BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        VIRGINIA L. RALSTON,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 810125
 
        
 
        CIBA-GEIGY CORPORATION,              A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        INSURANCE COMPANY OF NORTH
 
        AMERICA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a ruling sustaining defendants' motion for 
 
        summary judgment and dismissing claimant's claim on the merits 
 
        with prejudice.
 
        
 
        The record on appeal includes defendants' motion for summary 
 
        judgment, defendants' statement in support of summary judgment 
 
        which includes a deposition of the claimant, and claimant's 
 
        resistance to motion for summary judgment. Both parties filed 
 
        briefs in support of their position before the deputy but neither 
 
        party filed a brief on appeal.
 
        
 
                                      ISSUE
 
        
 
        Claimant states no-specific issue on appeal so this matter will 
 
        be considered generally without any specified error.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Based upon the record the following facts are not subject to any 
 
        good faith dispute.
 
        
 
        Gerald Ralston died on January 13, 1982, as a result of a motor 
 
        vehicle accident that occurred in the state of Iowa.
 
        
 
        Virginia L. Ralston, Gerald Ralston's surviving spouse and 
 
        claimant, was paid workers' compensation benefits under South 
 
        Dakota law.
 
        
 
        RALSTON V. CIBA-GEIGY CORPORATION
 
        Page 2
 
        
 
        
 
        There was no first report of injury, memorandum of agreement or 
 
        denial of liability filed within the state of Iowa with regard to 
 
        the death of Gerald Ralston.
 
        
 
        The petition in this case was filed on January 8, 1986.
 
        
 
                                 APPLICABLE LAW
 
        
 

 
        
 
 
 
 
 
        Iowa Code section 85.26 (1981) provides in relevant part:
 
        
 
        1. No original proceedings for benefits under this chapter or 
 
        chapter 85A, 85B or 86, shall be maintained in any contested case 
 
        unless such proceedings shall be commenced within two years from 
 
        the date of the occurrence of the injury for which benefits are 
 
        claimed except as provided by section 86.20.
 
        
 
        2. Any award for payments or agreement for settlement provided by 
 
        section 86.13 for benefits under the workers' compensation or 
 
        occupational disease law or the Iowa occupational hearing loss 
 
        Act [chapter 85B] may, where the amount has not been commuted, be 
 
        reviewed upon commencement of reopening proceedings by the 
 
        employer or the employee within three years from the date of the 
 
        last payment of weekly benefits made under such award or 
 
        agreement. Once an award for payments or agreement for 
 
        settlement as provided by section 86.13 for benefits under the 
 
        workers' compensation or occupational disease law or the Iowa 
 
        occupational hearing loss ACt [chapter 85B] has been made where 
 
        the amount has not been commuted, the commissioner may at any 
 
        time upon proper application make a determination and appropriate 
 
        order concerning the entitlement of an employee to benefits 
 
        provided for in section 85.27.
 
        
 
        (Emphasis added.)
 
        
 
        Iowa Code section 86.13 (1981) provides in relevant part:
 
        
 
        Any failure on the part of the employer or insurance carrier to 
 
        file such memorandum of agreement with the industrial 
 
        commissioner within thirty days after the payment of weekly 
 
        compensation is begun shall stop the running of section 85.26 as 
 
        of the date of the first such payment.
 
        
 
                                      ANALYSIS
 
        
 
        The issue is whether claimant's claim is barred by the statute of 
 
        limitations found in section 85.26, supra. Defendants argue that 
 
        this action is barred by subsection 85.26(1).
 
        
 
        RALSTON V. CIBA-GEIGY CORPORATION
 
        Page 3
 
        
 
        
 
        They also argue that stopping the running of the statute of 
 
        limitations as provided in section 86.13 contemplates payments of 
 
        Iowa workers' compensation. Claimant argues in response that 
 
        defendants' failure to file a memorandum of agreement has the 
 
        effect of stopping the running of the statute of limitations.
 
        
 
        Claimant's injury was January 13, 1982, and the original petition 
 
        in this proceeding was filed on January 8, 1986. Subsection 
 
        85.26(1) clearly bars the filing of an original proceeding 
 
        because it was not brought within two years of the date of the 
 
        injury.
 
        
 
        No memorandum of agreement had been filed under Iowa law nor had 
 
        a prior award for workers' compensation been filed in Iowa. 
 
        Defendants' argument is persuasive that the statute of 
 
        limitations found in subsection 85.26(2) contemplates an award 
 
        for Iowa workers' compensation benefits. The benefits allegedly 
 
        paid in South Dakota were not an award for Iowa benefits. Such 
 
        payments were obviously not made pursuant to or in contemplation 
 
        of the Iowa statutes. The payments were not payments contemplated 
 
        under subsection 85.26(2). The provisions of subsection 85.26(2) 
 
        are not controlling and therefore the provisions of section 86.13 
 

 
        
 
 
 
 
 
        cited above are not applicable.
 
        
 
        If claimant's argument were accepted it would result in an 
 
        unlimited period of time to commence an action in Iowa when a 
 
        claimant has been paid compensation in another state pursuant to 
 
        a decision of settlement. That situation would be an absurd 
 
        result and contrary to orderly resolution of workers' 
 
        compensation claims.
 
        
 
        Claimant's action is barred by subsection 85.26(1) which is 
 
        applicable. This conclusion is the same as the conclusion reached 
 
        in Sawyer v. National Transportation Co.,(Appeal Decision March 
 
        11, 1988).
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Gerald Ralston died on January 13, 1982, as a result of a 
 
        motor vehicle accident that occurred in the state of Iowa.
 
        
 
        2. Virginia L. Ralston, Gerald Ralston's surviving spouse and 
 
        claimant, was paid workers' compensation benefits under South 
 
        Dakota law.
 
        
 
        3. There was no first report of inJury, memorandum of agreement 
 
        or denial of liability filed within the state of Iowa with regard 
 
        to the death of Gerald Ralston.
 
        
 
        4. The petition in this case was filed on January 8, 1986.
 
        
 
        RALSTON V. CIBA-GEIGY CORPORATION
 
        Page 4
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        This case is an original proceeding governed by Iowa Code section 
 
        85.26(1).
 
        
 
        Claimant's claim is barred because the original petition was 
 
        filed more than two years after the date of injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants' motion for summary judgment is sustained and 
 
        claimant's claim is dismissed on the merits with prejudice. All 
 
        costs of this proceeding are assessed against the claimant.
 
        
 
        Signed and filed this 15th day of May, 1989.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
                 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGINIA L. RALSTON,
 
         
 
              Claimant,                               File No. 810125
 
         
 
         vs.                                            A P P E A L
 
         
 
         CIBA-GEIGY CORPORATION,                      D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAY 15 1989
 
         INSURANCE COMPANY OF NORTH
 
         AMERICA,                              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a ruling sustaining defendants' motion 
 
         for summary judgment and dismissing claimant's claim on the 
 
         merits with prejudice.
 
         
 
              The record on appeal includes defendants' motion for summary 
 
         judgment, defendants' statement in support of summary judgment 
 
         which includes a deposition of the claimant, and claimant's 
 
         resistance to motion for summary judgment.  Both parties filed 
 
         briefs in support of their position before the deputy but neither 
 
         party filed a brief on appeal.
 
         
 
                                   ISSUE
 
         
 
              Claimant states no specific issue on appeal so this matter 
 
         will be considered generally without any specified error.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Based upon the record the following facts are not subject to 
 
         any good faith dispute.
 
         
 
              Gerald Ralston died on January 13, 1982, as a result of a 
 
         motor vehicle accident that occurred in the state of Iowa.
 
         
 
              Virginia L. Ralston, Gerald Ralston's surviving spouse and 
 
         claimant, was paid workers' compensation benefits under South 
 
         Dakota law.
 
         
 
              There was no first report of injury, memorandum of agreement 
 
         or denial of liability filed within the state of Iowa with regard 
 
                                                
 
                                                         
 
         to the death of Gerald Ralston.
 
         
 
              The petition in this case was filed on January 8, 1986.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85.26 (1981) provides in relevant part:
 
         
 
                   1.  No original proceedings for benefits under this 
 
              chapter or chapter 85A, 85B or 86, shall be maintained in 
 
              any contested case unless such proceedings shall be 
 
              commenced within two years from the date of the occurrence 
 
              of the injury for which benefits are claimed except as 
 
              provided by section 86.20.
 
         
 
                   2.  Any award for payments or agreement for settlement 
 
              provided by section 86.13 for benefits under the workers' 
 
              compensation or occupational disease law or the Iowa 
 
              occupational hearing loss Act [chapter 85B] may, where the 
 
              amount has not been commuted, be reviewed upon commencement 
 
              of reopening proceedings by the employer or the employee 
 
              within three years from the date of the last payment of 
 
              weekly benefits made under such award or agreement.  Once an 
 
              award for payments or agreement for settlement as provided 
 
              by section 86.13 for benefits under the workers' 
 
              compensation or occupational disease law or the Iowa 
 
              occupational hearing loss Act [chapter 85B] has been made 
 
              where the amount has not been commuted, the commissioner may 
 
              at any time upon proper application make a determination and 
 
              appropriate order concerning the entitlement of an employee 
 
              to benefits provided for in section 85.27.
 
         
 
         (Emphasis added.)
 
         
 
              Iowa Code section 86.13 (1981) provides in relevant part:
 
         
 
                   Any failure on the part of the employer or insurance 
 
              carrier to file such memorandum of agreement with the 
 
              industrial commissioner within thirty days after the payment 
 
              of weekly compensation is begun shall stop the running of 
 
              section 85.26 as of the date of the first such payment.
 
         
 
                                  ANALYSIS
 
         
 
              The issue is whether claimant's claim is barred by the 
 
         statute of limitations found in section 85.26, supra.  Defendants 
 
         argue that this action is barred by subsection 85.26(1).  They 
 
         also argue that stopping the running of the statute of 
 
         limitations as provided in section 86.13 contemplates payments of 
 
         Iowa workers' compensation.  Claimant argues in response that 
 
         defendants' failure to file a memorandum of agreement has the 
 
         effect of stopping the running of the statute of limitations.
 
         
 
              Claimant's injury was January 13, 1982, and the original 
 
         petition in this proceeding was filed on January 8, 1986. 
 
                                                
 
                                                         
 
         Subsection 85.26(1) clearly bars the filing of an original 
 
         proceeding because it,was not brought within two years of the 
 
         date of the injury.
 
         
 
              No memorandum of agreement had been filed under Iowa law nor 
 
         had a prior award for workers' compensation been filed in Iowa. 
 
         Defendants' argument is persuasive that the statute of 
 
         limitations found in subsection 85.26(2) contemplates an award 
 
         for Iowa workers' compensation benefits.  The benefits allegedly 
 
         paid in South Dakota were not an award for Iowa benefits.  Such 
 
         payments were obviously not made pursuant to or in contemplation 
 
         of the Iowa statutes.  The payments were not payments 
 
         contemplated under subsection 85.26(2).  The provisions of 
 
         subsection 85.26(2) are not controlling and therefore the 
 
         provisions of section 86.13 cited above are not applicable.
 
         
 
              If claimant's argument were accepted it would result in an 
 
         unlimited period of time to commence an action in Iowa when a 
 
         claimant has been paid compensation in another state pursuant to 
 
         a decision or settlement.  That situation would be an absurd 
 
         result and contrary to orderly resolution of workers' 
 
         compensation claims.
 
         
 
              Claimant's action is barred by subsection 85.26(1) which is 
 
         applicable.  This conclusion is the same as the conclusion 
 
         reached in Sawyer v. National Transportation Co.,(Appeal Decision 
 
         March 11, 1988).
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Gerald Ralston died on January 13, 1982, as a result of 
 
         a motor vehicle accident that occurred in the state of Iowa.
 
         
 
              2.  Virginia L. Ralston, Gerald Ralston's surviving spouse 
 
         and claimant, was paid workers' compensation benefits under South 
 
         Dakota law.
 
         
 
              3.  There was no first report of injury, memorandum of 
 
         agreement or denial of liability filed within the state of Iowa 
 
         with regard to the death of Gerald Ralston.
 
         
 
              4.  The petition in this case was filed on January 8, 1986.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              This case is an original proceeding governed by Iowa Code 
 
         section 85.26(1).
 
         
 
              Claimant's claim is barred because the original petition was 
 
         filed more than two years after the date of injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
                                                
 
                                                         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants' motion for summary judgment is sustained 
 
         and claimant's claim is dismissed on the merits with prejudice.  
 
         All costs of this proceeding are assessed against the claimant.
 
         
 
         
 
              Signed and filed this 15th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Ste. 500
 
         W. Des Moines, Iowa  50265
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
               
 
                                            2402
 
                                            Filed May 15, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGINIA L. RALSTON,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 810125
 
         
 
         CIBA-GEIGY CORPORATION,
 
                                                        A P P E A L
 
              Employer,
 
         
 
           and                                        D E C I S I 0 N
 
         
 
         INSURANCE COMPANY OF NORTH
 
         AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2402
 
         
 
              Affirmed deputy's granting of motion for summary judgment. 
 
         Injury occurred in Iowa on January 13, 1982.  Claimant was paid 
 
         workers' compensation under South Dakota Law.  No memorandum of 
 
         agreement was filed in Iowa.  Claimant filed a petition in 
 
         arbitration in Iowa on January 8, 1986.  Claimant's claim was not 
 
         filed within two years of the injury and was barred by Iowa Code 
 
         section 85.26(1)(1981), which was applicable.  Conclusion reached 
 
         was the same as in Sawyer v. National Transportation Co., Appeal 
 
         Decision March 11, 1988.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         5-1108, 5-2209, 5-1803
 
         Filed August 30, 1991
 
         Byron K. Orton
 
         WRM
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DAVID SMITH,                  :
 
                                       :
 
              Claimant,                :      File No. 810131
 
                                       :
 
         vs.                           :        A P P E A L
 
                                       :
 
         FDL FOODS, INC.,              :      D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         5-1108
 
         Held that claimant proved an injury arising out of and in the 
 
         course of his employment with the defendant employer.  The 
 
         medical evidence clearly indicates that claimant has a 
 
         degenerative arthritic condition which preexisted his employment 
 
         with the defendant.  Claimant operates a power jeep which 
 
         requires claimant to hold his arm above waist level to control 
 
         the function of the power jeep.  Claimant proved by a 
 
         preponderance of the evidence that his work aggravated his 
 
         underlying degenerative arthritic condition and resulted in a 
 
         five percent permanent impairment to his left upper extremity.
 
         
 
         5-2209
 
         Held that claimant's injury is a cumulative injury rather than a 
 
         traumatic injury.  Held that claimant's injury date is December 
 
         17, 1984, the first day claimant was off work as a result of the 
 
         aggravation of the preexisting condition.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
         5-1803
 
         Held that claimant is entitled to ten percent permanent partial 
 
         disability as a result of the aggravation of the preexisting 
 
         degenerative arthritic condition.  Claimant was able to return to 
 
         the position which he held prior to his surgery.  Claimant 
 
         testified that he is able to perform his job satisfactorily.  
 
         Furthermore, claimant has not sought additional medical treatment 
 
         for his shoulder and felt that his overall condition improved 
 
         following surgery but he is still experiencing pain.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                                     
 
         
 
         DAVID SMITH,                                File No. 810131
 
         
 
              Claimant,                           A R B I T R A T I O N
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         FDL FOODS, INC.,
 
                                                        F I L E D
 
              Employer,
 
              Self-Insured,                            JUL 31 1989
 
              Defendant.
 
                                                   INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David Smith, 
 
         claimant, against FDL Foods, Inc., employer and self-insured 
 
         defendant, for benefits as the result of an alleged injury which 
 
         occurred on May 16, 1984, the date alleged on the original notice 
 
         and petition.  A hearing was held at Dubuque, Iowa, on May 6, 
 
         1988 and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of David Smith, 
 
         claimant, one joint exhibit with pages marked from 1 through 70 
 
         and claimant's exhibits B and C.  Claimant was represented by 
 
         Stephen J. Smalling.  Defendant was represented by James M. 
 
         Heckmann.  Both attorneys submitted excellent posthearing briefs.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              Claimant objected to defendant's exhibit A for the reason 
 
         that it was not served 15 days prior to hearing as required by 
 
         paragraph six of the hearing assignment order.  The hearing was 
 
         May 6, 1988.  Fifteen days prior to hearing is April 24, 1988. 
 
         Defendant's exhibit A was not even generated until April 24, 
 
         1988. Defendant did not contend that it was timely served.  
 
         Therefore, the objection was sustained and defendant's exhibit A 
 
         was not received into evidence.  It was excluded and will not be 
 
         considered in the determination of the issues in this case. 
 
         Defendant's exhibit A will remain with the record for purposes of 
 
         appeal.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period benefits, if 
 
         defendant is found liable for the injury, is from August 22, 1985 
 
         through October 27, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is October 28, 
 
         1985.
 
         
 
              That the date of injury is disputed.
 
         
 
              That if the date of inJury is found to be November 18, 1983, 
 
         then the rate of compensation is $233.69 per week.  If the date 
 
         of injury is found to be May 16, 1984, then the rate of 
 
         compensation is $219.20 per week.  If the date of injury is found 
 
         to be August 22, 1985, then the rate of compensation is $206.89 
 
         per week.
 
         
 
              That in the event it is determined that claimant is entitled 
 
         to medical benefits, then the amount of unpaid medical benefits 
 
         is $618.
 
         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable.
 
         
 
              That the expenses were incurred for reasonable and necessary 
 
         medical treatment.
 
         
 
              That the medical expenses are causally connected to the 
 
         condition on which claimant is now basing his claim, however, the 
 
         causal connection of this condition to a work injury remains an 
 
         issue to be decided in this case.
 
         
 
              That defendant is entitled to a credit under Iowa Code 
 
         section 85.38(2) for the payment of $1,290 in disability income 
 
         benefits and $2,674.30 in medical benefits paid to claimant prior 
 
         to hearing under an employee nonoccupational group health plan.
 
         
 
              That defendant makes no claim for the payment of workers' 
 
         compensation benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury which arose out of and 
 
         in the course of his employment with employer.
 
         
 
              Whether the alleged injury was the cause of temporary 
 
         disability.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits, to 
 
         include whether claimant is entitled to scheduled member benefits 
 
         or industrial disability benefits for an injury to the body as a 
 
         whole.
 
         
 
              Whether claimant is entitled to medical expenses.
 
         
 
                         FURTHER CLARIFICATION OF ISSUES
 
         
 
              The prehearing report states that defendant is asserting the 
 
         affirmative defense of notice under Iowa Code section 85.23 and 
 
         the statute of limitations under Iowa Code section 85.26.  Since 
 
         neither one of these two issues are designated as hearing issues 
 
         on the hearing assignment order, then they will not be addressed 
 
         or determined in this decision.  Hearing deputies determine only 
 
         issues which are raised at the prehearing conference and are 
 
         designated as hearing issues on the hearing assignment order. 
 
         Presswood vs. Iowa Beef Processors, Inc., file number 735442 
 
         (Appeal Decision November 14, 1986).
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant, age 44, attended grade school through junior high 
 
         school (ninth grade) and obtained a G.E.D. in 1961.  Claimant has 
 
         no additional formal education or training.  Claimant's past 
 
         employments include spray painting, changing tires and packing 
 
         house work (joint exhibit pages 33 & 34).  Dubuque Packing 
 
         Company was the predecessor of FDL.  Claimant worked for Dubuque 
 
         Pack from October 17, 1966 until October 16, 1982 when Dubuque 
 
         Pack ceased operations.  Claimant's official starting date with 
 
         FDL is recorded as October 8, 1982.  Claimant completed a medical 
 
         history questionnaire on November 16, 1982 for employer and 
 
         placed an "X" in the "no" block which asked if he had arthritis.  
 
         A preemployment physical examination form was completed on 
 
         January 12, 1983 and it did not indicate that claimant had 
 
         arthritis (jt. ex. pp. 37-39).
 
         
 
              Claimant operated a power jeep at the time of the alleged 
 
         injury.  This jeep has,a "T" shaped handle with fingertip 
 
         controls on it for the purpose of forward and reverse movements.  
 
         Claimant also steers the jeep manually with the "T" shaped 
 
         handle.  Claimant testified that he operated the power jeep with 
 
         his left hand behind his back while walking in front of the jeep.
 
         
 
              Claimant testified that he first encountered problems about 
 
         one month after he started for FDL in late 1982 or early 1983.  
 
         The steering collar on the jeep was bad and the jeep was hard to 
 
         steer. Claimant maintained that the jeep would jerk you off your 
 
         feet, almost knock your hat off and it caused pain in his left 
 
         shoulder. The jeep was repaired once, but it still jerked him 
 
         hard until maintenance put in a new steering collar.  Claimant 
 
         said the jeep did not cause any more problems after the collar 
 
         was replaced, but he, nevertheless, continued to suffer worse 
 
         left shoulder pains.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant related that he frequently saw the plant nurse and 
 
         L.C. Faber, M.D., the plant physician, for his left shoulder.  He 
 
         said that he was given aspirin and Motrin, but the pain in his 
 
         left shoulder got progressively worse.  It bothered him at night 
 
         and he could not sleep.  An injection with Xylocaine provided 
 
         some temporary relief.  Once he was taken off work for a day.  
 
         Another time he was taken off work from December 17, 1984 to 
 
         December 27, 1984 (jt. ex. 31).
 
         
 
              On another occasion, claimant tried cutting meat with his 
 
         right hand and shoving the meat in a hole with his left hand.  
 
         This also hurt his left shoulder because of pushing the meat with 
 
         his left hand.  Claimant asked for his old jeep job back again 
 
         because he could alternate between his left arm and right arm 
 
         some of the time.
 
         
 
              Claimant testified that he continued to experience stinging 
 
         and aching pain in his left shoulder which did not get better, 
 
         but only seemed to get worse.  He said it was the same pain that 
 
         he experienced when the jeep started jerking.  It was possible 
 
         for him to hold onto the jeep, but he did begin to lose strength 
 
         in his left arm.
 
         
 
              Eventually, Dr. Faber referred claimant to Julian Nemmers, 
 
         M.D., an orthopedic surgeon, who performed surgery on August 22, 
 
         1985.  Claimant said he was off work from August 22, 1985 through 
 
         October 27, 1985.  He said he was not paid workers' compensation 
 
         benefits, but he did receive income disability benefits and the 
 
         payment of most of his medical bills through the employee 
 
         nonoccupational group health plan.
 
         
 
              Claimant said the surgery improved his condition, lessened 
 
         his pain, but the pain is never entirely gone.  In the court 
 
         room, claimant pointed to the top front portion of his left 
 
         shoulder as the place where he felt the pain.  Claimant stated 
 
         that he had not received any medical treatment for this shoulder 
 
         since he last saw Dr. Nemmers, after the surgery, which was on 
 
         February 19, 1986.
 
         
 
              Claimant said that he still takes aspirins or APC's for the 
 
         pain in his shoulder.  He has pain three out of every five days. 
 
         It aches; sometimes he could sit down and cry.  Sometimes he 
 
         stays home.  It bothers him when he plays golf and baseball.  
 
         Claimant testified that he returned to the same job of operating 
 
         the power jeep after the surgery.  He can perform the job 
 
         satisfactorily, but it causes him pain which makes it more 
 
         difficult for him to perform the job.  He added that he cannot 
 
         raise his left arm as high as he could before the surgery and 
 
         that he feels that he has sustained a loss of strength in his 
 
         left arm and hand.  Claimant admitted that he plays golf once or 
 
         twice a week, but he contended that the injury has lowered his 
 
         golf score when he plays nine holes of golf.
 
         
 
              Claimant testified that in the past, at Dubuque Pack, he 
 
         performed several strenuous jobs in beef kill for seven months. 
 
         Some of these jobs were hanging shrouds of wet cloth around the 
 
         beef with pins, cutting off livers and hearts, opening up the 
 
         neck, taking the hide off of the neck and hind legging.  These 
 
         jobs required the use of his left hand, arm and shoulder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he did not know the significance of 
 
         the date, May 16, 1984, which appeared on the original notice and 
 
         petition.  Claimant further testified that the date of November 
 
         1983 used in interrogatory number nine was the wrong year because 
 
         his problems began in November of 1982.  Claimant agreed that in 
 
         his deposition, on August 27, 1986, that the date of June 11, 
 
         1984 was given as a date of injury.  Claimant said that he did 
 
         not know why Dr. Nemmers said in July of 1985, that claimant had 
 
         suffered from this condition for one and one-half years.  
 
         Claimant disagreed that he told Dr. Wilson that his problems 
 
         began in January of 1984.  Claimant reaffirmed that it was his 
 
         testimony that he began to experience pain shortly after he 
 
         started to work for FDL in November or December of 1982.  
 
         Claimant said that he did not know the date of injury.  Claimant 
 
         testified that his problem did not come about from a specific 
 
         incident.  Claimant said his problem simply developed over a 
 
         period of time.
 
         
 
              The medical evidence shows that as early as July 30, 1982, 
 
         claimant saw Dr. M. Whalen, his personal physician, for dull hard 
 
         pain in the left side of his face, jaw, down his left arm, 
 
         shoulder and chest which lasted for five minutes and made him 
 
         feel dizzy and nauseated.  On August 7, 1982 he still had some 
 
         stabbing pain.  On September 29, 1982, claimant saw Dr. Whalen 
 
         for sharp pain in his left shoulder joint, especially painful 
 
         upon movement and the last two fingers on his left hand were 
 
         tingling and the tingling sensation radiated up his arm all of 
 
         the time.
 
         
 
              Claimant consulted the plant nurse and plant physician 
 
         numerous times for his left shoulder.  This history is very 
 
         succinctly, yet comprehensively summarized by defendant's counsel 
 
         as follows:
 
         
 
                   Claimant commenced work with FDL on October 8, 1982. 
 
              (joint Exh. 37)  His first complaint to FDL about his left 
 
              shoulder occurs on November 18, 1983.  The First Aid entry 
 
              at that time indicates that Claimant gave a history of 
 
              self-medicating that problem with aspirin.  (Joint Exh., p. 
 
              11) In 1984, Claimant presented to First aid complaining of 
 
              shoulder soreness on January 27, February 4 and 28, June 11, 
 
              12, 21, 25, July 6 and 24, and fifteen times in December.  
 
              (Joint Exh., pp. 11, 13-15)  During these visits to FDL's 
 
              medical department, Claimant consistently complained of 
 
              soreness or pain.  (Id.)
 
         
 
                   In 1985, Claimant presented to First Aid ten times 
 
              between April 29 and August 22 (the date of his surgery) 
 
              complaining of shoulder pain.  (Joint Exh., pp. 16-17)  The 
 
              First Aid records indicate that sometime in June or July of 
 
              that year Claimant changed jobs and that the job change 
 
              contributed to his pain.  (Joint Exh., p. 16)  First Aid 
 
              Records reveal no further complaints of pain or soreness in 
 
              his left shoulder following his surgery by Dr. Nemmers on 
 
              August 22, 1985.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Claimant was referred by FDL's Medical Director, L.C. 
 
              Faber, M.D., to orthopedist Dr. Julian Nemmers on July 24, 
 
              1985.  At that time Mr. Smith complained of pain in the left 
 
              shoulder which he had had for about one and one-half years. 
 
              He associated the pain primarily with unloading and loading 
 
              trucks.  On that visit Dr. Nemmers diagnosed degenerative 
 
              arthritis in the left AC joint and tendinitis of the 
 
              rotator-cuff secondary to impingement between the head of 
 
              the humerus and the acromion.  Dr. Nemmers opined that both 
 
              of those causes were degenerative, that Claimant's activity 
 
              may have brought on the pain that he was feeling, but that 
 
              the activity did not accentuate the degenerative changes.  
 
              (Joint Exh., p. 3)  Dr. Nemmers injected the left shoulder 
 
              with Xylocaine.  He also performed an arthrogram to detect a 
 
              torn rotator cuff.  The arthrogram was negative.  (Joint 
 
              Exh.,p. 3)  Claimant continued to have pain in his left 
 
              shoulder over the next month and on August 22, 1985, was 
 
              admitted to Finley Hospital for surgery.  (Joint Exh., p. 6)
 
         
 
                   On August 22, 1985, Dr. Nemmers excised the distal one 
 
              inch of Claimant's clavicle and removed the coracoacromial 
 
              ligament and decompressed the under surface of the acromion. 
 
              Dr. Nemmers' pre-operative diagnosis was degenerative 
 
              arthritis of the left AC joint and impingement of the left 
 
              shoulder.  His post-operative diagnosis was the same.  
 
              (Joint Exh., p. 7)
 
         
 
              Claimant's post-operative recovery was good.
 
         
 
                   By November 20, 1985, he had regained full range of 
 
              motion in his left shoulder and was able to do his work.  
 
              (Joint Exh., p. 4)  By February 19, 1986, however, 
 
              Claimant's excellent progress had purportedly reversed.  Dr. 
 
              Nemmers associated this reversal with a non-medical cause.  
 
              (Id.) At that time Dr. Nemmers assigned a 5% disability to 
 
              Claimant's arm as a consequence of the surgery.  (Id.)
 
         
 
         (Defendant's brief, pp. 3 & 4)
 
         
 
              Claimant saw F. Dale Wilson, M.D., for an evaluation on June 
 
         24, 1986.  Dr. Wilson ordered an x-ray of claimant's left 
 
         shoulder and performed a very thorough examination.  Dr. Wilson 
 
         wrote a very comprehensive report on June 30, 1986.  The x-ray 
 
         report showed the resection of the distal clavicle.  No other 
 
         abnormalities were seen (cl. ex. C, dep. ex. 1).
 
         
 
              Dr. Wilson said that claimant complained of:  (1) pain 
 
         across the top of his left shoulder upon elevating his arm 
 
         (posterior elevation was limited); (2) sensation was off in his 
 
         fourth and fifth fingers; (3) lost power in his left hand; (4) he 
 
         thinks the biceps are soft; and (5) he is not able to lift as 
 
         much with his left hand as he thinks he ought to be able to do.
 
         
 
              Dr. Wilson said the operation gave claimant some relief from 
 
         pain.  He is able to do his job with the fork lift truck, but it 
 
         causes him pain.  There was a nine cm. scar over his left arm and 
 
         his left AC joint.  The lower portion of the scar was tender.  
 
         The front of his deltoid where it had been freed from the 
 
         clavicle was sore.  The area of the clavicle was quite tender.  
 
         There was palpable spasm of the rhomboid and supraspinatus on the 
 
         left. There was noisy crepitus re motion of the shoulder.  There 
 
         was. some slipping of the infraspinatrus.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Wilson measured the range of motion of the left shoulder 
 
         with a goniometer and recorded his readings.  He tested the grip 
 
         strength in both hands and said that there was possibly some loss 
 
         of grip strength in the nondominant left hand.  Dr. Wilson 
 
         concluded as follows:
 
         
 
              Diagnosis:  Strain of the left shoulder:
 
         
 
                    I.  Traumatic arthritis of the acromio-clavicular 
 
                    [sic] joint, with a surgical excision of the 
 
                    distal clavicle by Dr. Pearson, orthopedist, 
 
                    Dubuque, Iowa, Finley Hospital.
 
                        Result:  Scar, less pain, a tender area and 
 
                    limited motion of the shoulder.
 
         
 
                   II.  Ulnar nerve neuropathy of this left arm, with 
 
                   weakness, loss of sensation in the 4th and 5th 
 
                   fingers, palm and dorsum of the hand.
 
         
 
              This injury occurred to this man at his work as he was 
 
              reaching behind with the left hand and guiding the 
 
              drag-a-long powered Jeep with the difficult steering motion.  
 
              There has been no other injury and this has to be the cause 
 
              of the injury to the ulnar nerve.  There has been no 
 
              tendinitis of his hand or wrist and there has been no other 
 
              injury or fall available.
 
         
 
              Recommendations for further medical care include relief of 
 
              discomfort.  Restrictions to be imposed are in force:  
 
              Weight lifting limit restricted from 0 to 25 pounds, 
 
              including push-pull or lateral motion.
 
         
 
              No further medical or surgical care is contemplated.  The 
 
              present condition of ill being has been present long enough 
 
              that it may be considered essentially permanent.
 
         
 
              The prognosis for further improvement is guarded.  He is 
 
              getting the job done and there is no further need for 
 
              rehabilitation.
 
         
 
                   Impairment evaluation:
 
         
 
                   A.  Motion loss of the shoulder.
 
                   
 
                          Flexion                   2%
 
                          Lateral                   3
 
                          Rotation                  2
 
                   
 
                   B.  Residual pain                2
 
                   
 
                   C.  Weakness for weight lifting,
 
                       hand grip.
 
                   
 
                   D.  Nerve involvement:
 

 
                   
 
 
 
 
 
 
 
 
 
 
 
                   
 
                          Ulnar nerve, 0-33,
 
                          with pain, weakness and
 
                          loss of sensation             5      
 
         
 
                                                      17%  Impairment
 
                                                           of the
 
                                                           extremity.
 
         
 
         (cl. ex. C, dep. exs. 1 & 2)
 
         
 
              In his deposition on May 24, 1988 (cl. ex. C) Dr. Wilson 
 
         testified that he was a board certified general surgeon, 
 
         semi-retired, who works from 10 a.m. until 5.p.m., four days a 
 
         week and evaluates eight injured persons per week, mostly for 
 
         claimant's attorneys, but also sometimes for insurance companies 
 
         and their attorneys.  Dr. Wilson said that claimant did not 
 
         report any particular precipitating incident for the pain which 
 
         he experienced (cl. ex. C, p. 18).  The physician related that 
 
         claimant operated a tagalong jeep.  He ushers it about and 
 
         controls it with his left hand behind his back in maximum 
 
         posterior elevation.  Dr. Wilson said that the cause of this 
 
         particular shoulder injury was:  (1) the unfavorable position of 
 
         the arm and (2) the back and forth, wigwag action was the other 
 
         element (cl. ex. C, p. 36).  The doctor said that the arthritis 
 
         of the shoulder AC joint would not cause the ulnar nerve tingling 
 
         in the fingers, but the extreme elevation of the arm posteriorly 
 
         because of its proximity to the brachial plexus would stretch the 
 
         ulnar nerve (cl. ex. C, p. 44).  Dr. Wilson did not know what 
 
         claimant meant by soft biceps (cl. ex. C, pp. 44 & 45).  The 
 
         doctor said that the muscle spasm in the rhomboid and 
 
         supraspinatus was caused by pain (cl. ex. C, p. 46).  Dr. Wilson 
 
         did not feel that the ulnar nerve was entrapped (cl. ex. C, p. 
 
         48).
 
         
 
              Dr. Wilson explained that he described claimant's arthritis 
 
         as traumatic arthritis because of his work and his use of his arm 
 
         that was continually abusing the joint (cl. ex. C, p. 50).  Dr. 
 
         Wilson conceded that if claimant was complaining of sharp pain in 
 
         his left shoulder joint, that was painful on movement, especially 
 
         elevation, and if he was complaining of paresthesias in the last 
 
         two fingers of his left hand back in September of 1982, then that 
 
         indicates that he could have had the problems, which Dr. Nemmers 
 
         treated, as early as 1982 (cl. ex. C, pp. 63 & 64).  However, Dr. 
 
         Wilson testified that he developed it again and aggravated it 
 
         again with this particular activity which brought it into a 
 
         clinical disabling condition (cl. ex. C, pp- 52 & 53).  The 
 
         activity of the arm does not create the arthritis, but it does 
 
         aggravate it (cl. ex. C, p. 54).
 
         
 
              Dr. Wilson offered that claimant did not have a full range 
 
         of motion when he examined him (cl. ex. C, pp. 54 & 55).  He said 
 
         there is no significance to the complaint of biceps softness (cl. 
 
         ex. C, pp. 64 & 65).  Dr. Wilson repeated again that claimant's 
 
         arthritis was aggravated by the continued use of his shoulder in 
 
         an abnormal functioning position (cl. ex. C, p. 65).  Dr. Wilson 
 
         agreed that his conclusion of traumatic arthritis was based on 
 
         the history which claimant gave him (cl. ex. C, p. 66).  The 
 
         following dialogue transpired between claimant's counsel and Dr. 
 
         Wilson:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Q.  With reference to the diagnosis of arthritis in the 
 
              left AC joint of Mr. Smith, let's assume it was defined as 
 
              what you called degenerative arthritis.  Is it your opinion 
 
              that the job performed by Mr. Smith with the hand truck as 
 
              described to you, would that have--might or could that work 
 
              have aggravated the arthritic condition assuming it was 
 
              present when he started that job?
 
         
 
                   A.  It could have and I believe it did.
 
         
 
                   Q.  What's the basis for that opinion?
 
         
 
                   A.  Because when he started this job he had continual 
 
              trouble from it and the longer he worked, the more pain he 
 
              had.  He himself was convinced that that's what was causing 
 
              the trouble.  That's all I have.
 
         
 
         (cl. ex. C, pp. 67 & 68)
 
         
 
              Dr. Wilson explained that the fact that claimant's pain 
 
         persisted one year after the surgery and if it was not improved 
 
         and not relieved in that length of time, then it has to 
 
         considered permanent.  The doctor added that if claimant 
 
         continues to operate the hand truck, it will continue to 
 
         deteriorate and get worse (cl. ex. C, pp. 70, 74 & 78).  Dr. 
 
         Wilson stated that he used the Guides to the Evaluation of 
 
         Permanent Impairment, second edition, published by the American 
 
         Medical Association to determine his impairment ratings.  Dr. 
 
         Wilson explained in some detail how he arrived at each separate 
 
         element of his impairment rating (cl. ex. C, pp. 71-76, 89 & 90).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 5, 1984, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W 2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 24 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 May 16, 1984 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76,N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              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).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35 (1934).  See also 
 
         Auxier v. Woodward State Hospital 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 v: Firestone Tire & Rubber Co., 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.
 
         
 
              There is no requirement that an injured member (or a 
 
         shoulder for that matter) be perfect prior to an industrial 
 
         injury. Hamilton vs. Johnson & Sons, 224 Iowa 1097, 267 N.W. 841 
 
         (1937).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional 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).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury that arose out of and 
 
         in the course of his employment with employer.  Dr. Nemmers said 
 
         that claimant had:  (1) degenerative arthritis of the 
 
         acromioclavicular joint and (2) tendonitis of the rotator cuff 
 
         secondary to impingement between the head of the humerus and the 
 
         acromiom.  Furthermore, claimant's activities brought on the pain 
 
         to these two degenerative lesions, but did not accentuate the 
 
         arthritis.  Dr. Nemmers wrote that claimant did have a history of 
 
         loading and unloading trucks for a year and one-half (jt. ex. p. 
 
         3).  Dr. Nemmers did not postulate any other cause for claimant's 
 
         problem.  Dr. Nemmers did not say that claimant's problem was 
 
         caused by anything other than his work activities.
 
         
 
              Dr. Wilson said in his report of June 30, 1986, that he 
 
         diagnosed:  (l) traumatic arthritis of the acromioclavicular 
 
         joint and (2) ulnar nerve neuropothy.  Dr. Wilson added that the 
 
         injury occurred to the man at work as he was reaching behind his 
 
         back with his left hand guiding a drag-a-long powered jeep with 
 
         difficult steering motion (cl. ex. C, dep. exs. 1 & 2).
 
         
 
              The fact that both Dr. Nemmers and Dr. Wilson based their 
 
         opinion upon the history that claimant gave them is not unusual 
 
         and no way decreases the value of the opinion of each of these 
 
         doctors.  A physician usually asks for the history first because 
 
         it is the first important element in the diagnosis.  It has been 
 
         said that pediatric medicine and veterinary medicine are the 
 
         hardest forms of medicine to practice because the patient cannot 
 
         tell the doctor what is wrong.  If either doctor disputed this 
 
         history, they had ample opportunity to do so, but neither one of 
 
         them did cast any doubt upon this history given to them by 
 
         claimant.
 
         
 
              In his deposition, Dr. Wilson plainly stated:  (1) 
 
         controlling the jeep with his left hand behind his back in 
 
         maximum posterior elevation and (2) the wigwag, back and forth 
 
         movement of the left arm aggravated claimant's arthritis (cl. ex. 
 
         C, p. 36) Dr. Wilson clarified that this was traumatic arthritis 
 
         because his work continually abused the joint (cl. ex. C, p. 50).   
 
         The doctor said that the events just before the surgery 
 
         aggravated the arthritis again and brought it into a clinical 
 
         disabling condition (cl. ex. C, pp. 52 & 53).  Dr. Wilson 
 
         clarified that the activity did not create the arthritis, but it 
 
         did aggravate it (cl. ex. C, p. 54).  At another point in his 
 
         testimony, Dr. Wilson said that claimant's arthritis was 
 
         aggravated by continued use of his shoulder in an abnormal 
 
         functioning position (cl. ex. C, p. 65). Finally, Dr. Wilson 
 
         clearly.proclaimed that the arthritis in claimant's AC joint not 
 
         only could have been aggravated by operating the hand truck, but 
 
         that he personally believed that operating the hand truck did in 
 
         fact aggravate it.  Dr. Wilson stated:  "It could have and I 
 
         believe it did."  (cl. ex. C, pp. 67 & 68).  He added that the 
 
         condition is permanent and he expects it to get worse (cl..ex. C, 
 
         pp. 70, 71, 74 & 78).,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties talked as if this was a cumulative injury, but 
 
         it is not.  A cumulative injury is when a series of repeated 
 
         traumas build up and eventually cause a recognizable injury.  In 
 
         this case, Dr. Wilson said that claimant's work did not cause the 
 
         arthritis and did not make it worse.  Dr. Nemmers clearly stated 
 
         that the arthritis was degenerative and that claimant's work 
 
         activities did not accentuate it.  Therefore, we have a series of 
 
         separate, successive, recurring aggravations of a preexisting 
 
         arthritic condition from 1982 until the surgery on August 22, 
 
         1985.  Dr. Wilson said that the events just before the surgery 
 
         brought it into a clinical disabling condition (cl. ex. C, pp. 52 
 
         & 53).  The last aggravation immediately preceding the surgery 
 
         began on July 3, 1985 (jt. ex. pp. 16 & 17).  The injury date, 
 
         therefore, is determined to be July 3, 1985.  The stipulated rate 
 
         of compensation closest to that date is $206.89 per week.
 
         
 
              Defendant contends that claimant's work only increased his 
 
         symptoms and did not change his basic arthritic condition. 
 
         Therefore, they contend they are not liable for an increase in 
 
         symptoms, but rather, they are only liable when there is a change 
 
         in the basic arthritic condition.  This distinction, is a 
 
         semantic nuance in this case.  The fact of the matter is put 
 
         quite clearly and forcefully by Dr. Wilson.  The awkward position 
 
         in which claimant held his left arm in maximum.backward 
 
         elevation, coupled with the back and forth, wigwag movement of 
 
         his arm, aggravated claimant's basic arthritic condition and 
 
         necessitated the surgery. An aggravation of a preexisting 
 
         condition is compensable.  With all due respect to the 
 
         terminology used by the doctors, it would appear in reality that 
 
         a mere benign increase in symptoms would not necessitate a one 
 
         inch resection of the clavicle, removal of the coracoacromial 
 
         ligament and decompression of the under surface of the acromium.  
 
         It is more likely that such major surgery would be required to 
 
         correct an increase of the arthritis condition. Stated 
 
         differently, if an increase in symptoms does not change the basic 
 
         arthritic condition, but nevertheless, necessitates surgery, then 
 
         defendant is liable for the surgery and the disabling effects 
 
         resulting from it.
 
         
 
              With reference to the Almquist case, the operating of a hand 
 
         powered jeep with the left arm in an unnatural position, as 
 
         described by Dr. Wilson, is not the natural building up and 
 
         tearing down of the human body, but rather it is some other 
 
         traumatic hurt or damage to the health of the employee.  
 
         Claimant's use of his left arm as described in this case is 
 
         extraneous to the natural processes of nature.
 
         
 
              Wherefore, it is determined:  (1) that claimant did sustain 
 
         an injury which arose out of and in the course of his employment 
 
         with employer; (2) that the injury occurred on July 3, 1985; (3) 
 
         that the proper rate of compensation for that date is $206.89 per 
 
         week; (4) that the injury was the cause of temporary disability; 
 
         (5) that claimant was off work from August 22, 1985 through 
 
         October 27, 1987 as stipulated by the parties; (6) that claimant 
 
         is entitled to temporary disability benefits while off work 
 
         during that period; (7) that claimant is entitled to the 
 
         remaining unpaid medical expenses in the amount of $618, which 
 
         were not paid under the employee nonoccupational group health 
 
         plan as stipulated by the parties; (8) that the injury was the 
 
         cause of permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The next issue is the nature and extent of permanent partial 
 
         disability.
 
         
 
              Defendant asserts that the injury is to a scheduled member, 
 
         the arm.  This is not correct.  The injury was to the shoulder. 
 
         Both Dr. Nemmers and Dr. Wilson diagnosed a shoulder injury.  Dr. 
 
         Nemmers treated a shoulder injury.  Dr. Wilson evaluated a 
 
         shoulder injury.  The site of the surgery was on the shoulder and 
 
         not the arm.  The clavicle, the acromioclavicular joint, the 
 
         coracoacromial ligament and the under surface of the acromiom are 
 
         parts of the shoulder.  They are not parts of the arm.  This is 
 
         clearly illustrated by the diagrams submitted by claimant for Dr. 
 
         Wilson to refer to in his testimony (cl. ex. C, dep. ex. 3 & 4).  
 
         The surgical scar is on claimant's shoulder.  At the hearing, 
 
         claimant pointed to the upper front left shoulder as the place 
 
         where he feels the pain.  Neither one of the doctors talked about 
 
         or described an arm injury.  The impairment of claimant's range 
 
         of motion and his disability is his inability to elevate his arm 
 
         to the normal height.  The range of motion maneuvers, even though 
 
         they are manifested by the arm, are a function of the entire 
 
         shoulder and not just the arm.  The derangement is in the 
 
         shoulder and not the arm.
 
         
 
              Dr. Nemmers rated the "whole arm".  It appears that he meant 
 
         to convey that he was rating the left upper extremity which 
 
         includes both the arm and the shoulder.  Dr. Wilson did in fact 
 
         rate the left upper extremity.  Dr. Wilson pointed out that the 
 
         shoulder is included in the upper extremity (cl. ex. C, p. 90). 
 
         Physicians usually, commonly and typically rate the shoulder in 
 
         terms of the upper extremity.  These measurements are then 
 
         converted to the body as a whole, as Dr. Wilson suggested doing 
 
         in his testimony (cl. ex. C, p. 90).  However, Dr. Wilson and 
 
         defendant's attorney apparently made the mistake of thinking that 
 
         an injury to the left upper extremity is an injury to the arm 
 
         (cl. ex. C, p. 90).  Simply because a shoulder is included in the 
 
         upper extremity in the AMA Guides does not make a shoulder injury 
 
         an injury to the arm under the workers' compensation law.  It has 
 
         been held several times that an injury to the shoulder is not an 
 
         injury to the arm.  Alm vs. Morriss Barrack Co., 240 Iowa 1174, 
 
         38 N.W.2d 161 (1949); Nazerenus vs. Oscar Mayer and Co., II Iowa 
 
         Industrial Commissioner Reports 281 (Appeal Decision February 24, 
 
         1982); Godwin vs. Hicklin GM Power, II Iowa Industrial 
 
         commissioner Reports 170 (Appeal Decision August 7, 1981).  These 
 
         cases held that the shoulder is not included in Iowa Code section 
 
         85.35(2)(m), which refers to the arm and that the shoulder is not 
 
         described as a scheduled member in any of the other scheduled 
 
         member paragraphs in Iowa Code section 85.35(2). Therefore, it is 
 
         determined that claimant has sustained an injury to the body as a 
 
         whole.
 
         
 
              The extent of permanent partial disability is considered 
 
         next.
 
         
 
              Claimant has returned to his job of operating the power 
 
         jeep. He performs the work satisfactorily.  It does cause him 
 
         pain, however, and he performs the job with difficulty.  He has 
 
         pain three out of every five days.  He said he is required to 
 
         take aspirins and APC's due to the pain caused by operating the 
 
         power jeep.  His ability to play golf and baseball have been 
 
         limited and his effectiveness at playing golf has been 
 
         diminished, even though he does play golf once or twice a week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On the other side of the permanent partial disability 
 
         equation, Dr. Nemmers awarded claimant a 5 percent permanent 
 
         functional impairment rating of the whole arm (left upper 
 
         extremity) which he said resulted from the resection (surgery) 
 
         (jt. ex. p. 4).  Dr. Nemmers properly made no allowance for 
 
         claimant's underlying arthritis.  A 5 percent rating of the upper 
 
         extremity converts to 3 percent of the body as a whole in the AMA 
 
         Guides at table 20 on page 23 in the second edition and at table 
 
         3 on page 20 in the recently published third edition.
 
         
 
              Dr. Wilson awarded a 17 percent permanent functional 
 
         impairment rating.  He, too, properly did not attribute any of it 
 
         to the underlying arthritis.  His rating is properly based upon 
 
         loss of motion in the shoulder, residual pain and weakness for 
 
         weight lifting and hand grip (cl. ex. C, dep. exs. 1 & 2).
 
         
 
              Dr. Wilson's permanent functional impairment must be reduced 
 
         or discounted 5 percent for the portion that includes the ulnar 
 
         nerve involvement.  Claimant had an ulnar nerve condition in 
 
         September of 1982 when he saw Dr. Whalen (Jt. ex. P. 2).  
 
         Claimant continued to complain of ulnar neuropothy when he saw 
 
         Dr. Wilson in June of 1986.  There is no evidence that the ulnar 
 
         nerve condition was better or worse or that it was aggravated to 
 
         the point that it required surgery or treatment in between those 
 
         two dates.  Therefore, Dr. Wilson's impairment rating must be 
 
         reduced from 17 percent to 12 percent of the left upper 
 
         extremity.  Twelve percent of the upper extremity converts to 7 
 
         percent of the body as a whole on the AMA Guides tables at the 
 
         pages cited above.
 
         
 
              In this particular case, even though Dr. Wilson is only a 
 
         board certified general surgeon, semi-retired, his explanation of 
 
         the permanent functional impairment is more clear and reliable 
 
         than Dr. Nemmers who is a board certified orthopedic surgeon.  
 
         Dr. Wilson explained that he used the AMA Guides.  Dr. Nemmers 
 
         did not say whether he used the AMA Guides, the orthopedic 
 
         surgeon's guides, some other guides or no guides at all.  
 
         Therefore, the opinion of Dr. Wilson is given preference over the 
 
         opinion of Dr. Nemmers as to the proper degree of permanent 
 
         impairment in this case.  Rockwell Graphic Systems, Inc. vs. 
 
         Prince,. 366 N.W.2d 187 (1985).
 
         
 
              In addition to the impairment ratings considered above, Dr. 
 
         Wilson imposed "weight lifting limit restricted from 0 to 25 
 
         pounds," which includes push and pull and lateral motions (cl. 
 
         ex. C, dep. exs. 1 & 2).
 
         
 
              Claimant is 44 years old.  He has a high school education 
 
         through G.E.D. qualification, but no additional formal education 
 
         or training after high school.  His former employments of spray 
 
         painting, changing tires and packing-house work provide few, if 
 
         any, transferable skills in the competitive labor market.  His 
 
         past employments had been primarily unskilled labor types of 
 
         jobs. He is now foreclosed from performing any job which requires 
 
         lifting over 25 pounds.  Michael vs.  Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218 
 
         (Appeal Decision January 30, 1979); Rohrberg vs. Griffin Pipe 
 
         Products Co., I Iowa Industrial Commissioner Reports 282 (Appeal 
 
         Decision January 15, 1982.  Claimant's permanent injury at age 
 
         44, in the middle part of his earnings career is much more 
 
         serious than it would be for a older or younger employee.  Becke 
 
         vs. Turner-Busch, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 34 (Appeal Decision January 31, 1979; Walton vs. B & 
 
         H Tank Corp., II Iowa Industrial Commissioner Report 426 (Appeal 
 
         Decision August 25, 1981.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Some consideration should also be given to the fact that 
 
         claimant's work history includes an industrial injury which was 
 
         the basis of a workers' compensation claim.  This fact will tend 
 
         to lessen claimant's employability in the competitive labor 
 
         market.
 
         
 
              Wherefore, based upon the foregoing considerations and all 
 
         of the factors used to determine industrial disability and the 
 
         application of the agency's experience, technical competence and 
 
         specialized knowledge [Iowa Administrative Procedure Act 
 
         17A.14(5)], it is determined that claimant has sustained a 20 
 
         percent industrial disability to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant is and has been an employee of employer from 
 
         October 8, 1982 until the present time.
 
         
 
              That claimant sustained an injury on July 3, 1985, to the 
 
         left shoulder, caused by the operation of a power jeep with his 
 
         left hand behind his back in an elevated position and caused by 
 
         the back and forth movements of his left arm in guiding the jeep.
 
         
 
              That claimant sustained a series of separate, successive, 
 
         recurring temporary aggravations of a preexisting degenerative 
 
         arthritis condition on a number of occasions.
 
         
 
              That claimant did not sustain a cumulative injury from 
 
         series of repeated traumas which built.up over time to cause 
 
         recognizable injury.
 
         
 
              That the aggravation of claimant's preexisting arthritic 
 
         condition, which manifested itself on July 3, 1985, was the cause 
 
         of this particular injury in this case.
 
         
 
              That the injury caused claimant to be off work from August 
 
         22, 1985 through October 27, 1985.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant sustained an injury to the left shoulder and 
 
         not to the left arm.
 
         
 
              That Dr. Nemmers awarded a 5 percent permanent functional 
 
         impairment rating which converts to 3 percent of the body as a 
 
         whole.
 
         
 
              That Dr. Wilson awarded a 12 percent permanent functional 
 
         impairment rating of the left upper extremity which converts to 7 
 
         percent of the body as a whole.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant is 44 years old, has a ninth grade education 
 
         with a G.E.D. and his employment history is primarily unskilled 
 
         labor jobs.
 
         
 
              That claimant has few, if any, transferable skills in the 
 
         competitive labor market.
 
         
 
              That for employment purposes in the competitive labor 
 
         market, claimant is now an employee who has sustained an 
 
         industrial injury which required surgery to his left shoulder and 
 
         that this injury was the subject of a workers' compensation 
 
         claim.
 
         
 
              That claimant is foreclosed from jobs which require lifting 
 
         over 25 pounds.
 
         
 
              That claimant has sustained an industrial disability of 20 
 
         percent of the body as a whole.
 
         
 
              That claimant's unpaid medical expenses which have not been 
 
         paid by the employee nonoccupational group health policy amounts 
 
         to $618.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant sustained an injury arising out of and in the 
 
         course of his employment on July 3, 1985.
 
         
 
              That that proper rate of compensation is $206.89 per week.
 
         
 
              That the injury caused claimant to be off work for a period 
 
         of recovery from August 22, 1985 through October 27, 1985.
 
         
 
              That the injury caused claimant to be permanently impaired 
 
         and disabled.
 
         
 
              That claimant is entitled to 9.714 weeks of healing period 
 
         benefits for the period from August 22, 1985 through October 27, 
 
         1985.
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits for a 20 percent industrial disability to the 
 
         body as a whole.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant nine point seven one four 
 
         (9.714) weeks of healing period benefits at the rate of two 
 
         hundred six and 89/100 dollars ($206.89) per week in the total 
 
         amount of two thousand nine and 73/100 dollars ($2,009.73) for 
 
         the period from August 22, 1985 through October 27, 1985 as 
 
         stipulated to by the parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         six and 89/100 dollars ($206.89) per week in the total amount of 
 
         twenty thousand six hundred eighty-nine dollars ($20,689) 
 
         commencing on October 28, 1985 as stipulated to by the parties.
 
         
 
              That defendant is entitled to a credit of one thousand two 
 
         hundred ninety dollars ($1,290) in sick pay paid to claimant 
 
         prior to hearing pursuant to the employee nonoccupational group 
 
         health plan.
 
         
 
              That defendant is to pay these amounts in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30 on the weekly compensation.
 
         
 
              That defendant pay to claimant or the provider of services 
 
         six hundred eighteen dollars ($618) in remaining unpaid medical 
 
         expenses which were not paid by the employee nonoccupational 
 
         group health plan prior to hearing.
 
              
 
              That the costs of this action are charged to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file a first report of injury pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Nick Avgerinos
 
         Mr. Stephen Smalling
 
         Attorneys at Law
 
         101 N. Wacker Dr. STE 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. David Bauer
 
         Mr. James Heckmann
 
         Ms. Joyce Klimesh
 
         Attorneys at Law
 
         One Cycare Center STE 216
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Dubuque, Iowa 52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51106; 51108.50; 51401;
 
                                            51402.20; 51402.30; 51402.40; 
 
                                            51802; 51803; 51803.10; 52206; 
 
                                            52209; 52501; 2602; 2700 
 
                                            52601.10
 
                                            Filed July 31, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID SMITH,
 
         
 
              Claimant,                            File No. 810131
 
         
 
         vs.                                    A R B I T R A T I 0 N
 
         
 
         FDL FOODS, INC.,                          D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402-30; 51402.40
 
         
 
              Claimant proved injury arising out of and in the course of 
 
         employment to his shoulder from operating a hand jeep with his 
 
         arm in an awkward elevated position behind his back.
 
         
 
         51802; 51803
 
         
 
              The injury was the cause of both temporary and permanent 
 
         disability.  Claimant was awarded healing period and permanent 
 
         partial disability benefits.  Defendant's doctor awarded 5 
 
         percent permanent impairment.  Defendant's doctor awarded 12 
 
         percent permanent impairment and no lifting more than 25 pounds.  
 
         Claimant awarded 20 percent industrial disability.
 
         
 
         51803.10
 
         
 
              The injury to the shoulder was an injury to the body as a 
 
         whole and claimant was awarded industrial disability benefits.  
 
         It was not a scheduled member injury.
 
         
 
         52206; 52209
 
         
 
              This injury was determined to be one of many aggravations of 
 
         claimant's arthritic condition.  It was determined not to be a 
 
         cumulative injury.  Both doctors indicated claimant had arthritis 
 
         both before and after this injury and the basic arthritic 
 
         condition was not changed.  This injury was determined to be one 
 
         of a series of many aggravations of his basic arthritic 
 
         condition.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         52501; 2601; 2700
 
         
 
              Claimant was awarded medical benefits.
 
         
 
         52601.10
 
         
 
              Testimony of Dr. Wilson, a general surgeon, was far superior 
 
         to Dr. Nemmers, an orthopedic surgeon.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                                
 
 
 
 
 
 
 
 
 
 
 
                                                                
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         
 
         JANET M. ZAHNER,
 
         
 
              Claimant,
 
                                             File  No. 810137
 
         VS.
 
                                             A R B I T R A T I 0 N
 
         J. I. CASE, A TENNECO COMPANY,
 
                                             D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Janet M. Zahner against self-insured employer defendant J. I. 
 
         Case Company to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury allegedly caused by 
 
         repeated trauma continuing through the date the petition was 
 
         filed on January 10, 1986.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in 
 
         Davenport, Iowa, on November 29, 1988, and was considered fully 
 
         submitted on that date.  Claimant appeared by her attorney, 
 
         Thomas Preacher.  Defendant appeared by attorney Larry L. 
 
         Shepler.
 
         
 
              The evidence in this case consists of employer's exhibits I 
 
         through 10, claimant's exhibits A through N, both inclusive, and 
 
         the testimony of Janet M. Zahner.
 
         
 
              Claimant filed a Motion for Continuance on November 16, 
 
         1988, alleging that recent medical evidence showed that claimant 
 
         had not reached maximum medical improvement.  That motion was 
 
         overruled.  Defendant filed a Motion to Strike the notice of 
 
         service of this recent medical evidence.  The Motion to Strike 
 
         was sustained at the hearing.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report approved by the deputy at 
 
         the time of hearing, the following issues remain for 
 
         determination: Whether claimant sustained an injury on October 
 
         22, 1985, arising out of and in the course of her stipulated 
 
         employment with employer; whether the alleged injury caused 
 
         temporary or permanent disability; whether claimant is entitled 
 
         to weekly compensation for temporary total or healing period 
 
         benefits; whether claimant is entitled to compensation for 
 
         permanent disability, although it was stipulated that if the 
 
         injury was found to be a cause of permanent disability, the 
 
         injury was to a scheduled member, the right arm; the commencement 
 
         date for a permanent partial disability if awarded.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY
 
         Page 2
 
         
 
         
 
              The parties stipulated to: The existence of an 
 
         employer-employee relationship at the time of the alleged injury; 
 
         that claimant seeks temporary total or healing period benefits 
 
         from November 22, 1985 through December 10, 1985, and again from 
 
         May 10, 1988 through the date of hearing; that the proper rate of 
 
         weekly compensation is $302.70; that affirmative defenses ,are 
 
         waived; that medical benefits are not in dispute; that defendants 
 
         are entitled to credit under Iowa Code section 85.38(2) for 
 
         payment of benefits under a nonoccupational group plan in the sum 
 
         of $778.37.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she began her employment with 
 
         defendant J. I. Case Company on November 21 1972, and remained 
 
         employed through August 27, 1987, when she was laid off by reason 
 
         of the plant closing.  This was the last time claimant worked.
 
         
 
              Claimant also testified that while installing air 
 
         conditioner units in tractor cabs on October 27, 1985, which 
 
         involved a great deal of pulling and pushing of rubber hoses, she 
 
         suddenly suffered pain in the right elbow, right arm, and right 
 
         hand.  She immediately went to the company nurse and was sent to 
 
         A. D. Edwards, M.D., the company physician.  Claimant agreed this 
 
         was not the first time she had suffered pain in the same areas, 
 
         but never so severe.
 
         
 
              Dr. Edwards fitted claimant with an arm band splint to wear 
 
         at work.  Shortly thereafter, claimant saw Richard L. Kreiter, 
 
         M.D., for her symptoms.  She was released to return to work by 
 
         Dr. Edwards effective December 11, 1985.  However, claimant did 
 
         not immediately return to work due to a personal and family 
 
         emergency.
 
         
 
              Claimant further testified that following her return to 
 
         work, she continued having arm problems, including severe pain 
 
         and a tendency to drop items she was handling.  She continued to 
 
         see the company nurse on a weekly basis and was often returned to 
 
         Dr. Edwards or Dr. Kreiter.  The physicians treated her with pain 
 
         pills, anti-inflammatory medications and arm and wrist bands.  
 
         Claimant continued taking pain medications throughout 1986 and 
 
         1987.  She underwent physical therapy in 1986.
 
         
 
              Claimant testified that she saw her current physician, 
 
         Anthony D'Angelo, D.O., in March, 1988 and later underwent 
 
         surgery for carpal tunnel syndrome.  She testified that the 
 
         surgery did not have a satisfactory result and that she still has 
 
         severe pain at the present time in her fingers radiating to the 
 
         right arm.  She maintains that she has little strength in her arm 
 
         or hand and some numbness, although this has improved since her 
 
         surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY
 
         Page 3
 
         
 
         
 
              Claimant also testified at length as to the different 
 
         positions she held while employed by J. I. Case, most of which 
 
         required strenuous and somewhat repetitive hand motions.
 
         
 
              Although claimant maintained earlier in her testimony that 
 
         she had never had occasion to seek medical treatment for her arm 
 
         and hand problems before October 27, 1985, she testified on 
 
         cross-examination that the problems began in 1982 and 1983 and 
 
         that her right arm was treated by a chiropractor, Dr. Burt, 
 
         particularly after two automobile accidents in 1982.  Claimant 
 
         agreed that she had suffered from numbness and severe pain in the 
 
         right hand in 1982, that she had missed one month's work with a 
 
         right arm injury suffered while bowling in 1975, that she injured 
 
         her right arm in a fall in 1975, and that she suffered another 
 
         injury to the right arm in a fall in 1986.
 
         
 
              Claimant agreed that one Dr. Collins advised her in 
 
         approximately 1972 or 1973 that she had bursitis in the right 
 
         shoulder.  She explained what appears to be an incomplete history 
 
         given to Dr. Kreiter of "normal elbow and shoulder" on the basis 
 
         that she was under medication, sometimes has trouble remembering, 
 
         and on that occasion was suffering pain and having trouble 
 
         thinking in general due to the medication.
 
         
 
              In a form submitted by Dr. Edwards to defendant J. I. Case 
 
         dated October 22, 1985, Dr. Edwards expressed the opinion that 
 
         the October 22 injury was job-related. He diagnosed chronic right 
 
         shoulder bursitis with acute exacerbation and right elbow 
 
         tendonitis.  In a similar form prepared on November 8, 1985, Dr. 
 
         Edwards answered the blank, as to whether the injury was 
 
         job-related: "Acute exacerbation of chronic problem."  He 
 
         diagnosed right elbow epicondylitis and tendonitis.  Dr. Edwards 
 
         also answered a similar form in the same fashion on November 11, 
 
         1985.
 
         
 
              Dr. Kreiter filled out an-attending physician's statement on 
 
         November 26, 1985.  In answer to a question as to whether the 
 
         illness arose out of employment, he marked the "Yes" box and 
 
         explained, "Does yanking and pulling at work." Dr. Kreiter's 
 
         office notes show that claimant gave a history of normal elbow 
 
         and shoulder until October 22, 1985, but also that she had a 
 
         history of bursitis in the shoulder with pain, some numbness, and 
 
         increased symptoms during her menstrual periods.  Dr. Kreiter's 
 
         impression was probable supraspinatus of the right shoulder, 
 
         lateral epicondylitis of the right elbow or tennis elbow and 
 
         probable early carpal tunnel syndrome of the right wrist with 
 
         median nerve compression.  The record does not reflect any change 
 
         in that impression following electrode-agnostic studies done and 
 
         a finding by Fareeduddin Ahmed, M.D., that findings were not 
 
         compatible with median nerve entrapment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The record fails to show that any physician has expressed an 
 
         opinion as to whether claimant has suffered any permanent 
 
         impairment arising from this injury.
 
         
 
         
 
         
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY
 
         Page 4
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto  Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at   pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St,. Mary's Corp , 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out,of"' refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
         Consol..Sch.  Dist., 246 Iowa 402, 63 N.W.2d 63 (1955).
 
         
 
              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
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
              
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY 
 
         Page 5
 
         
 
         
 
              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 her alleged injury is causally related to the 
 
         disability on which she now bases her claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 '(1965). Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W. 2d 128 (1967).
 
         
 
              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).
 
         
 
              The record shows that claimant has a history of problems 
 
         afflicting her right arm and shoulder.  However, she very clearly 
 
         suffered an exacerbation or other problem while installing air 
 
         conditioning units on October 27, 1985.  The record shows that 
 
         she was off work from November 22, 1985 units being returned to 
 
         work effective December 11, 1985.  Both Dr. Edwards and Dr. 
 
         Kreiter have opined that the injury was job-related.  In 
 
         conjunction with claimant's credible testimony, this establishes 
 
         that her injury (at least by way of aggravation or exacerbation) 
 
         arose out of and in the course of employment, and was causally 
 
         connected to that employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, the record is barren of expert evidence to 
 
         establish that claimant suffered any permanent impairment 
 
         resulting from this injury.  It is far beyond the expertise of 
 
         this deputy
 
         
 
         
 
         
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY 
 
         Page 6
 
         
 
         
 
         to speculate as to whether claimant's 1985 problem was a mere 
 
         temporary exacerbation of a preexisting problem or whether there 
 
         actually is or is not permanent impairment resulting from the 
 
         injury.  Claimant has failed to meet her burden of proof in 
 
         establishing permanent impairment connected to this work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. Claimant suffered an episode of severe pain while engaged 
 
         in strenuous work for defendant employer on October 27, 1985.
 
         
 
              2. Claimant's pain has been viewed by her treating 
 
         physicians at that time as, variously, chronic right shoulder 
 
         bursitis, right elbow tendonitis, probable supraspinatus of the 
 
         right shoulder, lateral epicondylitis of the right elbow, and 
 
         probable early carpal tunnel symptoms of the right wrist.
 
         
 
              3. No final diagnosis of claimant's right upper extremity 
 
         problems appears of record.
 
         
 
              4. Claimant's injury of October 27, 1985 was either a new 
 
         injury or clearly exacerbated a preexisting condition, and caused 
 
         her to lose time from work from November 22, 1985 through 
 
         December 10, 1985.
 
         
 
              5. Although claimant has suffered subsequent pain and 
 
         numbness from her right upper extremity problems, she has 
 
         presented no medical evidence tying or connecting those problems 
 
         to the work injury or showing permanent impairment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         cited, the following conclusions are made:
 
         
 
              1. Claimant suffered an injury of undetermined nature 
 
         arising out of and in the course of her employment on October 27, 
 
         1985, afflicting her upper right extremity.
 
         
 
              2. That claimant's injury caused temporary total disability 
 
         of two weeks, five days from November 22, 1985 through December 
 
         10, 1985 (actually, front November 25 through December 10, but 
 
         three additional days are added during the third week of 
 
         disability pursuant to Iowa Code section 85.32).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. As stipulated, claimant's rate of weekly compensation is 
 
         $302.70.
 
         
 
         
 
         
 
         ZAHNER V. J. I. CASE, A TENNECO COMPANY
 
         Page 7
 
         
 
         
 
              4. As stipulated, defendant is entitled to credit in the sum 
 
         of $778.37 for previous payment of benefits under a 
 
         nonoccupational group insurance plan.
 
         
 
              5. Claimant has failed to meet her burden of proof in 
 
         establishing any permanent impairment resulting from her work 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant two (2) weeks, five (5) 
 
         days [two point seven one four (2.714)] of temporary total 
 
         disability at the stipulated rate of three hundred two and 70/100 
 
         dollars ($302.70), totalling eight hundred twenty-one and 53/100 
 
         dollars ($821.53).
 
         
 
              Defendant shall be entitled to credit for benefits paid 
 
         under a nonoccupational group insurance plan, Iowa Code section 
 
         85.38(2), in the sum of seven hundred seventy-eight and 37/100 
 
         dollars ($778.37).
 
         
 
              The compensation awarded shall be paid to claimant as a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That any costs of this action shall be assessed to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file a Claim Activity Report upon 
 
         payment of this award pursuant to Division of Industrial Services 
 
         Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Thomas Preacher
 
         Attorney at Law
 
         2535 Tech Drive, Suite 200
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.50
 
                                         Filed February 27, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET M. ZAHNER,
 
         
 
              Claimant,
 
                                            File No. 810137
 
         
 
         VS.
 
                                             A R B I T R A T I 0 N
 
         
 
         J. I. CASE, A TENNECO COMPANY,
 
                                            D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.50
 
         
 
              Claimant established temporary disability to right upper 
 
         extremity, but failed to establish causal connection to claimed 
 
         permanent impairment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KENT MC PHAIL,
 
                                                 File No. 810140
 
              Claimant,
 
                                               A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kent McPhail, 
 
         claimant, against John Deere and Company, hereinafter referred to 
 
         as John Deere, a self-insured employer, defendant, for benefits 
 
         as the result of an alleged injury on March 21, 1984.  On January 
 
         22, 1987 a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              Claimant is alleging in this proceeding that he injured his 
 
         chest and abdominal area from a fall while working for John 
 
         Deere.  He is claiming that as a result of the work injury he is 
 
         entitled to permanent partial disability benefits for persistent 
 
         chest and abdominal pain which has not been alleviated by medical 
 
         treatment.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted, as a 
 
         part of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from   Claimant and the 
 
         following witnesses: Marvin (Lee) McClenahan, M.D., John Zillig, 
 
         Gary Geiselbrecht, George Nast, Stacy Murdock, and Jans Smrcina.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              Although the prehearing report contains other stipulations, 
 
         the following stipulations are relevant to this decision:
 
         
 
              1.  On March 24, 1984 claimant received an injury which 
 
         arose out of and in the course of employment with John Deere;
 
         
 
              2.  Claimant is not seeking further temporary total 
 
         disability or healing period benefits; and,
 
         
 
              3.  Claimant's entitlement to medical benefits is not in 
 
         dispute.
 
         
 
              The prehearing report submits the following issues for 
 
         determination of this decision:
 

 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
              II.  The extent of claimant's entitlement to weekly 
 
         disability benefits.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by John Deere at the time of the 
 
         work injury as an industrial truck operator.
 
         
 
              Claimant testified that he was operating a forklift truck on 
 
         the date of the work injury in this case unloading engines from a 
 
         flatbed truck. over the last fifteen years claimant has held the 
 
         following jobs at John Deere: industrial truck operator, gang 
 
         drill operator, tracer lathe operator, material handler, spray 
 
         painter, coolant servicer, and working in the casting salvage 
 
         department.  All of claimant's supervisors describe claimant as 
 
         an excellent, hard working employee.
 
         
 
              2.  On March 21, 1984 claimant suffered an injury to his 
 
         legs and abdominal area which arose out of and in the course of 
 
         his employment with John Deere.
 
         
 
              Claimant testified that while attempting to jump from his 
 
         forklift truck which was sliding off a ramp between the dock and 
 
         a flatbed truck he was unloading, claimant fell on his stomach 
 
         area and arm.  After reporting to the plant clinic with 
 
         complaints of pain in the legs and the left lower quadrant of the 
 
         abdominal area according to clinic records, claimant was sent to 
 
         the hospital for evaluation of a possible contused kidney by the 
 
         company physician, Marvin (Lee) McClenahan, M.D. At the hospital, 
 
         claimant received x-rays of his legs and abdominal areas.  These 
 
         x-rays were negative.  No hospital records were submitted but 
 
         apparently the contused kidney possibility was rejected by the 
 
         physicians at the hospital as there is no mention of such a 
 
         condition later in claimant's medical records.  Claimant then 
 
         returned to Dr. McClenahan who prescribed Motrin and ice packs 
 
         for the injured areas and claimant was then told to take the rest 
 
         of the day off.  The next day Dr. McClenahan's records indicate 
 
         that claimant was much improved with complaints limited to 
 
         stiffness and pain in the right thigh and lower leg.  A few days 
 
         later claimant returned to Dr. McClenahan with complaints of 
 
         soreness in the upper and lower back and both thighs.  By April, 
 
         claimant missed an appointment with Dr. McClenahan whose records 
 
         report that claimant indicated to the doctor through his 
 
         supervisor that he had no problem and was doing fine at that 
 
         time.  Except for the day of the injury and the time expended to 
 
         receive medical treatment authorized by John Deere, claimant has 
 
         not lost any time from work as the result of the work injury.
 
         
 
              3.  A finding could not be made causally connecting 
 
         claimant's current pain complaints in the abdominal area, an 
 
         elevated diaphragm condition which developed in 1984 with the 
 
         work injury in this case.
 
         
 
              Claimant testified that soon after the injury he was 
 
         transferred to a foundry area at John Deere where he performed 
 
         heavy manual labor upon castings.  This work he states caused him 
 
         considerable abdominal pain during lifting, pushing, and swinging 
 
         11 stuff around." The pain, he stated was located in the left 
 
         front side, below the rib cage.  Supervisors testifying at the 
 
         hearing disagreed with claimant's testimony as to his job 
 

 
         
 
         
 
         
 
         MC PHAIL V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         
 
         assignment in the foundry area because such work would have been 
 
         in violation of his permanent work restrictions against prolonged 
 
         standing and walking as a result of an old athletic injury to his 
 
         knee.  Also, his work records do not reflect such a job 
 
         assignment.  According to claimant, this pain persists today 
 
         whenever he lifts or becomes active.  He also experiences pain 
 
         when he rides in a vehicle which bounces around such as his 
 
         forklift truck or a large truck.  Claimant stated that the pain 
 
         can last for only a few minutes on occasion or up to a few hours 
 
         at some times at which time he must stop and rest.
 
         
 
              The major problem with claimant's testimony is that his 
 
         medical records at the plant clinic only relate an abdominal pain 
 
         complaint at the time of the work injury.  During his treatment 
 
         over the weeks immediately following the injury his complaints 
 
         reported to Dr. McClenahan involved only his legs and back.  
 
         According to Dr. McClenahan, the first lower quadrant abdominal 
 
         pain complaint other than at the time of the injury occurred 
 
         approximately ten weeks later on July 10, 1984 after an elevated 
 
         diaphragm condition was discovered in an x-ray in June 1984.
 
         
 
              When claimant was transferred to a new area in June 1984, 
 
         Dr. McClenahan sent him to the hospital to receive routine x-rays 
 
         of his chest, a procedure apparently required by government 
 
         regulation.  According to Dr. McClenahan, claimant had no pain 
 
         complaints involving his chest or abdomen at that time.  These 
 
         x-rays found an elevated diaphragm condition.  This elevated 
 
         diaphragm was not found in the x-rays taken of the abdominal area 
 
         on March 21 following the work injury.
 
         
 
              Claimant then began to complain of pain in the left lower 
 
         quadrant area in July 1984 and Dr. McClenahan referred him to 
 
         1985, claimant was that the abdominal physical therapy. another 
 
         physician, of Dr. Madden that the soft tissue in Michael J. 
 
         Evans, M.D., for evaluation.  After treatment involving an 
 
         injection of medication into the abdominal area which temporarily 
 
         relieved the pain, Dr. Evans felt that the cause of the condition 
 
         was uncertain but probably was "post viral." When the pain 
 
         persisted into October 1984, claimant was referred by Dr. 
 
         McClenahan to John R. Pellett, M.D., a professor of surgery at 
 
         the University of Wisconsin Medical School.  After extensive 
 
         examination by Dr. Pellett and his staff, the cause of the 
 
         elevated diaphragm and claimant's left lower quadrant abdominal 
 
         pain was not identified and they found nothing except for the 
 
         persistence of the elevated diaphragm condition.  Dr. Pellett 
 
         likewise could not find a connection between the elevated 
 
         diaphragm condition and the pain.
 
         
 
         Claimant's pain complaints extended into 1985.  In June examined 
 
         by Paulette Lynn, M.D., who felt pain may be musculature and 
 
         recommended In July 1985, claimant was examined by Ross A. 
 
         Madden, M.D.   It was the impression some of the chest pain was 
 
         inflammations of the rib and chest bone area.  He felt that a 
 
         possible epigastric hernia was unlikely.  The doctor also 
 
         suspected anxiety was playing a roll in claimant's discomfort.  
 
         He recommended continued therapy with Dr. Lynn.  Claimant 
 
         received physical therapy in August but his pain complaints 
 
         continued.  Claimant hasn't seen a doctor for the last several 
 
         months.  Claimant explained that he no longer seeks medical 
 

 
         
 
         
 
         
 
         MC PHAIL V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         
 
         treatment because the doctors have not been able to help him.  In 
 
         his live testimony at the hearing, Dr. McClenahan states that 
 
         claimant's pain may be possibly due to a digestive problem, a 
 
         virus, a cancerous tumor, a contusion from the March 1984 work 
 
         injury, or an old injury in 1981 in which claimant was kicked by 
 
         a horse in approximately the same area as claimant's pain 
 
         complaints.  The doctor could not give a definite cause for 
 
         either of the diaphragm problem or claimant's chest and abdominal 
 
         pain.  The elevated diaphragm condition ended according to Dr. 
 
         McClenahan in June 1984.
 
         
 
              The above evidence only establishes that claimant's 
 
         abdominal pain and diaphragm difficulties are possibly related to 
 
         the work injury.  Given a prior history of an injury in the 
 
         same area as the injury of March 1984; the lack of complaints of 
 
         abdominal pain extending for almost ten weeks after the injury; 
 
         and, the lack of any definite opinion by a physician supporting 
 
         claimant's theories in this case, claimant has not established by 
 
         the greater weight of evidence presented that the work injury was 
 
         the cause of any of his abdominal or chest problems.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              In this case there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.  The foregoings findings of fact were made under 
 
         the following principles of law:
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury.  Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was  a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available.expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 

 
         
 
         
 
         
 
         MC PHAIL V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         
 
         causation and be sufficient to sustain an award.  Giere v.  Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966)  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although it was found that the 
 
         claimant's disability was possibly caused by the injury under the 
 
         medical evidence submitted, claimant could not rely on the Giere 
 
         case to establish causal connection by lay testimony due to the 
 
         additional findings concerning a prior injury and the lack of a 
 
         consistent pattern of pain complaints dating from the injury.
 
         
 
              Claimant points out in his brief that Dr. McClenahan on a 
 
         couple of occasions referred to the condition as workers' 
 
         compensation related.  However, diagnostic treatment following a 
 
         work injury to determine the cause of claimant's complaints 
 
         should not bind the employer on the issue of the causal 
 
         connection of any particular condition to the work injury.  
 
         Employers should be encouraged to provide such services to 
 
         claimants when a causal connection is questionable.
 
         
 
              Although claimant did not prevail in this proceeding, his 
 
         claim was at least arguable given the medical evidence.  
 
         Therefore, claimant shall be awarded costs of this action.
 
         
 
                                   ORDER
 
         
 
              Claimant's petition is dismissed.  However, defendant shall 
 
         pay the costs of this action pursuant to Division of Industrial 
 
         Services Rule 343-4.33 (formerly Industrial Commissioner Rule 
 
         500-4.33).
 
         
 
              Signed and filed this 31st day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 

 
         
 
         
 
         
 
         MC PHAIL V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   6
 
         
 
         
 
         Mr. John J. Wertzberger
 
         Attorneys at
 
         Law 222 Fischer Building
 
         P. 0. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1108; 1402
 
                                                Filed: March 31, 1987
 
                                                LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KENT MC PHAIL,
 
                                                 File No. 810140
 
              Claimant,
 
                                              A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1108; 1402
 
         
 
              The claimant failed to demonstrate a causal connection of 
 
         his abdominal problems to a work injury and benefits were denied 
 
         accordingly.