BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DENNIS RAY LYNCH,
 
         
 
              Claimant,
 
                                                 File No. 810148
 
         VS.
 
         
 
         CHAMPION INTERNATIONAL,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         _
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Dennis Ray Lynch, against his employer, Champion International, 
 
         and its insurance carrier, Aetna Casualty, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an injury 
 
         allegedly sustained July 23, 1984.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Sioux City, Iowa, on April 30, 1987.  A first report of injury 
 
         was filed April 14, 1987.  No benefits have been paid.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of Charles Lynch,,of Jack Hansel, and of Marilyn Romey, 
 
         as well as claimant's exhibits A through C, Joint exhibits 1 
 
         through 14, and defendants' exhibits 1 through 14.  All exhibits 
 
         are identified in the various exhibit lists filed by the parties 
 
         at time of hearing and incorporated by reference into this 
 
         decision.  All objections to exhibits are overruled.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation in the event of an 
 
         award is $158.34; that medical costs are fair and reasonable; 
 
         that claimant's healing period or temporary total disability 
 
         entitlement, if liability is found, would run from September 1, 
 
         1984 to January 9, 1985 with any permanency to commence on 
 
         January 9, 1985.  The issues remaining to be decided are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2)  Whether a causal relationship exists between that 
 
         alleged injury and claimant's claimed disabilities;
 
         
 
              3)  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement; and
 

 
         
 
              4)  Whether claimant is entitled to payment of his medical 
 
         costs under section 85.27 as causally connected to a work 
 
         injury.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 37 year old high school graduate who has spent 
 
         two years in the navy reserve.  Claimant has other training in a 
 
         nine month radio and television repair course.  He used that 
 
         training for four years while working in the audiovisual store, 
 
         but stated he was unable to find work in the field following the 
 
         closing of the store.  Claimant began work for the employer on 
 
         November 11, 1976.  The employer manufactures various sizes of 
 
         corrugated containers.  Initially, claimant was a utility man.  
 
         Claimant testified he then worked as an off load corrugater 
 
         bundling, tying, and stacking orders.  Claimant testified this 
 
         involved lifting of thirty to forty pounds with repetitive 
 
         stooping and bending.  Claimant testified that he is now a taper 
 
         operator who runs a machine and feeds corrugated boards into the 
 
         machine.  Claimant testified this job involves lifting, bending, 
 
         stooping, twisting, and standing.  He described the job as 
 
         requiring him to pick up a flat sheet of corrugated material, put 
 
         it into the machine, and then push it through the front, grab it, 
 
         fold it, and feed it into the machine.  Claimant agreed that he 
 
         does not handle bulk meat boxes on the taper.  He also stated 
 
         that there is generally a second person available to assist if he 
 
         needs to lift forty pounds or more.  Claimant had an auto 
 
         accident in 1970 during which he was knocked unconscious briefly.  
 
         Claimant denied that he had injured his back or neck in that 
 
         incident or that he had needed to seek further medical treatment 
 
         for the incident following hospital release.  He stated that he 
 
         had a pre-employment physical with John P. Tiedaman, M.D., in 
 
         1977, and that no back or neck problems were found.  Claimant 
 
         stated that he began seeing chiropractors for back pain in 
 
         approximately 1979.  A group health insurance form of December 
 
         22, 1981 indicates that claimant slipped on ice at home.  On or 
 
         about April 3, 1980, claimant sustained a work injury in which he 
 
         strained his back while carrying large bulk meat boxes.  I. A. 
 
         Benson, M.D., subsequently released him for light duty work 
 
         without heavy lifting or prolonged standing.
 
         
 
              Claimant testified that on July 23, 1984, he was bending to 
 
         pick up twenty to thirty pounds of stored containers from the 
 
         floor at work and felt a tearing sensation in his back as he got 
 
         up. Claimant testified that he reported the injury to his 
 
         foreman, Jack Hansel, before he left work.  He reported that he 
 
         had back pain and left leg numbness, a sensation he had not 
 
         previously experienced.
 
         
 
              Claimant saw David Felber, M.D., at the Family Practice 
 
         Clinic.  He reported that Gerald McGowan, M.D., the employer's 
 
         company doctor, is also affiliated with the clinic.  Claimant 
 
         testified that Dr. McGowan subsequently referred him to Alexander 
 
         Kleider, M.D., apparently a neurosurgeon.  F. A. Qalbani, M.D.#, 
 
         interpreted a myelogram of October 2, 1984 as having,findings 
 
         compatible with a midline bulging or herniated disc at L4-5, and 
 
         L5-Sl.  He interpreted a CT scan of the same date as revealing a 
 
         likely minimal midline bulge at L4-5 and a midline herniated disc 
 
         with an extension to the left at L5-Sl.  On October 4, 1984, Dr. 
 
         Kleider performed a diskectomy on the left side at both L4-5 and 
 
         L5-Sl.  Claimant was subsequently released for work and returned 
 
         to his preinjury job duties.  Dr. Kleider has advised that 
 
         claimant use caution with bending and lifting and twisting, but 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   3
 
         
 
         
 
         reported that claimant was able to perform [his job] quite well.  
 
         Claimant testified that he is not currently treating for back 
 
         pain., but he is stiff in the morning and that his back bothers 
 
         him at the end of the work day.  Claimant denied that he 
 
         continues to ride his motorcycle although he agreed that he did 
 
         ride it after his surgery.  He stated that he has not rode his 
 
         three wheeler in the last year.  Claimant has been off work since 
 
         a nonwork-related auto accident in February 1987.  He agreed that 
 
         his current absence from work is not related to his work injury.  
 
         Claimant stated he is now experiencing right leg numbness but no 
 
         left leg numbness.  Claimant stated the right leg numbness 
 
         occurred after the February 1987 auto accident.
 
         
 
              Claimant testified that the employer-provided health 
 
         insurance paid 80 percent of his medical costs and that he 
 
         himself was required to pay 20 percent.  Marilyn Roning, the 
 
         employer's accounts payable clerk, testified that she had custody 
 
         of the group benefit records.  She reported that of Dr. Kleider's 
 
         costs, the insurer had paid 80 percent of $80 and $25 office call 
 
         statements and $200 of the $210 cost for a myelogram as well as 
 
         100 percent of the $2,040 surgical cost.  She stated that the 
 
         insurer then had paid $2,260 of $2,275 and 80 percent of $80.  
 
         She reported, that of statements from Dr. McGowan, the insurer 
 
         had paid 100 percent of the $25 cost and 80 percent of the $152 
 
         cost, with a total of $146.60 paid.  She reported that of Marian 
 
         Health Center costs totaling $4,430.75, the health insurer had 
 
         paid $4,029.  Medical charges in evidence include a $500 charge 
 
         with Woodbury Anesthesia Group for anesthesia administered on 
 
         October 4, 1984, a $2,355 charge with Dr. Kleider indicating 
 
         costs of $80, $20, $210, and $2,040, all consistent with the 
 
         services reported by Ms. Roming; a $172 statement from Dr. 
 
         McGowan; and statements with the Marian Health Center in the 
 
         amount of $3,952.75, and the amount of $121.
 
         
 
              Charles Lynch, claimant's father, testified that he lives 
 
         with claimant and was aware of claimant's back complaints prior 
 
         to July 1984.  He recalled that claimant had left hip complaints 
 
         before the July 1984 incident although he was uncertain when 
 
         claimant had had those complaints.  Claimant's father reported 
 
         that on July 23, 1984, claimant stated he had back pain and 
 
         stiffness and that he observed claimant having difficulty 
 
         walking.  Mr. Lynch described his son as more cautious and less 
 
         active than he was preinjury and stated that claimant,can no 
 
         longer stand on the ladder to clean out the roof gutters.
 
         
 
              Jack Hansel, finishing supervisor with the employer for the 
 
         last fourteen years and claimant's supervisor, testified.  He 
 
         stated that prior to July 1984, claimant had often been on light 
 
         duty on account of his back complaints and that there were jobs 
 
         at that time that he wouldn't have placed claimant for that 
 
         reason.  Mr. Hansel stated that claimant's observable work habits 
 
         had not changed after July 1984 and that claimant has not 
 
         complained about his job since his postsurgery work return.  He 
 
         reported that claimant,is reliable in work attendance and has 
 
         received the same salary adjustments as other employees following 
 
         his July 1984 alleged incident.  Mr. Hansel stated that a number 
 
         of better paying jobs in the plant are available to claimant 
 
         physically now.  He reported that there are some jobs which 
 
         claimant could also do physically but for which he lacks 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   4
 
         
 
         
 
         knowledge.  Mr. Hansel stated there are twenty to twenty-five job 
 
         classifications in the plant with pay scale range from $7.50 to 
 
         $9.00 or $10.00 per hour.  Hansel described claimant as having 
 
         always worked as a taper operator and as primarily feeding boxes 
 
         through the machine.  Hansel stated that the taper operator does 
 
         not need to twist, turn, bend, stoop or use his back.  He stated 
 
         corrugated boards are fed into the machine at shoulder height.  
 
         The machine is loaded four times per hour for approximately a 
 
         five minute duration.  Hansel stated that claimant would never 
 
         lift greater than twenty to twenty-five pounds.  Hansel could not 
 
         remember if claimant missed work before July 23, 1984 as a result 
 
         of a work injury and could not recall claimant requesting a 
 
         doctor appointment in July 1984.  He stated that he would have 
 
         filled out the company's injury report in this case and stated 
 
         that neither form which he was asked to identify was the 
 
         company's first report of injury form., Hansel described claimant 
 
         as having been a below average worker whose work standards were 
 
         verbally discussed with him.  He reported that claimant generally 
 
         was receptive to those discussions and that his work would 
 
         improve initially following such discussions.
 
         
 
              Dean Poss, D.C., and Wallace Wagner, D.C., treated claimant 
 
         cbiropractically for an extended time.  A note in 1981 indicates 
 
         that claimant fell down stairs at home on February 27, 1981 with 
 
         a condition at L5 right.  The diagnosis was of lumbalgia, acute.  
 
         The condition was reported as resolved sometime in 1982.  A note 
 
         in 1982 indicates that claimant again had low back problems and 
 
         was having a hard time getting up.  Low back pain is also 
 
         reported in other instances in 1982.  While many of the dates on 
 
         the Poss-Wagner office notes are non-intelligible, a January 14, 
 
         1984 note indicates low back pain and [1] hip.  Claimant treated 
 
         for acute lumbar facet syndrome with the chiropractors from 
 
         December 21, 1981 through January 12, 1982.  On June 23, 1983, 
 
         claimant was again treated for acute lumbar facet syndrome as 
 
         well as from December 22, 1983 through January 31, 1984.  A group 
 
         health insurance note of June 1983 reports that,claimant had low 
 
         back pain while bending over at home.  Claimant could not 
 
         remember whether that incident was similar to his July 1984 work 
 
         incident.  A group health insurance statement of March 6, 1981 
 
         reports the condition as pain and stiffness in the back, neck and 
 
         shoulders and reports that claimant had an accident at home when 
 
         he slipped on a slippery outside stairs and fell.  A group health 
 
         insurance statement of December 21, 1981 indicates soreness in 
 
         the low back and left hip.
 
         
 
              John P. Tiedeman, M.D., treated claimant from June 19, 1980 
 
         through June 24, 1980 with office examination and physical 
 
         therapy and muscle spasm of the left buttock.
 
         
 
              David Felber, M.D., saw claimant on July 24, 1984 with low 
 
         back ache and pain in the left leg.  The doctor reported a 
 
         history of chiropractic care for four or five years with partial 
 
         relief.  He stated that claimant stated he had picked up a heavy 
 
         item at work in the past several days and had experienced a pop 
 
         and severe low back pain.  Neurological examination was normal 
 
         but with point tenderness paraspinally in midline at L4 and 5. On 
 
         July 24, 1985, there was point tenderness at L4 and 5 with 
 
         straight leg raising positive to 45 to 60 degrees.  Claimant was 
 
         released to light duty work on the following Monday.  On July 31, 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   5
 
         
 
         
 
         1981, claimant complained of radiation of pain from the low back 
 
         over the gluteal muscle on the lateral aspect of the left leg 
 
         under the heel.  He had a positive straight leg test at 45 
 
         degrees, but no sensory deficit.  On August 10, 1984, the 
 
         complaint was of pain in the inferior left gluteal area with 
 
         intermittent dull aching into the left posterior thigh.  The 
 
         assessment of Bryan Sitzmann, M.D., of August 30, 1984, was 
 
         sciatica radiculitis, probably secondary to previous back injury 
 
         and aggravated by present job.
 
         
 
              A. Kleider, M.D., initially saw claimant on September 25, 
 
         1984.  The medical history he received was of left back and left 
 
         lower extremity pain beginning a little over a month ago when 
 
         claimant rose up from the bent-over position at work and had 
 
         tearing sensation in the back.  Dr. Kleider reported that 
 
         claimant had had episodes of low back pain in the past relieved 
 
         with chiropractic manipulations beginning in 1979.  He reported 
 
         that claimant stated the previous low back pain had never been as 
 
         bad as the current pain.  Claimant's physical examination was 
 
         consistent with other physical examinations after July 24, 1984.
 
         
 
              Dr. Kleider examined claimant on December 16, 1986 and 
 
         reported that claimant had done quite well and was back to his 
 
         usual work with heavy lifting.  He reported that claimant still 
 
         had some soreness and stiffness of the low back and head which 
 
         was worse with lifting and constant standing, but that improved 
 
         with a whirlpool bath.  Straight leg raising was at 90 degrees 
 
         bilaterally; claimant bent over easily with no weakness of the 
 
         lower extremities.  Deep tendon reflexes were symmetrical; 
 
         claimant had no deficit to pinprick.  Dr. Kleider stated that 
 
         claimant's medical history would indicate that his surgery was 
 
         work related, but that claimant had no permanent partial 
 
         impairment under the AMA Guides.
 
         
 
              The balance of the evidence was reviewed in the disposition 
 
         of this matter.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider whether claimant has sustained an injury which 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 23, 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).
 
         
 
              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).
 
         
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   6
 
         
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              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, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, Iowa 
 
         352, 154 N.W.2d 128.
 
         
 
              While claimant had previous back problems and while 
 
         defendants' witness could not recall claimant reporting a July 
 
         23, 1984 incident, claimant apparently did report a work incident 
 
         to Dr. Felber when he visited him July 24, 1984.  Likewise, 
 
         claimant reported an incident to Dr. Kleider.  While the doctors 
 
         differently report the incident, both reports are generally 
 
         consistent with claimant's testimony at hearing as to his injury 
 
         incident.  Claimant described both a bending and lifting process.  
 
         Likewise, claimant's contention that the severity of his pain and 
 
         problems was significantly greater following the July 1984 work 
 
         incident is consistent with his need for greater medical care 
 
         following that incident than previously.  Claimant has 
 
         established an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              We consider the causal relationship issue.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 23, 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. 
 
         0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         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 l967).
 
         
 
              Dr. Kleider has opined that claimant's history indicates his 
 
         surgery was work related.  He also opines claimant has no 
 
         permanent partial impairment under the AMA Guides, however.  We 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   7
 
         
 
         
 
         find the doctor's testimony sufficient to show that claimant has 
 
         sustained temporary total disability on account of his injury.  
 
         We find it difficult to disagree with the doctor as regards the 
 
         permanency question.  Dr. Kleider's uncontroverted opinion is 
 
         consistent with his findings on physical examination of claimant 
 
         and the work performance he attributes to claimant.  Hence, we 
 
         accept the doctor's view that claimant has no permanent partial 
 
         impairment.  While we agree with claimant's counsel that a 
 
         finding of no permanent partial impairment does not necessarily 
 
         equate to a finding of no industrial disability, claimant also 
 
         does demonstrate other circumstances entitling him to industrial 
 
         disability benefits.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant has returned to his same job; his performance level 
 
         is approximately as it was preinjury.  He apparently was 
 
         precluded from some jobs prior to his work injury on account of 
 
         his preexisting back problems.  Testimony does not establish that 
 
         claimant's restrictions are more severe now than pre-July 1984 or 
 
         that claimant is now precluded from jobs he could have performed 
 
         prior to his work injury.  Claimant has not shown a loss of 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   8
 
         
 
         
 
         earning capacity related to his work injury.
 
         
 
              Claimant is, of course, entitled to temporary total 
 
         disability benefits for the stipulated period, that is, from 
 
         September 1, 1984 to January 9, 1985.
 
         
 
              Claimant seeks payment of his medical costs under section 
 
         85.27. Claimant is entitled to payment of costs he actually paid 
 
         if those costs relate to treatment of his work injury.  Claimant 
 
         then is entitled to payment of the following costs:
 
         
 
                 Marian Health Center            $  44.75
 
                 Dr. Kleider                        31.00
 
                 Dr. McGowan                        25.40
 
                 Woodbury Anesthesia Group         500.00
 
                                     
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant had undergone chiropractic treatment for back 
 
         problems and severe left hip problems prior to July 23, 1984.
 
         
 
              Claimant saw Dr. Felber on July 24, 1983 and reported 
 
         picking up a heavy item at work and experiencing a pop and low 
 
         back pain.
 
         
 
              Claimant reported back pain on coming up from a bending 
 
         position to Dr. Kleider.
 
         
 
              Claimant injured his back at work on July 23, 1983 when he 
 
         bent to pick up containers weighing from twenty to thirty 
 
         pounds.
 
         
 
              Claimant's level of back pain following his work injury was 
 
         more significant than prior to that point and did not resolve 
 
         with conservative care as prior problems had.
 
         
 
              Dr. Kleider performed a diskectomy on the left side at both 
 
         L4-5 and L5-Sl on October 4, 1984.
 
         
 
              Claimant was temporarily totally disabled from September 1, 
 
         1984 to January 1, 1984.
 
         
 
              Claimant then was released to and returned to his preinjury 
 
         duties with the same employer.
 
         
 
              Claimant exercises caution with bending and lifting and 
 
         twisting, but is getting along quite well.
 
         
 
              Claimant continues to perform his work duties and is not 
 
         more hindered in performing them than he was prior to his work 
 
         injury.
 
         
 
              Claimant's work injury does not preclude him from more jobs 
 
         in the plant than his preinjury back condition precluded him, 
 
         from.
 
         
 
              Claimant's straight leg raising is at 90 degrees 
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page   9
 
         
 
         
 
         bilaterally; claimant can bend over easily with no weakness in 
 
         the lower extremities; claimant's deep tendon reflexes are 
 
         symmetrical; and claimant has no deficit to pinprick.
 
         
 
              Claimant has no permanent partial impairment on account of 
 
         his work injury.
 
         
 
              Claimant has no loss of earning capacity on account of his 
 
         work injury.
 
         
 
              Claimant actually paid medical costs of $500 with Woodbury 
 
         Anesthesia; of $25.40 with Dr. McGowan; of $31.00 with Dr. 
 
         Kleider; and of $44.75 with Marian Health Center.  The 
 
         aforementioned costs were incurred as a result of claimant's work 
 
         injury.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established an injury of July 23, 1984 which 
 
         arose out of and in the course of her employment.
 
         
 
              Claimant has established that the injury of July 23, 1984 is 
 
         the cause of temporary total disability to claimant.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         from September 1, 1984 to January 9, 1985.
 
         
 
              Claimant is not entitled to permanent partial disability 
 
         benefits on account of his injury.
 
         
 
              Claimant is entitled to payment of medical costs claimant 
 
         actually paid as set forth in the above findings of fact.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant temporary total disability benefits 
 
         from September 1, 1984 to January 9, 1985 at the rate of one 
 
         hundred fifty-eight and 34/100 dollars ($158.34).
 
         
 
              Defendants pay claimant medical costs claimant actually paid 
 
         as set forth in the above findings of fact.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
                 Signed and filed this 22nd day of June, 1987.
 
         
 
         
 

 
         
 
         
 
         
 
         LYNCH V. CHAMPION INTERNATIONAL
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Gene A. Wickey
 
         Attorney at Law
 
         220 Benson Building
 
         Sioux City, Iowa 51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Building
 
         Sioux City, Iowa 51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1801; 1803
 
                                                 Filed 6-22-87
 
                                                 Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DENNIS RAY LYNCH,
 
         
 
              Claimant,
 
                                                 File No. 810148
 
         VS.
 
         
 
         CHAMPION INTERNATIONAL,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1100; 1801; 1803
 
         
 
              Claimant awarded temporary total disability benefits after 
 
         establishing an injury which arose out of and in the course of 
 
         his employment, but failed to show permanent partial disability 
 
         related to injury.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBORA RASMUSSEN,
 
         
 
              Claimant
 
                                                File No. 810227
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         FARMSTEAD FOODS CORPORATION,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and                                       F I L E D
 
         
 
         SENTRY INSURANCE COMPANY,                SEP 22 1989
 
         
 
              Insurance Carrier,         IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                         STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Debora 
 
         Rasmussen, claimant, against Farmstead Foods Corporation, 
 
         employer (hereinafter referred to as Farmstead), and Sentry 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on October 
 
         30, 1985.  On March 15, 1989, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing..
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  All testimony 
 
         and written exhibits were received during the hearing from the 
 
         parties.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On October 30, 1985, claimant received an injury which 
 
         arose out of and in the course of her employment with Farmstead.
 
         
 
              2.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of March 16, 1987.
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
                                                
 
                                                         
 
         an award of weekly benefits shall be $218.17 per week.
 
         
 
              6.  The medical bills submitted by claimant at hearing were 
 
         fair and reasonable but their causal connection to a work injury 
 
         remained in dispute.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                          STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Farmstead and its 
 
         predecessor company Wilson Foods at the same meat packing plant 
 
         from September 1978 until her termination on April 6, 1987, for 
 
         an inability to perform available work.  Claimant earned $8.60 to 
 
         $9.00 per hour in this job at the time of the alleged injury 
 
         herein.  Claimant's supervisor testified that the quality of 
 
         claimant's work was good but that he was concerned about her 
 
         attendance in 1986.  He could not recall the reasons for any 
 
         absences from work.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that she was assigned to the job of pushing 
 
         "trees" around her work area.  These trees were metal "t" bars 
 
         upon which meat is hung.  Trees which are fully loaded with meat 
 
         weigh approximately 500 to 1,000 pounds.  The trees were 
 
         suspended from a rail system attached to the ceiling which 
 
         allowed workers to push the trees about the plant.  At the time 
 
         of the injury, claimant was pushing such a tree of meat and the 
 
         tree became caught causing the meat to swing back at the claimant 
 
         striking her body and throwing her body against the wall and onto 
 
         the floor. Claimant testified that she began to experience severe 
 
         neck and shoulder pain and increasing headaches after this 
 
         incident but initially did not seek medical treatment because she 
 
         felt that the problems would subside.  After a week, the pain and 
 
         headaches continued to increase and claimant was sent by 
 
                                                
 
                                                         
 
         Farmstead to an orthopedic surgeon, Hugh MacMenamin, M.D.  Dr. 
 
         MacMenamin took claimant off work intermittently over the next 
 
         several months and treated her with physical therapy, heat packs 
 
         and medication.
 
         
 
              Claimant underwent several trial periods of a return to work 
 
         to her previous job and to the job of ham boning.  However, 
 
         claimant testified that this work activity continued to aggravate 
 
         her neck and shoulder pain and increase her headaches.  In August 
 
         1986, claimant sought treatment from her family physician who 
 
         referred her to Richard Neiman, M.D., a board certified 
 
         neurologist.  After testing, including a myelogram test, Dr. 
 
         Neiman diagnosed claimant's neck, arm, shoulder and headache 
 
         problems as cervical strain without structural abnormality which 
 
         he described as a soft tissue injury.  Although Dr. Neiman was 
 
         aware that claimant had a history of migraine headaches since age 
 
         12, he related claimant's chronic headaches after the injury to 
 
         her neck problems because the pain originated in the neck area.  
 
         Claimant then underwent physical therapy consisting of home 
 
         traction and heat packs along with anti-inflammatory, 
 
         antidepressant and pain medication.  Dr. Neiman did not believe 
 
         claimant to be significantly depressed and prescribed the 
 
         antidepressant medication for its pain relief effects.  Claimant 
 
         also received "triggerpoint" injections over the next few months 
 
         which improved her condition according to Dr. Neiman.  In June 
 
         1987, Dr. Neiman felt that claimant had reached maximum healing 
 
         and opined that claimant suffered from a 15 percent permanent 
 
         partial impairment to the body as a whole as a result of the 
 
         October 1985 injury.  Dr. Neiman maintained his causal connection 
 
         views knowing that claimant had a prior history of neck pain and 
 
         temporary disability following a couple of falls at home.  
 
         Claimant testified that the neck pain and headaches became 
 
         significantly worse after the October 1985 incident at Farmstead 
 
         because, unlike before, she never recovered and the pain became 
 
         continuous.
 
         
 
              In September 1987, due to improvement in her condition, Dr. 
 
         Neiman lowered claimant's impairment rating to 10 percent.  The 
 
         doctor also liberalized his work restrictions by only restricting 
 
         lifting over 35 pounds.  However, he maintained the work 
 
         restrictions against excessive movement of the neck, no prolonged 
 
         movements of the shoulder and no prolonged sitting or standing. 
 
         Dr. MacMenamin reevaluated claimant during the winter of 1987 and 
 
         rated claimant as suffering from only a one percent permanent 
 
         partial impairment under orthopedic evaluation guidelines.  He 
 
         testified that the cause of claimant's neck and shoulder pain is 
 
         undetermined and that he had no opinion as to the headaches.  He 
 
         felt that claimant should not lift over 15 pounds and recommended 
 
         continued treatment with Dr. Neiman.
 
         
 
              Claimant has not worked in any capacity since August of 1986 
 
         and her termination from Farmstead in April of 1987.  She did not 
 
         indicate what, if any, effort she had made to apply for 
 
         alternative employment in the area of her residence.  She has 
 
         instead, with the encouragement of Dr. Neiman, attempted 
 
                                                
 
                                                         
 
         vocational rehabilitation by attending a two year course of study 
 
         at a local community college in computer programming.  Claimant, 
 
         however, expressed a possibility that this course of study may be 
 
         difficult to complete due to family commitments.  Dr. Neiman 
 
         feels that computer programming work is compatible with her 
 
         disability but does state that keyboard work would bother her 
 
         neck on occasion.  Claimant testified that there is a potential 
 
         of a salary of $30,000 in the computer programming field but not 
 
         at the entry level.  She said that she expects an income at the 
 
         completion of her studies in the range of $15,000 to $18,000 but 
 
         has not investigated future job prospects with reference to 
 
         potential salary.
 
         
 
              Claimant is 31 years of age.  She dropped out of high school 
 
         but has earned her GED.  Claimant's only significant work history 
 
         prior to working for Farmstead has been as a certified nurse's 
 
         aide in a nursing home and as a pizza restaurant waitress.  The 
 
         nursing home work involved the care of invalid patients which 
 
         required claimant to perform heavy lifting duties when 
 
         necessary.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It did not appear to the undersigned that credibility was at 
 
         issue and no credibility finding was made in this decision.  If 
 
 
 
               
 
                                                         
 
         the undersigned is in error and a party desires a credibility 
 
         finding, they may apply for such a finding.
 
         
 
                I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American,Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that she has 
 
         suffered permanent disability as a result of the work injury due 
 
         to permanent impairment to the body as a whole.  First, the 
 
         evidence establishes that she does suffer from permanent 
 
         impairment.  Although they disagree as to the extent, both Dr. 
 
         Neiman and Dr. MacMenamin agree that claimant has permanent 
 
         impairment to the body as a whole as a result of her back 
 
         condition and that her activities must be restricted to avoid 
 
                                                
 
                                                         
 
         future injury and pain.
 
         
 
              With reference to the causal connection of this condition to 
 
         the work injury, the views of Dr. Neiman will be given greater 
 
         weight as he was the most recent treating physician and more 
 
         clinically involved in the case.  Also Dr. Neiman's views are the 
 
         most convincing and compatible with claimant's credible 
 
         testimony. Dr. Neiman causally relates claimant's current chronic 
 
         headaches and neck pain to the injury.  It will be found that 
 
         claimant suffers from a 10 percent permanent partial impairment 
 
         to the body as a whole as a result of the work injury of October 
 
         30, 1985. Claimant testified that she experienced prior neck pain 
 
         and headaches but that these problems did not become chronic 
 
         until after the work injury.
 
         
 
               II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no ascertainable functional impairments or 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping along with prolonged standing and sitting.  What 
 
         injuries she had in the past to her neck had fully recovered 
 
         prior to the work injury herein.
 
         
 
                                                
 
                                                         
 
              Claimant's most recent treating physician, Dr. Neiman, has 
 
         given claimant a significant permanent impairment rating.  
 
         However, from the standpoint of assessing loss of earning 
 
         capacity, it is more important to examine work restrictions.  Both 
 
         of claimant's physicians in this case have restricted claimant's 
 
         work activities by prohibiting tasks such as heavy lifting, 
 
         repetitive use of the neck and prolonged sitting and standing.  
 
         Claimant testified that she cannot perform overhead work.  
 
         Consequently, claimant's medical condition prevents her from 
 
         returning to her former work or any other heavy manual labor work, 
 
         the type of work for which she is best suited given her lack of 
 
         formal education and work experience in anything other than manual 
 
         labor.  Claimant's prior work at the nursing home and as a 
 
         waitress would violate her current work restrictions.
 
         
 
              Claimant is relatively young and has shown motivation to 
 
         complete a difficult course of study in an attempt at vocational 
 
         rehabilitation.  Claimant appears to have good potential for 
 
         retraining.  However, the success of claimant's current 
 
         retraining efforts is not assured.  Predicting the success of 
 
         such training in assessing industrial disability is not 
 
         permitting.  Stewart v. Crouse Cartage Company, Appl. Decn. filed 
 
         February 20, 1987. Claimant's current not future disability 
 
         should be measured in this proceeding.  On the other hand, this 
 
         agency is available upon proper application in the future to 
 
         review such matters when more facts pertaining to claimant's 
 
         retraining are available.
 
         
 
              Claimant has not returned to work but does not rely upon the 
 
         odd-lot doctrine to shift the burden of proof with respect to 
 
         employability.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 
 
         (Iowa 1986).  Given the evidence presented, claimant has not 
 
         shown by the evidence that she is unemployable.  She apparently 
 
         has not applied for alternative employment other than at 
 
         Farmstead.  We have no evidence from vocational experts as to 
 
         precisely what jobs are available to claimant without successful 
 
         retraining. Consequently, it was difficult to assess claimant's 
 
         loss of earning capacity.  On the other hand, Farmstead has a 
 
         full range of employment, clerical and otherwise, and there was 
 
         no effort on their part to return claimant to work in any 
 
         capacity.
 
         
 
              After examination of all the factors, it is found that 
 
         claimant has suffered a 30 percent loss of her earning capacity 
 
         from her work injury.  Based on such a finding, claimant is 
 
         entitled as a matter of law to 150 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(u) which is 
 
         30 percent of 500 weeks, the maximum allowable for an injury to 
 
         the body as a whole in that subsection.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant is entitled to an order of 
 
         reimbursement only if claimant is paid those expenses.  
 
         Otherwise, claimant is entitled to only an order directing the 
 
                                                
 
                                                         
 
         responsible defendants to make those payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Claimant requests payment of the expenses she incurred as a 
 
         result of the treatment she received from Dr. Neiman or at the 
 
         direction of Dr. Neiman.  Defendants deny the causal connection 
 
         of this treatment to the work injury.  This agency has held that 
 
         it is inconsistent to deny liability and the obligation to 
 
         furnish care on the one hand and at the same time claim a right 
 
         to choose the care.  Kindhart v. Fort Des Moines Hotel, I Iowa 
 
         Industrial Commissioner Decision 3, 611 (Appeal Decision 1985); 
 
         Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Reports 16 
 
         (Appeal Decision 1981).
 
         
 
              It will be found that treatment by Dr. Neiman was causally 
 
         connected to the work injury and the expenses totally $718.51 
 
         will be awarded.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  The work injury of October 30, 1985, was a cause of a 10 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no excessive movement of the neck, no prolonged 
 
         movements of the shoulder, no prolonged sitting or standing and 
 
         no lifting over 35 pounds.  Claimant had prior intermittent neck 
 
         problems following injuries at home but she fully recovered from 
 
         these prior injuries.  Claimant has had migraine headaches since 
 
         age 12 but claimant's current chronic headaches are due to her 
 
         neck injury and not due to the migraine problem.
 
         
 
              2.  The work injury of October 30, 1985, and the resulting 
 
         permanent partial impairment was a cause of a 30 percent loss of 
 
 
 
                            
 
                                                         
 
         earning capacity.  Claimant is 31 years of age and has earned her 
 
         GED.  Claimant has potential for vocational retraining but the 
 
         success of her current efforts is not assured.  It is also not 
 
         possible to predict the possible earnings she may have following 
 
         completion of her retraining plans.  Claimant has not looked for 
 
         work outside of Farmstead.  No evidence was offered to indicate 
 
         that claimant has looked for work outside of Farmstead.  However, 
 
         Farmstead has not returned claimant to employment in any capacity 
 
         despite a broad range of employment opportunities.  Claimant is 
 
         unable to return to her former meat packing work at Farmstead or 
 
         to any other heavy manual labor jobs, the type of work for which 
 
         she is best suited given her lack of formal education and 
 
         experience.  Claimant's only prior work experience has been as a 
 
         waitress and in a nursing home where either prolonged standing or 
 
         heavy lifting was required.
 
         
 
              3.  The medical expenses listed in the prehearing report 
 
         were incurred by claimant for reasonable and necessary treatment 
 
         of the work injury of October 30, 1985 and defendants have denied 
 
         the causal connection between the work injury and the treatment 
 
         by Dr. Neiman during the course of these proceedings.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 150 weeks 
 
         of permanent partial disability benefits and $718.51 in medical 
 
         benefits.
 
         
 
                                   ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred eighteen and 17/100 dollars ($218.17) per week from March 
 
         16, 1987.
 
         
 
              2.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed if she has paid 
 
         those expenses.  Otherwise, defendants are ordered to pay the 
 
         provider directly along with lawfully late payment charges.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award as agreed to in 
 
         the prehearing report.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code Section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         industrial Services Rule 343-3.1.
 
         
 
         
 
                                                
 
                                                         
 
              Signed and filed this 22nd day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phil Vonderhaar
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St.
 
         Suite 16
 
         Des Moines, Iowa  50312
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed September 22, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBORA RASMUSSEN,
 
         
 
              Claimant,
 
                                                     File No. 810227
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FARMSTEAD FOODS CORPORATION,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential - extent of permanent disability 
 
         benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSION
 
         
 
         
 
         JOHN R. DENNIS,
 
         
 
              Claimant,                           File No. 810512
 
         
 
         vs.                                        A P P E A L
 
         
 
         CONSOLIDATED FREIGHTWAYS, INC.,          D E C I S I O N
 
         
 
              Employer,                              F I L E D
 
         
 
         and                                        JUL 31 1989
 
         
 
         OLD REPUBLIC INSURANCE CO.,        IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on November 13, 1985.  The record on appeal consists of 
 
         the transcript of the arbitration hearing; claimant's exhibits 1 
 
         through 48; and defendants' exhibits A through G.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Causal connection of the alleged injury to the present 
 
         disability, and to any disability after February 3, 1986.
 
              
 
              2.  The rejection of the deposition testimony of Dr. Crank 
 
         without a stated reason.
 
              
 
              3.  The nature and extent of any permanency.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence.  In addition, the following aspects of 
 
         the evidentiary record are noted:
 
         
 
              Claimant worked as a laborer.  On November 13, 1985, 
 
         claimant was lifting a heavy bag when he injured his back.  
 
         Claimant consulted Gary M. Crank, D.C., a chiropractor in the 
 
         state of Illinois.  Dr. Crank found no permanency and released 
 
         claimant to work.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant then consulted Duane K. Nelson, M.D., an orthopedic 
 
         surgeon.  Claimant was also seen by J. N. Weinstein, M.D.  Dr. 
 
         Weinstein opined that claimant's current condition was causally 
 
         connected to the November 13, 1985 injury.  Dr. Weinstein also 
 
         assigned claimant a permanent partial impairment rating of 8-10 
 
         percent of the body as a whole.
 
         
 
              Claimant states he cannot currently lift more than 60-65 
 
         pounds.  Claimant has returned to his old job at a slightly 
 
         higher rate of pay, due to intervening pay raises negotiated by 
 
         claimant's union.  Prior to the injury of November 13, 1985, 
 
         claimant was required to undergo Interstate Commerce Commission 
 
         physicals.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The employer's first issue on appeal concerns whether 
 
         claimant has established a causal connection between his present 
 
         condition and his work injury.  Dr. Weinstein testified that a 
 
         causal connection existed.  Dr. Crank stated that claimant's 
 
         present condition could have been caused by his November 13, 1985 
 
         injury or by other factors, including obesity.  Dr. Lehman, Dr. 
 
         Shafer, Dr. Moler, and Dr. Mumford indicated that the origin of 
 
         claimant's condition was unknown, while Dr. Carillo, Dr. Nelson 
 
         and Dr. Martin expressed no opinion on causation.  Defendant 
 
         employer argues that Dr. Weinstein did not have a complete 
 
         history of claimant's prior injuries.  Claimant and his wife 
 
         testified that claimant's back and his ability to perform 
 
         physical tasks was worse after his injury.
 
         
 
              Most of claimant's physicians either did not express an 
 
         opinion on causation, or expressed the opinion that the causation 
 
         was unknown.  There is no medical opinion relating claimant's 
 
         condition to any causative factor other than claimant's work 
 
         injury.  Even Dr. Crank, who does not assign any permanency to 
 
         claimant's condition, acknowledges that the condition could be 
 
         work related.  Dr. Weinstein's opinion on causal connection 
 
         relates claimant's present condition to his work injury.
 
         
 
              It is also noted that claimant had a physical for his job 
 
         prior to his injury on November 13, 1985, and that no impairment 
 
         was indicated.  The greater weight of the evidence indicates that 
 
         claimant's present condition is causally connected to his work 
 
         injury of November 13, 1985.
 
         
 
              Defendant employer also raises as an appeal issue the nature 
 
         and extent of claimant's disability.  Claimant received a rating 
 
         of permanent impairment from Dr. Weinstein of 8-10 percent. 
 
         Claimant states he cannot lift more than 60-65 pounds.  Claimant 
 
         cannot drive as far as he used to be able to.  However, claimant 
 
         has returned to his old job, and now earns even more than he did 
 
         at the time of his injury.  Claimant's age at the time of the 
 
         hearing was 36.  Claimant's education is limited to the 10th 
 
         grade.  Claimant's work experience consists of factory work and 
 
         driving a truck.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 15 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured his back on November 13, 1985, while 
 
         working for Consolidated Freightways.
 
         
 
              2.  Claimant sustained 8-10 percent whole body impairment as 
 
         a result of his work-related injury of November 13, 1985.
 
              
 
              3.  Claimant returned to work full time on August 24, 1987.
 
              
 
              4.  Claimant has not suffered a loss of wages.
 
              
 
              5.  Claimant's loss of earning capacity is 15 percent.
 
              
 
              6.  Claimant's stipulated rate of $368.67.
 
              
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he sustained a work-related injury on November 13, 1985.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that there is a causal connection between claimant's work-related 
 
         injury and his whole body impairment.
 
              
 
              Claimant is entitled to healing period benefits from 
 
         November 13, 1985 through August 23, 1987 for any weeks that he 
 
         has not previously been paid for.
 
              
 
              Claimant has established entitlement to 75 weeks of 
 
         permanent partial disability benefits based on industrial 
 
         disability of 15 percent.
 
              
 
              Defendants owe the contested medical bills.
 
              
 
              Claimant is not entitled to penalty benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                         ORDER
 
              
 
              THEREFORE, it is ordered:
 
              
 
              That defendants pay healing period benefits for the period 
 
         described above at a weekly rate of three hundred sixty-eight and 
 
         67/100 dollars ($368.67).
 
         
 
              That defendants pay claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits commencing on August 24, 
 
         1987 at a weekly rate of three hundred sixty-eight and 67/100 
 
         dollars ($368.67).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              That defendants pay the contested medical bills.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest on weekly benefits pursuant to section 85.30, The Code.
 
              
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
              
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2), as requested by 
 
         the agency.
 
              
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            51108 - 51803
 
                                            Filed July 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN R. DENNIS,
 
         
 
              Claimant,
 
              
 
         vs.
 
         
 
         CONSOLIDATED FREIGHTWAYS, INC.,            File No. 810512
 
         
 
              Employer,                               A P P E A L
 
         
 
         and                                        D E C I S I O N
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         51108
 
         
 
              One of claimant's physicians testified that a causal 
 
         connection existed between his condition and his work injury.  A 
 
         second stated that no permanency existed, but that his work 
 
         injury was a possible cause of a temporary problem.  All other 
 
         physicians did not address causal connection.  Held that the 
 
         greater weight of evidence established a causal connection.
 
         
 
         
 
         51803
 
         
 
              Claimant with impairment rating of 8-10 percent and 
 
         self-imposed lifting restrictions, age 36, 10th grade education, 
 
         factory work and truck driving background, awarded 15 percent 
 
         industrial disability.  Claimant had returned to his old job and 
 
         was now earning even more than at the time of his injury.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN R. DENNIS,
 
         
 
              Claimant,
 
                                                     File No. 810512
 
         vs.
 
                                                  A R B I T R A T I O N
 
         CONSOLIDATED FREIGHTWAYS, INC.,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         OLD REPUBLIC INSURANCE CO.,                   MAY 05 1988
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John R. 
 
         Dennis, claimant, against Consolidated Freightways, employer, and 
 
         Old Republic Insurance Co., insurance carrier, for benefits as a 
 
         result of an alleged injury on November 13, 1985.  A hearing was 
 
         held in Burlington, Iowa on March 9, 1988 and the case was 
 
         submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Cheryl 
 
         Dennis, Robert B. Witte, Bill Hawkins, Donald Fobar, and Bernard 
 
         C. DeWeerth; claimant's exhibits 1 through 48; and defendants' 
 
         exhibits A through G.  Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $368.67; that claimant was paid for all time off 
 
         work up until August 20, 1986; that claimant received no benefits 
 
         from August 20, 1986 through August 23, 1987; and that the 
 
         contested medical bills are reasonable in amount.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 
              1) Whether claimant received an injury on November 13, 1985 
 
         which arose out of and in the course of his employment at 
 
         Consolidated Freightways;
 
         
 
              2)  Whether there is a causal relationship between the 
 
         alleged injury of November 13, 1985 and claimant's asserted 
 
         disability;
 
         
 
              3) Nature and extent of disability; in this regard, 
 
         defendants assert that any permanency benefits awarded would 
 
                                                
 
                                                         
 
         commence on February 3, 1986 (date of full release) whereas 
 
         claimant asserts that any permanency benefits awarded would 
 
         commence on August 24, 1987 (the date claimant started back to 
 
         work);
 
         
 
              4) Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27 and, if so, the extent of those benefits; and
 
         
 
              5) Whether claimant is entitled to penalty benefits pursuant 
 
         to Iowa Code section 86.13.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Cheryl Dennis testified she has been married to claimant for 
 
         11 years.  Prior to November 13, 1985, claimant was active, but 
 
         after November 13, 1985 he changed.  Claimant has gone through a 
 
         pain clinic and went back to work on August 24, 1987, but still 
 
         has problems.  Claimant currently has no patience.
 
         
 
              Robert B. Witte testified that he owns a gutter company and 
 
         that claimant has no proprietary interest in this firm.  Witte 
 
         remodeled claimant's house in 1987.
 
         
 
              Claimant testified that on November 13, 1985, he worked for 
 
         Consolidated Freightways and that he injured his back on that 
 
         date unloading heavy bags.  Claimant acknowledged doing "little 
 
         errands" when his home was being remodeled.  Claimant testified 
 
         that the surveillance done by defendants was done on the wrong 
 
         residence.
 
         
 
              Claimant testified that prior to November 13, 1985, he could 
 
         do anything he really wanted to do.  Claimant described his 
 
         medical treatment after November 13, 1985.
 
         
 
              Claimant testified that he is currently paid $14.71 per 
 
         hour; he was paid $13.21 per hour in November 1985.
 
         
 
              Bernard C. DeWeerth testified that he is the terminal 
 
         manager for Consolidated Freightways and hired claimant in 1977.  
 
         Claimant has not complained to DeWeerth about his back since 
 
         August 24, 1987 when he returned to work.  Claimant works as a 
 
         local driver and is able to do his job.
 
         
 
              Exhibit 41, page 152, contains a whole body rating of 8 to 
 
         10 percent.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Defense counsel made numerous objections at hearing 
 
         and most, if not all, of the objections were overruled.  The 
 
         basis for the evidentiary rulings are found in Caylor v. 
 
         Employers Mut. Cas. Co., 337 N.W.2d 890, 894-95 (Iowa App. 1983) 
 
         (tHe court held that Iowa Code section 86.18 provides that the 
 
         industrial commissioner is not bound by statutory or common law 
 
         rules of evidence); Heidemann v. Sweitzer, 375 N.W.2d 665, 669 
 
                                                
 
                                                         
 
         (Iowa 1985) (Iowa Rules of Evidence do not govern administrative 
 
         hearings; section 17A.14 governs such proceedings).
 
         
 
               II.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that he received an injury on November 13, 1985 
 
         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).  It 
 
         is concluded that claimant established by a preponderance of the 
 
         evidence that he sustained a new injury on November 13, 1985 or 
 
         sustained a material aggravation of a preexisting condition on 
 
         that date.  Claimant is found to be a credible witness.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of November 13, 
 
         1985 is causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  It 
 
         is further concluded that claimant established a causal 
 
         connection between his work-related injury and his asserted 
 
         disability.
 
         
 
               IV.  As 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."
 
         
 
              Claimant's current employment is a consideration in assessing 
 
         his industrial disability; his current employment lessons his 
 
         industrial disability and defendants' resulting liability. 
 
         However, claimant has sustained some loss of earning capacity.  
 
         See Michael v. Harrison County, 34 Biennial Rpts. 218, 220 
 
         (1979).
 
         
 
              It is concluded that permanency benefits should commence on 
 
         August 24, 1987 when claimant returned to work.  It is further 
 
         concluded that claimant is entitled to permanent partial 
 
         disability benefits based on an industrial disability of 15 
 
         percent (75 weeks of permanent partial disability benefits).
 
         
 
                V.  Defendants owe the medical benefits in question. 
 
         Defendants' authorization arguments are rejected as they did not 
 
         admit compensability.  Defendants' causal connection arguments 
 
         were rejected above.
 
         
 
                                                
 
                                                         
 
               VI.  Penalty benefits are not appropriate in this case as 
 
         reasonable persons could disagree about the resolution of the 
 
         contested issues in this case.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant injured his back on November 13, 1985 while 
 
         working for Consolidated Freightways.
 
         
 
              2.  Claimant sustained whole body impairment as a result of 
 
         his work-related injury of November 13, 1985.
 
         
 
              3.  Claimant returned to work full time on August 24, 1987.
 
         
 
              4.  Claimant's industrial disability is 15 percent.
 
         
 
              5.  Claimant's stipulated rate is $368.67.
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he sustained a work-related injury on November 13, 1985.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that there is a causal connection between claimant's work-related 
 
 
 
                                
 
                                                         
 
         injury and his whole body impairment.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         November 13, 1985 through August 23, 1987 but only for the weeks 
 
         that he was not paid for.
 
         
 
              Claimant has established entitlement to 75 weeks of 
 
         permanent partial disability benefits based on industrial 
 
         disability of 15 percent.
 
         
 
              Defendants owe the contested medical bills.
 
              Claimant is not entitled to penalty benefits.
 
                                      ORDER
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay healing period benefits for the period 
 
         described above at a weekly rate of three hundred sixty-eight and 
 
         67/100 dollars ($368.67).
 
         
 
              That defendants pay claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits commencing on August 24, 
 
         1987 at a weekly rate of three hundred sixty-eight and 67/100 
 
         dollars ($368.67).
 
         
 
              That defendants pay the contested medical bills.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
              Signed and filed this 5th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            T. J. McSWEENEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1066
 
                                                
 
                                                         
 
         Middle Road
 
         Keokuk, Iowa  52632-1006
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.60; 1802; 1803
 
                                                 Filed 5-5-88
 
                                                 Thomas J. McSweeney
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN R. DENNIS,
 
         
 
              Claimant,
 
                                                   File No. 810512
 
         vs.
 
         
 
         CONSOLIDATED FREIGHTWAYS, INC.,         A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.60; 1802; 1803
 
         
 
              Held in arbitration that claimant established entitlement to 
 
         medical benefits, healing period benefits, and permanent partial 
 
         disability benefits.