper back pain between the scapulae which came on slowly with 
 
         tenderness under the scapulae.  A similar complaint was 
 
         registered on August 12, 1980.  Claimant again complained of pain 
 
         between the scapulae on August 26 and September 2, 1980.  Further 
 
         complaints of the back were made in October, 1980, July, 1981, 
 
         December, 1981, and February, 1982.
 
         
 
              Firestone's notes of November 8, 1985 show claimant 
 
         complaining of sharp pain to the left upper back after lifting 
 
         tread.  A recheck of the upper back on November 12, 1985 shows 
 
         upper back better but slight discomfort with palpation.  Also, 
 
         that note speaks of low back discomfort with radiation to the 
 
         right leg with numbness and tenderness over the right sciatic 
 
         area.  Claimant was seen again on November 18, December 2, and 
 
         December 3, 1985.  Claimant also complained of pain on several 
 
         occasions beginning in May, 1986.
 
         
 
              Radiology performed by Radiology, P.C., on November 13, 1985 
 
         reflected no recent or old bone injury.  The anterior superior 
 
         corners of the bodies L4 and 5 were slightly irregular secondary 
 
         to old healed epiphysitis.
 
         
 
              On the form apparently used by defendant for noting physical 
 
         limitations imposed by Dr. Gustafson (entitled "Physical 
 
         Examination Notice"), there appear boxes to check for whether the 
 
         limitations are due to industrial or non-industrial factors.  The 
 
         back limitations given claimant by Dr. Gustafson were checked as 
 
         "industrial."  This is the only expert evidence in the record 
 
         tending to show a causal connection between the work incident and 
 
         claimant's alleged disability.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties have stipulated that claimant suffered an injury 
 
         arising out of and in the course of his employment on November 8, 
 
         1985.
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury.... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal. injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 8, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (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 (1962).
 
         
 
              It is stipulated that claimant suffered no temporary or 
 
         healing period disability.  The fighting issue in this case is 
 
         whether the limitations claimant now operates under are causally 
 
         connected to the work injury.  As has been seen, claimant has the 
 
         burden of establishing this causal connection.
 
         
 
              The only evidence in the record that would tend to establish 
 
         causal connection is the fact that Dr. Gustafson checked a box 
 
         indicating industrial causation when he imposed limitations.  
 
         Yet, it should be remembered that the stipulated injury involved 
 
         sharp pain to the upper back, an area where claimant had 
 
         previously suffered pain.  There is no medical testimony tending 
 
         to show that claimant's complaint of radiculopathy presumably 
 
         stemming from the L4-5 level is in any way related to pain 
 
         suffered apparently in the thoracic vertebrae between the 
 
         scapulae.  Dr. Boarini made mention of claimant's chronic low 
 
         back pain and mild radiculitis, finding that physical limitations 
 
         were due to claimant's very slight limitation in extension and 
 
         flexibility of the lower back. The other physician who saw 
 
         claimant, Dr. Brenton, had an impression of probable low-grade 
 
         right-sided lumbar radiculopathy secondary to spondylosis.  These 
 
         findings are consistent with a long-standing degenerative 
 
         problem, and are not shown to be related to the sharp upper back 
 
         pain which is the stipulated work injury.
 
         
 
              Given all these factors, the mere fact that Dr. Gustafson 
 
         checked a form showing that limitations were industrially related 
 
         is insufficient to carry claimant's burden of proof in 
 
         establishing a causal connection between his sharp upper back 
 
         pain suffered November 8, 1985 and the current pain and 
 
         radiculopathy that are apparently related to long-standing 
 
         degenerative changes and which resulted in the physical 
 
         limitations that constitute claimant's industrial disability.  As 
 
         claimant has not met his burden of proof on this crucial issue, 
 
         no recovery can be had.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant sustained an injury on November 
 
         8, 1985 arising out of and in the course of his employment with 
 
         Firestone Tire & Rubber Company.  The injury manifested itself by 
 
         a sharp pain to the upper back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Claimant has chronically suffered pain to the lower 
 
         back, and developed lower back pain and radiculopathy to the 
 
         right leg several days after the work injury.
 
         
 
              3.  Claimant has seen three physicians for this back pain 
 
         and radiculopathy and has been given restrictions against lifting 
 
         in excess of 50 pounds and repetitive bending and twisting; Dr. 
 
         Boarini believes claimant to be 1-2 percent "disabled."
 
         
 
              4.  The evidence does not show that any of claimant's 
 
         physicians have expressed a view as to whether claimant's 
 
         physical limitations are causally related to the work injury in 
 
         the upper back, although Dr. Gustafson checked a box indicating 
 
         that the limitations were industrial in nature.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion is made:
 
         
 
              1.  Claimant has failed to meet his burden of proof in 
 
         establishing a causal connection between the stipulated work 
 
         injury and his subsequent disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 6th day of June 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         W. Des Moines, Iowa  50265
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                         
 
 
 
 
 
 
 
 
 
 
 
                                         51402.30
 
                                         Filed June 6, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM GREIF,
 
         
 
              Claimant,
 
                                                  File No. 809549
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         FIRESTONE TIRE & RUBBER CO.,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30
 
         
 
             Claimant failed to meet burden of proof in showing causal 
 
         connection between work injury and subsequent disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         ELIZABETH PETERS,	   :
 
                   		   :       File No. 809600
 
              Claimant, 	   :
 
                   		   :         A P P E A L
 
         	vs. 	           :
 
                   		   :       D E C I S I O N
 
         SECOND INJURY FUND OF IOWA,:
 
                   		   :
 
              Defendant.     	   :
 
         ___________________________________________________________
 
         
 
         Defendant, Second Injury Fund, appeals and claimant cross-appeals 
 
         from an arbitration decision awarding claimant 15 percent 
 
         permanent partial disability benefits.  The defendant dismissed 
 
         its appeal.  Claimant did not submit a brief in support of her 
 
         cross appeal.  Therefore, the record has been reviewed generally 
 
         for errors.
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 19, 1990, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Mr. MacDonald Smith
 
         Attorneys at Law
 
         P O Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 20, 1991
 
            BYRON K. ORTON
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            ELIZABETH PETERS,	      :
 
 		                      :       File No. 809600
 
                 Claimant,	      :
 
		                      :         A P P E A L
 
            		vs. 	      :
 
                      		      :       D E C I S I O N
 
            SECOND INJURY FUND OF IOWA:
 
                      		      :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 19, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH PETERS,
 
                                                    File No. 809600
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         
 
         VS.                                       D E C I S I O N
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Elizabeth Peters, against the Second Injury Fund, 
 
         defendant.  The petition was filed on May 16, 1988.  Claimant 
 
         dismissed any action she may have had against defendant-employer, 
 
         Wilson Food Corporation.  The hearing was held in Storm Lake, 
 
         Iowa on May 30, 1989.
 
         
 
              The record consists of the testimony of claimant,  Elizabeth 
 
         A. Peters. The record also consists of claimant's exhibits 1-34 
 
         and defendant - Second Injury Fund's exhibits A-E.  The Second 
 
         Injury Fund stipulated it was not looking for a contribution from 
 
         defendant-employer.
 
         
 
                                      ISSUES
 
         
 
              The sole issues presented for determination are:  1) whether 
 
         claimant sustained an injury on February 2, 1985; and,  2) 
 
         whether claimant is entitled to permanent disability benefits 
 
         from the Second Injury Fund.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant was hired to work in the Cherokee facility on June 
 
         4, 1984. Claimant performed a variety of duties including picking 
 
         fat, popping kidneys, pulling small guts, pulling large guts and 
 
         pace boning.  Claimant reported to the company nurse pain in her 
 
         right wrist on November 23, 1984.  Claimant also reported to the 
 
         company nurse pain in her left wrist as of March 15, 1985. 
 
         Progress notes for the Department of Orthopedics at the 
 
         University of Nebraska reveal that as early as December 10, 1984,
 
         
 
         
 
         
 
         PETERS V. SECOND INJURY FUND OF IOWA
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
         claimant reported to D. Romaire, CMA: "Pt c/o Bil hand/wrist pain 
 
         & numbness.  Also c/o R Shoulder tenderness...
 
         
 
              On that date, however, claimant was diagnosed as having 
 
         right carpal tunnel syndrome, not bilateral carpal tunnel 
 
         syndrome.  A carpal tunnel release was performed on the right 
 
         median nerve on December 11, 1984.  Claimant eventually returned 
 
         to work but John Connolly, M.D., the treating surgeon, opined 
 
         claimant had a five percent loss of function of the right wrist.  
 
         Claimant and defendant entered into an agreement for settlement 
 
         for the right wrist on September 20, 1985.
 
         
 
              On November 5, 1985, claimant had a left carpal tunnel 
 
         release.  Dr. Connolly also performed the second surgery.  
 
         Claimant was later released to return to work on January 6, 1986.  
 
         There were no limitations placed on claimant but Dr. Connolly 
 
         opined claimant had a five percent permanent functional  
 
         impairment of the left wrist.  Claimant and defendant entered 
 
         into an agreement for settlement of the left wrist on May 30, 
 
         1986.
 
         
 
              Claimant also had symptoms of the right extensor tendonitis.  
 
         An operative release of the extensor tendons was performed on 
 
         August 9, 1988.  Dr. Connolly determined claimant had a 10 degree 
 
         limitation of motion of claimant's elbow and wrist.  He assessed 
 
         a 10 percent functional impairment to the right upper arm.  Dr. 
 
         Connolly also restricted claimant from working at any job which 
 
         required lifting more than 35 pounds.  Claimant did not return to 
 
         work subsequent to her elbow release.  As of the date of the 
 
         hearing, claimant had not returned to work in any capacity.
 
         
 
              Claimant testified she sought positions with Braun Plumbing, 
 
         Faust School of Beauty, and Brite Side.  It was unclear whether 
 
         claimant only applied for those positions while she was on layoff 
 
         status or whether claimant again applied for the positions after 
 
         August 9, 1988.  Claimant was not especially motivated to return 
 
         to work.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on December 11, 1984 and 
 
         November 5, 1985 which arose out of and in the course of her 
 
         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).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         PETERS V. SECOND INJURY FUND OF IOWA
 
         Page 3
 
         
 
         
 
              In the instant case, the focus is whether the second injury 
 
         fund is liable for benefits.  Iowa Code section 85.64 provides, 
 
         in part:
 
         
 
              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 com-
 
              pensation, 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 for the degree of
 
              permanent disability involved after first deducting
 
              from such remainder the compensable value of the previ-
 
              ously lost member or organ.
 
         
 
              Under Iowa Code section 85.63 through 85.69, three 
 
         requirements must be met in order to establish fund liability:  
 
         First, claimant must have previously lost or lost the use of a 
 
         hand, an arm, a foot, a leg or an eye; second, through another 
 
         compensable injury, claimant must sustain another loss or loss of 
 
         use of another member; and third, permanent disability must exist 
 
         as to both injuries.  If the second injury is limited to a 
 
         scheduled member, then the employer's liability is limited to the 
 
         schedule and the fund is responsible for the excess industrial 
 
         disability over the combined scheduled losses of the first and 
 
         second injuries.  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
         (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file number 
 
         755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa Supreme Court 
 
         on February 22, 1989.)
 
         
 
              Claimant sustained three separate injuries.  She did not 
 
         sustain bilateral carpal tunnel.  The injury date for three 
 
         cumulative injuries was found to be when claimant had surgery for 
 
         each of the three work related injuries.  The dates were all 
 
         different. See Dennis Mockenhaupt v. George A. Hormel Co., and 
 
         Liberty Mutual Insurance Co., and Second Injury Fund of 
 
         Iowa, 767982, 847923, 847924, 847925, (Appeal Decision December 
 
         29, 1989). The injury to the fourth finger of the right hand was 
 
         not a scheduled member injury under section 85.64.  The injury to 
 
         the right shoulder was only a muscle spasm.  It was not a 
 
         permanent injury.  Therefore, the fourth and fifth injuries were 
 
         not  used to determine the liability of the Second Injury Fund.
 
         
 
              The Iowa Supreme Court recently addressed the liability  of 
 
         the Second Injury Fund in the case of Neelans v. John Deere
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PETERS V. SECOND INJURY FUND OF IOWA
 
         Page 4
 
         
 
         
 
         Component Works, 436 N.W.2d 355 (Iowa 1989).  In the Neelans 
 
         case, Justice Larson described the purpose to the fund.  He wrote 
 
         at page 358.
 
         
 
              The language of the:second injury act supports this
 
              conclusion by providing that 11[t]he 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."   To hold otherwise would
 
              in effect penalize the employer who hired a person with
 
              a prior injury.  The purpose of Second Injury Fund
 
              statutes was to provide a more favorable climate for
 
              the employment of persons injured through service in
 
              World War II.  Jackwig, The Second Injury Fund of Iowa:
 
              How Complex Can a Simple Concept Become?, 28 Drake L.
 
              Rev. 889, 890-91 (1979).  Similar considerations still
 
              weigh heavily in our interpretation of the second
 
              injury act.  See e.g., Anderson v. Second Injury Fund,
 
              262 N.W.2d 789, 791-92 (Iowa 1978) (purpose to-encour-
 
              age employers to hire handicapped workers).
 
         
 
              In the present case, there seems to be no argument
 
              about the extent of the second injury standing alone:
 
              it is a scheduled injury which does not extend to the
 
              body as a whole, even though the cumulative effect of
 
              this injury and the prior injuries was to cause such
 
              disability.
 
         
 
              In this case, if it had not been for the prior injuries
 
              sustained by Neelans, the employer would be liable only
 
              to the extent provided by the schedule for a leg
 
              injury.  To hold that the present employer would be
 
              liable for payment of a greater amount as a result of
 
              the preexisting injuries would be inconsistent with the
 
              purpose and language of the statute.
 
         
 
              The industrial commissioner correctly ruled that the
 
              Second Injury Fund should be responsible for the indus-
 
              trial disability, less the total of the scheduled
 
              injuries, or a total of 262 weeks.  Accordingly, we
 
              reverse and remand for reinstatement of the order by
 
              the commissioner.
 
         
 
              The present case is analogous to the situation described in 
 
         the Neelans case.  Claimant sustained three separate scheduled 
 
         member injuries.  There was a five percent permanent partial 
 
         disability to the right hand.  There was a five percent permanent 
 
         partial disability to the left hand.  See Elam v. Midland 
 
         Mfg., II Iowa Indus. Comm'r Rep. 141 (Appeal Dec. 1981).  Dr. 
 
         Connolly determined claimant had a 10 percent functional 
 
         impairment to the right upper extremity. (Five percent of the 
 
         impairment was due
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PETERS V. SECOND INJURY FUND OF IOWA
 
         Page 5
 
         
 
         
 
         to the previous right wrist injury.)  For purposes of this 
 
         action, the undersigned determines claimant has a 10 percent  
 
         permanent partial disability to the right upper extremity.
 
         
 
              In the instant case, like in Neelans, the second injury fund 
 
         is responsible for the industrial disability, less the total of 
 
         the scheduled injuries.  Translated to weeks of compensation, the 
 
         impairment rating equals 75 weeks of permanent partial  
 
         disability benefits (15% x 500 weeks).  The left hand impairment 
 
         equates to 9.5 weeks using the schedule mandated by section 
 
         85.34(l).  This is calculated as 05% x 190 weeks.  The right arm 
 
         impairment totals 25 weeks under the section provided in section 
 
         85.34(2)(m).  This is figured as 10% x 250 weeks.  The total of 
 
         the two scheduled injuries is 34.5 weeks when they are viewed 
 
         separately.  When considered together, the injuries are found to 
 
         have caused a disability to the body as a whole in the sum of 75 
 
         weeks.  The 34.5 weeks is subtracted from the 75 weeks.  The 
 
         second injury fund is thus liable for the difference or 34.5 
 
         weeks.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant - Second Injury Fund is to pay claimant 
 
         thirty-four point five (34.5) weeks of permanent partial 
 
         disability  benefits at the stipulated rate of two hundred twenty 
 
         and 20/100 dollars ($220.20) per week as of August 9, 1988.
 
         
 
              No interest is assessed against defendant - Second Injury 
 
         Fund.
 
         
 
              Costs of this action shall be assessed to defendant -  
 
         Second Injury Fund.
 
         
 
              Defendant - Second Injury Fund shall file a claim activity 
 
         report as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
         
 
              Signed and filed this 19th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PETERS V. SECOND INJURY FUND OF IOWA
 
         Page 6
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Mr. MacDonald Smith
 
         Attorneys at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St
 
         P 0 Box 535
 
         Cherokee  IA  51012
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-3202
 
                                         Filed June 19, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH PETERS,
 
                                                      File No. 809600
 
         
 
              Claimant,
 
                                                    A R B I T R A T I 0 N
 
         
 
         VS.
 
                                                      D E C I S I 0 N
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendant.
 
         
 
         
 
         
 
         5-3202
 
         
 
              The Second Injury Fund was held liable for 34.5 weeks of 
 
         benefits after claimant sustained three injuries to her upper 
 
         extremities.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE  IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELIZABETH WATTS,
 
         
 
              Claimant,
 
         VS.
 
         
 
         MOTOROLA, INC.,
 
                                                 File  No. 809636
 
              Employer,
 
                                                   A P P E A L
 
         and 
 
                                                   R U L I N G
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANIES,
 
         
 
            Insurance Carrier,
 
            Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              Rule 500-4.27 states in part:
 
         
 
                   No appeal shall be separately taken under this or 
 
              4.25 (17A, 86) from an interlocutory decision, order or 
 
              ruling of a deputy industrial commissioner.  A 
 
              decision, order or ruling is interlocutory if it does 
 
              not dispose of the contested case unless the sole issue 
 
              remaining for determination is claimant's entitlement 
 
              to additional compensation for unreasonable denial or 
 
              delay of payment pursuant to section 86.13.
 
         
 
              The ruling of July 17, 1987, which is the subject matter of 
 
         this appeal, is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed August 6, 1987 is hereby 
 
              dismissed.
 
         
 
         
 
              Signed and filed this 27th day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                                 
 
                                                          
 
         WATTS V. MOTOROLA, INC.
 
         Page 2
 
         
 
         
 
         Copies TO:
 
         
 
         
 
         Mr. Michael J. Schilling
 
         Attorney at Law
 
         P.O. Box 1111
 
         Burlington, Iowa 52601
 
         
 
         Mr. James C. Huber
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS VAN TUYL,
 
         
 
              Claimant,                              File No. 809709
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         VAN TUYL CONTRACTING CO.,                   D E C I S I O N 
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JAN 10 1990
 
         AETNA CASUALTY & SURETY CO.
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Thomas Van Tuyl, against Van Tuyl Contracting Co., employer, and 
 
         Aetna Casualty & Surety Co., insurance carrier, defendants, to 
 
         recover benefits as a result of an alleged injury sustained on 
 
         September 17, 1985.  This matter came on for hearing before the 
 
         deputy industrial commissioner in Sioux City, Iowa, on October 
 
         31, 1989.  The record consists of the testimony of claimant and 
 
         Diane Dooley; joint exhibits 1 through 47; and claimant's 
 
         exhibits 3, 4, 5, 6 and 7.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged disability is causally 
 
         connected to his injury on September 17, 1985;
 
         
 
              2.  The nature and extent of claimant's disability;
 
              
 
              3.  Whether claimant is entitled to 85.27 medical benefits; 
 
         and
 
              
 
              4.  Whether claimant is entitled to alternate care.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is not a high school graduate, but 
 
         received his GED in 1973.  Claimant described his jobs prior to 
 
         working for defendant employer in 1980.  These jobs involved 
 
         general labor, operating a backhoe for defendant employer in 1973 
 
         and 1974, and plumbing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant said that on September 17, 1985, he was working at 
 
         a project for defendant employer involving repair of a water 
 
         main. Claimant said he was in a hole digging out a water main.  
 
         Claimant stated he stepped on the water main, lost his grip and 
 
         fell further into the hole injuring his arms, neck, upper back 
 
         and shoulders.  Claimant indicated he never had injured these 
 
         same parts of his body before this date except he incurred and 
 
         recovered from a whiplash injury in 1975.  Claimant testified as 
 
         to some other injuries prior to September 17, 1985, but he 
 
         emphasized that they were treated and he completely recovered.
 
         
 
              Claimant testified to the various medical treatment, tests 
 
         and doctors he saw since his September 17, 1985 injury.  The 
 
         medical records and reports are the best evidence and it is 
 
         unnecessary to set out claimant's understanding of his treatment 
 
         and his analysis.  Claimant did emphasize his dissatisfaction 
 
         with John J. Dougherty, M.D., and the desire for another doctor 
 
         and alternate care.  He contends Dr. Dougherty did not allow 
 
         claimant to follow through with certain drugs or tests.
 
         
 
              Claimant testified his present complaints are constant pain 
 
         in his neck, arms and shoulder.  He said the pain is worse when 
 
         he uses his arms or lifts his arms above his head.  He said it is 
 
         hard to drive and his hand gets numb and goes to sleep.  Claimant 
 
         referred to his exhibit 5, page 3 and 4, which he said sets out 
 
         the time he missed from work.  He revealed he determined these 
 
         figures by looking at his check stubs.  Claimant admitted he 
 
         received unemployment benefits in the off season for construction 
 
         work.  Claimant said he lifts at work off and on all day 10 to 20 
 
         pounds up to 100 pounds.  He contends he is in pain 90 percent of 
 
         the time.  Claimant stated he played in six slow pitch games last 
 
         year and only one this year.  He said he does the outside yard 
 
         work at home.
 
         
 
              Claimant acknowledged he has made $10 per hour during his 
 
         entire time at defendant employer.  He said his father owns 
 
         defendant employer's company, Van Tuyl Contracting Co.  He 
 
         admitted the company partially shuts down three months a year and 
 
         most of the people are laid off for this period.
 
         
 
              Claimant later testified in a rambling and rather confusing 
 
         way as to the nature of his work, how they figure hours and 
 
         commissions, and the way he understood he was being paid.  
 
         Claimant said that some projects he works on are two-person 
 
         projects. Claimant revealed that he worked by himself 80 percent 
 
         of the jobs he did.
 
         
 
              Claimant acknowledged he made $5,000 more in 1988 than in 
 
         1985.  Claimant emphasized this was because he made more 
 
         commission by working by himself and there were more jobs to do. 
 
         Claimant said Dr. Dougherty referred him to Dr. Jay Parsow. 
 
         Claimant admitted he received Dr. Parsow's name from his 
 
         attorney. He said Dr. Dougherty finally consented to send 
 
         claimant to Dr. Parsow upon his request.  Claimant said he 
 
         understood that the defendants were not going to pay or okay 
 
         claimant's services with Dr. Parsow.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant contends he was off the last week of December 1988 
 
         and the first week of January 1989 because of his pain and not 
 
         because of the slow season.  He also said he was off one week to 
 
         go to Mayo Clinic.
 
         
 
              Diane Dooley, a technical representative with defendant 
 
         insurance company, testified she knows claimant.  She said the 
 
         first report of injury was received two months after the alleged 
 
         injury from claimant's mother.  She indicated claimant never told 
 
         her of any work he missed in 1986, 1987 or 1988.  She said the 
 
         first she knew was from defendants' attorney.  She emphasized she 
 
         had a hard time finding out what was wrong with claimant.  She 
 
         stated defendant insurance company paid several thousand dollars 
 
         in medical and then decided to send claimant to Dr. Dougherty as 
 
         a treating physician.  She described how they were receiving 
 
         bills from doctors that they didn't even know were treating 
 
         claimant.
 
         
 
              The records of Allen W. Bronson, D.C., dated October 2, 1985 
 
         reflect the date claimant first came in for treatment and a 
 
         standard insurance form was issued.  This report described the 
 
         injury as "Traumatic strain/sprain of the cervical spine 
 
         complicated by muscle spasm, myofascitis and fixation subluxation 
 
         complex."  (Jt. Ex. 19, p. 1)  There was a similar report issued 
 
         November 14, 1985, November 28, 1985, April 28, 1987, May 27, 
 
         1987 and July 22, 1987.  Dr. Bronson's office notes reflect that 
 
         claimant's chief complaint on April 24, 1987 was:
 
         
 
              l.  Pain and aching in the neck, both shoulders, and both 
 
              arms, especially on the left.
 
         
 
              2.  A popping and cracking of the left shoulder blade 
 
              region.
 
         
 
              3.  Numbness at the bottom of the left shoulder blade and in 
 
              his fingers.
 
         
 
         (Joint Exhibit 1, page 1)
 
         
 
              He noted claimant related this complaint to his September 
 
         17, 1985 injury.
 
         
 
              Dean J. Poss, D.C., wrote on January 20, 1987:
 
         
 
                   Impressions:  Mr. VanTuyl responded well to 
 
              conservative therapy for a problem that had been present for 
 
              such a long time before much treatment was provided.  I 
 
              haven't seen him since December 29, 1986, so I can't tell 
 
              you his present condition for this diagnosis.  I wouldn't 
 
              anticipate any permanency even though the possibility still 
 
              exists.  At the time of the last treatment he wasn't having 
 
              much problem with the pain.
 
         
 
         (Jt. Ex. 20, p. 2)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Marian Health Center records reflect various physical 
 
         therapy and ultrasound treatments but claimant's complaints were 
 
         basically the same.  The Marian Health Center x-ray records on 
 
         April 6, 1987 show no evidence of fracture or dislocation.  The 
 
         claimant's history taken by B. E. Krysztofiak, M.D., on April 6, 
 
         1987 indicated claimant told him he was off work since September 
 
         1985.  He further wrote:
 
         
 
                   I am not certain what is the origin of the patient's 
 
              symptoms in the lower cervical, upper thoracic regions, and 
 
              around the left scapula.  The results of physical 
 
              examination are within normal limits except for slight 
 
              tenderness to pressure over the clinical or 
 
              electromyographic evidence of cervical radiculopathy.
 
         
 
         (Jt. Ex. 17, p. 4)
 
         
 
              On July 27, 1987, an MRI spinal done at Marian Health Center 
 
         x-ray department concluded:  "No evidence of myelopathy.  
 
         Possible early degenerative changes in one lower dorsal disc."  
 
         (Jt. Ex. 26).
 
         
 
              Claimant was treated by John J. Dougherty, M.D., beginning 
 
         February 18 through December 27, 1988.  Basically, Dr. 
 
         Dougherty's notes do not indicate a real findings of objective 
 
         etiology for claimant's complaints.  On April 30, 1987, Dr. 
 
         Dougherty notes, "all his complaints are rather vague."  (Jt. Ex. 
 
         8, p. 3) "Perhaps we could give him a little disability, but I 
 
         don't know what we'd give him, maybe very little and then get rid 
 
         of him.  I just don't think there is anything else to do and I 
 
         think he's just one of those people who, if he does have some 
 
         vague complaints, could very well be on a postural basis."  (Jt. 
 
         Ex. 8, p. 3).  On February 15, 1987, Dr. Dougherty wrote:
 
         
 
              I'm not sure we can relate this to the incident of 
 
              September, 1985 or whether this is more just related to what 
 
              he's doing right now.  I didn't get any definite history 
 
              where he had sustained any other injury except, as I 
 
              mentioned, he does do construction work and it's probably 
 
              just heavy work.  I certainly don't think there is any 
 
              reason for further chiropractic treatment and I don't think 
 
              there is any reason to restrict his activity at this point 
 
              in time.
 
         
 
         (Jt. 43, p. 2)
 
         
 
              On June 18, 1987, Dr. Dougherty wrote:  "I really don't know 
 
         what to do with this guy.  Certainly doesn't impress me as having 
 
         any significant pain."  (Jt. Ex. 8, p. 4)  On September 2, 1988, 
 
         Dr. Dougherty wrote:
 
         
 
                   I last saw this patient on 8-26-88.  I advised him that 
 
              I didn't think anything else was indicated as far as further 
 
              treatment.  He has been at the Mayo Clinic.  He's seen Dr. 
 
              Holdiman, see [sic] Dr. Krystofiak.  Nothing very 
 
              significant has been found.  He had an MRI of his dorsal 
 
              spine which was apparently interpretted [sic] as normal.  
 
              This patient's problem admittedly has persisted for a long 
 
              period of time, but I guess I question the amount of pain 
 
              this patient does have.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   As far as permanent partial impairment, I would be 
 
              inclined to think this patient has sustained none or very 
 
              insignificant amount, if at all.  He certainly continues to 
 
              complain of pain.  However, I don't think we can find enough 
 
              to substantiate his complaints.  (Jt. Ex. 11, p. 1)
 
         
 
              On September 13, 1988, Dr. Dougherty wrote:
 
         
 
                   The above patient was seen again by me on 7-13-88.  I 
 
              had not seen him for a year....We went over him again and I 
 
              really don't find that much....I made a note that I would be 
 
              reluctant to do a myelogram.  I think we'd only end up with 
 
              complaints referable to the myelogram.  I don't think we can 
 
              verify all his complaints.  In my opinion, I don't think he 
 
              sustained any significant disability.  I don't think we have 
 
              any new injury, just an ongoing thing.
 
         
 
         (Jt. Ex. 12, p. 1)
 
         
 
              On October 17, 1988, Dr. Dougherty's office notes reflect:
 
         
 
                   I don't want to see him again.  Told him he could go to 
 
              some other doctor.  Have nothing else to suggest.  He 
 
              wondered about cortisone.  I wouldn't know where to put it. 
 
              See prn.  The only other doctor I would have to suggest 
 
              would be a psychiatrist.  I was tempted to do this, but I 
 
              didn't.
 
         
 
         (Jt. Ex. 8, p. 8)
 
         
 
         
 
              On January 20, 1989, Dr. Dougherty wrote:
 
         
 
                   As you know, I referred this patient to Dr. Moore, a 
 
              rheumatologist at the University of Nebraska.  I received a 
 
              letter from him on 12-7-88 outlining what he thought the 
 
              treatment should be.  He outlined several different 
 
              medicines which he has not taken before.  It may be 
 
              appropriate for him to stop working for several weeks and 
 
              see if this improves his symptoms.  Certainly I would not 
 
              take him off work for several weeks.  I did give him the 
 
              benefit of trying to be off work one week and this is the 
 
              reason why.  However, I would not OK him for a second week.  
 
              It would certainly appear to me that this patient has a deep 
 
              seeded problem, both physically and perhaps 
 
              psychosomatically.  I don't think any further treatment is 
 
              going to be of any benefit for this patient.  I don't think 
 
              he's really having that much trouble and I think the best 
 
              thing to do is try to settle this case and see how he gets 
 
              along.
 
         
 
         (Jt. Ex. 9, p. 1)
 
         
 
              On May 1, 1989, Dr. Dougherty wrote that he referred 
 
         claimant to Dr. J. Parson (the doctor misspelled the name.  It 
 
         should be Parsow).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Mayo Clinic records reflect on April 12, 1988, left 
 
         shoulder pain of undetermined etiology.  It appears to be a 
 
         chronic muscle strain.
 
         
 
                   Examination demonstrates no real atrophy, no winging, 
 
              full ROM of the shoulder.  He has mild tenderness over the 
 
              third or fourth spinus process of the thoracic spine.  The 
 
              radiographs of the shoulder, C and T spine are normal.
 
         
 
                   IMPRESSION:  left shoulder pain of undetermined 
 
              etiology.  It appears to be chronic muscle strain.
 
         
 
         (Jt. Ex. 6, p. 2)
 
         
 
              Gerald Francis Moore, M.D., of the University of Nebraska 
 
         Medical Center, wrote on December 7, 1988:
 
         
 
                                    ASSESSMENT
 
         
 
                   I believe Mr. Van Tuyl has nonspecific musculoskeletal 
 
              complaints without any obvious evidence for arthritis or 
 
              neurological deficit.  It apparently is symptoms involving 
 
              his rhomboids, latissimus, deltoids and perhaps even his 
 
              upper pectoral area on the left.  I see nothing at all that 
 
              suggest this is,a significant problem at the present time.
 
         
 
         (Jt. Ex. 3, p. 5)
 
         
 
              Claimant's father's answer to interrogatory number 3 on June 
 
         30, 1988 indicated claimant worked for defendant employer for 
 
         $10.00 an hour and that no attendance records were kept.  In 
 
         answer number 8, claimant's father said claimant had no wage 
 
         increases for many years.
 
         
 
              Claimant's father was asked and answered interrogatory 
 
         number 9 as follows:
 
         
 
              State whether or not you admit that the claimant sustained 
 
              an injury arising out of and in the course of the 
 
              employment, on the date alleged by claimant; and if not, 
 
              then set forth your specific reason for denial, or your 
 
              specific defenses, or the specific issues that are 
 
              controverted:
 
         
 
              ANSWER:
 
         
 
                   Mark Van Tuyl is aware of Claimant's' complaints, he 
 
                   does not recall when those complaints first surfaced. 
 
                   He is not aware how Claimant hurt himself.  Claimant 
 
                   would miss a day or two of work, but otherwise has 
 
                   continued in his employment.
 
         
 
         (Jt. Ex. 29, p. 9)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Mr. Mark Van Tuyl could not recall the date and time he 
 
         learned of claimant's alleged injury.  He said claimant reached 
 
         maximum medical recovery on November 1, 1985 or sooner.  He said 
 
         "we are not aware of claimant having any permanent partial 
 
         disability.  (Ex. 29, pp. 16-17)  Mark Van Tuyl was asked and 
 
         answered regarding interrogatory number 16 as follows:
 
         
 
              Do you claim that any of the medical services rendered 
 
              claimant were unauthorized?  If so, identify them and also 
 
              identify medical services you have and/or are authorizing.
 
         
 
              ANSWER:
 
         
 
                   We are not aware of any treatment after December 29, 
 
                   1986 by Dr. Poss.  All prior charges have been paid. 
 
                   Dr. Dougherty is the authorized treating physician. 
 
                   Any additional or further care after December 29, 
 
                   1986 by someone other than Dr. Dougherty, would be 
 
                   considered unauthorized.
 
         
 
         (Jt. Ex. 29, p. 15)
 
         
 
              Claimant's tax returns indicate claimant made $12,252 plus 
 
         $2,407 unemployment income in 1985, $16,798 in 1986 plus $972 
 
         unemployment, $12,590 plus $2,188 in unemployment income in 1987, 
 
         and $17,220 plus $805 unemployment in 1988.
 
         
 
              Exhibit 39, page 1 is a May 9, 1989 letter to claimant's 
 
         attorney emphasizing that any care by Dr. Parson (Parsow) is not 
 
         an authorized doctor.
 
         
 
              Claimant was given a psychological evaluation on May 20, 
 
         1987 and was administered the Minnesota Multiphasic Personality 
 
         Inventory (MMPI):
 
         
 
                        The most elevated two-point clinical code (1/8) 
 
                   within Mr. Van Tuyl's personality profile indicates 
 
                   that he likely to present somatic complaints of a 
 
                   bizarre nature.  He actually may have somatic 
 
                   delusions.  The somatic complaints also may represent 
 
                   defenses against the emergence of actual psychotic 
 
                   material.  He is likely to be socially inept and 
 
                   inadequate.
 
         
 
                        Supplementary clinical scales 2, 3, and 0 that are 
 
                   also elevated indicated that he is likely to evidence 
 
                   significant depression as well as lowered activity 
 
                   levels, apathy and helplessness.  The presence of 
 
                   significant depressive symptomatology can be the result 
 
                   of his ineffective use of hysteroid mechanisms and 
 
                   defenses.  He is likely to be described as being 
 
                   overcontrolled and may have difficulty in expressing 
 
                   his feelings, being immature, inadequate, and 
 
                   dependent. Physical complaints are likely, often with a 
 
                   hysterical quality.  He is likely to lack insight into 
 
                   his own behavior and is reluctant to seek psychological 
 
                   counseling.  These factors, in addition to the chronic 
 
                   nature of his adjustment, make response to any form of 
 
                   psychological intervention very poor unless motivation 
 
                   for long-term psychotherapy can be discovered.
 

 
                   
 
 
 
 
 
 
 
 
 
 
 
         
 
                   This personality assessment is based primarily on the 
 
              client's voluntary responses to the test items as they 
 
              appear on the Minnesota Multiphasic Personality Inventory 
 
              (MMPI).
 
         
 
         (Jt. Ex. 47)
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 17, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer. Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              This 37 year old claimant did not finish high school but has 
 
         a GED.  He has worked for his father who owns defendant employer 
 
         beginning in 1980 until the present and had worked for defendant 
 
         employer one and one-half years in 1973 and 1974.  He has held 
 
         manual labor jobs since he left high school.  Claimant injured 
 
         himself on September 17, 1985 while in the employment of 
 
         defendant employer.  The evidence describes various ways in which 
 
         claimant testified he was injured and told various doctors when 
 
         giving his history.  These varied from trying to climb out of a 
 
         hole, stepping on a water main in the hole and falling deeper 
 
         into the hole, to swinging out of the hole.  The undersigned 
 
         finds that on September 17, 1985, claimant did incur an injury 
 
         while working fixing a water main.  Claimant sought considerable 
 
         medical help. The medical evidence is devoid of any actual 
 
         impairment rating. The closest the doctor came to a rating was a 
 
         comment by Dr. Dougherty on September 2, 1988 in which he 
 
         indicated that "As far as permanent partial impairment, I would 
 
         be inclined to think this patient has sustained none or very 
 
         insignificant amount, if at all.  He certainly continues to 
 
         complain of pain.  However, I don't think we can find enough to 
 
         substantiate his complaints." (Jt. Ex. 11, p. 1)  There need not 
 
         be an impairment rating to find a permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant works at a job in which the use of the body as a 
 
         whole is necessary.  Claimant has testified to constant pain in 
 
         his arm, shoulders and neck.  Claimant has continued to work 
 
         constantly at the same job making as much if not more than he 
 
         made at the time of his September 1985 injury.  Basically, any 
 
         interruption in claimant's employment was due to the seasonal 
 
         nature of his work and the normal layoffs connected therewith. 
 
         With his father owning the company, it is obvious he would be one 
 
         of the last to be laid off.  Claimant testified to certain days 
 
         or hours missed because of his leg injury.  Claimant and his 
 
         father in their various testimony and answers to interrogatories 
 
         indicated claimant was paid $10 per hour for several years.  At 
 
         the hearing, claimant's testimony was confusing and rambling, but 
 
         he described a system that involved hourly wages and commissions. 
 
         Claimant attempted to supplement his father's answers to the 
 
         interrogatories shortly before the trial so as to reconstruct 
 
         hours of work he missed.  Why this reconstruction could not have 
 
         been accomplished fifteen months earlier at the time claimant's 
 
         father answered the interrogatories, is unknown.  The accuracy of 
 
         claimant's system to reconstruct the hours or the days he missed 
 
         is unacceptable.  Claimant's father testified that the company 
 
         keeps no attendance records.  It is obvious from claimant's 
 
         testimony that there were not only periods of layoffs or no work, 
 
         but claimant could adjust his hours.  The nature of claimant's 
 
         work indicates that he could be working hours that would be 
 
         different than an 8:00 to 5:00 job.
 
         
 
              Claimant testified to the nature of his work.  He said many 
 
         jobs are two-persons jobs.  He said he did 80 percent of the jobs 
 
         himself.  The undersigned believes that if the claimant was 
 
         injured as bad as he wants one to believe, he would not be able 
 
         to do the work as he described, particularly by himself.  This 
 
         type of work is hard manual labor and as some medical evidence 
 
         shows, one would normally expect to be sore after a day's work.
 
         
 
              Claimant's chief complaints for which he now claims he 
 
         suffers seems to have surfaced mainly in 1987, one and one-half 
 
         years after his alleged injury.  From April 1987 on claimant 
 
         sought considerable medical help.  He went to several doctors.  
 
         The medical evidence reflects a suspicion that claimant is a 
 
         complainer, that he has psychosomatic problems.  The greater 
 
         weight of medical evidence does not causally connect claimant's 
 
         complaints or alleged disability to an injury on September 17, 
 
         1985.
 
         
 
              Claimant's father, in his answers to interrogatories in 
 
         1988, stated claimant reached maximum recovery November 1, 1985 
 
         or sooner.  He said he was unaware of claimant having any 
 
         permanent partial disability.  He also said claimant was under 
 
         observation every day he worked for defendant employer.  Claimant 
 
         made $5,000 or approximately 40 percent more earned income in 
 
         1988 as he did in 1985.  Claimant additionally had $805 in 
 
         unemployment benefits in 1988 and three times that figure in 
 
         1985.  Loss of earnings is not determinative of whether there is 
 
         industrial disability or loss of earning capacity, but is one of 
 
         those items to consider in determining the extent of industrial 
 
         disability, if any.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has the burden of proof to show he has a permanent 
 
         disability which is causally connected to his injury on September 
 
         17, 1985.  Claimant has not carried his burden.  The undersigned 
 
         finds the greater weight of medical evidence shows claimant's 
 
         complaints for which he now allegedly suffers are not causally 
 
         connected to his injury on September 17, 1985.  The undersigned 
 
         finds that the injury claimant received on September 17, 1985 was 
 
         very temporary in nature, resulted in no loss of work, and no 
 
         proven healing period.  Defendants paid any medical bills that 
 
         were connected therewith.
 
         
 
              As to the 85.27 issue, this has been made moot by the above 
 
         findings but it is worthy to note that those services and charges 
 
         of Dr. Parsow that are in dispute were not authorized.  It was 
 
         obvious that claimant convinced Dr. Dougherty to refer claimant 
 
         to Dr. Parsow for a rating determination.  It was evident that 
 
         Dr. Dougherty could find no objective findings and was not 
 
         interested in providing further services to claimant whom he 
 
         thought was a complainer.  Claimant knew defendants would not pay 
 
         Dr. Parsow and tried to come within the statute by urging Dr. 
 
         Dougherty to make a referral.
 
         
 
              At the time of hearing, the parties indicated there was a 
 
         ruling on claimant's motion for alternate care which was being 
 
         appealed.  After further discussion and review of the file at the 
 
         end of the hearing, the undersigned indicated he would rule 
 
         further on the motion and consider it a viable motion to be 
 
         disposed of in this decision.
 
              
 
              On April 3, 1989, Deputy David R. Rasey overruled claimant's 
 
         application for alternate medical care but indicated it could be 
 
         raised as an issue to be determined at the hearing.  Although 
 
         this issue is moot in light of the above finding, the undersigned 
 
         finds that there are no material additional facts that would 
 
         warrant a different ruling of the prior deputy's ruling.  
 
         Claimant is a complainer and is continuing to seek a medical 
 
         conclusion different than what he has already received.  He has 
 
         had extensive medical treatments and examinations at defendants' 
 
         expense.  Of course, this decision does not prevent claimant from 
 
         seeking at his own cost as many other medical examinations, 
 
         treatments or opinions as he wants.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related injury to his neck, 
 
         shoulder, and arms on September 17, 1985.
 
              
 
              2.  Claimant failed to carry his burden of proof to show 
 
         claimant incurred any healing period as a result of his September 
 
         17, 1985 injury.
 
              
 
              3.  Claimant failed to carry his burden of proof to show 
 
         that he incurred any permanent bodily impairment or disability as 
 
         a result of his work-related injury on September 17, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              4.  Claimant's alleged current complaints, impairment or 
 
         disability to his arm, neck and shoulder are not the result of 
 
         his injury on September 17, 1985.
 
              
 
              5.  Dr. Parsow's services and medical bills were not 
 
         authorized under 85.27 of the Iowa Code.
 
         
 
              6.  Claimant is not entitled to any alternate care at 
 
         defendants' expense.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant incurred an injury which arose out of and in the 
 
         course of his employment on September 17, 1985.
 
         
 
              Claimant does not have any permanent impairment or 
 
         disability which is causally connected to his injury of September 
 
         171 1985.
 
         
 
              Claimant's current alleged complaints, impairment or 
 
         disability are not causally connected to his injury on September 
 
         17, 1985.
 
         
 
              Dr. Parsow was not a defendants-authorized physician.
 
              
 
              Claimant is not entitled to alternate care at defendants' 
 
         expense.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That defendants are not responsible for any of Dr. Parsow's 
 
         bills or the cost of any drugs he prescribed.
 
         
 
              That defendants have already paid or agreed to pay all the 
 
         medical bills for which they would be responsible under this 
 
         decision.
 
         
 
              That claimant is not entitled to any alternate care at 
 
         defendants' expense.
 
         
 
              That defendants are to pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 10th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr James M. Cosgrove
 
         Mr.James P. Comstock
 
         Attorneys at Law
 
         1109 Badgerow Bldg
 
         Sioux City, IA  51102
 
         
 
         Mr Charles T. Patterson
 
         Mr Thomas M. Plaza
 
         Attorneys at Law
 
         701 Pierce St Ste 200
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51400
 
                                            Filed January 10, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS VAN TUYL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 809709
 
         VAN TUYL CONTRACTING CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51400
 
         
 
              Claimant failed to carry his burden that he incurred a 
 
         permanent partial impairment to his arm, neck and shoulder as a 
 
         result of an injury that arose out of and in the course of 
 
         claimant's employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROBERT R. BEAMER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 809720
 
            A-1 READY MIX, INC.,     
 
                                                A P P E A L
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 30, 1990 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            That portion of the deputy's decision pertaining to 
 
            claimant's ability to earn sufficient wages to support 
 
            himself or to earn a living as a factor of industrial 
 
            disability is not adopted as part of this appeal decision.
 
            Defendants' shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Peter W. Berger
 
            Mr. Michael J. Culp
 
            Attorneys at Law
 
            1217 Army Post Road
 
            Des Moines, Iowa 50315
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            404 Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                9999
 
                                                Filed June 30, 1992
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROBERT R. BEAMER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 809720
 
            A-1 READY MIX, INC.,     
 
                                                A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 30, 1990, 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIA GARZA,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 809891
 
         
 
         GENERAL FOODS CORPORATION,          A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
                                                  F I L E D
 
         
 
         LIBERTY  MUTUAL INSURANCE                 JUN 30 1989
 
         COMPANY,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Maria Garza, 
 
         claimant, against General Foods Corporation, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants.  
 
         This case was heard by the undersigned on February 7, 1989, in 
 
         Davenport, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of joint exhibits 1-33 and claimant's 
 
         exhibit A.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on February 7, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether the work injury is a cause of permanent 
 
         disability and, if so, the type of disability and commencement 
 
         date;
 
         
 
              2.  Whether a portion of the temporary total disability 
 
         benefits paid to claimant for the period (1/3/86 to 1/23/86 and 
 
         4/17/86 to 4/30/86) were paid in error; and,
 
         
 
              3.  Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27 (and/or medical evaluation under 85.39).
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties have entered into a number 
 
         of stipulations.  The stipulations are as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
              
 
              2.  That claimant sustained an injury on October 14, 1985, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendant is 
 
         found liable, is from October 2.8, 1985 to November 9, 1985 and 
 
         from November 14, 1985 to December 15, 1985;
 
         
 
              5.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $240.30 per week; and,
 
         
 
              6.  Defendants paid claimant from October 28, 1985 to 
 
         November 9, 1985, November 14, 1985 to December 15, 1985 and from 
 
         January 3, 1986 to January 23, 1986, at the rate of $240.30 per 
 
         week prior to hearing.  (This is figured as 12 weeks by the 
 
         deputy)
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was 38-years-old at the time of her hearing.  She 
 
         testified she did not complete the sixth grade, but that she had 
 
         been working at defendant's establishment since 1978.
 
         
 
              Claimant testified she attempted to pick up a pallet of 
 
         boxes on October 15, 1985, but that she.felt a pull in her 
 
         stomach. Claimant reported dizziness and nausea at the time but 
 
         stated she completed her work shift and did report the incident 
 
         to her supervisor.
 
         
 
              John H. Sunderbruch, M.D., later saw claimant.  Dr. 
 
         Sunderbruch testified by way of deposition.  He diagnosed 
 
         claimant as having a spigelian-type hernia which was a herniation 
 
         through the muscle rather than through the peritoneal wall.  Dr. 
 
         Sunderbruch performed a hernia repair surgery on November 15, 
 
         1985.  Subsequent to the surgery, claimant experienced some 
 
         drainage.
 
         
 
              Claimant was later admitted to St. Luke's Hospital in 
 
         Davenport, Iowa for an increase in white blood cells.  Gary 
 
         Anderson, D.O., was the attending physician.  He diagnosed 
 
         cholecystitis.
 
         
 
              Again claimant was hospitalized in April of 1986.  David A. 
 
         Arnold, D.O., performed a second surgery on claimant's abdomen. 
 
         Dr. Arnold, in his report of August 15, 1988, wrote:
 
         
 
              Pursuant to your letter of July 21, 1988 I would like to 
 
              point out that at the time of surgery, which was 4-16-86, 
 
              Mrs. Garza was found to have no evidence of ventral 
 
              abdominal hernia.  She did have extensive abdominal 
 
              adhesions involving the omentum and the right tube and ovary 
 
              and adhesions involving the cecum and the right tube and 
 
              ovary.  This necessitated lysis of these adhesions.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was discharged from the hospital on April 23, 1986. 
 
         Her last visit with Dr. Arnold was July 23, 1987.  According to 
 
         her testimony, claimant was off work for 30 days following the 
 
         second surgery.  She testified she returned to work on light duty 
 
         for two weeks but that because of a plant closure, claimant was 
 
         unable to continue her employment.  Claimant explained she was no 
 
         longer able to drive a forklift.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on October 14, 1985, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of October 14, 1985, is 
 
         causally related to the disability on which she now bases her 
 
         claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection 
 
         is essentially within the domain of expert testimony.  Bradshaw 
 
         v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact. Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 113 N.W.2d 867.  
 
         See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              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).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function..
 
         
 
              Factors to be considered in determining industrial 
 
         disability 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.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has not proven by a preponderance of the evidence 
 
         that her work injury on October 14, 1985, is causally related to 
 
         any permanent disability.  After claimant's initial hernia 
 
         surgery, she was able to return to work on December 16, 1985, for 
 
         two weeks of light duty.  She continued to work until January 2, 
 
         1986.  During this time frame, claimant was experiencing some 
 
         drainage from her surgical incision.  Claimant was again 
 
         hospitalized in January of 1986.  B. N. Shivakumar, M.D., found 
 
         as of January 7, 1986:
 
         
 
              PHYSICAL EXAMINATION:  The patient is a Mexican female in no 
 
              acute distress.  HEENT essentially unremarkable.  Vital 
 
              signs; blood pressure 130/80.  Temperature normal. 
 
              Respirations 20 per minute.  Examination of the chest and 
 
              heart are normal.  Abdominal examination reveals evidence of 
 
              soft abdomen with no evidence of palpable liver or spleen. 
 
              There is a recent surgical scar in the left periumbilical 
 
              area.  There is some tenderness around the left and right 
 
              periumbilical area.  No palpable live [sic] or palpable 
 
              spleen.  There is some tenderness also in the left lower 
 
              quadrant of the abdomen.  Rectal examination reveals hard 
 
              stool and this was tested negative for occult blood.
 
         
 
              Upper GI x-rays reviewed showed evidence of spasm in the 
 
              duodenal bulb, although we cannot see any definite evidence 
 
              of peptic ulcer crater.
 
         
 
              These findings have been discussed and at this time, 
 
              clinically I do not feel that the patient's history is 
 
              consistent with peptic ulcer disease and I feel that her 
 
              history of abdominal pain, bloating, and irregular bowel 
 
              movement in the past six months could possibly be consistent 
 
              with an irritable bowel syndrome.  However because of 
 
              abnormality of the upper GI x-ray, which does not document 
 
              any definite evidence of ulcer disease, I feel that this 
 
              abnormality of the upper GI x-ray should be further 
 
              evaluated, to confirm or rule out the presence of peptic 
 
              ulcer disease.  Because of this reason after discussing 
 
              whether the patient should have an endoscopy done to confirm 
 
              or rule out peptic ulcer disease.  This is scheduled for,the 
 
              morning.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              No other mention was made of the surgical drainage. 
 
         Apparently, any problems subsided.
 
         
 
              After claimant was discharged from the hospital, she was 
 
         examined.again by the company physician, Dr. Sunderbruch.  He 
 
         opined:
 
         
 
              This is to certify that I saw the above individual on 
 
              January 22, 1986.  I reviewed the history she gave relative 
 
              to visiting Dr. Gary Anderson on January 3rd and then being 
 
              admitted to St. Luke's Hospital and being cared for there. 
 
              While there she also saw Dr. Shivakumar and Dr. Arnold.  I 
 
              later talked to Dr. Gary Anderson on January 24, 1986 and 
 
              discussed Marie's [sic] admission to St. Luke's Hospital.  
 
              It was Dr. Anderson's feeling that she actually had an acute 
 
              cholecystitis at the time she was admitted to St. Luke's 
 
              Hospital; but while testing for this, her condition 
 
              subsided. All tests taken revealed that there was no 
 
              positive finding related to her previous surgery.  The 
 
              patient had the impression that there was an infection in 
 
              the abdominal wall following this surgery.  There was no 
 
              proof of this according to Dr. Anderson.  So, therefore, it 
 
              is my opinion that that admission to St. Luke's should be 
 
              charged to her regular insurance and has no relation to a 
 
              compensatory situation.
 
         
 
              Dr. Sunderbruch determined to a reasonable degree of medical 
 
         certainty that the treatment provided by Dr. Anderson was not 
 
         related to claimant's work injury on October 14, 1985.  His 
 
         opinion was based upon his visit with claimant and upon a 
 
         discussion between Dr. Sunderbruch and Dr. Anderson.
 
         
 
              Claimant returned to work on January 24, 1986.  She worked 
 
         until April 16, 1986.  She was admitted to Mercy Hospital in 
 
         Davenport, Iowa on the 17th of April.  David A. Arnold, D.O., 
 
         performed surgery on the 18th.  Dr. Arnold found at the time of 
 
         the surgery:
 
         
 
              FINDINGS:  Patient was noted to have dense adhesions along 
 
              the omentum and the right tube and ovary, as well as the 
 
              cecum in the right tube and ovary, presumably secondary to 
 
              previous inflammatory changes in the abdominal wall and 
 
              pelvic area.  No hernia was found as such.  There was no 
 
              abscess or any sign of infection in the subcuticular 
 
              layers. The uterus was of normal size, perhaps slightly 
 
              enlarged, with a small anterior fibroid.  The tubes and 
 
              ovaries were normal bilaterally with the exception of the 
 
              adhesive components as mentioned above.  The entire small 
 
              bowel was traced and was found to be within normal limits.  
 
              The entire colon was traced and was also found to be 
 
              within normal limits, with exception of adhesions 
 
              involving the cecum and right tube and ovary.  The kidneys 
 
              and spleen were within normal limits.  Liver edges were 
 
              sharp, gallbladder was thin walled and stomach and 
 
              pancreas were within normal limits. No other abnormal 
 
              pathology was noted.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Arnold did not causally connect the second injury with 
 
         claimant's injury of October 14, 1985.  Dr. Arnold, in his report 
 
         of August 15, 1988, stated:
 
         
 
              At the time of surgery it was felt that the discomfort in 
 
              the abdomen which Mrs. Garza described was probably related 
 
              to the tight adhesions of the omental apron down into the 
 
              lower right quadrant of the abdomen near the right tube and 
 
              ovary. As to the original etiology of the adhesions one can 
 
              only speculate, but probably there was some abdominal and/or 
 
              pelvic inflammatory event which triggered the development of 
 
              these adhesions.
 
         
 
              At this late date it is difficult for me to connect her 
 
              alleged [sic] lifting incident of October 1985 with her 
 
              surgery of April 18, 1986.  As I vaguely remember this 
 
              patient did have a previous surgery prior to my initial 
 
              visit, and that postoperatively this patient did develop 
 
              incisional infection requiring drainage and healing by 
 
              secondary intention.  It would seem more plausible to 
 
              speculate that this inflammatory incident, although 
 
              primarily external to the abdominal cavity, may in some way 
 
              have contributed to her adhesions.
 
              
 
              Her last visit to this office was dated 7-23-87, and at that 
 
              time she had minimal amount of discomfort in the umbilical 
 
              and left lateral umbilical area.  There was no gross 
 
              evidence of herniation and at that time we suggested weight 
 
              restrictions being placed on her which I would estimate in 
 
              the neighborhood of 25 to 35 lbs.  If there is indeed any 
 
              significant impairment one might consider something in the 
 
              neighborhood of 15 to 20%.
 
         
 
              Dr. Arnold did not affirmatively state claimant sustained a 
 
         functional impairment.  Nor did he attribute a proportion of the 
 
         possible impairment to the work injury on October 14, 1985.  His 
 
         opinions were not stated to be with a reasonable degree of 
 
         medical certainty.  Not much weight is accorded to Dr. Arnold's 
 
         opinion concerning the issue of functional impairment.
 
         
 
              Dr. Sunderbruch did opine with a degree of medical certainty 
 
         that the.surgery performed by Dr. Arnold in April of 1986 was not 
 
         related to claimant's work injury on October 14, 1985.  Dr. 
 
         Sunderbruch did not believe the second surgery had anything to do 
 
         with the hernia repair surgery performed by him.  The basis for 
 
         Dr. Sunderbruch's opinion was that the adhesions found were not 
 
         the type of adhesions usually found after an injury.
 
         
 
              Dr. Sunderbruch reported in his deposition that Dr. Arnold 
 
         had confirmed the second surgery was related to an 
 
         intra-abdominal condition while the first surgery was related to 
 
         an extra abdominal condition.
 
         
 
              Dr. Sunderbruch opined claimant,sustained no functional 
 
         impairment.  He determined with a reasonable degree of medical 
 
         certainty there was no permanency.  His opinion was based upon 
 
         the results of the initial surgery, and upon claimant's condition 
 
         when she returned to work in December of 1985.  His opinion was 
 
         further buttressed by the fact Dr. Arnold found an intact 
 
         abdominal wall at the time of the second surgery.  Dr. 
 
         Sunderbruch also opined that the possible functional impairment 
 
         rating discussed by Dr. Arnold was not related to claimant's 
 
         injury on October 14, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As a result, the undersigned determines claimant's January 
 
         1986 and April 1986 hospitalizations are not causally related to 
 
         claimant's work injury on October 14, 1985.
 
         
 
              Medical expenses requested by claimant pursuant to section 
 
         85.27 are denied with the exception of the medical expenses 
 
         charged by the anesthesiologist, Benjamin Z. Rosario, M.D., for 
 
         the hernia repair surgery.  This totals $297.00.  All other 
 
         requested medical expenses are for conditions which are not work 
 
         related.
 
         
 
              The parties stipulated claimant was entitled to weekly 
 
         compensation from October 28, 1985 to November 9, 1985 and from 
 
         November 14, 1985 to December 15, 1985.  It is the determination 
 
         of the undersigned that because the illnesses and resulting 
 
         hospitalization periods during January and April of 1986 were 
 
         unrelated to claimant's work injury, the periods from January 3, 
 
         1986 to January 23, 1986 and from April 17, 1986 to April 30, 
 
         1986 were also unrelated to claimant's work injury. it is without 
 
         saying, no benefits for temporary total disability are due to 
 
         claimant for 1986.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained a hernia as of October 14, 
 
         1985, which arose out of and in the course of her employment.
 
         
 
              FINDING 2.  Claimant had hernia repair surgery on November 
 
         15, 1985.
 
         
 
              FINDING 3.  Claimant was off work from October 28, 1985 to 
 
         November 9, 1985 and from November 14, 1985 to December 15, 1985 
 
         as a result of.the injuries sustained on October 14, 1985.
 
         
 
              CONCLUSION A.  Claimant has not sustained any permanent 
 
         partial disability.
 
         
 
              CONCLUSION B.  As a result of the October 14, 1985 injury, 
 
         claimant has established by a preponderance of the evidence that 
 
         she is entitled to temporary total disability benefits at the 
 
         stipulated rate of $240.30 per week for 6.143 weeks.
 
         
 
              FINDING 4.  Claimant has incurred reasonable and necessary 
 
         medical expenses.
 
         
 
              CONCLUSION C.  Claimant is entitled to the reimbursement of 
 
         the following medical expenses:
 
         
 
                        Dr. Benjamin Rosario           $297.00
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant six point 
 
         one-four-three (6.143) weeks of temporary total disability 
 
         benefits at the stipulated rate of Two Hundred Forty and 30/100 
 
         Dollars ($240.30) per week.
 
         
 
              Defendants are liable for Two Hundred Ninety-seven and 
 
         no/100 Dollars ($297.00) in medical expenses to Dr. Rosario.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants shall take credit for all benefits previously 
 
         paid.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 30th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Bldg.
 
         Davenport, Iowa  52801
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                             
 
 
 
 
 
 
 
 
 
 
 
                                             5-110 8
 
                                             Filed June 30, 1989
 
                                             MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIA GARZA,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 809891
 
         
 
         GENERAL FOODS CORPORATION,           A R B I T R A T I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1108
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and the alleged work related injury.