BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD SIMON,
 
         
 
              Claimant,                            File  No. 814545
 
         
 
         VS.                                       A P P E A L
 
         
 
         FDL FOODS, INC.,                          D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibit A; and joint exhibit 1. 
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
                                        
 
              Claimant states the issues on appeal are:
 
         
 
              A.  Whether Gerald Simon sustained personal injuries arising 
 
              out of and in the course of his employment with FDL Foods on 
 
              April 26, 1984.
 
              
 
              B.  Whether Gerald Simon suffered any permanent disability 
 
              as result of the injury occurring on April 26, 1984 while 
 
              employed by FDL Foods.
 
              
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision filed April 13, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not.be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
                                        
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
         
 
         
 
         SIMON v. FDL FOODS, INC.
 
         Page 2
 
         
 
         
 
                                     ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Claimant established that he suffered a fall down a 
 
         flight of stairs while at work on April 26, 1984.
 
         
 
              2. Claimant failed to establish that his alleged accident 
 
         was related to any period of inability to work or that medical 
 
         expenses were incurred because of a work injury.
 
         
 
              3. Claimant failed to establish any causal connection 
 
         between his fall on April 26, 1984 and any alleged disability or 
 
         medical expenses.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant failed to establish any causal connection between 
 
         the fall on April 26, 1984 and any alleged disability or medical 
 
         expenses.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That claimant takes nothing from these proceedings.
 
         
 
              That the costs of the arbitration proceeding, with the 
 
         exception of the cost of transcribing Gerald Simon's testimony, 
 
         are assessed to defendant and the costs of the appeal are 
 
         assessed to claimant including the cost of the transcription of 
 
         the hearing transcript.
 
         
 
              Signed and filed this 30th day of November, 1989.
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         SIMON v. FDL FOODS, INC.
 
         Page 3
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         101 N.  Wacker Dr., Suite 740
 
         Chicago, IL 60606
 
         
 
         Mr. David C. Bauer
 
         Mr. James M. Heckmann
 
         Attorneys at Law
 
         One Cycare Plaza, Suite 216
 
         Dubuque, Iowa 52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       5-1108 - 5-1803
 
                                       Filled November 30, 1989
 
                                      DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD SIMON,
 
         
 
              Claimant,                     File No. 814545
 
          
 
          VS.                               A P P E A L
 
          
 
          FDL FOODS, INC.,                  D E C I S I 0 N
 
          
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         5-1108 - 5-1803
 
         
 
              Affirmed deputy's determination that claimant had failed to 
 
         show a causal connection between the alleged permanent disability 
 
         and the work injury.  There was no medical evidence linking the 
 
         work incident and a herniated disc discovered 15 months later.
 
                                        
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD.SIMON,
 
         
 
              Claimant,
 
                                                 File No. 814545
 
         and
 
                                            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.
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is an arbitration proceeding brought by Gerald Simon, 
 
         claimant, against FDL Foods, Inc., self-insured, employer, 
 
         defendant.  The case was heard by the undersigned on September 
 
         28, 1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Luke C. Faber, M.D. The 
 
         record contains joint exhibit 1 and claimant's exhibit A.
 
         
 
                                      ISSUES
 
                                        
 
              As a result of the prehearing report and order submitted and 
 
         approved on September 28, 1988, the issues presented by the 
 
         parties are:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of employment with employer;
 
         
 
              2. Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial 
 
         disability benefits;
 
         
 
              4. Whether claimant is entitled to medical benefits under 
 
         section 85.27; and,
 
         
 
              5. Whether claimant provided adequate notice under section 
 
         85.23.
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC.
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FACTS PRESENTED
 
                                        
 
              Claimant began working for Dubuque Packing Company in 
 
         October of 1970.  Over the years, claimant worked in a number of 
 
         departments.  Then Dubuque Packing Company closed.  The facility 
 
         was reopened under its present name, FDL Foods, Inc.  Claimant 
 
         was subsequently hired by defendant.  Eventually, claimant was 
 
         placed deboning hams.  He was required to remove hams from the 
 
         conveyor line, use a straight knife to remove the bones, and then 
 
         place the ham back onto the conveyor line.
 
         
 
              Claimant testified that on April 26, 1984 he arrived early 
 
         at work so that he could sharpen his knives.  Claimant related he 
 
         started down the steps near the hog kill department.  He slipped 
 
         and fell on the steps.  According to claimant, he fell twelve to 
 
         fifteen steps.  Claimant related he injured his left elbow, his 
 
         left side and his back.  Two gentlemen were at the bottom of the 
 
         stairs.  They witnessed the incident. one of the gentlemen 
 
         assisted claimant to the nurse's station which was on the 
 
         premises.
 
         
 
              FDL medical notations  for that day indicate the following:
 
         
 
              4/26 4:34   States fell down  steps near H.C. Dept - States
 
              slipped on wet steps & slid down 6-8 steps Tried to catch 
 
              self /c L elbow ; L elbow - Sm abrasion; % pain across mid 
 
              back & sm contusion on L. flank area - cold paks for 45 mins 
 
              to L bask area - Given Darvocet N-100 T tablet @ 500/P. 
 
              R.T.W. @ 5:20 p.m. To ret. to F.A. if more symptoms develop.
 
              
 
              4/26 6:00   Prev L flank pain - Ice applied 20 mins.  EO
 
              polyucis - UA 1+ protein - negative for blood - given 
 
              Darvocet N-100 T now & g 4 hrs prn(5) Adv see Dr. Faber at 
 
              7:30 4/27 if no improvement
 
              
 
              Claimant reported that while he returned to work after his 
 
         fall, it was difficult for him to meet his quota.  His back, 
 
         elbow and leg were sore.  Claimant stated his back was especially 
 
         stiff and sore.  Claimant attributed this to the fact he fell 
 
         almost flat onto the small of his back.
 
         
 
              Claimant returned to work on the succeeding day and he 
 
         performed his job duties.  However, claimant stated he did not 
 
         return to the nurse's station, nor did claimant seek the services 
 
         of the company physician, Dr. Faber.
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC.
 
         Page 3
 
         
 
         
 
              During his testimony claimant related that he returned to 
 
         the company nurse on July 19, 1984.  The medical notes for that 
 
         date corroborate claimant's testimony.  The notes indicate the 
 
         following:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                       Color good - ? influenza    Adv  fam  phys
 
              7/19  5:55 R wrist - sore boning hams  -  Ich  strap
 
              7/19  5:55 Prev. back (4/26 injury) still sore  - Req.
 
                         see Dr. F Adv will call
 
              7/19  8:25 Prev back.  Seen by Dr F. Soma (28)1/2 gid.
 
                         Darvon pl. 65(15) ; 84-6 hrs PRN - given 
 
                         back exercises to do B/D-
 
              
 
              
 
              7/19  9:15 Reg more pain meds for wkend.  Given Soma
 
                       Cpd (16)Tg 40 prn pain.  Adv pain non-comp. 
 
                      per Dr. Faber.  Adv. to go to own phy. for 
 
                      further tx & 7/17 authorized off per.  D.Thoma.
 
         
 
              Dr. Faber prescribed pain pills which claimant.testified he 
 
         took for a period of time.  Claimant also reported he sought the 
 
         attention of his own physician.  Claimant was given a work 
 
         release from January 2, 1985 to January 7, 1985 by Edward E. 
 
         Olin, M.D., a personal physician.
 
         
 
              Claimant reported he returned to work but that after five or 
 
         six hours of bending and reaching, he would feel pain in his 
 
         right hip and leg.  The pain, according to claimant, would come 
 
         and go, and eventually the pain intensified.  Claimant then 
 
         returned to the nurse's station on June 19, 1985 and June 20,  
 
         1985.  The nurse's notes for those days reflect:
 
         
 
              6/19 6:07  c/o sharp pain R hip area radiating down 
 
                        R leg - Onset approx. 1 month ago - denies 
 
                        any injury - States becomes worse while 
 
                        working - Defats home - leg to see Dr. 
 
                        Faber - Adv since cannot recall any injury 
 
                        should see own doctor, but states worse 
 
                        upon working - pain less severe while not 
 
                        working - Will call @ 7:30 pm 6-20-85
 
              
 
              6/20  8:10 Prev.  R hip & leg pain - Seen by Dr. Faber-X-Ray
 
                         L.S.- Given Some cpd : Codeine tabs T QID 
 
                         & Darvocet N-100 15 tabs T q 4-6 hrs prn 
 
                         pain to go to Finley P.T. after work for 
 
                         lumbar flexion exercises.  Finley & employee 
 
              notified.
 
              
 
              Claimant testified that.shortly  after  the  above  
 
         occurred,
 
         he went to visit his own physician, David S. Field, M.D.  Dr.
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC.
 
         Page 4
 
         
 
         
 
         Field, in his November 18, 1985 report to Nick J. Avgerinos, 
 
         claimant's attorney, writes the following concerning claimant's 
 
         treatment and progress post surgery on August 16, 1985:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
              Mr. Gerald Simon was first seen and assessed in the 
 
              Orthopedic Clinic on July 22, 1985 relative to a history of 
 
              pain onsetting in the right leg in approximately May, 1985.  
 
              In several discussions with him, and in questioning whether 
 
              there was a specific date of injury, none in fact could be 
 
              determined per se.
 
              
 
              The back pain and the leg pain did seem to onset at work and 
 
              was aggravated by his particular work that he performed.  He 
 
              also noted that forward bending and stooping aggravated his 
 
              pain, as well as did sitting, coughing and sneezing.  He was 
 
              evaluated, at that time, relative to a probable clinical 
 
              finding suggestive of a herniated disc of the lumbar spine 
 
              at L5-Sl.  Subsequent myelograms, CT scan performed at Mercy 
 
              Health Center, and review of his Finley Hospital CT scan 
 
              also confirmed a disc herniation.  This was also confirmed 
 
              by surgery which was performed on August 16, 1985.
 
              
 
              On recent clinical examination, I do feel that he has made 
 
              quite a satisfactory recovery and would be essentially able 
 
              to return to work on approximately November 15, 1985.
 
              
 
              At this time, in terms of a decision on a degree of 
 
              permanent impairment, I would feel that there certainly 
 
              would be a degree of permanency.  However, this should be 
 
              assessed at least in another six month's time.
 
              
 
              I might also reiterate that through our discussion with Mr. 
 
              Simon, we were unable to come up with a specific date of 
 
              injury.  Perhaps review of his employment records, etc. may 
 
              be more beneficial in terms of relating this to a definite 
 
              work injury.
 
              
 
              I hope this letter is satisfactory.
 
                                        
 
              Later, Dr. Field determined claimant was functionally 
 
         impaired.  He determined that as of August 27, 1986, claimant had 
 
         a ten percent whole body impairment.
 
         
 
              Under cross-examination, claimant testified no medical 
 
         practitioner had ever told him the cause of his herniated disc.
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC. 
 
         Page 5
 
         
 
         
 
              Claimant testified he did not return to work subsequent
 
         to his surgery.  He enrolled at Southwestern Wisconsin Technical 
 
         College where he received a two year associate degree in data 
 
         processing.  Following his graduation, claimant testified that he 
 
         was hired as an associate programmer with CyCar Systems.  At the 
 
         time of the hearing, claimant testified his salary was $1,500.00 
 
         per month.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Faber also testified at the hearing.  He stated he was 
 
         the company doctor for defendant.  He testified concerning the 
 
         treatment he provided to claimant.  Dr. Faber also testified that 
 
         the fall in 1984 did not cause claimant's herniated disc.  
 
         Otherwise, according to the doctor, the herniation would have 
 
         occurred within days of the fall.  Dr. Faber opined ned many 
 
         events enter into a herniation, including normal activities of 
 
         living and general acts of locomotion.
 
                                        
 
                           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).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 26, 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 claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 26, 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
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC.
 
         Page 6
 
         
 
         
 
         within the domain of expert testimony.  Bradshaw v. Iowa 
 
         Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Claimant's testimony is credible.  His testimony describing 
 
         the events involved in his fall down the stairs is accepted as 
 
         truthful.  The fighting issue in this case is whether there is a 
 
         causal relationship between the fall on April 26, 1984 and 
 
         claimant's claimed disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The record in this case is totally devoid of expert medical 
 
         testimony causally connecting the fall on August 26, 1984 with 
 
         claimant's herniated disk.  Dr. Field, the treating physician, 
 
         does not express an opinion whether there is a causal 
 
         relationship between the fall and the herniated disc.  Claimant 
 
         has even admitted during the hearing that no medical practitioner 
 
         has told him the cause of his herniated disc.
 
         
 
              Then there is the testimony of Dr. Faber.  He specifically 
 
         denies any causation between the fall in April of 1984 and the 
 
         herniated disc in 1985.  Dr. Faber, during the course of the 
 
         hearing states:
 
         
 
              Q.Based on what you've heard of Mr. Simon's testimony 
 
              describing his symptoms and his fall on April of 184, based 
 
              on the records that you have seen and that are part of Joint 
 
              Exhibit 1 and based on your expertise in the area of surgery 
 
              and occupational medicine, can you tell me whether you have 
 
              any opinion based on a reasonable degree of medical 
 
              certainty as to whether the fall sustained by Mr. Simon on 
 
              April 26th of 1984 was the cause of the herniation diagnosed 
 
              and operated on by
 
              Dr. Field in August of 1985?
 
              
 
              A.Yes.
 
              
 
              Q.What is your opinion?
 
              
 
              A.I feel that it is not the cause.
 
              
 
              Q.Can you tell me the basis for that opinion?
 
              
 
              A.Well, yes, I can.  The situation that sets up a herniated 
 
              disk is, in fact, a general degeneration of ligaments and 
 
              support structures along the entire course of the back.  I 
 
              would liken it to the things that set up myocardial 
 
              infarction or heart attack which are degenerations set up 
 
              along the course of the arteries that supply the heart.  
 
              First of all, the degeneration has
 
         
 
         
 
         
 
         SIMON V. FDL FOODS, INC.
 
         Page 7
 
         
 
         
 
              to be going on for whatever reason, some of it genetically, 
 
              some of it related to multiple incidents and multiple abuses 
 
              but first has to be the replacement of the elastic 
 
              connective tissue that holds those ligaments by fibrous 
 
              connective tissue.
 
              
 
              Q.You're saying that the tissue of the disk changes over 
 
              time?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.Over time, and it's part of the getting older and aging 
 
              process.  In some because of genetics or because of 
 
              occupations or because of their activities it happens more 
 
              than others, just as some people are more prone to develop 
 
              coronary artery disease than others and therefore have 
 
              familial disease of heart attack.  I don't think that the 
 
              incident that he had caused the disk herniation a year 
 
              later, I think that it's multiple incidents.  It depends on 
 
              a lot of his different activity.  That was one instance when 
 
              he slid on the steps and fell that caused an injury to his 
 
              left side.  Is that any different than if he's involved in 
 
              athletics or something else that he would slide in a base or 
 
              jump off a wall or miss a curb when he's walking?  We all 
 
              have had experience with people who have had all of those 
 
              incidents related to the onset of a disk.
 
         (Transcript page 52, line 16 to page 54, line 9).
 
         
 
              The undersigned realizes claimant testified that he had had 
 
         no problems with his back prior to the fall on April 26, 1984.  
 
         The undersigned also recognizes that claimant testified he did 
 
         not sustain a trauma to his back between April 26, 1984 and July 
 
         of 1985, when claimant's herniated disc was discovered.  
 
         Nevertheless, these two statements, in and of themselves, do not 
 
         establish that a causal relationship exists between the April 
 
         fall and the herniated disc.  It is claimant's burden of proof to 
 
         establish the causal relationship between the claimed injury and 
 
         the claimed disability.  The requisite burden has not been met.  
 
         Claimant has failed to prove his case.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
                                        
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant established that he suffered a fall 
 
         down a flight of stairs while at work on April 26, 1984.
 
         
 
         
 
         SIMON V. FDL FOODS,,INC.
 
         Page 8
 
         
 
         
 
              FINDING 2.  Claimant failed to establish that his alleged 
 
         accident was related to any period of inability to work or that 
 
         medical expenses were incurred because of a work injury.
 
         
 
              FINDING 3.  Claimant failed to establish any causal 
 
         connection between his fall on April 26, 1984 and any temporary 
 
         or permanent disability.
 
         
 
              CONCLUSION A.  Claimant failed to establish any causal 
 
         connection between the fall on April 26, 1984 and any alleged 
 
         disability or medical expenses.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, IT IS ORDERED:  .
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs of this action, with the exception of the cost of 
 
         transcribing Gerald Simon's testimony, are assessed to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 13th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies.To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr.
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. David C. Bauer
 
         Mr. James M. Heckmann
 
         Attorneys at Law
 
         One Cycare Plaza
 
         Suite 216
 
         Dubuque, Iowa 52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                                                  1108
 
                                                       Filed April 13, 1989
 
                                                       MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
                   GERALD SIMON,
 
         
 
                        Claimant,
 
                                                 File No. 814545
 
                   and
 
                                                 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.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and the work related injury.  There was no 
 
         medical testimony linking the alleged work injury on April 26, 
 
         1984 with a herniated disc discovered in July of 1985.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DONALD M. STABENOW,
 
         
 
              Claimant,
 
                                                   File No. 814599
 
         
 
         McDONALD RESTAURANT,                        A P P E A L
 
         
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits based upon a five percent 
 
         impairment of the right lower extremity.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 5.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant sustained an injury 
 
         arising out of and in the course of his employment on January 3, 
 
         1986.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
            The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issue and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 3, 1986 claimant injured his right knee while 
 
         mopping floors at defendant's.
 
         
 
              2.  The knee injury suffered by claimant was a bucket handle 
 
         medial meniscus tear.
 

 
         
 
         STABENOW V. MCDONALD RESTAURANT
 
         PAGE 2
 
 
 
 
 
 
 
 
 
              3.  As a result of the injury, claimant incurred the 
 
         following medical expenses:
 
         
 
              a. Schoitz Medical Center                      824.65
 
              b. Orthopedic Specialists                    1,332.00
 
              C. Consolidated Regional Labs                   16.50
 
              d. Clinical Radiologists, P.C.                  15.90
 
              e. Waterloo Anesthesia Group, P.C.             240.00
 
         
 
              4.  As a result of his injury, claimant was temporarily 
 
         totally disabled from January 7, 1986 to January 28, 1986.
 
         
 
              5.  As a result of his injury, claimant suffered permanent 
 
         partial impairment equal to five percent of the lower right 
 
         extremity.
 
         
 
              6.  At the time of his injury, claimants gross weekly 
 
         earnings from defendant was $211.14; he was married and entitled 
 
         to two exemptions.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on January 3, 1986 he suffered an injury arising out of and in 
 
         the course of his employment.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between the injury he suffered on 
 
         January 3, 1986 and the disability and medical expenses upon 
 
         which this claim is based.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         his rate of compensation is $140.67.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay unto claimant three (3) weeks of healing 
 
         period benefits commencing January 7, 1986 and eleven (11) weeks 
 
         of permanent partial disability benefits commencing at the 
 
         conclusion thereof all at the rate of one hundred forty and 
 
         67/100 dollars ($140.67).  All accrued benefits shall be paid in 
 
         a lump sum together with statutory interest thereon.
 
         
 
              That defendants pay the medical expenses incurred by 
 
         claimant as a result of this injury which are set forth in 
 
         finding of fact number 3 thereof.
 
         
 
              That defendants pay the costs of this action including the 
 
         cost of the transcript on appeal.
 
         
 
              That 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 13th day of July, 1988.
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 

 
         
 
         STABENOW V. MCDONALD RESTAURANT
 
         PAGE 2
 
         
 
         
 
         
 
         Copies to:
 
 
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette St.
 
         P. O. Box 2634
 
         Waterloo, Iowa 50704
 
         
 
         Mr. Michael A. McEnroe
 
         Attorney at Law
 
         3151 Brockway Road
 
         P. O. Box 810
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100
 
                                                   Filed July 13, 1988
 
                                                   DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD M. STABENOW,
 
         
 
             Claimant,
 
         
 
                                                   File No. 814599
 
         McDONALD RESTAURANT,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100
 
         
 
              Claimant established that he sustained an injury arising out 
 
         of and in the course of his employment.  Deputy's finding based 
 
         upon the credibility of the claimant upheld.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DONALD M. STABENOW,
 
         
 
             Claimant,
 
                                                 File No. 814599
 
         VS.
 
         
 
         McDONALD'S RESTAURANT
 
                                               A R B I T R A T I 0 N
 
            Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donald 
 
         Stabenow, claimant, against McDonald's Restaurant, employer, and 
 
         the Kemper Insurance Group, insurance carrier, for the recovery 
 
         of benefits as the result of an alleged injury on January 3, 
 
         1986.  This matter was heard before the undersigned on March 13, 
 
         1987 at the courthouse in Waterloo, Blackhawk County, Iowa.  It 
 
         was considered fully submitted at the conclusion of the hearing.
 
         
 
              The record consists of the testimony of the claimant, Angela 
 
         Stabenow, and Jack Stabenow; and, joint exhibits 1 through 5.
 
         
 
                           STIPULATIONS & ISSUES
 
         
 
              Pursuant to the prehearing report and order approving the 
 
         same, the parties stipulated as follows:
 
         
 
             1.  At the time of the alleged injury there was an employer/ 
 
         employee relationship between the claimant and the employer.
 
         
 
             2.  If claimant suffered an injury arising out of and in the 
 
         course of employment, it was to the lower right extremity and 
 
         caused permanent partial impairment equal to 5 percent and 
 
         entitling him to 11 weeks of permanent partial disability 
 
         benefits.
 
         
 
             3.  If claimant suffered an injury arising out of and in the 
 
         course of employment then he is entitled to healing period 
 
         benefits from January 7, 1986 through January 27, 1986.
 
         
 
             4.  At the time of the alleged injury claimant was married 
 
         and entitled to two exemptions; his gross weekly earnings from 
 
         McDonald's was $211.14 and he was earning $38.00 per week from 
 
         the United States Army Reserve.
 
         
 

 
             5.  The medical expenses incurred by claimant for treatment 
 
         of the alleged injury were reasonably necessary and the charges, 
 
         therefore, were fair and reasonable.
 
         
 
         The issues to be resolved in this proceeding are:
 
         
 
         1.  Whether claimant received an injury arising out of and in 
 
         the course of his employment.
 
         
 
         2.  Whether the alleged injury is or was the cause of the 
 
         disability upon which this claim is based.
 
         
 
         3.  Whether there is a causal relationship between the alleged 
 
         injury and the medical expenses incurred by claimant.
 
         
 
         4.  Claimant's rate of compensation.
 
         
 
                             EVIDENCE PRESENTED
 
         
 
              Claimant testified he is 25 years old, married and has no 
 
         children.  He is presently employed by Birchwood Specialty and 
 
         has been so for eight months.  Claimant said he was previously 
 
         employed by McDonald's where he worked from February 1981 until 
 
         June or July 1986.
 
         
 
              Claimant's job at McDonald's was that of a janitor.  His 
 
         duties included washing windows, unloading trucks, cleaning 
 
         grills and mopping floors.  The hours of claimant's employment 
 
         varied slightly from 10:00 or 11:00 p.m. until 8:00 or 9:00 a.m.
 
         
 
              Claimant recalled that January 3, 1986 was a Friday.  He had 
 
         started work at about 10:00 or 11:00 p.m. on Thursday.  At about 
 
         3:30 or 4:00 a.m. he was mopping the floors in the restaurant.  
 
         As he was swinging the mop under one of the booths he made a 
 
         twisting motion to get the mop under it.  At the same time he 
 
         heard a loud pop from his right knee.  He said this pop was 
 
         louder than anything which could be considered normal.  He added, 
 
         however, that he did not experience pain and did not have any 
 
         immediate problems with his leg.  Because he did not feel any 
 
         pain he finished his shift and did not report the incident to his 
 
         employer.  He said, however, that he did mention it to his wife 
 
         when he called her at 4:30 a.m. that morning.
 
         
 
         
 
              Claimant said that after he got home he went to sleep and 
 
         did not engage in other physical activities.  He went to work 
 
         Friday night, but again did not report the incident.  On Saturday 
 
         morning after claimant got off work he went home and began
 
         
 
         moving furniture out of his house to relocate to an apartment he 
 
         had rented.  His brother was helping him with the move.
 
         
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   3
 
         
 
         
 
              Claimant stated that they had the truck he had rented about 
 
         half loaded when he and his brother were loading a coffee table 
 
         weighing about 45 pounds onto it.  As claimant went to move to 
 
         the side his knee locked on him.  He said he sat down for about 
 
         half an hour to let the pain subside.  A friend of his and his 
 
         brother finished loading the truck while claimant rested the 
 
         knee.
 
         
 
              Claimant went to work that night at about 12:00 a.m. Sunday.  
 
         He did, however, have problems and limped around at work.  At 
 
         about 6:00 a.m. he felt pain in his knee while looking at an 
 
         orange juice machine.  He asked the manager to get him help 
 
         unloading a truck that had come in.
 
         
 
              After work claimant helped his brother unload the rest of 
 
         his belongings from the truck.  He was scheduled to work Sunday 
 
         night but called to work to report he would not be able to come 
 
         in and work.  He said he did not tell the manager about the 
 
         popping incident with his knee that had occurred Friday morning.  
 
         On Monday, claimant sat around the house and that evening decided 
 
         he should go to the emergency room at the hospital.
 
         
 
              Claimant's wife took him to the hospital.  When he checked 
 
         into the hospital he gave a nurse a history of having the knee 
 
         lock up while moving furniture into the truck.  He said the first 
 
         time he thought of the relationship between the popping sound at 
 
         work and his knee problem arose after talking to the emergency 
 
         room doctor who told him there would be a loud pop when cartilage 
 
         breaks.  Claimant was referred to John R. Walker, M.D., who he 
 
         saw on January 8, 1986.
 
         
 
              After returning home from Dr. Walker's office, claimant 
 
         called the manager at McDonald's and told him he would not be in 
 
         to work, inquired about a meeting he was supposed to attend, and 
 
         advised him of the incident that had occurred at work on Friday 
 
         morning.  Claimant said he was familiar with the procedure for 
 
         filing for workers' compensation because of a prior experience.  
 
         After reporting the incident, he completed the appropriate claim 
 
         forms and was later contacted at home by the insurance carrier.
 
         
 
              Dr. Walker referred claimant to his partner, James E. 
 
         Crouse, M.D., who performed arthroscopic surgery on claimant's 
 
         knee.  Claimant was off work until January 28, 1986.  He was able 
 
         to return to work and do his duties.  He quit in June and July to 
 
         take the job where he is presently employed.  Claimant said that 
 
         exhibit 5 contains the itemizations of the medical expenses he 
 
         incurred for treatment of his knee injury.
 
         
 
              On cross-examination, claimant reconfirmed that there were 
 
         no witnesses to the incident that occurred at work early Friday 
 
         morning.  Also, that he did not report the incident to his 
 
         employer until Monday or Tuesday morning.  Claimant did not deny 
 
         telling the emergency room nurse that he had hurt himself loading 
 
         a truck on Saturday morning, but did deny saying anything about 
 
         ice being a factor in the injury.  Claimant also denied any 
 
         previous problems with his knee.
 
         
 
              On redirect examination, claimant explained that he gave the 
 
         emergency room nurse a history before he spoke to the doctor.  He 
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   4
 
         
 
         
 
         said he was not aware of the connection between the popping in 
 
         his knee on Friday and subsequent problems with his knee until he 
 
         had talked with the doctor.
 
         
 
              Claimant said that at the time of his injury he was 
 
         receiving $165 per month from the U.S. Army Reserve.
 
         
 
              Angela Stabenow testified that she is the wife of claimant.  
 
         She said she first became aware of a possible problem with 
 
         claimant's knee when he spoke to her on Friday morning.  She said 
 
         she did not consider it significant at the time because claimant 
 
         only mentioned a loud popping sound.
 
         
 
              Mrs. Stabenow next became aware that claimant was having a 
 
         problem with his knee on the following Saturday morning.  Because 
 
         of claimant's continued problems, Mrs. Stabenow took claimant to 
 
         the hospital about 7:00 p.m. on the following Monday.  Mrs. 
 
         Stabenow said she was present when claimant gave the history of 
 
         the injury to the emergency room nurse and said that claimant 
 
         denied having slipped on ice.  She said that the claim was 
 
         initially made on her employer's group insurance policy, but that 
 
         there was no coverage.  Mrs. Stabenow said she was also present 
 
         when the claimant discussed the popping sound in his knee with 
 
         the emergency room doctor.
 
         
 
              Jack Stabenow testified that he is claimant's brother.  He 
 
         said he was helping claimant move on the Saturday morning when 
 
         his knee locked up. he said he and claimant were carrying a 
 
         coffee table at the time.  He said claimant had just stepped into 
 
         the truck when claimant grabbed the knee.  Claimant then sat down 
 
         and Jack finished loading the truck.
 
         
 
              Joint exhibit 1 is a statement of claimant's earnings from 
 
         his job at defendant's for the 14 week period prior to his 
 
         injury.
 
         
 
              Joint exhibit 2 is a compilation of medical records 
 
         concerning claimant from a Raymond W. Carson, M.D., which covers 
 
         a period of time from 1978 through mid 1985.  These records 
 
         contain no information concerning claimant's knee.
 
         
 
              Joint exhibit 3 contains a medical report from James E. 
 
         Crouse, M.D., dated February 28, 1986.   According to Dr. 
 
         Crousels report, claimant "was working at McDonald's on La Porte 
 
         Road mopping when he twisted his knee and felt a pop in his knee 
 
         with severe pain in the inside aspect of his knee." Dr. Crouse 
 
         goes on to explain that claimant was diagnosed as having a bucket 
 
         handle medical meniscus tear of the right knee.  The torn 
 
         cartilage was excised by arthroscopic surgery on February 10, 
 
         1986.  Dr. Crouse states that the meniscus tear occurred on 
 
         February 3, 1986.  He stated that claimant would have a permanent 
 
         impairment of 5 percent of the lower right extremity as a result 
 
         of the injury.
 
         
 
              Joint exhibit 5 is copies of claimant's medical records from 
 
         Schoitz Medical Center in Waterloo, Iowa.  According to those 
 
         records, claimant was first seen at the medical center on January 
 
         6, 1986 at about 10:20 p.m. The nurse's description of claimant's 
 
         problem states that two days earlier claimant had slipped on ice 
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   5
 
         
 
         
 
         and twisted his knee while loading a truck.  The next note from 
 
         the medical center appears to be January 8, 1986 which reflects 
 
         that claimant was working at McDonald's when he heard a popping 
 
         sound in his knee and felt immediate pain.  Also contained in the 
 
         exhibit is a clinical history and physical examination report 
 
         dictated by John R. Walker, M.D., on January 9, 1986.  This 
 
         report indicates that claimant heard the pop in his knee at 
 
         McDonald's but did not feel immediate pain.  There is an 
 
         operative report authored by Dr. Crouse included as well as 
 
         nurse's notes and progress notes included in the exhibit.
 
         
 
              Joint exhibit 5 contains itemized statements from various 
 
         medical providers.  In light of the stipulation of the parties as 
 
         to the fairness and reasonableness of these changes, they will 
 
         not be set out in detail.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 3, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman V. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 3, 1986 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 (1967).
 
         
 
              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).
 
         
 
              As a general rule, inconsistent or inaccurate medical 
 
         histories can be extremely damaging to a claimant's credibility.  
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   6
 
         
 
         
 
         There is, of course, a glaring inconsistency in this case.  The 
 
         emergency room nurse was told claimant injured himself while 
 
         loading a truck full of furniture at home, yet he bases his claim 
 
         on an incident occurring several hours earlier at work.  It is 
 
         also noted that Dr. Crousels report says claimant felt immediate 
 
         pain following the popping sound while both claimant and Dr. 
 
         Walker's January 9, 1986 report state he felt no immediate pain.  
 
         Notwithstanding these inconsistencies, however, claimant is 
 
         believable, his explanation of the inconsistencies is reasonable 
 
         and more facts are consistent with his claim for recovery than 
 
         are not.
 
         
 
              First, claimant did mention the popping sound to his wife 
 
         the morning it happened.  Second, he was not physically active 
 
         following the injury until he began moving his furniture.  Third, 
 
         the medical experts support the causal relationship and 
 
         claimant's contention that he did not feel immediate pain.  
 
         Fourth, claimant did report the incident as soon as it became 
 
         clear as to the significance of the occurrence.  Also, he made 
 
         this contention prior to becoming aware that he was not covered 
 
         for medical insurance by his wife's policy.
 
         
 
              It is in any case difficult to fully articulate the reasons 
 
         why one person's explanation is accepted and another's is not.  
 
         Among the factors which contribute to this claimant's credibility 
 
         were his appearance and demeanor on the witness stand.  He was 
 
         clear and direct in his answers and at no time appeared to be 
 
         evasive.  Also, with the exception of the initial history given 
 
         to the emergency room nurse, claimant has been entirely 
 
         consistent in his version of the events and circumstances 
 
         surrounding his injury.  In summary, claimant prevails because he 
 
         is believed.
 
         
 
              Claimant having prevailed on the issue of an injury arising 
 
         out of and in the course of employment, he also prevails on the 
 
         issue of the causal relationship between that injury and his 
 
         disability as well as the medical expenses incurred.  Close 
 
         examination of all the medical opinions shows that those opinions 
 
         are in, in fact, based upon full disclosure of the facts and, 
 
         thus, the premises upon which they are based are sound.
 
         
 
              The final issue for determination is the rate of 
 
         compensation for which claimant is to be paid.  It is stipulated 
 
         that claimant's gross weekly earnings from defendants was 
 
         $211.14; and, that he earned $38.00 per week from the army 
 
         reserve.  The applicable provision, relating to claimant's rate 
 
         of compensation, is section 85.36(6) which states that claimant's 
 
         rate "shall be computed by dividing by thirteen the earnings ... 
 
         of said employee earned in the employ of the employer....." 
 
         (Emphasis added.) Claimant contends that his weekly earnings from 
 
         the army reserve should be included in calculating his rate.  
 
         These earnings, however, were not earned in the employ of 
 
         McDonald's and are, thus, excluded from calculation of the rate 
 
         under the applicable subsection.  Claimant's rate is based then 
 
         upon gross weekly earnings of $211, married with two exemptions, 
 
         which equals $140.67.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   7
 
         
 
         
 
         
 
              1.   On January 3, 1986 claimant injured his right knee 
 
         while mopping floors at defendant's.
 
         
 
              2.   The knee injury suffered by claimant was a bucket 
 
         handle medial meniscus tear.
 
         
 
              3.  As a result of the injury, claimant incurred the 
 
         following medical expenses.
 
         
 
                          a.  Schoitz Medical Center      $    824.65
 
                          b.  Orthopedic Specialist          1,332.00
 
                          c.  Consolidated Regional Labs        16.50
 
                          d.  Clinical Radiologists, P.C.       15.90
 
                          e.  Waterloo Anesthesia Group, P.C.  240.00
 
         
 
              4.  As a result of his injury claimant was temporarily 
 
         totally disabled from January 7, 1986 to January 28, 1986.
 
         
 
              5.  As a result of his injury, claimant suffered permanent 
 
         partial  impairment equal to five (5) percent of the lower right 
 
         extremity.
 
              6.  At the time of his injury, claimant's gross weekly 
 
         earnings from defendant was $211.14; he was married and entitled 
 
         to two exemptions.
 
         
 
                            CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         STABENOW V. McDONALD'S RESTAURANT
 
         Page   8
 
         
 
         
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on January 3, 1986 he suffered an injury arising out of and in 
 
         the course of his employment.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between the injury he suffered on 
 
         January 3, 1986 and the disability and medical expenses upon 
 
         which this claim is based.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         his rate of compensation is one hundred forty and 67/100 dollars 
 
         ($140.67).
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay unto claimant 
 
         three (3) weeks of healing period benefits commencing January 7, 
 
         1986 and eleven (11) weeks of permanent partial disability 
 
         benefits commencing at the conclusion thereof all at the rate of 
 
         one hundred forty and 67/100 dollars ($140.67). All accrued 
 
         benefits shall be paid in a lump sum together with statutory 
 
         interest thereon.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the medical 
 
         expenses incurred by claimant as a result of this injury which 
 
         are set forth in finding of fact number 3 thereof.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action.
 
         
 
              Signed and filed this 30th day of April, 1987.
 
         
 
         
 
                                          
 
                                            STEVEN E. ORT
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         P.O. Box 2634
 
         Waterloo, Iowa 50704
 
         
 
         Mr. Michael A. McEnroe
 
         Attorney at Law
 
         P.O.,Box 810
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1402.20;
 
                                                 1402.30;  3001
 
                                                 Filed  4-30-87
 
                                                 Steven E. Ort
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DONALD M. STABENOW,
 
         
 
             Claimant,
 
                                                 File No. 8l4599
 
         VS.
 
         
 
         McDONALD'S RESTAURANT,
 
                                               A R B I T R A T I 0 N
 
             Employer,
 
         
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         1100; 1402.20; 1402.30; 3001
 
         
 
              The primary issue in this case was the credibility of the 
 
         claimant which arose from a medical history which was 
 
         inconsistent with his claim.  Overall, claimant's explanation was 
 
         reasonable and otherwise consistent with work injury.  
 
         Accordingly, benefits were awarded to claimant.
 
         
 
              Claimant sought to include in his gross weekly wages income 
 
         from Army Reserve pay.  Since claimant's rate was calculated 
 
         pursuant to section 85.36(6) and reserve pay was not from 
 
         McDonald's, it was not included in calculating rate.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BRUCE BARRON,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                File Nos. 814700
 
        DES MOINES PUBLIC HOUSING                     and 842636
 
        AUTHORITY,
 
                                                 D E C I S I O N
 
            Employer,
 
        
 
                                                    F I L E D
 
        
 
        USF&G and EMPLOYERS MUTUAL                 JUL 11 1989
 
        COMPANIES,
 
            Insurance Carriers            IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
        
 
            On the 10th day of July, 1989, the undersigned convened the 
 
        evidentiary hearing on the record at the time and place assigned 
 
        at the last prehearing conference. Due to a failure of claimant 
 
        to respond to his correspondence, claimant's attorney stated that 
 
        he could not confer with his client and consequently was not able 
 
        to present evidence to establish the claim. Claimant's attorney 
 
        explained that he had previously applied to this agency for 
 
        permission to withdraw as claimant's counsel but due to the 
 
        closeness of the hearing date, such application was denied. With 
 
        no evidence being presented and upon joint motion of the 
 
        defendants, claimant's petition is dismissed. Costs are assessed 
 
        against claimant.
 
        
 
        
 
        Signed and filed this 11th day of July, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
        Copies To:
 
        
 
        Mr. Thomas M. Werner
 
        Attorney at Law
 
        1150 Polk Blvd.
 
        Des Moines, Iowa 50311
 
        
 
        Mr. Marvin E. Duckworth
 
        Attorney at Law
 
        Terrace Center, STE 111
 
        2700 Grand Ave.
 

 
        
 
 
 
 
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
        
 
 
 
 
 
             
 
             
 
             
 
             
 
             
 
                                                    5-1100
 
                                                    Filed July 11, 1989
 
                                                    LARRY P. WALSHIRE
 
             
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             
 
             
 
             BRUCE BARRON,
 
             
 
                 Claimant,
 
             
 
             vs.
 
                                                  File Nos. 814700
 
             DES MOINES PUBLIC HOUSING                  and 842636
 
             AUTHORITY,
 
                                                   D E C I S I O N
 
                 Employer,
 
             
 
             and
 
             
 
             USF&G and EMPLOYERS MUTUAL
 
             COMPANIES,
 
             
 
                 Insurance Carriers,
 
                 Defendants.
 
             
 
             
 
             
 
             5-1100 - Nonprecedential
 
             
 
             Claimant failed to appear.
 
             
 
        
 
 
            
 
 
 
 
 
                      
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD L. BARTUSEK,
 
         
 
              Claimant,
 
         
 
         vs.                                         File Nos. 814703
 
                                                               816949
 
         LEHIGH PORTLAND CEMENT,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,                   F I L E D
 
         
 
              Insurance Carrier,                       MAR 14 1988
 
              Defendants.
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision resolves two proceedings in arbitration 
 
         brought by Ronald L. Bartusek, claimant, against Lehigh Portland 
 
         Cement Company, his former employer, and The Travelers Insurance 
 
         Company, its insurance carrier.
 
         
 
              The case was heard and fully submitted on August 21, 1987 at 
 
         Mason City, Iowa.
 
         
 
              The record in this proceeding includes testimony from Ronald 
 
         L. Bartusek, Roger Marquardt and Lou Fasing.  The record also 
 
         includes claimant's exhibits 1, 2 and 3 and defendants' exhibits 
 
         A through F.  A view of the endloaders referred to in the 
 
         testimony dealing with the alleged January 22, 1986 injury was 
 
         made by the undersigned and counsel for both parties.
 
         
 
              Gary Lloyd was not listed as a witness.  His testimony was 
 
         corroborative of claimant's.  Calling him as a rebuttal witness 
 
         will not be permitted.  Blakely v. Bates, 394 N.W.2d 320 (Iowa 
 
         1986); Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986).  The 
 
         objection to his testimony is sustained and it is not considered 
 
         in this decision.
 
         
 
                                    ISSUES
 
         
 
              The issues presented for determination are:
 
         
 
              Whether claimant sustained injury on January 2, 1986 and/or 
 
         January 22, 1986 which arose out of and in the course of 
 
         employment;
 
                                                
 
                                                         
 
         
 
              Determination of claimant's entitlement to compensation for 
 
         temporary total disability, healing period or permanent partial 
 
         disability; and,
 
         
 
              Determination of claimant's entitlement under section 85.27. 
 
         Defendants contend that the medical expenses incurred were 
 
         unauthorized and also that they are not causally connected to any 
 
         compensable injury.
 
         
 
              It was stipulated that, in the event of an award, the rate 
 
         of compensation should be determined based upon claimant's 
 
         average gross weekly earnings of $421.78 and his status of 
 
         married with four exemptions.  It was further stipulated that 
 
         claimant was off work from January 2, 1986 through January 5, 
 
         1986 and again from January 22, 1986 up to the present time.  It 
 
         was further stipulated that, in the event of an award, the 
 
         employer is entitled to a credit for benefits paid under a 
 
         nonoccupational group plan in the amount of $8,682.19 in sick pay 
 
         or disability income.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Ronald L. Bartusek testified that he was born on January 9, 
 
         1954 and that he is married with two children.  Bartusek 
 
         testified that he had been an average student in high school and 
 
         that he graduated early in December, 1971.
 
         
 
              After high school, claimant was employed as a line worker at 
 
         Winnebago Industries for a time and then began employment with 
 
         Lehigh Portland Cement Company on February 7, 1978 where he 
 
         remained employed until February 1, 1987.  Claimant indicated 
 
         that he has held a number of positions with the employer.
 
         
 
              Bartusek testified that, on January 2, 1986, he was working 
 
         as a heavy equipment operator.  He testified that, while checking 
 
         the fluid levels in his machine, he slipped on ice, that his feet 
 
         went out from under him, and that, in falling, he grabbed a 
 
         ladder with his left hand which jerked his back and slammed his 
 
         body against the ladder.  Claimant indicated that it happened in 
 
         the evening in the middle of his work shift.  Claimant testified 
 
         that he reported the incident to his supervisor and was seen on 
 
         the following day by one of the plant physicians, whom he 
 
         identified as Jon R. Yankey, M.D., and David A. Ruen, M.D.  
 
         Claimant testified that he was examined by Dr. Yankey, told that 
 
         he had a back strain and, on January 5, was released to return to 
 
         work. Exhibit 1-8 and exhibit A, page 31 indicate that claimant 
 
                                                
 
                                                         
 
         was reevaluated on January 6, 1986 and was released to return to 
 
         work at that time.
 
         
 
              Claimant testified that, on January 22, 1986, he was 
 
         operating an endloader on the day shift.  Claimant testified that 
 
         material being moved had a tendency to freeze in the bucket of 
 
         the loader and that he employed a practice of banging the bucket 
 
         against its stop to remove the frozen material.  Bartusek 
 
         testified that, while doing so, the seat back adjustment came 
 
         unlatched which allowed the lower part of the seat back to move 
 
         forward into his lower back causing pain.  Claimant testified 
 
         that he reported the incident to his supervisor and then 
 
         completed his work shift upon the supervisor's request.
 
         
 
              Claimant testified that he returned to see Dr. Yankey or Dr. 
 
         Ruen on January 23, 1986 and was taken off work, given prescribed 
 
         medication and directed to rest.  Claimant indicated that, on the 
 
         following visit, he had made some slight improvement.  Claimant 
 
         testified that he was referred to William R. Boulden, M.D., for 
 
         an examination.  Claimant related that, in March, 1986, he began 
 
         treating with Robert E. McCoy, M.D.
 
         
 
              Claimant testified that the physicians have advised him to 
 
         find lighter work and that none of the physicians has released 
 
         him to return to work at Lehigh.  Claimant has not done so.  
 
         Claimant testified that, to his knowledge, the diagnostic tests 
 
         have not disclosed anything which the physicians have offered to 
 
         treat and it has been indicated there is nothing further they can 
 
         do for his condition.
 
         
 
              Claimant testified that he has paid some of his medical 
 
         bills himself, namely:
 
         
 
                 St. Joseph Mercy Hospital -- CT scan    $ 439.00
 
                 Dr. McCoy                                 179.00
 
                 Drs. Yankey and Ruen                       63.00
 
                 Total                                   $ 681.00
 
         
 
              Claimant indicated that he has no claim for travel or 
 
         mileage.
 
         
 
              Claimant testified that, effective February 1, 1987, he 
 
         began receiving a monthly disability pension from the employer in 
 
         the amount of $439.16 as shown in exhibit 3.
 
         
 
              Claimant testified that he is physically unable to do the 
 
         kind of work which Lehigh requires.
 
         
 
              Claimant testified that he is not now employed, but has 
 
         looked for work and has worked through the State Vocational 
 
         Rehabilitation department.  Claimant does not want to attend 
 
         further schooling, but sees no alternative.  Claimant indicated 
 
         that his physical restrictions prohibit him from bending and 
 
         stooping or from lifting more than 10 pounds, but that he is not 
 
         currently under active treatment from any physician.
 
                                                
 
                                                         
 
         
 
              Exhibit B was identified as a collection of operators' daily 
 
         report forms for the endloader machines.  Claimant testified that 
 
         he had noticed a problem with the seat prior to January 22, 1986 
 
         and reported it verbally.  He indicated that he had listed it on 
 
         the form in the past, but that it had not been repaired.  
 
         Claimant indicated that the procedure was to quit listing a 
 
         defect as the foreman was responsible for getting it repaired 
 
         once it had been listed.  Claimant indicated that the seat first 
 
         came unlatched early in 1985.  Claimant testified that he did not 
 
         note the problem with the seat on the form on January 22, 1986 
 
         because it had been previously reported.  Claimant testified that 
 
         the photographs, exhibits D and E, show the seat in a model 51B 
 
         loader and that the seat is similar to the seat in the model 31B 
 
         loader, which he was operating on January 22, 1986, but that the 
 
         seat in the 51B is larger and more comfortable.  Claimant 
 
         testified that a seat belt is worn when operating the loaders.  
 
         Claimant testified that the seat pivots at the point of the screw 
 
         which is shown at the top of the metal bracket on the side of the 
 
         seat on exhibit E. He testified that the top would have moved 
 
         back and the bottom moved forward into his lower back when he was 
 
         injured.  Exhibit B, page 199, indicates that, on February 23, 
 
         1986, an operator indicated that the seat of the 31B loader was 
 
         broken.  A daily report of March 4, 1986, found at page 208 of 
 
         exhibit B, indicates that the seat needed to be replaced.  
 
 
 
                            
 
                                                         
 
         Exhibit B does not show any prior indications of a problem with 
 
         the seat.
 
         
 
              Claimant testified that he has a history of back trouble 
 
         that began when he was in junior high school and that he has 
 
         known Dr. McCoy since 1968.  Claimant testified that, in 1969, 
 
         Dr. McCoy advised him to avoid work that involved heavy lifting 
 
         or that was performed in a bent position.
 
         
 
              Claimant testified that he was involved in a motorcycle 
 
         accident in July, 1986 in which he fractured his wrist, but that 
 
         he did not injure his back in that incident.
 
         
 
              Lou Fasing, the safety and training supervisor at Lehigh 
 
         since 1980, testified that he is familiar with and has operated 
 
         both the 31B and 51B loaders.  Fasing testified that he inspected 
 
         the 31B on January 22, 1986 and that a representative from The 
 
         Travelers operated the machine to bang the bucket in the manner 
 
         claimant described.  Fasing testified that it would bounce the 
 
         front end of the loader when doing it.
 
         
 
              Fasing testified that exhibits D and E are photographs of 
 
         the seat in the 31B loader which he personally had taken.  Fasing 
 
         testified that the back of the seat pivots at the bottom where 
 
         the "x" is drawn on exhibit E.  He stated that there is a finger 
 
         and pin assembly which allows the tilt of the back of the seat to 
 
         be adjusted and that it is necessary to lift the back of the seat 
 
         to change the position.  Fasing indicated that the entire seat 
 
         assembly can be slid forward or backward.  Fasing stated that the 
 
         screw at the top of the metal plate as shown in exhibit E is not 
 
         a pivot point, but that it is the place where the fingers and pin 
 
         which are involved in the tilting mechanism are located.  Fasing 
 
         testified that bolts were added in the bracket at the top of the 
 
         instruction plate to prevent the back of the seat from tilting. 
 
         Fasing stated that, if the seat tilts back, it can only go to the 
 
         back of the cab, a distance of approximately three-fourths of an 
 
         inch.  He stated that the seat is well padded and that, from his 
 
         experience with it, he did not believe an injury could occur in 
 
         the manner which claimant had described.
 
         
 
              Fasing stated that the photos, exhibits D and E, were taken 
 
         a month or two after January 22, 1986.  He stated that the seats 
 
         in the 51B and 31B loaders are identical and that it is not 
 
         possible to tell the difference between them from the photos.
 
         
 
              Fasing did not dispute claimant's injury of January 2, 
 
              1986.
 
         
 
              A view of the machines showed that the finger and pin 
 
         assembly was located at the bottom of the seat back with the 
 
         fingers pointing down.  The view also showed that the back of the 
 
         seat pivoted at the point of the screw which was located at the 
 
         top of the metal bracket assembly.  The view also showed that the 
 
         distance the bottom of the seat back would move forward would 
 
         depend upon how far the seat assembly was slid away from the back 
 
                                                
 
                                                         
 
         of the cab and it was observed that it could easily move forward 
 
         as much as three or four inches.  The photos, exhibits D and E, 
 
         were observed to depict the seat in the 31B loader and it was 
 
         bolted in a stationary position to prevent movement.  The seat in 
 
         the 51B loader was observed to be substantially identical to the 
 
         seat in the 31B loader.  The movement of the seat back adjustment 
 
         mechanism in the 51B was noted and it was observed that it would 
 
         not be difficult to jar the seat back adjustment out of position 
 
         which would permit the lower portion of the back of the seat to 
 
         move forward into what would be the operator's low back.
 
         
 
              Claimant testified that he was earning $10.00 per hour at 
 
         the time of his injury and that, if still employed at Lehigh, he 
 
         would be earning approximately $30,000 per year and that he would 
 
         also have a full fringe benefit package.
 
         
 
              Roger F. Marquardt, a qualified vocational rehabilitation 
 
         counselor, testified that he has evaluated claimant's case. 
 
         Marquardt indicated that claimant has the ability to use specific 
 
         vocational preparation programs in order to enable him to earn a 
 
         decent living.  He felt that claimant's current earning capacity 
 
         is in the minimum wage area, but that, if claimant completes a 
 
         rehabilitation plan, he should be able to earn somewhere in the 
 
         range of $15,000 to $22,000 per year within four years.  
 
         Marquardt identified claimant's transferable skills and work 
 
         history as involving heavy to medium exertion and unskilled to 
 
         semi-skilled work.  Marquardt felt that the 10-pound lifting 
 
         restriction was uncommonly restrictive in comparison to what he 
 
         commonly sees in cases involving individuals with similar 
 
         physical ailments (exhibit 2).
 
         
 
              Dr. Boulden indicated that claimant had a chronic back 
 
         strain and recommended diagnostic studies (exhibit 1-3).  In a 
 
         report dated September 22, 1983, Dr. Boulden indicated that 
 
         claimant had a recurrent lumbar strain, but that he had no 
 
         permanent impairment and no physical restrictions (exhibit 1-1).
 
         
 
              Claimant was seen by Dr. Yankey on April 29, 1986.  Notes of 
 
         that examination contain the following statement:
 
         
 
              I told him that I think he has very little disability that 
 
              is ratable at the present time.  I remarked about his last 
 
              CAT scan being essentially completely negative.  I note that 
 
              I first saw him for the pain of Scheuermann's disease back 
 
              in September of 1968, again in August of 1970 and March of 
 
              1971. I saw him in September of 1976 for the first time for 
 
              low lumbar pain which was related to work at Lehigh.  I have 
 
              not seen him for low back pain for the last 10 years.  The 
 
              history that he gives me says that in 1983 another episode 
 
              of pain in his low back and was off for 3-4 week [sic] and 
 
              saw Dr. Bolden [sic] in Des Moines on consultation.  I would 
 
              say that at the present time he has 5% permanent partial 
 
              impairment of the whole man from his back but think it is 
 
              impairment that has been accumulative from the various 
 
              episodes of low back pain that he has had through the years. 
 
                                                
 
                                                         
 
                   (Exhibit 1-2, page 3; also exhibit A, page 44).
 
         
 
              On September 12, 1986, Dr. Ruen issued a report which 
 
         includes the following statement:
 
         
 
              I feel that it is difficult to answer exactly whether Mr. 
 
              Bartusek's current problems are related to his incidents at 
 
              work on January 2 and January 22, 1986.  Certainly, on both 
 
              occasions he had acute back strains with decreased range of 
 
              motion and strength compared to his baseline.  It is also 
 
              apparent that he has had problems with his back dating into 
 
              his teenage years.  I certainly feel without currently 
 
              working because of his arm fractures that his back symptoms 
 
              are much less.  I feel that he will always be prone to back 
 
              problems and exacerbations and really should not be engaged 
 
              in work that involves any bending or lifting particularly 
 
              [sic] repetitious bending or lifting.  I feel that he should 
 
              not be lifting objects over twenty pounds or any weights 
 
              repetitiously.  (Exhibit 1-8; also exhibit A, page 69).
 
         
 
              Office notes of Drs. Ruen and Yankey found at page 33 of 
 
         exhibit A indicate that The Travelers Insurance Company had 
 
         denied coverage of this case, that Dr. Yankey advised claimant to 
 
         see a local orthopedist and that an appointment was made with Dr. 
 
         McCoy for March 25.  The complete date of that office note is not 
 
         present, but in view of its sequence and the dates shown in other 
 
         reports, it is believed that note deals with a March 7, 1986 
 
         examination.
 
         
 
              At page 34 of exhibit A is found a note which appears to 
 
         refer to April 29, 1986.  The note indicates that claimant had a 
 
         CT scan performed on April 18, 1986 and that he had seen Dr. 
 
         McCoy.  The plan indicated is that claimant's condition is 
 
         essentially unchanged, that claimant should seek other job 
 
         opportunities and that he obtain schooling.  The report from Dr. 
 
         Yankey further indicates that claimant would be continued on 
 
         restricted activities and would be obtaining his future care from 
 
         Dr. McCoy (exhibit A, page 34).
 
         
 
              Claimant had been seen by James K. Coddington, M.D., in May, 
 
         1983 at which time Dr. Coddington recommended that claimant 
 
         follow a 20-pound lifting restriction and avoid repetitive 
 
         shoveling due to recurrent back strains (exhibit A, page 22).  
 
         Dr. Coddington declined to give claimant a disability rating, 
 
         however (exhibit A, page 23).
 
         
 
              X-rays taken on January 3, 1986 noted no change when 
 
         compared with x-rays from 1981 (exhibit A, page 26).  A CT scan 
 
         taken April 18, 1986 was interpreted as being normal (exhibit A, 
 
         page 27).
 
         
 
              A report from Dr. McCoy dated September 3, 1986 relates 
 
         claimant's history of back problems since 1968.  In the report, 
 
         Dr. McCoy states:
 
         
 
                                                
 
                                                         
 
              I think his injuries in January exacerbated a pre-existing 
 
              problem but feel that his underlying tolerance of heavy work 
 
              is something that has been demonstrated several times in the 
 
              past and that therefore his recent episode is an 
 
              exacerbation of a continuing problem.  The best advice I 
 
              could give him was to change his type of work in order to 
 
              avoid episodes of back difficulty in the future which might 
 
              cause gradually increasing difficulty.  (Exhibit 1-7; also 
 
              exhibit A, pages 62 and 63).
 
         
 
              In a report dated May 30, 1986, Dr. McCoy stated:
 
         
 
              I think Mr. Bartusek has had enough difficulty over the span 
 
              of years to indicate that he should not be engaged in work 
 
              that involves any bending or lifting, particularly 
 
              repetitious bending or lifting.  He should not be lifting 
 
              objects over 20 lbs. and shouldn't be lifting that amount of 
 
              weight repetitiously.  I think he will be unable to go back 
 
              to his previous work at LeHigh and would benefit from 
 
              training by Vocational Rehabilitation.  (Exhibit 4; also 
 
              exhibit A, page 48).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The employer, through Mr. Fasing, did not dispute the 
 
         January 2, 1986 injury even though it had been disputed in the 
 
         pleadings and raised as an issue at the pre-hearing conference.  
 
 
 
                            
 
                                                         
 
         Claimant's testimony is corroborated by the fact that he 
 
         immediately sought medical care, apparently improved and returned 
 
         to work.  It is determined that claimant was injured on January 
 
         2, 1986 as he described.  From the record made, it is clear that 
 
         claimant returned to work following the January 6, 1986 medical 
 
         appointment.  He is therefore entitled to receive one day of 
 
         temporary total disability compensation under section 85.33 of 
 
         The Code as a result of the January 2, 1986 injury.  There is no 
 
         evidence that the injury of January 2, 1986 was anything other 
 
         than a minor exacerbation from which claimant recovered.
 
         
 
              With regard to the alleged injury of January 22, 1986, 
 
         Fasing indicated he did not believe that claimant could have been 
 
         injured in the manner that claimant described.  Having viewed the 
 
         models 31B and 51B loaders, it appears that exhibits D and E are 
 
         photos of the model 31B loader as Fasing testified.  The view 
 
         also showed, however, that the seat pivots at the point of the 
 
         screw which is located at the top of the metal bracket and not at 
 
         the bottom of the seat back cushion.  This is consistent with 
 
         claimant's testimony and inconsistent with that from Fasing.  In 
 
         view of what was observed, it is readily apparent that the seat 
 
         could have moved in the manner which claimant described as 
 
         producing his injury.  Exhibit B indicates that, shortly after 
 
         the date of claimant's January 22, 1986 alleged injury, the seat 
 
         was noted to be defective by other operators of the machine.  All 
 
         the witnesses who testified at hearing are found to be honest and 
 
         credible witnesses, but it is further found that Fasing and 
 
         claimant were both either mistaken or misunderstood by the 
 
         undersigned in some parts of their testimony concerning the seat 
 
         in the 31B loader.  It is therefore found that claimant was 
 
         injured on January 22, 1986 while operating the model 31B loader 
 
         as he described in his testimony.
 
         
 
              Claimant's healing period commences on the date of injury 
 
         and extends until one of the three events listed in Iowa Code 
 
         section 85.34(1) occurs.  The healing period ends at the time the 
 
         physicians determine that further significant improvement from 
 
         the injury is not anticipated.  Thomas v. William Knudson & Son, 
 
         Inc., 349 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire Rubber 
 
         Company v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981).  A review 
 
         of the evidence indicates that, on April 29, 1986, Dr. Yankey 
 
         found claimant's condition to be essentially unchanged and he 
 
         encouraged claimant to engage in job retraining (exhibit A, page 
 
         34).  At the same time, Dr. Yankey indicated that claimant had a 
 
         five percent permanent partial impairment (exhibit A, page 44; 
 
         exhibit 1-2, page 3).  The record does not indicate that claimant 
 
         made any further significant medical improvement subsequent to 
 
         that date. April 29, 1986 is determined to be the end of 
 
         claimant's healing period.
 
         
 
              Claimant seeks compensation for permanent partial 
 
         disability. It is apparent that claimant has had a long history 
 
         of back problems.  The evidence indicates that he has some type 
 
         of lumbar insufficiency which makes him particularly susceptible 
 
         to exacerbations.  It is noted that the physical restrictions 
 
                                                
 
                                                         
 
         from Dr. Coddington issued in 1983 are not substantially 
 
         different from the physical restrictions indicated by Dr. McCoy 
 
         in 1986 (exhibit 4; exhibit A, pages 22 and 48).  X-rays taken on 
 
         January 3, 1986 noted no change from others taken in 1981 
 
         (exhibit A, page 26). There is no medical evidence in the record 
 
         which establishes that claimant's physical condition has changed 
 
         substantially as a result of the January 22, 1986 incident.  In 
 
         his notes of April 29, 1986 (exhibit 1-2, page 3; also exhibit A, 
 
         page 44), Dr. Yankey speaks of claimant having a five percent 
 
         permanent partial impairment of the whole man from his back that 
 
         has been accumulative from the various episodes of low back pain 
 
         that he has had through the years.
 
         
 
              After all of the prior back injuries, claimant was released 
 
         by the treating physicians to return to his employment, but a 
 
         similar release did not occur following the January 22, 1986 
 
         injury.  Injuries resulting from cumulative trauma can be 
 
         compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).  Where the injury is to the body as a whole, it is 
 
         not necessary for functional physical impairment to result if 
 
         there has been a change in earning capacity as evidenced by a 
 
         change in the circumstances of employment.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              For a cause to be proximate, it must be a substantial factor 
 
         in producing the result, but it need not be the only cause. 
 
         Blacksmith, Supra.
 
         
 
              The claims in this case arise from identifiable acute 
 
         traumas rather than from simple heavy exertion.  Claimant had a 
 
         preexisting lumbar insufficiency, but it did not prevent him from 
 
         holding gainful employment.  Now, after a series of 
 
         exacerbations, claimant has been advised by his physicians to 
 
         seek other employment.  He had, however, been so advised prior to 
 
         the most recent injury.  Dr. Yankey, in his note of April 29, 
 
         1986, indicates that there is some accumulative effect from the 
 
         various exacerbations that have occurred and that claimant does 
 
         have some permanent partial impairment from the accumulative 
 
         effect. Claimant did not have any physical restrictions from the 
 
         physicians when he commenced employment at Lehigh, but he does 
 
         currently.  The assessment of the case as made by Dr. Yankey in 
 
         his April 29, 1986 notes is accepted as correct.  The 
 
         restrictions indicated by Dr. McCoy in his September 12, 1986 
 
         report are likewise accepted as correct.  Claimant does not, 
 
                                                
 
                                                         
 
         however, appear to be substantially more.susceptible to 
 
         exacerbations now than he was ten years ago.  It is determined 
 
         that claimant is entitled to receive some compensation for 
 
         permanent partial disability based upon the accumulative effect 
 
         of the various exacerbations that occurred while in the 
 
         employment of Lehigh Portland Cement Company, particularly since 
 
         it has required him to seek other employment.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 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 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A defendant employer's refusal to give any sort of work to a 
 
         claimant after he suffers his affliction may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., supra.
 
         
 
              When all the applicable factors of industrial disability are 
 
         considered, it is determined that Ronald L. Bartusek has a 25% 
 
         permanent partial disability that was proximately caused by the 
 
         accumulative effect of his various episodes of exacerbation of 
 
         his back condition at Lehigh Portland Cement Company, with the 
 
         last exacerbation and last day of work being January 22, 1986.
 
         
 
              With regard to the claimed section 85.27 benefits, it is 
 
         clear that Drs. Yankey and Ruen authorized claimant to seek care 
 
         from Dr. McCoy and the employer is therefore responsible for the 
 
         cost of that care.  Limoges v. Meier Auto Salvage, I Iowa 
 
         Industrial Commissioner Reports, 207 (1981).  This includes the 
 
         CT scan arranged by Dr. McCoy.  Defendants are, of course, 
 
         responsible for the cost of the treatment provided by Drs. Yankey 
 
         and Ruen, the authorized physicians to whom claimant was 
 
         directed. This totals $681.00.
 
         
 
                               FINDINGS OF FACT
 
         
 
                                                
 
                                                         
 
              1.  During the month of January, 1986, Ronald L. Bartusek 
 
         was a resident of the state of Iowa employed by Lehigh Portland 
 
         Cement Company at Mason City, Iowa.
 
         
 
              2.  Ronald L. Bartusek injured his back on January 2, 1986 
 
         when he slipped on ice while checking fluid levels in a piece of 
 
         equipment as he testified at hearing.
 
         
 
              3.  Ronald L. Bartusek injured his back on January 22, 1986 
 
         while operating a model 31B endloader and the back of the seat in 
 
         the machine pivoted forward into his low back as he described at 
 
         hearing.
 
         
 
              4.  At the time of both injuries, Bartusek was on the 
 
         premises of his employer engaged in activities which were part of 
 
         the duties of his employment with Lehigh Portland Cement 
 
         Company.
 
         
 
              5.  Following the injury of January 2, 1986, claimant was 
 
         medically incapable of performing work in employment 
 
         substantially similar to that he performed at the time of injury 
 
         from January 2, 1986 until January 6, 1986 when he returned to 
 
         work.
 
         
 
              6.  Following the injury of January 22, 1986, claimant was 
 
         medically incapable of performing work in employment 
 
         substantially similar to that he performed at the time of injury 
 
         from January 22, 1986 until April 29, 1986 when he had 
 
         recuperated to the point that it was medically indicated that 
 
         further significant improvement from the injury was not 
 
         anticipated.
 
         
 
              7.  All the witnesses who testified at hearing were credible 
 
 
 
                               
 
                                                         
 
         and honest in their testimony, but claimant was mistaken with 
 
         regard to the model of the endloader from which the photographs, 
 
         exhibits D and E, were taken and Fasing was mistaken with regard 
 
         to the manner in which the seat back adjustment mechanism 
 
         operates.
 
         
 
              8.  Claimant had a preexisting lumbar insufficiency problem 
 
         which had been identified when he was in high school.  He has had 
 
         a number of exacerbations since that time.  The condition causes 
 
         claimant to become symptomatic when he engages in heavy physical 
 
         exertion.
 
         
 
              9.  The injury of January 22, 1986 did not produce any 
 
         discernible change in the condition of claimant's spine.
 
         
 
              10.  Claimant has a five percent permanent functional 
 
         impairment of his spine as a result of the accumulative effect of 
 
         the various episodes of exacerbations that he has experienced 
 
         throughout the years, of which a substantial part occurred in his 
 
         employment with Lehigh Portland Cement Company.
 
         
 
              11.  Prior to the injury of January 22, 1986, the physicians 
 
         had routinely advised claimant to seek less strenuous work, but 
 
         they also released him to resume his employment with Lehigh 
 
         Portland Cement Company.  Following the January 22, 1986 injury, 
 
         he has not been released to resume his employment with Lehigh.
 
         
 
              12.  Claimant's functional restrictions are that he should 
 
         avoid lifting objects weighing more than 20 pounds and that he 
 
         should avoid work which involves bending or lifting, particularly 
 
         repetitive bending or lifting.  Similar activity restrictions had 
 
         been recommended prior to the occurrence of either of the 1986 
 
         injuries.
 
         
 
              13.  The expenses claimant incurred with St. Joseph Mercy 
 
         Hospital, Dr. McCoy and Drs. Yankey and Ruen were reasonable and 
 
         necessary expenses for treatment of the injury he sustained on 
 
         January 22, 1986 and the charges made for that treatment, in the 
 
         amount of $681.00, that were paid by claimant, are fair and 
 
         reasonable charges for the services provided.
 
         
 
              14.  Claimant is of at least average intelligence, 
 
         emotionally stable and reasonably motivated to be gainfully 
 
         employed.
 
         
 
              15.  Claimant will require substantial rehabilitation or 
 
         education in order to enable him to regain a level of earnings 
 
         comparable to the level he experienced with Lehigh Portland 
 
         Cement Company.
 
         
 
              16.  Claimant has sustained a 25% loss of earning capacity 
 
         as a result of the cumulative effect of the injuries he sustained 
 
         to his back while employed by the Lehigh Portland Cement 
 
         Company.
 
         
 
                                                
 
                                                         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injuries to his back on January 2, 
 
         1986 and January 22, 1986 which arose out of and in the course of 
 
         his employment with Lehigh Portland Cement Company.
 
         
 
              3.  As a result of the injury of January 2, 1986, claimant 
 
         is entitled to receive 1/7 week of compensation for temporary 
 
         total disability under the provisions of Iowa Code section 
 
         85.33(1).
 
         
 
              4.  As a result of the injury of January 22, 1986, claimant 
 
         is entitled to receive healing period compensation under the 
 
         provisions of Iowa Code section 85.34(1) for a period of 14 weeks 
 
         commencing January 22, 1986 and running through April 29, 1986. 
 
         Claimant is also entitled to receive 125 weeks of compensation 
 
         for permanent partial disability under the provisions of Iowa 
 
         Code section 85.34(2)(u) payable commencing April 30, 1986.
 
         
 
              5.  Based upon the stipulation made by the parties, 
 
         claimant's rate of compensation is $266.78 per week under Iowa 
 
         Code section 85.36(6).
 
         
 
              6.  Claimant is entitled to recover $681.00 in section 85.27 
 
         benefits and defendants are responsible for all medical expenses 
 
         claimant incurred in obtaining treatment for either of the 
 
         injuries that occurred in January, 1986.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         one-seventh (1/7) week of compensation for temporary total 
 
         disability at the rate of two hundred sixty-six and 78/100 
 
         dollars ($266.78) per week commencing January 5, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant fourteen 
 
         (14) weeks of compensation for healing period at the rate of two 
 
         hundred sixty-six and 78/100 dollars ($266.78) per week payable 
 
         commencing January 22, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the rate of two hundred sixty-six and 
 
         78/100 dollars ($266.78) per week payable commencing April 30, 
 
         1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         amounts in a lump sum together with interest pursuant to section 
 
         85.30 after receiving credit for the group disability payments in 
 
         accordance with section 85.38(2) as stipulated by the parties.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant six 
 
                                                
 
                                                         
 
         hundred eighty-one and 00/100 dollars ($681.00) as reimbursement 
 
         for medical expenses he incurred pursuant to section 85.27 of The 
 
         Code.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
              Signed and filed this 14th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Mark A. Wilson
 
         Mr. C. Bradley Price
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa  50401
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20, 1402.30, 1801
 
                                            1802, 1803, 2206, 2209
 
                                            Filed March 14, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD L. BARTUSEK,
 
         
 
              Claimant,
 
         
 
         vs.                                         File Nos. 814703
 
                                                               816949
 
         LEHIGH PORTLAND CEMENT,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30, 1801, 1802, 1803, 2206, 2209
 
         
 
              Claimant had a preexisting lumbar insufficiency which caused 
 
         exacerbations whenever he engaged in heavy physical activity. 
 
         During the month of January, 1986, he experienced two incidents 
 
         of what appeared to be relatively minor trauma, but which 
 
         exacerbated his back.  The first cleared in four days and he was 
 
         awarded one-seventh week of temporary total disability.  The 
 
         second did not resolve as promptly and claimant never returned to 
 
         his employment with this employer upon the recommendation of his 
 
         physicians. Similar recommendations had been made in the past 
 
         following other exacerbations, but he had always previously been 
 
         released to return to that employment.  One of the authorized 
 
         physicians indicated that claimant had a five percent impairment 
 
         due to the accumulative effect of the multiple exacerbations 
 
         which he has suffered over the years.  Claimant awarded 25% 
 
         permanent partial disability under theories of Blacksmith and 
 
         McKeever even though the last injury was not shown to have 
 
         produced any discernible change in the condition of claimant's 
 
         spine.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
          BERNARD MIHM,
 
                                                      File No. 814708
 
               Claimant,
 
                                                   A R B I T R A T I O N
 
          vs.
 
                                                      D E C I S I O N
 
          JOHN DEERE DUBUQUE WORKS OF
 
          DEERE & COMPANY,                               F I L E D
 
 
 
               Employer,                                FEB 06 1989
 
               Self-Insured,
 
                                                IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
                                 INTRODUCTION
 
 
 
               This is a proceeding in arbitration brought by Bernard Mihm, 
 
          claimant, against John Deere Dubuque Works, self-insured, to 
 
          recover benefits as a result of an injury sustained November 30, 
 
          1983.  This matter came on for hearing before the undersigned 
 
          deputy industrial commissioner on December 2, 1988 at Dubuque, 
 
          Iowa.  The record in this case consists of the testimony of 
 
          claimant; claimant's wife, Florence Mihm; Dr. Melvin McClenahan; 
 
          Patrick Melloy; Janet Reihley, a nurse; and joint exhibits 1 
 
          through 54.
 
 
 
               The parties stipulated to the fact that there was an 
 
          employer-employee relationship; that the injury on November 30, 
 
          1983 arose out of and in the course of employment; and, that if 
 
          the injury is permanent disability, then it is industrially 
 
          related to the body as a whole.
 
 
 
                                   ISSUES
 
 
 
               Whether the claimant's injury on November 30, 1983 is 
 
          causally connected to his current disability, and the nature and 
 
          extent of claimant's disability.
 
 
 
                                 FACTS PRESENTED
 
 
 
               The claimant testified that he began work for defendant in 
 
          1972, working as a laborer for the past 16 years.  Claimant 
 
          stated that on November 30, 1983, he was doing work on a multiple 
 
          radial spindle drill and had to lift the spindle with his left 
 
          hand and arm and tighten it with his right arm.  Claimant said he 
 
          was unable to hold this drill and collapsed to the ground.  
 
          Claimant indicated he incurred pain in his muscles and nerves in 
 
          the left side area of the seventh rib.  The claimant's testimony 
 
          and medical records indicate that claimant had a hiatus hernia 
 
          repaired through a left thoracotomy in 1972.  Claimant emphasized 
 
          that this surgery left him with a missing seventh rib in his left 
 
                                                               
 
                                                               
 
                    side.
 
 
 
               Claimant filed his petition for review-reopening on February 
 
          28, 1986 for workers' compensation benefits.  There is no 
 
          evidence that there was ever an arbitration award previously and 
 
          the attorneys acknowledged the fact that the petition really 
 
          should have been marked as an arbitration proceeding.
 
 
 
               Dr. R.E. Barone, a chiropractic orthopedist, indicates in 
 
          his medical records that the first medical services rendered were 
 
          on November 4, 1985.  On December 9, 1985, Dr. Barone's records 
 
          have this notation:  "Pt. yesterday getting out of pick-up 
 
          slipped and fell and hit in kidney area on running board."  On 
 
          January 3, 1986, Dr. Barone noted:  "Aggravated situation by 
 
          doing some snow shoveling."  On November 4, 1985, claimant signed 
 
          a form entitled "Confidential Information," a document which 
 
          requested certain information concerning claimant and had a place 
 
          for the claimant to describe his symptoms briefly.  Claimant 
 
          printed in his own handwriting the following:  "fell down stairs 
 
          of basement against stone wall neck, shoulder, upper back lost 
 
          gip [sic] and numbness in hand."
 
 
 
               On November 4, 1985, the claimant signed a W.I. Disability 
 
          Notice (For Non-Occupational Illness or Injury) form for John 
 
          Deere.  This form stated thereon:  "If disability due to 
 
          accident, state in space below when, where, and how accident 
 
          occurred:" Claimant, in his own handwriting, stated:  "At home 
 
          took pail of potatoes down Sunday afternoon cellar pail fell out 
 
          of hand tripped over down stairs."  Claimant also acknowledged on 
 
          said form that he last worked on October 31, 1985 and that he 
 
          became disabled November 3, 1985.
 
 
 
               On this same form Dr. Ronald E. Barone wrote the following 
 
          as a diagnosis:  "Acute bursitis both shoulder, traumatical 
 
          induced cervical subluxation sprain discop [sic]."  Dr. Barone 
 
          then noted on the same disability notice form, under the heading 
 
          "When do you expect patient to be able to return to work on a 
 
          full-time basis?" "Light duty work?"  "Approximately 2 wks."
 
 
 
               On November 16, 1985, Dr. Barone stated:
 
 
 
               Mr. Mihm has had a rib surgically removed which creates a 
 
               structural and muscular imbalance affecting his entire torso. 
 
               Any activity straining this area will result in muscle spasm, 
 
               pain and the inability to perform any working activities.  
 
               Mr. Mihm is also suffering from chronic spinal arthritis and 
 
               a chronic rotator cuff tendonitis-bursitis in both shoulders.  
 
               He also has marginal sclerosis in the hip joints which 
 
               indicates beginning osteoarthritis.
 
 
 
          (Joint Exhibit 15)
 
 
 
               Defendant's attorney asked the claimant "has any doctor told 
 
          you in writing that your impairment today is greater than it was 
 
          on November 30, 1983?"  Claimant responded "No doctor ever told 
 
                                                               
 
                                                               
 
                    him impairment is greater today than November 30, 1983."
 
 
 
               Patrick Melloy, defendant's production supervisor for paint 
 
          and prep in the paint warehouse area for defendant, testified 
 
          that claimant was transferred to his department for work on the 
 
          morning of November 30, 1983.  Mr. Melloy emphasized that the 
 
          claimant was assigned to masking a large crawler machine in 
 
          preparation of painting and that this was a light duty job which 
 
          he considered the easiest in the warehouse department.  Mr. 
 
          Melloy further testified that at approximately 8:00 a.m. on that 
 
          morning, he was summoned to the claimant as claimant was 
 
          complaining about his side.  Melloy stated that claimant had been 
 
          masking in the cab area of a crawler and stated to melloy that 
 
          claimant felt pain in his side.  Melloy then called for medical 
 
          assistance and claimant was taken to the plant medical 
 
          department.
 
 
 
               Dr. Melvin McClenahan, the company doctor, examined claimant 
 
          at 8:33 a.m. on November 30, 1983.  Dr. McClenahan testified that 
 
          claimant told him his "legs got rubbery" and that claimant had 
 
          pains in his chest.  Dr. McClenahan stated that he prescribed 
 
          diathermy treatments three times during the day and gave claimant 
 
          a rib belt to wear and claimant spent the rest of the day resting 
 
          at the medical department.
 
 
 
               Dr. McClenahan testified that on April 23, 1984, claimant 
 
          visited him requesting the removal of permanent restrictions.  
 
          This doctor further stated that claimant had no further complaints 
 
          of muscle spasms or problems with his ribs through the rest of 
 
          1984 and considered claimant to have a "complete recovery."  Dr. 
 
          McClenahan emphasized that "there is no residual disability or 
 
          impairment for the 1983 incident."
 
 
 
                              LAW AND ANALYSIS
 
 
 
               Iowa Code section 85.26(1) provides:
 
 
 
                    An original proceeding for benefits under this chapter 
 
               or chapter 85A, 85B, or 86, shall not be maintained in any 
 
               contested case unless the proceeding is commenced within two 
 
               years from the date of the occurrence of the injury for 
 
               which benefits are claimed or, if weekly compensation 
 
               benefits are paid under section 86.13, within three years 
 
               from the date of the last payment of weekly compensation 
 
               benefits.
 
 
 
               Claimant has the burden of proving by a preponderance of the 
 
          evidence that he received an injury on November 30, 1983 which 
 
          arose out of and in the course of his employment.  McDowell v. 
 
          Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
          Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
 
 
               The 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 "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.
 
 
 
               "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, 261 
 
          Iowa 352, 154 N.W.2d 128.
 
 
 
               The claimant has the burden of proving by a preponderance of 
 
          the evidence that the injury of November 30, 1983 is causally 
 
          related to the disability on which he now bases his claim.  
 
          Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
          Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
          possibility is insufficient; a probability is necessary.  Burt v. 
 
          John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
          (1955).  The question of causal connection is essentially within 
 
          the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
          Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
 
 
                              
 
                                                               
 
 
 
               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.
 
 
 
               It is apparent that claimant failed to file this action 
 
          within two years of the date of his injury.  As a result, the 
 
          undersigned lacks jurisdiction and claimant is not entitled to 
 
          benefits.
 
 
 
               Furthermore, claimant is not a credible witness.  There was 
 
          no medical evidence.of any causal connection to the claimant's 
 
          current injuries or complaints and any injury that allegedly 
 
          occurred on November 30, 1983.  The greater weight of evidence, 
 
          in fact, shows that the injury claimant contends occurred while 
 
          working with a drill did not occur at all, particularly not on 
 
          November 30, 1983, and, in fact, the claimant was doing a masking 
 
          tape job on November 30, 1983 and had not even worked at that job 
 
          for more than an hour before he was complaining of a pain in his 
 
          side.
 
 
 
               The evidence does show through the medical records of Dr. 
 
          Barone that the claimant, on November 4, 1985, fell down the 
 
          stairs of his home carrying a pail of potatoes and rolled down 
 
          the stairs and hit a stone wall.  Approximately three months 
 
          thereafter claimant filed this review-reopening proceeding for 
 
          workers' compensation benefits.  In fact, claimant had never been 
 
          receiving benefits before and this isn't a review-reopening 
 
          proceeding but, in fact, one in arbitration.  Claimant was very 
 
          evasive and argumentative during his testimony.
 
 
 
                             FINDINGS OF FACT
 
 
 
               WHEREFORE, it is found:
 
 
 
               1.  Claimant failed to file his petition within two years of 
 
          his injury.
 
 
 
               2.  Claimant is not a credible witness.
 
 
 
               3.  Claimant has no impairment as a result of his November 
 
          30, 1983 injury.
 
 
 
                            CONCLUSIONS OF LAW
 
 
 
               THEREFORE, it is concluded:
 
                                                               
 
                                                               
 
 
 
               Claimant is entitled to no benefits.
 
 
 
                                   ORDER
 
 
 
               THEREFORE, it is ordered:
 
 
 
               That claimant taken nothing from this proceeding.
 
 
 
               That claimant shall pay the costs of this action pursuant to 
 
          Division of Industrial Services Rule 343-4.33.
 
 
 
               Signed and filed this 6th day of February, 1989.
 
 
 
 
 
 
 
 
 
 
 
                                             BERNARD J. O'MALLEY
 
                                             DEPUTY INDUSTRIAL 
 
                                             COMMISSIONER
 
 
 
          Copies to:
 
 
 
          Mr. Donald Moonen
 
          Attorney at law
 
          204 S Center
 
          Epworth, IA  52045
 
 
 
          Mr. Leo A. McCarthy
 
          Attorney at Law
 
          222 Fischer Building
 
          P.O.box 239
 
          Dubuque, IA  52004
 
 
 
 
 
 
            
 
 
 
          
 
 
 
 
 
                                            1100; 1107; 1402;
 
                                            1803; 2300; 2402
 
                                            Filed February 6, 1989
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BERNARD MIHM,
 
         
 
              Claimant,
 
                                                 File No. 814708
 
         vs.
 
         
 
         JOHN DEERE DUBUQUE WORKS OF          A R B I T  R A T I 0 N
 
         DEERE & COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1100; 1107; 1402; 1803; 2300; 2402
 
         
 
              Claimant claimed his injury and subsequent disability arose 
 
         out of and in the course of his employment.  In fact, claimant's 
 
         injury and disability resulted from his fall down his basement 
 
         steps at home approximately two years later.
 
         
 
              Claimant alleged a November 30, 1983 injury in his petition. 
 
         Claimant's petition was filed as a review-reopening on February 
 
         28, 1986.  In fact, it was not a review-reopening but an 
 
         arbitration proceeding and the two year statute of limitation had 
 
         already ran at date of filing.  The deputy lacked jurisdiction.
 
         
 
              The defendant had not raised the statute of limitations 
 
         issue and both parties presented their testimony based on a 
 
         review-reopening.
 
         
 
              Claimant sought permanent partial disability benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAMELA CURRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         AMERICAN HONDA,
 
                                                 File No.  814714
 
              Employer,
 
                                              A R B I T R A T I 0 N
 
         and
 
                                                 D E C I S I 0 N
 
         
 
         AMERICAN MOTORISTS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Pamela Curry, against defendant employer, American Honda, and 
 
         defendant insurance carrier, American Motorists Insurance 
 
         Company, to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury allegedly occurring February 12, 
 
         1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on September 21, 1988 in 
 
         Davenport, Iowa, and was considered fully submitted on that date.  
 
         Claimant was represented by James P. Hoffman.  Defendants were 
 
         represented by Vicki Seeck and Therese Botts.  The parties have 
 
         since submitted briefs in support of their respective positions.
 
         
 
              The record in this case consists of claimant's exhibits I 
 
         through 21, employer's exhibits 1 through 11 (with subparts A 
 
         through Z, AA through ZZ, and AAA through JJJ), and the testimony 
 
         of the following witnesses: Pamela Curry, Calvin Steward, Paul 
 
         Stradt and David Harvey.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted and approved 
 
         September 21, 1988, the issues that remain for determination 
 
         include:  Whether claimant sustained an injury which arose out of 
 
         and in the course of her employment; whether the alleged injury 
 
         is a cause of temporary or permanent disability (although it is 
 
         stipulated that if temporary total disability or healing period 
 
         benefits are appropriate, the same have already been paid by 
 
         defendants); entitlement to permanent partial disability; 
 
         taxation of costs.
 
         
 
                              REVIEW OF EVIDENCE
 
         
 
              Claimant began her employment with defendant employer on 
 
         June 9, 1981.  On the alleged injury date, February 12, 1986, she 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   2
 
         
 
         was employed as a stock and material handler.  Part of her duties 
 
         consisted of using a forklift type machine, an OPR or "order 
 
         picker," using a machine designated as F3 on the date of injury.  
 
         Photographs and a videotape introduced into evidence depict a 
 
         machine anchored by a heavy base and drive unit on one end, a 
 
         hydraulic lifting mechanism in the center, and a cab or 
 
         operational area with forks or a lifting mechanism on the other 
 
         end.  In operation, the machine was capable of raising the 
 
         operator's area and forks to a great height, as much as 20 feet, 
 
         to retrieve various stocked parts.
 
         
 
              F3 was admittedly a defective machine on February 12, 1986. 
 
          However, the parties very much disagree as to whether the 
 
         defects amounted to a safety problem.  Claimant's supervisor, 
 
         Paul Stradt, testified that other employees did not like the 
 
         machine because it made an unpleasant noise due to damage to 
 
         roller bearings and crossheads.  The company responsible for 
 
         maintenance of the machine had recommended on January 22, 1988, 
 
         that the machine be removed from service.  While awaiting a part, 
 
         the machine was used on a limited basis only.  Those responsible 
 
         for maintenance (Altorfer Machinery) had prescribed limited use 
 
         because it was felt the machine itself might be further damaged 
 
         through excessive use, but not because of a fear of safety 
 
         defects.
 
         
 
              Claimant asked to be relieved from the responsibility of 
 
         using F3 on the date of her alleged injury.  Her request was not 
 
         honored.  She testified that the incident giving rise to her 
 
         alleged injury occurred while the cab and lift forks were some 
 
         fourteen or so feet in the air and she pressed the "down" button.  
 
         She testified that the platform on which she stood suddenly 
 
         dropped at least her own height (5O 5 1/2") and that the shock 
 
         immediately caused a severe pain in her lower back.  She 
 
         testified that she immediately notified Supervisor Stradt and was 
 
         taken off work.  She first visited a company physician, Jack 
 
         Sunderbruch, M.D., and was examined and given a back brace to 
 
         wear for several days.  She visited Dr. Sunderbruch several times 
 
         in the next few weeks and was then referred to Richard Roski, 
 
         M.D.  Dr. Roski then referred claimant to John E. Sinning, Jr., 
 
         M.D.  Dr. Sinning was the claimant's primary treating physician 
 
         for this back injury.  Dr. Sinning performed an examination and 
 
         obtained a history from claimant.  He treated her through a 
 
         supervised exercise program directed by therapists in physical 
 
         examination, consultation with physical a psychiatrist (Patrick 
 
         G. Campbell, M.D., who diagnosed depression), and through 
 
         follow-up examinations to review her progress.  Dr. Sinning 
 
         released claimant to return to work without restriction effective 
 
         July 20, 1987.  Although the written return to work release was 
 
         without restriction, Dr. Sinning did testify that some 
 
         limitations would have been appropriate at that time,including 
 
         lifting with a "protective pattern" of bent knees and limited to 
 
         50 pounds.
 
         
 
              Claimant had the option of returning to her regular 
 
         employment as of her release to return to work.  However, she 
 
         voluntarily separated from that employment by taking advantage of 
 
         an incentive program that American Honda then had in effect to 
 
         attempt to reduce its workforce.  It is undisputed that 
 
         claimant's separation was voluntary, although she indicates that 
 
         a further reason for her decision was because she did not herself 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   3
 
         
 
         feel capable of returning to her regular work.
 
         
 
              Claimant was born on January 29, 1958 and was 28 years old 
 
         at the time of her alleged injury.  She is unmarried and has no 
 
         dependents.  Following her separation from this employment, she 
 
         took courses for one year at the University of Iowa, obtained a 
 
         degree, and is now employed there in the biology department , 
 
         working with deoxyribonucleic acid, enzymes and various bacterial 
 
         strains.  She is now earning approximately $18,000 per annum, 
 
         having earned $24,000 per annum with defendant American Honda.  
 
         Although claimant has possibilities of advancement in this 
 
         position and expects her salary to rise within two to five years, 
 
         she does not know what her future earnings might be.  While she 
 
         has no plans to obtain advanced degrees she agrees that with her 
 
         degree in biology she could do other lab work, such as in 
 
         hospitals.
 
         
 
              Dr. Sinning's diagnosis as the treating physician was 
 
         chronic low back pain secondary to lumbar disc instability.  
 
         Based on the history he had been given, he believed the condition 
 
         had a direct causal connection to the work injury.
 
         
 
              Claimant further testified that she had suffered only minor 
 
         back pains prior to the date of injury in either 1982 or 1983, 
 
         that this involved "soreness" only, and that she had no back 
 
         problems or limitations in 1984, 1985, or 1986 prior to February 
 
         12, 1986.  Dr. Sinning testified that, from the history taken 
 
         from claimant, he understood that prior to the accident, she was 
 
         essentially free of low back pain and that he would be surprised 
 
         to find that claimant had been seen on February 4, 1986 by 
 
         another physician for what that physician (Kenneth R. Roepke, 
 
         M.D.) described as recurrent lumbar back pain.
 
         
 
              However, medical exhibits filed in this case reflect a 
 
         substantially more detailed history of back problems.  Dr. 
 
         Roepke's office notes reflect that claimant was first seen on 
 
         November 12, 1980 after involvement in a motor vehicle accident.  
 
         She complained of pain and stiffness in her neck and shoulders.  
 
         In addition to unrelated matters shown in those notes, Dr. Roepke 
 
         indicated a problem with lumbovertebral pain on October 20, 1983.  
 
         Lumbovertebral strain was diagnosed.  Claimant was again seen for 
 
         the same problem, on November 21, 1983.  His notes reflect 
 
         "persistent lumbar back pain in a pt. who does a good deal of 
 
         physical work in her job."
 
         
 
              A note of January 6, 1983 reflected that claimant phoned 
 
         with complaints of further back problems.  Dr. Roepke later 
 
         referred claimant to Richard Ripperger, M.D.  His notes reflect 
 
         that claimant was first seen on December 14, 1983.  He states 
 
         that claimant began to have aching discomfort on the right side 
 
         of the low back region in September, 1983.  Further, that she had 
 
         an exacerbation of her pain on November 17, 1983 and had not 
 
         worked since November 21, 1983.  He noted an impression of 
 
         probable lumbar sprain.  On December 19, 1983, Dr. Ripperger 
 
         released claimant to return to work without restriction effective 
 
         December 27, 1983.  His notes of January 9, 1984 reflect that 
 
         claimant did not feel she was improving and did not return to 
 
         work because of being on vacation, although she had later tried 
 
         to return to work and had to leave because of pain.  Dr. 
 
         Ripperger repeated his feeling that "...this is a lumbar strain 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   4
 
         
 
         type of condition."
 
         
 
              Dr. Roepke's further notes show a visit of March 19, 1984 
 
         following a motor vehicle accident of February 29, 1984.  He 
 
         found recurrent lumbar vertebral strain.  Further notes of 
 
         November 13, 1984 reflect a recurrence of lumbar back pain where 
 
         claimant had no injury and was undertaking no abnormal activity.  
 
         Claimant was seen again on February 4, 1986 with further 
 
         complaints of lower lumbar back pain without radiation into 
 
         either leg.  Dr. Roepke was left with an impression of chronic 
 
         lumbar back pain without evidence of neurological deficit.  This 
 
         visit was eight days prior to the alleged injury.
 
         
 
              The records of D. D. Stierwalt, D.C., reflect spinal 
 
         adjustments performed for claimant on August 27 and 30, September 
 
         6 and 13, 1984 and July 19, 1985.  Another complaint of low back 
 
         pain was registered on February 3, 1986, only nine days prior to 
 
         the injury.
 
         
 
              In a confidential history prepared by claimant on August 27, 
 
         1984, she described her major complaints and symptoms as 
 
         follows:
 
         
 
              back pain almost continuously low back & between 
 
              shoulder blades -- worse on "rea(illegible) or 
 
              bending.
 
         
 
              On cross-examination, claimant conceded that she had missed 
 
         some eight weeks of work in late 1984 due to back pain.
 
         
 
              The injury itself is a matter of some dispute and some 
 
         inconsistency.  While claimant testified that the platform upon 
 
         which she stood fell at least 5 feet 5 1/2 inches, and on 
 
         cross-examination testified that it dropped approximately 6 feet, 
 
         she had earlier indicated a fall of 7 to 8 feet in a deposition.  
 
         The notes of the Davenport Clinic on the date of the injury 
 
         reflect a drop of 3 to 4 feet.  A musculoskeletal evaluation 
 
         summary prepared by Nina Golden of RPT Work Fitness Center on 
 
         April 8,1987, indicates a history of a 5 to 6 foot fall.  Dr. 
 
         Sinning's office notes of November 4, 1986 reflect a fall of 4 
 
         feet.  Paul Stradt testified that, immediately following the 
 
         incident, claimant alleged a fall of 1 to 2 feet.  The original 
 
         notice and petition filed in this matter indicates a fall of 12 
 
         to 14 feet (although claimant testified that this was merely a 
 
         misunderstanding or error).
 
         
 
              But did the platform even fall?  Calvin Steward was an 
 
         assistant manager for defendant and responsible for warehouse 
 
         operations at the time of the accident.  He testified that 
 
         following another incident of approximately two-years before, 
 
         safety chain limits were installed on the F3 unit.  The purpose 
 
         of this device was to prevent a drop that might occur if the lift 
 
         unit were placed in the down mode while the forks were hung up in 
 
         the stock racks.  If this were to happen, the safety chains would 
 
         loosen and the platform could fall once freed of the racks.  The 
 
         purpose of the safety chain limits was to detect any slack in the 
 
         chains and defeat operation of the unit if slack occurred.
 
         
 
              Steward found no problems with the safety chains and 
 
         attempted to simulate or recreate the accident by raising and 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   5
 
         
 
         lowering the platform several times.  He was unable to cause the 
 
         drop reported by claimant.  He further testified that the mast or 
 
         mast channel might have dropped and that this would be easy to 
 
         mistake for the platform itself dropping, but that the channel 
 
         does not itself cause the platform to drop (but could cause a 
 
         jolt to the operator).
 
         
 
              David Harvey is the service manager for Altotfer Machine 
 
         Company.  He testified that the operator's platform is supported 
 
         by chains, a hydraulic cylinder, and a primary channel.  The 
 
         primary channel operates primarily as a guide and could not 
 
         itself cause the platform to drop.  He further testified that the 
 
         platform mechanically could drop only if all fail-safe devices 
 
         failed and the lift chains both broke.  Safety devices include a 
 
         velocity valve in the lift cylinder (which controls the flow of 
 
         liquid from the cylinder) and the loose chain switch previously 
 
         described (which "trips out" the motion of the forklift if a 
 
         loose chain is sensed).
 
         
 
              Harvey assisted in inspecting the unit after claimant's 
 
         accident.  He found that the chains were undamaged and that he 
 
         could find no mechanical reason why the platform might have 
 
         dropped.  Significantly, another defect was located,(it actually 
 
         had been discovered in an earlier service call of January 22, 
 
         1986).  When the lifting device was taken all the way to the top, 
 
         the intermediate channel slipped and fell some 4 to 5 feet.  This 
 
         was the same problem as had existed in late 1985 when another 
 
         employee had damaged the unit by running it into a column.  
 
         However, the drop of the intermediate channel was much more 
 
         severe than was earlier the case.  Continued experimentation 
 
         resulted in the drop of the intermediate channel on several 
 
         occasions.  This caused a very loud noise and a medium shock to 
 
         the platform.  Harvey further testified that the platform itself 
 
         could not have dropped even 1 foot without the loose chain switch 
 
         being defective, and the switch was not.  The switch was located 
 
         at the base of the platform at the front and was covered to 
 
         prevent tampering.  Once out of adjustment, the switch could not 
 
         work itself back into adjustment without being specifically 
 
         readjusted by a mechanic.
 
         
 
              In his deposition, Dr. Sinning testified as follows:
 
         
 
              Q.  And approximately when did you see her as it 
 
              relates to that incident?
 
         
 
              A.  I saw her on November 4th, 1986.
 
         
 
              Q.  And at that time did she give you a medical history 
 
              as it related to what she was there to see you for?
 
         
 
              A.  Yes, she did.
 
         
 
              Q.  And what was that?
 
         
 
              A.  She told me she was working as a stock and material 
 
              handler on a fork elevator about 13 feet up.  As she 
 
              pushed the down button, the platform on which she was 
 
              standing dropped four feet, stopping abruptly and 
 
              jolting her.
 
         
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   6
 
         
 
              She did not fall, but she experienced immediate, sharp 
 
              low back pain and felt terrified by the event.  She was 
 
              not able to work any more that day, was a nervous wreck 
 
              with pain and concerned about what had happened.
 
         
 
              She told me that in the job she was standing, and she 
 
              was in the standing position when this elevator 
 
              dropped.
 
         
 
         (Sinning deposition, page 4, line 1 through line 21)
 
         
 
              * * *
 
         
 
              Q.  As it relates to the incident that she came to you 
 
              about, what was your diagnosis of her condition after 
 
              having treated her and knowing what you found?
 
         
 
              A.  My final diagnosis would be chronic low back strain 
 
              secondary to disk instability.
 
         
 
              Q.  Doctor, do you have an opinion within --
 
         
 
              A.  Excuse me.  Did I say low back strain or pain?
 
         
 
              (Whereupon, the requested portion of the record was 
 
              read back by the reporter.)
 
         
 
              A.  No. Low back pain secondary to lumbar disk 
 
              instability.
 
         
 
              Q.  Doctor, do you have an opinion within a reasonable 
 
              degree of medical certainty as to whether or not such a 
 
              condition was consistent with being causally connected 
 
              to the medical history that she gave you of being 
 
              injured on the job?
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  I believe there's a direct causal connection.
 
         
 
              Q.  And doctor, do you have an opinion within a 
 
              reasonable degree of medical certainty as of the last 
 
              time that you would have seen her as to whether or not 
 
              she has a permanent partial impairment of the body as a 
 
              whole?
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  I believe she does have a permanent partial 
 
              impairment of the body.
 
         
 
              Q. And,.doctor, do you have an opinion within a 
 
              reasonable degree of medical certainty as to what 
 
              percentage of impairment it would be of the body as a 
 
              whole?
 
         
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   7
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  And what would that opinion be?
 
         
 
              A.  I estimate a five percent whole body impairment.
 
         
 
              (on cross-examination)
 
         
 
              Q.  Your notes indicate, I believe, on the bottom of 
 
              the first page of your notes dated November 4th, 1986, 
 
              that the claimant had reported to you that she had had 
 
              an occasional backache in the past, but nothing 
 
              significant.  Am I correctly stating your 
 
              understanding?
 
         
 
              A.  Yes.  And then I also had reviewed with Ms. Curry 
 
              when I first saw her the notes that dated back from, 
 
              1983 when she'd been a patient in this office.
 
              Q.  She had been previously seen by your colleague, Dr. 
 
              Ripperger, for low back pain?
 
         
 
              A.  Yes.
 
         
 
              Q.  Doctor, I gather, then, it would come as a surprise 
 
              to you to find out that Ms. Curry was seen on February 
 
              4th, 1986, by Dr. Roepke for what he described as 
 
              recurrent lumbar back pain?
 
         
 
              A. Yes.
 
         
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   8
 
         
 
         (Sinning deposition, page 6, line 20 through page 9, line 11)
 
         
 
              * * * 
 
         
 
              Q.  Did you get any history from her that she had seen 
 
              Dr. Roepke so close to the time of her accident at 
 
              American Honda for low back pain?
 
         
 
              A.  No, I did not.
 
         
 
              Q. This is the first time, then, you were aware of this 
 
              fact?
 
         
 
              A.  In my notes, she commented that she had been 
 
              treated by Dr. Roepke with a variety of 
 
              anti-inflammatories, but it was not my impression nor 
 
              is it my recollection that there was anything quite so 
 
              closely related to the work injury.
 
         
 
              Q.  Doctor, I'm also going to represent to you that the 
 
              medical records of Dr. Stierwalt, the chiropractor, 
 
              will be submitted into evidence in this case and they 
 
              show that on February 3rd, 1986, the claimant received 
 
              an adjustment for low back pain.  Were you aware of any 
 
              of this particular history?
 
         
 
              A.  No.
 
         
 
              Q.  Doctor, I want you, then, to assume the following 
 
              facts for the purpose of my question: I want you to 
 
              assume that the claimant did, in fact, go to Dr. Roepke 
 
              on February 4th, 1986, with a complaint of recurrent 
 
              lumbar back pain.  I want you to further assume that on 
 
              February 3rd, 1986, that she was seen by a chiropractor 
 
              and given a chiropractic manipulation for low back 
 
              pain.
 
         
 
              Does knowing any of these two facts in any way alter 
 
              the opinion you have offered today on the cause of her 
 
              condition?
 
         
 
              A.  I don't think it alters it, but it certainly 
 
              muddies up what looked like a pretty clear 
 
              cause-and-effect situation.
 
         
 
         (Sinning deposition, page 9, line 24 through page 11, line 6)
 
         
 
              * * *
 
         
 
              A.  It's very difficult to justify a diagnosis of low 
 
              back strain over a period of three years.  It's more 
 
              likely that Ms. Curry was developing some degree of 
 
              degenerative disk disease and that disk instability was 
 
              causing her to have recurrent back problems.  The 
 
              accident of February 1986 certainly, with the 
 
              information I have, changed her situation from that of 
 
              being back pain that she was tolerating and working 
 
              with to being back, pain that she could no longer 
 
              tolerate.  In that sense, the accident was the 
 
              precipitating event in her disability.  But with the 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE   9
 
         
 
              information that you've given me about the long-term 
 
              nature of her problem, I believe she had some degree of 
 
              pre-existing degenerative disk disease.
 
         
 
              Q.  Doctor, going to the.accident itself, it's your 
 
              understanding that she was standing on a platform that 
 
              fell approximately four feet straight down?
 
         
 
              A.  Yes.
 
         
 
              Q.  And she described this to you?
 
         
 
              A.  Yes. That's what she told me.
 
         
 
              Q.  Doctor, can you explain exactly how a fall of four 
 
              feet as she described it to you would cause the type of 
 
              problems that you saw in her?  Am I making myself 
 
              clear?
 
         
 
              A.  You are.  Remember that I'm seeing this lady nine 
 
              months after the accident so that I'm relating my 
 
              findings to the -- sort of the whole picture of what 
 
              this lady's describing to me, rather than an 
 
              examination that I can then compare to the accident 
 
              situation.
 
         
 
              Q.  Yes.
 
         
 
              A.  As she described the accident to me, it's a she had 
 
              a compression injury, and a compression injury is 
 
              recognized as one of the causes of disk injury.  It 
 
              seemed consistent to me with a disk injury instability 
 
              problem; not a disk herniation problem that caused pain 
 
              in her legs, but a disk instability that produced 
 
              damage to the disk so that it no longer stabilized 
 
              [sic] her back.  And the kind of symptoms she was 
 
              describing were consistent with that kind of problem.
 
              Q.  Doctor, I want you to assume this fact:  I want you 
 
              to assume that the machine on which Ms. Curry was 
 
              working that day, February 12th, 1986, was thoroughly 
 
              tested and examined by service people and the 
 
              manufacturer, and I want you to further assume that 
 
              they found it mechanically impossible for the accident 
 
              to have happened the way Ms. Curry described it.
 
         
 
              If you assume those facts, doctor, isn't it possible 
 
              that the low back problems for which you saw her are 
 
              attributable to some other cause than a 
 
              compression-type injury?
 
         
 
         (Sinning deposition, page 11, line 20 through page 13, line 24)
 
         
 
              * * *
 
         
 
              Q.  You can go ahead and answer the question.
 
         
 
              A.  I think.you're asking me to assume that the 
 
              accident didn't happen, and if it didn't happen, then 
 
              what caused her to have the backache.
 
         
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  10
 
         
 
              Q.  That's correct.
 
         
 
              A.  I don't know.  I want to elaborate on that.  It's 
 
              not just  what caused her to have backache, but what 
 
              caused her to go from a functioning to a 
 
              non-functioning person with a high level of backache, 
 
              and I don't know without that accident as the cause.
 
         
 
         (Sinning deposition, page 14, line 14 through line 24)
 
         
 
              * * *
 
         
 
              Q.  On direct examination, I believe you offered the 
 
              opinion that all of this impairment was attributable 
 
              [sic] to the accident, as you understood it to have 
 
              occurred, at American Honda on February 12th, 1986.  
 
              Given the fact that we have now identified a consistent 
 
              pattern of low back pain prior to this incident, do you 
 
              still believe that all of her impairment is 
 
              attributable to that accident?
 
         
 
              A.  I think I do.  And I'd better explain that given 
 
              the information you've provided, Ms. Curry had likely 
 
              had some degree of degenerative disk disease before the 
 
              accident.  The accident exacerbated and increased the 
 
              level of symptoms from the degenerative disk disease, 
 
              and with the accident she changed from a functioning 
 
              person with backache to a non-functioning person with 
 
              backache.
 
         
 
         (Sinning deposition, page 15, line 17 through page 16 line 8)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on February 12, 1986 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 12, 1986 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.  
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  11
 
         
 
         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 parties are very much in disagreement as to whether 
 
         claimant has established an injury arising out of and in the 
 
         course of her employment, and particularly whether that injury is 
 
         causally connected to temporary or healing period disability 
 
         (although it is stipulated that such benefits have been paid if 
 
         liability is found) and permanent disability.
 
         
 
              Defendants take the position that claimant was not a 
 
         credible witness.  They point to inconsistencies in her various 
 
         estimates as to how far the platform on which she stood actually 
 
         dropped, inconsistencies as to when she first reported her injury 
 
         to Paul Stradt, and her testimony at hearing as to the extent of 
 
         her preexisting back problems.
 
         
 
              This deputy is also somewhat troubled as to claimant's 
 
         credibility, but primarily on the basis of her testimony as to 
 
         preexisting back problems.
 
         
 
              Discrepancies between claimant's testimony and earlier 
 
         statements and the testimony of Paul Stradt as to when the injury 
 
         was reported do not appear particularly significant, particularly 
 
         given that the injury occurred two and one-half years prior to 
 
         hearing.  In any event, it is clear that the injury was reported 
 
         within a short time after it occurred, although exactly how short 
 
         a time remains open to question.
 
         
 
              Even though claimant's original notice and petition alleges 
 
         a fall of 12-14 feet, the deputy accepts that this was due to a 
 
         miscommunication or misunderstanding at the time the petition was 
 
         prepared (it was not signed by claimant personally).  Claimant's 
 
         other estimates have been in the five to six foot range, except 
 
         for her originally advising Stradt that she fell only one to two 
 
         feet.  This first report of her fall to Paul Stradt appears to 
 
         the deputy to be the most reliable estimate and is consistent 
 
         with his conclusion later in this decision that the claimant's 
 
         platform did not actually fall, but that claimant was jolted by 
 
         the mast channel dropping.
 
         
 
              The deputy finds claimant's testimony of only a minor 
 
         episode of back pain in 1982 or 1983 as prior history to be 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  12
 
         
 
         troubling.  In fact, the medical record discloses a substantial 
 
         history of previous back problems, including one occasion when 
 
         claimant missed eight weeks of work, hardly the sort of history 
 
         one is likely to overlook.  Similarly, claimant gave a history to 
 
         Dr. Sinning of only an occasional backache in the past but 
 
         nothing significant.  This was certainly misleading, particularly 
 
         since claimant had seen Dr. Roepke and Dr. Stierwalt in the few 
 
         days immediately preceding the alleged accident.  As Dr. Sinning 
 
         himself stated during cross-examination, "It certainly muddies up 
 
         what looked like a pretty clear cause-and-effect situation."
 
         
 
              Despite the obvious problems with claimant's credibility, 
 
         the deputy nonetheless feels constrained to hold that some 
 
         incident occurred on February 12, 1986 while the claimant was at 
 
         work.  That is so because it is undisputed that claimant did have 
 
         serious back problems starting on that date and until she was 
 
         released to return to work on July 20, 1987, well over a year 
 
         later.  Dr. Sinning is quite right in pointing out that she 
 
         changed from a functioning person with backache to a 
 
         nonfunctioning person with backache.  Claimant was performing her 
 
         work when she was injured.  It is held that the injury both arose 
 
         out of and was in the course of that employment.
 
         
 
              It is unfortunate that Calvin Steward attempted to simulate 
 
         or recreate the accident before a more qualified and specialized 
 
         mechanic could check out the equipment following the alleged 
 
         fall.  Nonetheless, the record is undisputed that the covered 
 
         floor switch that controlled the loose chain safety device was in 
 
         the proper position.  None of the defense witnesses have the same 
 
         credibility problems as beset claimant.  The deputy accepts that 
 
         the platform could not have fallen as alleged, since the chain 
 
         safety device and all other failsafe devices were operating 
 
         properly and the safety chains had not broken.
 
         
 
              Of course, that does not answer the question as to whether 
 
         some incident occurred.  As David Harvey admitted, the 
 
         intermediate channel fell some four to five feet when the 
 
         platform was at its top position causing a huge noise and medium 
 
         shock.  Mr. Harvey's letter of March 11, 1986 to American Honda 
 
         noted that "the inner rail released and crashed 4-5 feet down the 
 
         mast causing a severe jolt. ... I can easily understand how an 
 
         operator could mistake the mast channel dropping for the platform 
 
         falling."
 
         
 
              The deputy believes and holds that the intermediate mast 
 
         channel fell, causing a severe jolt to claimant, and that this 
 
         was misunderstood by claimant as the platform actually dropping. 
 
          However, the platform itself did not drop as alleged.
 
         
 
              The significance of this finding is that even though 
 
         claimant misunderstood the nature of the accident, she 
 
         nonetheless sustained a severe jolt which is hereby found to have 
 
         caused a period of inability to work until her release to return 
 
         to work without restrictions on July 20, 1987.
 
         
 
              It is stipulated by the parties that all temporary total 
 
         disability or healing period benefits to which claimant might be 
 
         entitled have already been paid along with all medical expenses. 
 
          Industrial disability is yet another question.
 
         
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  13
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  14
 
         
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial. disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant was released to return to work without restrictions 
 
         and could have resumed her previous employment.  While claimant 
 
         did not herself believe that she was capable of resuming that 
 
         employment, the deputy finds the contrary op inion of Dr. Sinning 
 
         to be much more reliable.  Claimant's election to discontinue the 
 
         employment to take advantage of a program to reduce defendant's 
 
         labor force is not a factor in determining industrial disability 
 
         since claimant could have retained the exact same employment.  In 
 
         fact, claimant's employability and future appear brighter now 
 
         than at the time of the injury, since she has obtained additional 
 
         education suiting her for laboratory work, and still retains the 
 
         physical ability to perform her previous work.
 
         
 
              Even though Dr. Sinning imposed no restrictions on claimant 
 
         when she was released, he agreed in his deposition that two 
 
         limitations would be advisable:  That she lift with her knees 
 
         bent and that lifting be limited to 50 pounds.
 
         
 
              While these restrictions are directly and causally related 
 
         to the injury by Dr. Sinning, they appear to be extremely minor. 
 
          It is merely a matter of common sense that heavy weights should 
 
         be lifted with the knees bent by anyone, not simply those 
 
         individuals with a history of back injury.  Claimant has not 
 
         shown a history of work that involved lifting in excess of 50 
 
         pounds, so that sole substantive restriction is of little 
 
         importance.
 
         
 
              Dr. Sinning was the only physician to estimate an impairment 
 
         rating, and found claimant to be impaired by reason of her back 
 
         problems to the extent of five percent.  At page 15 of his 
 
         deposition, he based that permanent impairment rating on 
 
         consistency of physical examinations and symptoms with findings 
 
         of instability and pain.  The deputy does not find this 
 
         impairment rating to be particularly significant, since it does 
 
         not distinguish between the substantial history of prior back 
 
         problems in this case and those problems brought about directly 
 
         by reason of the injury.  It is clear from the deposition that 
 
         Dr. Sinning only became aware on that date (November 25, 1987) of 
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  15
 
         
 
         the fact that claimant did have a substantial prior history.  
 
         Even then, the history was not disclosed to the doctor in great 
 
         detail.
 
         
 
              Based on the foregoing, the deputy finds and concludes that 
 
         this well-educated and capable laboratory technician has, by 
 
         reason of her 50-pound lifting restriction, suffered an 
 
         industrial disability causally connected to her work injury of 
 
         two percent of the body as a whole.  This is as an aggravation of 
 
         her preexisting condition.  Therefore, she will be awarded ten 
 
         weeks of permanent partial disability benefits (two percent of 
 
         500 weeks).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant American Honda on 
 
         February 12, 1986.
 
         
 
              2.  Claimant was involved in an accident on that date while 
 
         at work when the intermediate mast channel of the F3 forklift 
 
         machine she was operating unexpectedly dropped, causing a severe 
 
         jolt and loud noise.  Claimant mistakenly believed that the 
 
         platform upon which she stood dropped.
 
         
 
              3.  Claimant's preexisting back problems were aggravated by 
 
         this shock; her injuries disabled her from employment through 
 
         July 20, 1987.
 
         
 
              4.  When claimant was released to return to work, the 
 
         release was without restrictions.
 
         
 
              5.  Claimant elected not to return to work in favor of 
 
         accepting a voluntary separation offered generally by the 
 
         employer as a means of reducing its labor force.  Claimant could 
 
         have continued in her previous position when she was released to 
 
         return to work.
 
         
 
              6.  Claimant's injury.resulted in two permanent 
 
         restrictions: That she lift in a protective pattern with knees 
 
         bent (as everyone should do when lifting heavy weights) and that 
 
         she should not lift in excess of 50 pounds.
 
         
 
              7.  Claimant has suffered no immediate diminution of her 
 
         earning capacity, since she had the option of retaining her 
 
         previous employment and has since obtained other and lighter work 
 
         because of earning a college degree in biology; however, it 
 
         remains true that she would be unable to accept potential future 
 
         work that involved lifting in excess of 50 pounds.
 
         
 
              8.  Defendants have already paid all the healing period 
 
         benefits to which claimant is entitled, and all of her medical 
 
         expenses resulting from the injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 

 
         
 
         
 
         
 
         CURRY V. AMERICAN HONDA
 
         PAGE  16
 
         
 
         
 
              1.  Claimant suffered an injury that arose out of and in the 
 
         course of her employment on February 12, 1986.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         February 12, 1986 through July 20, 1987, for which she has been 
 
         fully compensated by defendants.
 
         
 
              4.  Claimant's injury caused medical expenses for which she 
 
         has been fully compensated by defendants.
 
         
 
              5.  Claimant has established a permanent partial industrial 
 
         disability of two percent of the body as a whole as a result of 
 
         her work injury of February 12, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant ten (10) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred fifty-seven and 82/100 dollars ($257.82) per week 
 
         commencing July 20, 1987 and therefore payable as a lump sum.
 
         
 
              That lump sum shall be paid together with statutory interest 
 
         thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants 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 25th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           DAVID RASEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Ms. Vicki L. Seeck
 
         Therese M. Botts
 
         Attorneys at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801-1550
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.20, 1402.40
 
                                                   Filed October 25, 1988
 
                                                   DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAMELA CURRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         AMERICAN HONDA,
 
                                                       File No. 814714
 
              Employer,
 
                                                   A R B I T R A T I 0 N
 
         and
 
                                                       D E C I S I 0 N
 
         AMERICAN MOTORISTS INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20, 1402.40
 
         
 
              Even though claimant's credibility was suspect, she 
 
         established a work injury that aggravated her prior back 
 
         condition.  She established a 2% permanent partial industrial 
 
         disability, where she was well-educated, able to return to her 
 
         prior employment, and had only a 50-pound lifting restriction.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBBIE TOFTEE,                :
 
                                          :
 
                 Claimant,                :   File Nos. 686176/814729
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            WEBSTER CITY PRODUCTS,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
                              statement of the case
 
            
 
                 Defendant appeals from a review-reopening and 
 
            arbitration decision denying claimant's review-reopening 
 
            claim and awarding claimant 20 percent industrial disability 
 
            to the body as a whole as a result of an alleged February 
 
            18, 1987 shoulder injury.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            review-reopening and arbitration hearing; claimant's 
 
            exhibits A through L; and defendant's exhibit 1.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendant states the issues on appeal are:
 
            
 
                 1.  Whether claimant's shoulder injury is causally 
 
            related to claimant's September 25, 1981 injury?
 
            
 
                 2.  Whether the deputy erred in denying defendant's 
 
            motion to prevent introduction of the records and reports of 
 
            James V. Nepola, M.D., and the University of Iowa Hospitals 
 
            and Clinics as evidence?
 
            
 
                 3.  Whether claimant's industrial disability related to 
 
            her injury is less than 20 percent of the body as a whole?
 
            
 
                              review of the evidence
 
            
 
                 The review-reopening and arbitration decision filed 
 
            March 31, 1989 adequately and accurately reflects the 
 
            pertinent evidence and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the review-reopening and 
 
            arbitration decision are appropriate to the issues and 
 
            evidence. 
 
            
 
                                     analysis
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On October 30, 1986 claimant sustained a traumatic 
 
            injury to her right shoulder.  (Hereinafter claimant's 
 
            injury refers to the work injury alleged in file number 
 
            814729 and does not relate to claimant's 1981 injury.)  
 
            Claimant testified that on October 30, 1986 she felt as if 
 
            her right shoulder caught when she reached to get a machine 
 
            part.  Claimant testified that she continued working that 
 
            day but that the following day she could not stretch out her 
 
            arm.  Claimant reported the incident to her employer and was 
 
            sent to J.X. Latella, D.O., in the beginning of November 
 
            1986 for her shoulder problem.  Claimant received treatments 
 
            throughout November from Dr. Latella who eventually referred 
 
            claimant to University of Iowa Hospitals and Clinics.  
 
            Claimant did not miss work for her right shoulder problem 
 
            until February 1987 when she was taken off work for chronic 
 
            overuse syndrome.  The evidence is uncontroverted that 
 
            claimant sustained an injury and sought medical treatment.
 
            
 
                 From 1984 through 1986, claimant complained of pain 
 
            which radiated into her right shoulder to Arnis Grundberg, 
 
            M.D., the physician who treated claimant for her right 
 
            carpal tunnel condition.  Claimant testified that her right 
 
            shoulder would burn or ache but it would not pop or crack as 
 
            it did following the October 30, 1986 incident.  There is no 
 
            evidence that the right shoulder pain claimant described to 
 
            her physician rose to the level which required treatment 
 
            prior to the October 1986 work injury nor did the right 
 
            shoulder pain cause claimant to miss work prior to February 
 
            18, 1987.  Claimant sustained an injury which arose out of 
 
            and in the course of her employment.
 
            
 
                 There is a causal connection between claimant's right 
 
            shoulder injury and claimant's employment.  In an office 
 
            note, James V. Nepola, M.D., stated that, "[p]atient should 
 
            not return to work until further notice, because of work 
 
            related bicipital tendonitis and shoulder impingement 
 
            syndrome."  (Claimant's Exhibit A, page 6)  
 
            
 
                 Other facts support the conclusion that claimant's 
 
            right shoulder injury is causally related to claimant's 
 
            employment.  Claimant testified that in late 1984 she became 
 
            a Class A Operator in charge of scrap metal.  Claimant's new 
 
            position required claimant to lift pieces of metal into 
 
            large dumpsters that were between four and five feet tall on 
 
            a daily basis.  Claimant testified that this work required 
 
            her to use both arms and that parts could weigh as much as 
 
            23 pounds each.  Both medical opinion and the facts support 
 
            the conclusion that claimant's right shoulder injury is 
 
            causally related to claimant's employment.
 
            
 
                 The second issue is whether claimant's industrial 
 
            disability relating to her right shoulder injury is less 
 
            than 20 percent of the body of a whole.  
 
            
 
                 Claimant's date of birth is August 19, 1956 and 
 
            claimant is a high school graduate.  Claimant's work 
 
            experience includes waitressing and manufacturing with the 
 
            majority of claimant's work experience in manufacturing.  
 
            Claimant sustained a compensable injury on September 25, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1981 which resulted in 10 percent impairment rating of right 
 
            upper extremity.  All benefits had been paid for the 
 
            September 25, 1981 work injury.  
 
            
 
                 Claimant had numerous shoulder arthrograms and on May 
 
            28, 1987 claimant underwent surgery to repair an "anterior 
 
            labral tear right shoulder."  (Cl. Ex. A, p. 45)  Surgery 
 
            did not relieve claimant's right  shoulder pain and claimant 
 
            underwent a second surgery on October 12, 1987 to repair 
 
            claimant's right shoulder impingement.  On April 11, 1988 
 
            claimant was released to return to work.   Claimant's 
 
            restrictions are no overhead work, no repetitive motion, no 
 
            lifting over five pounds, no climbing, crawling, and no 
 
            heavy equipment.  (Cl. Ex. A, p. 12)  Claimant's treating 
 
            physician assigned claimant 17 percent permanent impairment 
 
            rating of the right upper extremity which translated to 10 
 
            percent permanent impairment of the whole person.
 
            
 
                 As a result of claimant's injury to her right shoulder, 
 
            claimant has not been able to return to her position as a 
 
            Class A press operator which required overhead lifting of 
 
            greater than five pounds.  Dr. Nepola opined in a letter 
 
            dated March 10, 1988:  "We don't feel that she will be a 
 
            good candidate for returning to her previous high level of 
 
            repetitive overhead activities, and I have also strongly 
 
            recommended vocational technical rehabilitation."  (Cl. Ex. 
 
            A, p. 9)
 
            
 
                 Dr. Nepola reviewed several job descriptions and made a 
 
            suggestion as to which position would be best suited for 
 
            claimant in light of her restrictions.  Defendant-employer 
 
            placed claimant in a labor intensive position which did not 
 
            comply with claimant's restrictions.  Claimant was required 
 
            to stack wooden pallets and cardboard at least four or five 
 
            times a day.  Claimant's right shoulder bothered her doing 
 
            this work and claimant was sent to Dr. Nepola who placed 
 
            claimant in an immobilizer.  Defendant removed claimant from 
 
            that position.  Claimant was off work for more than a month 
 
            while defendant-employer attempted to find a position which 
 
            would fit within her restrictions.  
 
            
 
                 Finally, after union intervention, claimant was 
 
            returned to work in a position in general production.  
 
            Claimant's current duties in general production involve 
 
            various jobs including: building pulleys, mounting the 
 
            plates on the pulleys, drilling ground wires, and taking 
 
            parts off the production line for inner doors.  As a result 
 
            of claimant's injury, claimant has not been medically 
 
            capable of working overtime as a press operator.  At the 
 
            time of the hearing, a general production worker made $8.93 
 
            per hour and a Class A operator made $9.29 per hour.
 
            
 
                 Based upon the greater weight of the evidence, it is 
 
            determined that claimant sustained 20 percent industrial 
 
            disability as a result of her work related right shoulder 
 
            injury.
 
            
 
                 The last issue to be discussed is whether the deputy 
 
            erred in denying defendant's motion to prevent the 
 
            introduction of records and reports of Dr. Nepola and the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            University of Iowa Hospitals and Clinics.
 
            
 
                 At the pretrial conference on August 1, 1988, 
 
            defendant's attorney indicated that discovery had not been 
 
            completed.  The deposition of Dr. Nepola had not been taken 
 
            at the time of the pretrial.  At the pretrial, the parties 
 
            agreed that discovery would be completed prior to the 
 
            hearing or waived.  The case, at that time, was set for 
 
            hearing on November 9, 1988.  
 
            
 
                 On October 19, 1988, claimant filed a motion to prevent 
 
            the introduction of documents.  Defendant asserted that 
 
            attempts to schedule a deposition with Dr. Nepola had been 
 
            unsuccessful due to scheduling conflicts.  Defendant 
 
            requested that "all testimony, either verbally or any 
 
            documentation through submission be excluded at the time of 
 
            trial for the reasons that the employer has been unable to 
 
            discover the doctors [sic] position."  Defendant included 
 
            letters with the motion evidencing attempts to reach Dr. 
 
            Nepola to schedule a time to take the deposition.  The 
 
            majority of defendant's correspondence with Dr. Nepola 
 
            precede the pretrial date.  The only letter evidencing 
 
            defendant's attempt to reach Dr. Nepola after the pretrial 
 
            is dated October 12, 1988, more than two months following 
 
            the pretrial.  Defendant did not file a motion to continue 
 
            the hearing after learning that Dr. Nepola could not be 
 
            deposed.
 
            
 
                 Defendant has the right, pursuant to rule 343 IAC 4.18, 
 
            to depose medical practitioner providing medical care, 
 
            however, defendant must comply with prehearing orders.  
 
            
 
                 Discovery rules exist to prevent surprise and 
 
                 operate for the benefit of all parties.  Proper 
 
                 utilization of the rules will provide a party with 
 
                 all information in an opposing party's possession 
 
                 or knowledge of where to obtain it.  By waiting 
 
                 until just prior to the hearing, defendant has 
 
                 created its own time problems.  In addition, the 
 
                 hearing assignment order notes that the parties 
 
                 agreed to waive any discovery not completed by the 
 
                 date of hearing.  The deputy's sanction orders 
 
                 cutting off discovery were not an abuse of 
 
                 discretion.
 
            
 
            Rosenbaum v. Associated Properties, Inc., Appeal Decision, 
 
            filed December 28, 1989.
 
            
 
                 Defendant failed to complete discovery within the 
 
            specified time frame.  Defendant waived the right to object 
 
            to the introduction of testimony or documents that relates 
 
            to any possible testimony that could have been obtained from 
 
            Dr. Nepola.  
 
            
 
                 In addition, claimant's introduction of medical 
 
            evidence is not contingent upon defendant's ability to 
 
            depose Dr. Nepola.  Claimant's right to introduce medical 
 
            evidence is independent of defendants' right to depose Dr. 
 
            Nepola.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Rule 343 IAC 4.18 states:  "Any relevant medical record 
 
            or report served upon a party in compliance with these rules 
 
            prior to any deadline established by order for service of 
 
            the records and reports shall be admissible as evidence at 
 
            hearing of the contested case."
 
            
 
                 Defendant's failure to obtain the deposition of Dr. 
 
            Nepola is not a valid ground to exclude medical evidence of 
 
            claimant who had complied with all the agency rules and 
 
            orders.
 
            
 
                 Defendant failed to comply with the pretrial order 
 
            which required that discovery be completed prior to trial.  
 
            The deputy's ruling denying defendant's motion was proper.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant's date of birth is August 19, 1956.  
 
            Claimant is a high school graduate.
 
            
 
                 2.  Claimant's work experience includes waitressing and 
 
            manufacturing as a press operator.  Manufacturing accounts 
 
            for the majority of claimant's work experience.  
 
            
 
                 3.  Claimant sustained a compensable injury on 
 
            September 25, 1981 which resulted in 10 percent impairment 
 
            rating of the right upper extremity.  All healing period 
 
            benefits and permanent partial disability benefits were paid 
 
            and claimant returned to work following the September 25, 
 
            1981 injury.
 
            
 
                 4.  Claimant continued to receive treatment from Arnis 
 
            Grundberg, M.D., from 1984 through 1986 for right arm pain 
 
            which included occasional pain that radiated into her right 
 
            shoulder.
 
            
 
                 5.  On October 30, 1986 claimant "felt her arm catch" 
 
            while at work and sought medical treatment for the pain in 
 
            the beginning of November 1986. Claimant did not miss work 
 
            but continued to receive treatment.
 
            
 
                 6.  Claimant continued to work until February 18, 1987 
 
            when she was taken off work for several months by Dr. Nepola 
 
            who diagnosed possible chronic overuse syndrome in her right 
 
            shoulder.
 
            
 
                 7.  Claimant had numerous shoulder arthrograms and on 
 
            May 28, 1987 claimant underwent surgery to repair an 
 
            "anterior labral tear right shoulder."  
 
            
 
                 8.  The surgery on May 28, 1987 did not relieve 
 
            claimant's right shoulder pain and claimant underwent a 
 
            second surgery on October 12, 1987 to repair claimant's 
 
            right shoulder impingement syndrome.
 
            
 
                 9.  On April 11, 1988, claimant was released to return 
 
            to work and was restricted to no overhead work, no 
 
            repetitive motion, no lifting over five pounds, no climbing, 
 
            crawling, no heavy equipment, and no pneumatic equipment.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 10.  Dr. Nepola assigned claimant a 17 percent 
 
            permanent impairment rating of the right upper extremity 
 
            which translated to 10 percent permanent impairment of the 
 
            whole person.
 
            
 
                 11.  Prior to claimant's injury, she was a Class A 
 
            press operator.  Claimant was required to place scrap metal, 
 
            weighing as much as 23 pounds, into large dumpsters.
 
            
 
                 12.  As a result of claimant's work injury to her right 
 
            shoulder, claimant has not been able to return to her 
 
            position as a Class A press operator which required overhead 
 
            lifting of greater than five pounds.
 
            
 
                 13.  As a result of claimant's work injury, claimant 
 
            has only been able to return to work as a general production 
 
            worker.
 
            
 
                 14.  Claimant's current position is in general 
 
            production, where claimant works various jobs including: 
 
            building pulleys, mounting the plates on the pulleys, 
 
            drilling ground wires, and taking parts off the production 
 
            line for inner doors.
 
            
 
                 15.  At the time of the hearing, a general production 
 
            worker made $8.93 per hour and a Class A operator made $9.29 
 
            per hour.
 
            
 
                 16.  As a result of claimant's injury on, claimant has 
 
            not been medically capable of working overtime as a press 
 
            operator.
 
            
 
                 17.  Claimant's right shoulder injury is not the result 
 
            of claimant's injury on September 25, 1981.
 
            
 
                                conclusions of law
 
            
 
                 Claimant sustained a right shoulder injury that arose 
 
            out of and in the course of her employment with defendant on 
 
            October 30, 1986.  Claimant's right shoulder injury is not 
 
            causally related to claimant's September 25, 1981 right 
 
            extremity injury.
 
            
 
                 There is a causal relation between claimant's shoulder 
 
            injury and claimant's functional impairment.
 
            
 
                 Defendant's motion to prevent the introduction of 
 
            documents was properly denied.
 
            
 
                 Claimant has met her burden of proving she has a 20 
 
            percent permanent partial disability attributable to her 
 
            right shoulder injury.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant one hundred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (100) weeks of permanent partial disability benefits at the 
 
            rate of two hundred twenty-one and 30/100 dollars ($221.30) 
 
            per week.
 
            
 
                 That defendant shall pay unto claimant fifty-five point 
 
            five (55.5) weeks of healing period benefits at the rate of 
 
            two hundred twenty-one and 30/100 dollars ($221.30) per 
 
            week.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant shall receive credit for benefits 
 
            previously paid.
 
            
 
                 That defendant pay the cost of the proceedings 
 
            including the costs of transcription of the review-reopening 
 
            and arbitration hearing.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            That defendant file claim activity reports pursuant to rule 
 
            343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1100, 5-1803, 2906
 
            Filed January 30, 1991
 
            MAM
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBBIE TOFTEE,                :
 
                                          :
 
                 Claimant,                :   File Nos. 686176/814729
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            WEBSTER CITY PRODUCTS,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1100, 5-1803
 
            Claimant sustained a right shoulder injury that arose out of 
 
            and in the course of her employment with defendant on 
 
            October 30, 1986.  Claimant's right shoulder injury is not 
 
            causally related to claimant's September 25, 1981 right 
 
            extremity injury.
 
            There is a causal relation between claimant's shoulder 
 
            injury and claimant's functional impairment. 
 
            Claimant has met her burden of proving she has a 20 percent 
 
            permanent partial disability attributable to her right 
 
            shoulder injury.
 
            
 
            2906
 
            Defendant sought to prevent the introduction of records and 
 
            reports of Dr. Nepola and the University of Iowa Hospitals 
 
            and Clinics on the grounds that defendant was unable to 
 
            schedule a time to take Dr. Nepola's deposition prior to 
 
            hearing.  
 
            It was determined that claimant's right to introduced 
 
            medical evidence is not contingent upon defendant's ability 
 
            to depose Dr. Nepola.  Defendant's failure to obtain the 
 
            deposition of Dr. Nepola is not a valid ground to exclude 
 
            medical evidence of claimant who had complied with all the 
 
            agency rules and orders.