BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY F. MUMM,
 
         
 
              Claimant,
 
                                                 File No.  816105
 
         vs.
 
         
 
         FARMLAND FOODS,                           A P P E A L
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on February 10 or March 8, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration decision; joint exhibits 1 through 55; and claimant's 
 
         exhibits l, 2, 3 and 4, with a portion of exhibit 3 excluded from 
 
         the record.
 
         
 
              Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              The deputy errored [sic] in failing to find that the 
 
              increased permanent partial disability and removal from 
 
              packing house work is a result of the job related 
 
              activities following the February, 1985, special case 
 
              settlement.
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Whether or not there is a causal connection between 
 
              an aggravation of claimant's pre-existing condition in 
 
              the fall of 1985 which resulted in a cumulative injury 
 
              on March 8, 1986 and any disability from which the 
 
              claimant now suffers.
 
         
 
              2. Whether or not the claimant is entitled to permanent 
 
              partial industrial disability as a result of an 
 
              aggravation of a pre-existing condition in the fall of 
 
              1985 which stems from a cumulative injury on March 8, 
 
              1986.
 
         
 
              3.  Whether or not claimant is entitled to the payment 
 
              of medical expenses relating to an aggravation of her 
 
              pre-existing condition in the fall of 1985 which 
 
              resulted in a cumulative injury on March 8, 1986.
 

 
         
 
          MUMM V. FARMLAND FOODS                  
 
          PAGE 2
 
                               
 
                               
 
                               REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, claimant was employed by Farmland Foods from 
 
         August 1972 until March 7, 1986 when she left work pursuant to 
 
         medical advice.  Her duties consisted mainly of repetitive 
 
         folding of boxes and lifting of boxes of bacon.  Claimant was at 
 
         various times assigned to two different lines, a "vac" line and 
 
         "HRI" line.  The vac line involved lifting packages weighing 
 
         approximately one pound, while the HRI line involved lifting 
 
         packages weighing 15 to 25 pounds.  Claimant also worked as a 
 
         scaler on each of these lines, which involved weighing the 
 
         packages.
 
         
 
              Claimant began to experience pain in her right wrist, right 
 
         shoulder, and her neck.  Claimant received treatment from various 
 
         medical professionals, including physicians, neurosurgeons, 
 
         orthopedic surgeons, and chiropractors, from 1975 to 1985.  At 
 
         various times during this period claimant was diagnosed as having 
 
         paresthesia of the right median nerve, chronic cervical strain, 
 
         right arm tenosynovitis, probable brachial plexis irritation of 
 
         the right shoulder, probable thoracic outlet syndrome of the 
 
         right shoulder, bilateral mild ulnar neuropathy in the right arm, 
 
         right shoulder bursitis, and carpal tunnel syndrome of the right 
 
         wrist.
 
         
 
              Claimant underwent a carpal tunnel release and a cervical 
 
         fusion in January of 1984.  In November 1984, Patrick Bowman, 
 
         M.D., recommended that claimant quit her packing plant job, and 
 
         assigned claimant a 3 percent permanent impairment of the whole 
 
         body based on her carpal tunnel syndrome and a 5 percent 
 
         permanent partial impairment of the whole body due to claimant's 
 
         cervical problems.  Dr. Bowman stated at that time that "I think 
 
         her shoulder symptoms are related to the cliconic cervical strain 
 
         and do not represent separate impairment."  Dr. Bowman did 
 
         ultimately release claimant to go back to work on the vac line as 
 
         a scaler with a 25 pound lifting restriction in December 1984.
 
         
 
              Two months after her return to work, claimant settled a 
 
         pending workers' compensation claim.  This agency approved a 
 
         special case settlement under section 85.35 in March 1985 for 
 
         "any injuries claimed to have been sustained by Claimant at any 
 
         time while Claimant was employed by the Defendant-Employer, 
 
         including but not limited to injuries claimed to have been 
 
         sustained by Claimant on or about August 11, 1983...." (Jt. Ex. 
 
         8, p. 2) Under this settlement, claimant received a monetary 
 
         award and claimant agreed to pay all future medical expenses.  
 
         Claimant testified that she thought the settlement applied only 
 
         to her neck and wrist, although claimant acknowledged that she 
 
         read the settlement document and had the benefit of her counsel's 
 
         advice.
 
         
 
              In September 1985, claimant was reassigned to the HRI line. 
 
          Claimant began to experience pain in her right shoulder again, 
 
         and sought medical treatment.  Dr. Dreyer, a chiropractor, 
 
         treated claimant and referred claimant to Ronald C. Evans, D.C.  
 
         In January 1987, Dr. Evans diagnosed claimant as suffering from a 
 
         moderate to severe right shoulder rotator cuff tenosynovitis due 
 
         to cumulative work trauma "occurring on or about 1983," and 
 
         assigned claimant an impairment rating of 10 percent of the body 
 
         as a whole based on the right shoulder impairment.  Claimant 
 
         terminated her employment at Farmland Foods in March 1987 upon 
 
         the advice of Dr. Dreyer.
 
         
 
              Claimant incurred medical expenses totaling $1,167 
 
         subsequent to her last transfer back to the heavier lifting 
 

 
         
 
         MUMM V. FARMLAND FOODS
 
         PAGE 3
 
 
 
         
 
         position until January 1987, at which time the medical evidence 
 
         indicated she obtained maximum healing from the effects of the 
 
         transfer to the heavier work.
 
         
 
              The parties stipulated that claimant's last day of work was 
 
         March 7, 1986; that the commencement date for permanent partial 
 
         disability benefits if awarded would be March 8, 1986; and that 
 
         claimant's rate of compensation is $234.57 per week.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 10 or March 8, 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.  
 
         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).  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).
 
         
 
                                     ANALYSIS
 
         
 
              Iowa Code section 85.35 provides a method whereby a final 
 
         disposition of a claimant's entitlement to benefits can be 
 
         obtained.  Although the special case settlement document purports 
 
         to address any and all injuries sustained by claimant while in 
 
         defendant's employ, a special case settlement is limited to a 
 
         particular injury.  Claimant in this case entered into a special 
 
         case settlement pursuant to section 85.35 for injuries sustained 
 
         by claimant on August 11, 1983.  The medical evidence shows that 
 
         claimant's alleged injury contemplated by the special case 
 
         settlement included claimant's right shoulder condition.
 
         
 
              Claimant's medical evidence concerning her right shoulder 
 
         condition subsequent to the special case settlement fails to 
 
         causally connect her present right shoulder pain to an injury, 
 
         aggravation of an injury, or cumulative injury process occurring 
 
         after the special case settlement.  Rather, that evidence 
 
         specifically causally connects her present right shoulder 
 
         condition to her August 1983 injury.  The special case settlement 
 
         provided a final disposition of entitlement to benefits for that 
 
         injury and further recovery is barred.
 
         
 
              The deputy found an aggravation of a preexisting condition. 
 
          However, causal connection is within the purview of expert 
 
         testimony.  There was no expert testimony causally connecting 
 
         claimant's present right shoulder problems to an aggravation of 
 
         her preexisting condition.  The record contains only claimant's 
 
         own assertion that her condition was aggravated.  Claimant has 
 
         failed to prove either a temporary or a permanent aggravation of 
 
         her preexisting condition occurred.
 
         
 
              Even if claimant's present right shoulder condition had been 
 
         causally connected to her return to the HRI line and the heavier 
 
         lifting involved therein, claimant has also failed to show that 
 

 
         
 
         MUMM V. FARMLAND FOODS
 
         PAGE 4
 
 
 
 
 
         
 
         her return to that work caused any permanent aggravation of her 
 
         right shoulder condition.  Claimant now has pain in her right 
 
         shoulder, but claimant also had pain in her right shoulder at the 
 
         time of the special case settlement.  Claimant has not been given 
 
         any more or greater medical restrictions than she had at the time 
 
         of the special case settlement.  Claimant has received a greater 
 
         rating of impairment, but that rating of impairment was 
 
         specifically related to her August 1983 injury.  Claimant has not 
 
         shown any permanent disability as a result of any work events or 
 
         conditions occurring subsequent to the special case settlement.
 
         
 
              The deputy's arbitration decision awarded claimant medical 
 
         benefits for medical expenses incurred subsequent to the special 
 
         case settlement.  However, claimant is not entitled to an award 
 
         of medical benefits where the medical services have not been 
 
         causally connected to a compensable injury.  As stated above, 
 
         claimant has failed to show that she suffered a compensable 
 
         injury subsequent to her special case settlement.  Claimant 
 
         cannot now seek medical benefits for the August 1983 injury, 
 
         because a special case settlement by its very nature deals with 
 
         an alleged injury that has not been shown to arise out of and in 
 
         the course of employment.  In addition, claimant agreed to pay 
 
         all future medical expenses related to her August 11, 1983 
 
         injury.  Claimant is not entitled to medical benefits.
 
         
 
              1.  Claimant was employed by Farmland Foods from 1972 to 
 
         March 8, 1986.
 
         
 
              2.  Claimant worked on the "vac" line, which involved 
 
         handling one pound containers of bacon, and on the "HRI" line, 
 
         which involved handling 15-25 pound containers of bacon.
 
         
 
              3.  Claimant developed pain in her neck, right shoulder and 
 
         right wrist on or about August 1983.
 
         
 
              4.  Claimant entered into a special case settlement with 
 
         Farmland Foods in March 1985, which contemplated full and final 
 
         compensation for claimant's neck, wrist and shoulder conditions 
 
         existing as a result of a work injury of August 1983.
 
         
 
              5.  Subsequent to the special case settlement, claimant was 
 
         reassigned to the HRI line and continued to experience pain in 
 
         her right shoulder.
 
         
 
              6.  Claimant incurred medical expenses subsequent to the 
 
         special case settlement in connection with her right shoulder 
 
         pain.
 
         
 
              7.  Claimant's medical providers subsequent to the special 
 
         case settlement causally connected claimant, present right 
 
         shoulder pain to her injury of August 1983.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's present right shoulder condition is causally 
 
         connected to her August 1983 injury.
 
         
 
              Claimant's medical expenses are causally connected to her 
 
         August 1983 injury.
 
         
 
              Claimant is not entitled to further weekly or medical 
 
         benefits for her right shoulder condition.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
              MUMM V. FARMLAND FOODS
 
              PAGE 5
 
 
 
              
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant is to pay the costs of this action including 
 
         the costs of the transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 14th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at law
 
         632-640 Badgerow Bldg.
 
         P.O. Box 1194
 
         Sioux City, IA 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, IA 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.50; 1402.20;
 
                                              2209; 3302; 1803; 2505
 
                                              Filed December 14, 1988
 
                                              David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY F. MUMM,
 
         
 
              Claimant,
 
                                                 File No. 816105
 
         vs.
 
         
 
         FARMLAND FOODS,                           A P P E A L
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50; 1402.20; 2209; 3302
 
         
 
              Claimant previously settled her right shoulder injury with a 
 
         special case settlement.  Claimant's medical evidence causally 
 
         connected her present condition to the original injury.  There 
 
         was no evidence establishing a post-settlement injury, 
 
         aggravation of an injury, or cumulative injury process.  Claimant 
 
         was denied further benefits.
 
         
 
         1803
 
         
 
              Even if claimant had shown a causal connection between her 
 
         present condition and an event occurring subsequent to the 
 
         settlement, claimant failed to show any permanency.
 
         
 
         2505
 
         
 
              In that claimant did not establish a compensable injury, 
 
         aggravation of an injury or cumulative injury, claimant was 
 
         denied medical benefits.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARY F. MUMM,
 
         
 
              Claimant,
 
         
 
         VS.                                          FILE NO. 816105
 
          
 
          FARMLAND FOODS,
 
                                                   A R B I T R A T I 0 N
 
             Employer,
 
                                                       D E C I S I O N
 
          and
 
          
 
          AETNA CASUALTY & SURETY
 
          COMPANY,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Mary F. Mumm, 
 
         claimant, against Farmland Foods, employer (hereinafter referred 
 
         to as Farmland), and Aetna Casualty & Surety Company, insurance 
 
         carrier, defendants, for workers' compensation benefits as a 
 
         result of an alleged injury on February 10, 1986.  On July 8, 
 
         1987, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Pat Scavone and Karen Stricklett.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  The last day claimant was employed in any capacity was 
 
         March 7, 1986;
 
         
 
              2.  The commencement date for permanent partial disability 
 
         benefits if awarded herein shall be March 8, 1986; and,
 
         
 
              3.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits from this proceeding shall be $234.57 per 
 
         week.
 
         
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of her employment:
 
         
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   2
 
         
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III. The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
              At the prehearing conference, the parties indicated that 
 
         whether or not claimant's claim is barred by the time 
 
         limitations of Iowa Code section 85.26 was an issue to be dealt 
 
         with at the hearing.  In paragraph seven of the prehearing 
 
         report the parties failed to specify the current status of such 
 
         an issue.  However, in the description of disputes submitted by 
 
         defendants and attached to the prehearing report, no mention is 
 
         made of such an issue.  Therefore, the issue will not be dealt 
 
         with and it is assumed that the issue is no longer a dispute.
 
         
 
              Claimant indicated prior to the reception of evidence that 
 
         he was not seeking temporary total disability or healing period 
 
         benefits in this proceeding.
 
         
 
              Joint exhibits 8, 9 and 10 show that upon application 
 
         filed in February, 1985, this agency approved a special case 
 
         settlement under Iowa Code section 85.35 in March, 1985, for 
 
         all injuries claimed to have been sustained by claimant 
 
         including but not limited to injuries claimed to have been 
 
         sustained by claimant on or about August 11, 1983.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From her demeanor while testifying, claimant appeared to be 
 
         truthful.  Claimant's testimony was consistent for the most part 
 
         with histories provided to physicians during treatment and 
 
         evaluation of her injuries.
 
         
 
              2. Claimant was employed by Farmland from August, 1972, 
 
         until March 7, 1986, at which time she left work indefinitely 
 
         upon the advice of her treating health care practitioner.
 
         
 
              There was little dispute among the parties as to the nature
 
         of claimant's employment with Farmland.  Claimant testified that 
 
         during her entire employment she has been assigned to the bacon 
 
         department primarily in "packing off".  This job involves the 
 
         repetitive folding of pre-formed cardboard boxes and repeated 
 
         sealing and stacking of these boxes filled with bacon weighing 
 
         approximately 15 to 25 pounds.  However, claimant testified that 
 
         she was occasionally moved to other jobs within the bacon 
 
         department as needed.  One of these jobs was the HRT bulk pack 
 
         which involved the repetitive packing of bacon into 15 to 25 
 
         pound boxes and placing them on a nearby table for scaling.  
 
         After returning from work following surgery on her peck and right 
 
         wrist in December, 1984, claimant was assigned to scaling bacon 
 
         which involved only repetitive handling of one pound plastic 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   3
 
         
 
         
 
         packages of bacon.  However, in September, 1985, claimant 
 
         testified that she was reassigned to HRT bulk.  One of claimant's 
 
         supervisors testified at the hearing that from his recollection 
 
         of the events after claimant returned to work claimant was 
 
         assigned only to scaling but admitted in cross-examination that 
 
         claimant was in line two and persons in that line often switch 
 
         jobs.  Therefore, it is found that claimant did, in fact, perform 
 
         the more difficult work in the fall of 1985.
 
         
 
              3.  On March 8, 1986, claimant suffered an injury which 
 
         arose out of and in the course of her employment with Farmland.
 
         
 
              The injury was in the form of a temporary aggravation of a 
 
         preexisting condition of her neck, right shoulder, right arm, 
 
         right wrist and hand.  Claimant has had a long history of 
 
         problems with her neck and chronic pain extending from her right 
 
         hand and fingers to areas adjacent to the right shoulder blade.
 
         
 
              According to the medical records and claimant's testimony 
 
         and her deposition, she first received chiropractic treatment for 
 
         neck and lower back problems in 1975.  She stated that she first 
 
         received treatment of right arm pain and numbness in 1978 or 1979 
 
         from a Dr. Bendixon (first name unknown).  The medical evidence 
 
         submitted shows that claimant was treated by Ron Dryer, D.C., for 
 
         parathesia of the right median nerve and chronic cervical strain 
 
         in January, 1980.  Dr. James Flood, M.D., treated claimant for 
 
         right arm tenosynovitis in April, 1980.  Claimant was treated by 
 
         Dr. Bendixon in October, 1980, for probable brachial plexis 
 
         irritation of the right shoulder; probable thoracic outlet 
 
         syndrome of the right shoulder; and, bilateral mild ulnar 
 
         neuropathy in the right arm.  At that time Dr. Bendixon referred 
 
         claimant to a neurosurgeon, Walter Eckman, M.D.  Dr. Eckman felt 
 
         that claimant had bilateral mild ulnar neuropathy and probable 
 
         thoracic syndrome.  Dr. Eckman recommended conservative treatment 
 
         including use of an elbow pad.
 
         
 
              In September, 1982, claimant received treatment from a Dr. 
 
         Pizarro (first name unknown) for right shoulder pain while 
 
         lifting a 25 pound box at work.  Dr. Pizarro treated claimant 
 
         with anti-inflammatory medication and recommended two days of 
 
         lighter duty at Farmland.  In August, 1983, claimant returned to 
 
         Dr. Flood for treatment of what Dr. Flood felt was right shoulder 
 
         bursitis.  Dr. Flood referred claimant to an orthopedic surgeon, 
 
         Patrick Bowman, M.D. After his examination of claimant, Dr. 
 
         Bowman diagnosed cervical strain and carpal tunnel syndrome of 
 
         the right wrist.  At the time claimant was complaining of right 
 
         sided pain and headaches.  Following a period. of conservative 
 
         therapy consisting of rest and medication and a myelogram test 
 
         which was concurred in a consultation report by E. M. Schima, 
 
         M.D., Dr. Bowman performed surgery consisting of a cervical 
 
         fusion at the C5/6-level of claimant's spine and right carpal 
 
         tunnel release of the median nerve in the right wrist.  Claimant 
 
         underwent physical therapy from Noel Johnson, LPT, for several 
 
         weeks following the surgery.
 
         
 
              In May, 1984, Dr. Bowman indicated in his reports to 
 
         defendant insurance carrier that claimant still had a lot of 
 
         shoulder pain.  He believed that there was some permanency from 
 
         the injuries but that a specific rating was not possible at that 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   4
 
         
 
         
 
         time.  Dr. Bowman also stated that the condition severely limits 
 
         claimant's ability to get through a reasonably active day and if 
 
         symptoms persist he will have to impose permanent physical 
 
         restrictions on activity.
 
         
 
              In June, 1984, claimant was examined again by Dr. Shima who 
 
         found that claimant was still complaining of terrible pain in the 
 
         shoulder and headaches and he felt that there was no change in 
 
         her condition by the surgery.  Claimant indicated to Dr. Shima 
 
         that her condition had deteriorated gradually since the surgery.
 
         
 
              On September 5, 1984, Dr. Bowman indicated that claimant had 
 
         recovered from carpal tunnel syndrome but still was experiencing 
 
         a lot of "mechanical" pain in the neck and right shoulder.  Dr. 
 
         Bowman stated as follows: "Physical demands of the job in general 
 
         at the plant, make it unlikely that she will return to that in 
 
         any form.  I think the best solution is to change jobs."  Dr. 
 
         Bowman opined that claimant suffered a three percent impairment 
 
         to the total body from the carpal tunnel syndrome.  Also, on 
 
         September 5, 1984, Dr. Bowman stated that he did not feel that 
 
         claimant should do any work that would require holding a knife in 
 
         her right hand and that any work which involves repetitive 
 
         movement with arms in front of her body would be a significant 
 
         problem for her.  Finally Dr. Bowman again emphasized to 
 
         defendant insurance carrier that it was "likely none of the jobs 
 
         would work out for her and that any effort to get her back to the 
 
         plant will meet with ultimate failure.O
 
         
 
              Dr. Bowman opined that claimant's shoulder pain is the 
 
         result of her cervical problems and he rates claimant as 
 
         suffering a five percent permanent partial impairment to the 
 
         whole body as a result of the cervical problems.  Despite all of 
 
         his prior statements, he released claimant for work with a 25 
 
         pound lifting restriction to the job of scaling bacon.  Claimant 
 
         then returned to work scaling bacon and settled the workers' 
 
         compensation claim she had at the time for the sum of $12,500.  
 
         Attached to the settlement papers were various reports on the 
 
         history set forth above including specific reports from Dr. 
 
         Bowman.
 
         
 
              Claimant returned to work as stated above to scaling bacon, 
 
         a lighter duty job in the bacon department.  However, claimant 
 
         testified that an older woman with more seniority bumped her from 
 
         that job and she was reassigned to the heavier work on the HRT 
 
         bulk pack job in September, 1985.  Claimant then began to 
 
         reexperience difficulties in her right shoulder.  Claimant 
 
         testified that in either October or November she returned to Dr. 
 
         Bowman who, according to claimant, gave her injections into the 
 
         shoulder with steroids and anti-inflammatory medication.  In 
 
         February, 1986, claimant began receiving ultrasound, moist heat 
 
         and cryotherapy from her chiropractor, Dr. Dryer, for complaints 
 
         of severe pain in the right shoulder due to repetitive work at 
 
         Farmland according to the reports and claim forms submitted by 
 
         claimant to Farmland.  Dr. Dryer referred claimant to a 
 
         neurologist, Ronald Cooper, M.D., who found no evidence of nerve 
 
         compression.  Dr. Cooper prescribed non-prescription Ibuprofen 
 
         and to continue with ultrasound therapy with Dr. Dryer.  Claimant 
 
         then was taken off work indefinitely by Dr. Dryer and she has no 
 
         plans at present to return to work at Farmland due to her 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   5
 
         
 
         
 
         physical problems.
 
         
 
              Upon referral from Dr. Dryer in January, 1987, claimant was 
 
         examined by Ronald Evans, D.C., a diplomate of the American Board 
 
         of Chiropractic Orthopedics.  The nature of such a board 
 
         certification was not explained in this record.  According to Dr. 
 
         Evans, claimant has sustained a "moderate to severe right 
 
         shoulder rotator cuff tenosynovitis" as a result of a "cumulative 
 
         work trauma occurring on or about 1983."
 
         
 
              The above medical history rather clearly establishes that in 
 
         the fall of 1985, claimant suffered at least a temporary 
 
         aggravation of her preexisting injury when she was moved to the 
 
         HRT bulk pack job, a job not approved by Dr. Bowman.  The injury 
 
         is also a cumulative or gradual injury process and under the law 
 
         that will be discussed in the next section, the injury date 
 
         coincided with the date claimant was finally compelled to leave 
 
         her employment.  The alleged injury date in this case, February 
 
         10, 1986, bore no relation to any claimed disability.
 
         
 
              4. Claimant has failed to establish that the work injury of 
 
         March 8, 1986 was a cause of permanent disability.
 
         
 
         
 
              Claimant states that she did not settle the shoulder 
 
         condition difficulties in 1985.  This understanding of the 
 
         settlement is contrary to the written settlement agreement which 
 
         states that all injuries claimed were finally settled.  Claimant 
 
         had chronic shoulder difficulties as well as cervical and right 
 
         arm impairment at the time of the settlement and had been 
 
         claiming the work relatedness of these difficulties since 1980.  
 
         The only dispute in the medical evidence concerns the cause of 
 
         the shoulder difficulties.  Initially doctors in 1980 and Dr. 
 
         Evans in 1987 believe that claimant had tenosynovitis of the 
 
         shoulder whereas Dr. Bowman, the primary treating physician in 
 
         this case, opines that the shoulder difficulties were referred 
 
         pain from the cervical problems.  However, regardless of the 
 
         cause, the evidence rather clearly demonstrates a permanent 
 
         chronic shoulder condition before claimant returned to work in 
 
         December, 1984, and before the March, 1985 settlement.  The views 
 
         of Dr. Bowman, the primary treating physician, must be given 
 
         considerable weight.  He predicted in no uncertain terms in the 
 
         fall of 1984 that any effort to return claimant to her 
 
         packinghouse work would not be successful.  Claimant only 
 
         experienced difficulties when she assumed a job in the fall of 
 
         1985 which was not approved by Dr. Bowman.  Dr. Bowman only 
 
         released her to the scaling job.  Claimant relies on the views of 
 
         Dr. Evans as to a new rating.  However, Dr. Evans opines in his 
 
         written report that the problems arose from the 1983 injury.
 
         
 
              5.  Claimant has incurred reasonable medical expenses for 
 
         the treatment of her aggravation work injury in the amount of 
 
         $1,167.00.
 
         
 
              As found above, claimant suffered a compensable aggravation 
 
         of a preexisting condition, albeit temporary, as a result of her 
 
         work at Farmland.  Claimant sought and received treatment of this 
 
         aggravation injury from Dr. Dryer who referred claimant for 
 
         consultation to Dr. Cooper and Dr. Evans.  The above total amount 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   6
 
         
 
         
 
         was arrived at by adding the bills from each of these doctors as 
 
         listed in the attachment to the prehearing report.  All of these 
 
         expenses related to the aggravation injury until January, 1987, 
 
         when Dr. Dryer felt that claimant had reached maximum healing 
 
         from the aggravation injury.
 
         
 
              The charges for the above services were fair and 
 
         reasonable.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove her disability 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   7
 
         
 
         
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court also held that the date of injury in gradual 
 
         injury cases is a time when pain prevents the employee from 
 
         continuing to work.  Given the findings in this case the injury 
 
         date was found to be March 8, 1986 which is the first day 
 
         claimant was unable to work as a result of the aggravation 
 
         injury.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson  v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice no finding was made causally 
 
         connecting the March 8, 1986 aggravation injury to permanent 
 
         disability as claimant, after leaving Farmland, simply returned 
 
         to the same condition that existed prior to her return to work in 
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   8
 
         
 
         
 
         December, 1984.  Claimant is prohibited from any further recovery 
 
         of benefits as a result of a special case settlement under Iowa 
 
         Code section 85.35.  Such a settlement constitutes a full and 
 
         complete bar to any further recovery of benefits as a result of 
 
         those claimed injuries.
 
         
 
              III.  There being no causal connection finding the extent of 
 
         entitlement to disability benefits under law need not be 
 
         discussed.
 
         
 
              IV.  Employers are obligated to furnish all reasonable 
 
         medical services for treatment of a work injury under Iowa Code 
 
         section 85.27.  Given the findings in this case, claimant is 
 
         entitled as a matter of law to reimbursement for the sums 
 
         expended for treatment of the aggravation injury.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay claimant the total sum of one 
 
         thousand one hundred sixty-seven and no/100 dollars ($1,167.00) 
 
         as reimbursement for work related medical expenses.
 
         
 
              2.  Defendants shall pay interest on benefits awarded 
 
         herein
 
         as set forth in Iowa Code section 85.30.
 
         
 
              3.  Defendants shall pay the cost of this action pursuant 
 
         to
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants shall file activity reports on payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         
 
              Signed and filed this 18th day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P. 0. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg.
 

 
         
 
         
 
         
 
         MUMM V. FARMLAND FOODS
 
         Page   9
 
         
 
         
 
         P. 0. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed September 18, 1987
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARY F. MUMM,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                   FILE NO.  816105
 
         FARMLAND FOODS,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY 
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1803
 
         
 
              Although a work injury was found to have occurred from an 
 
         aggravation of a preexisting condition, permanent disability 
 
         benefits were denied because the permanency was related to 
 
         claimed injuries occurring prior to the aggravation injury which 
 
         were fully and finally settled under an 85.35 special case 
 
         settlement.  Additional medical benefits were awarded but 
 
         temporary total disability was not awarded because claimant 
 
         failed to request it.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MICHAEL M. BURKHARDT,
 
        
 
            Claimant,
 
                                             File No. 816112
 
        vs.
 
        
 
        QUALITY ROOFING COMPANY,         A R B I T R A T I O N
 
        
 
            Employer,                      D E C I S I O N
 
        
 
        and
 
                                               F I L E D
 
        ADJUSTCO, INC.,IOWA CONTRACTORS
 
        COMPENSATION GROUP,                   MAY 18 1989
 
        
 
            Insurance Carrier,
 
            Defendants 
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Michael M. 
 
             Burkhardt, claimant, against Quality Roofing Company, employer, 
 
             and Adjusto, Inc., Iowa Contractors Compensation Group, insurance 
 
             carrier, to recover benefits under the Iowa Workers' Compensation 
 
             Act as a result of an alleged injury sustained on December 30, 
 
             1985. This matter came on for hearing before the undersigned 
 
             deputy industrial commissioner May 11, 1988. The matter was 
 
             considered fully submitted at the close of the hearing. The 
 
             record in this case consists of the testimony of claimant and 
 
             Oliver Burkardt, his father, and joint exhibits 1 through 10, 
 
             inclusive. Claimant's exhibit 11 was excluded from the record as 
 
             it was not served in compliance with the hearing assignment 
 
             order.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report and order submitted and 
 
             approved May 11, 1988, the following issues are presented for 
 
             resolution:
 
        
 
            1. Whether claimant sustained an injury on December 30, 
 
        1985 which arose out of and in the course of his employment;
 
        
 
            2. Whether the alleged injury is causally connected to the 
 
        disability on which claimant now bases his claim;
 
        
 
            3. Claimant's entitlement to weekly benefits including 
 
        temporary total disability/healing period and permanent partial 
 
        disability benefits.
 
        
 
             4 . The nature of claimant's permanent partial disability, 
 
             if any.
 
        
 
            5. The appropriate rate of compensation; and
 
        
 
            6. Claimant's entitlement to certain medical benefits 
 
        pursuant to Iowa Code section 85.27.
 
        
 

 
        
 
 
 
 
 
                                 FACTS PRESENTED
 
        
 
             Claimant testified he began employment with defendant 
 
             employer in September 1985 as a laborer (apprentice) and 
 
             described his job as carrying tar and insulation, taking old 
 
             roofing off and disposing of it by throwing it into a truck. 
 
             Claimant recalled that on December 30, 1985, he was working on a 
 
             job in Muscatine, Iowa, and was moving insulation from an old 
 
             roof to a new roof when he slipped on a "chunk of ice" and fell 
 
             off of a pallet landing on his head and shoulders. Claimant 
 
             stated he dropped the insulation (which he estimated weighed 75 
 
             to 100 pounds) on his legs and that he tried to "catch" himself 
 
             with his hands. Claimant explained that when he got up he had a 
 
             small headache but did not believe it was anything serious and 
 
             went home at the end of the day without mentioning the incident 
 
             to anyone. Claimant testified he awoke at 4:00 a.m. the next 
 
             morning with a severe headache, numbness in his arms and back of 
 
             his head and pain in his neck. Claimant offered he took aspirin 
 
             and reported for work at 6:00 a.m. but that about 10:00 a.m. when 
 
             returning from break his arms went numb and he fell against a 
 
             roof. Claimant recalled he told his supervisor, stayed at work 
 
             for a while, and then called his father to take him home around 
 
             noon because he had a severe headache, felt sick to his stomach 
 
             and was working "a lot slower than usual" although the numbness 
 
             "went away." Claimant testified he went to his family doctor, 
 
             received some medication and was told to return to work.
 
        
 
            Claimant recalled that on January 1 or January 2, at 4:30 
 
        a.m., he went to the emergency room where he was referred to John 
 
        A. Baker, M.D., who told him not to return to work for two weeks, 
 
        prescribed some medication and some physical therapy. Claimant 
 
        offered he had no contact with defendant employer until "a few 
 
        days" after he saw Dr. Baker but that when he did call "Jane" 
 
        told him he would "never have a job [there] again." Claimant 
 
        testified Dr. Baker wanted to do surgery on his wrist but that he 
 
        wanted a second opinion and therefore went to see J. R. Lee, 
 
        M.D., who took x-rays and released claimant to return to work in 
 
        June 1986. Claimant recalled that prior to seeing Dr. Lee, he had 
 
        felt a little better but while at a stop sign he turned his head 
 
        and "something popped," he could not move his shoulders and that 
 
        he was "back to the same way" as when he first went to see the 
 
        doctor. Claimant denied any reinjury stating that the "injury 
 
        was still there."
 
             
 
             Claimant offered that from Dr. Lee he also saw a Dr. Love, 
 
             who administered some injections that helped for brief periods of 
 
             time, and M .A. Sanguino, M.D., approximately one year prior to 
 
             hearing. Claimant testified he returned to work in June or July 
 
             1986 as a laborer/roofer and worked until December 1986 during 
 
             which time he was only able to work two or three days per week 
 
             and was unable to perform all the regular duties required of the 
 
             job. Claimant testified that he was carrying buckets of tar and 
 
             tearing off roofing which caused him to experience numbness in 
 
             his arms, a pinching in his neck, headaches and dizziness. 
 
             Claimant stated that from June through August 1987, he was 
 
             employed by another roofing company but experienced similar 
 
             problems, and that he has not been employed since August 1987.
 
        
 
            Claimant denied any ability to lift, carry, bend, twist, 
 
        squat, kneel or climb, described pain in his head and neck, a 
 
        numbness in his arms which may last from fifteen minutes to an 
 
        entire day, an inability to lift his arms above his head, to turn 
 
        at the neck or to look up and down without pain. Claimant stated 
 
        he "cannot sleep at all," cannot lie on his back for more than 
 
        ten minutes without pain and that he "can never be" comfortable 
 
        sitting. Claimant stated he takes no medication other than 
 

 
        
 
 
 
 
 
        aspirin. Claimant testified that prior to December of 1985, he 
 
        had had no accidents, no hospitalization, was not seeing any 
 
        physician and had had no symptomology such as that he currently 
 
        experiences. Claimant stated he has been looking for work 
 
        without success and that he has managed to earn only a few 
 
        dollars cutting grass.
 
        
 
            On cross-examination, claimant revealed that in November of 
 
        1986, he walked off of a roof and ran into a wooden beam, pushing 
 
        his head back and making him feel worse. Claimant stated he went 
 
        to see a doctor after this but that the doctor "did nothing."
 
        
 
            Oliver Burkhardt, claimant's father, testified that when he 
 
        went to pick claimant up at work on December 31, 1985, claimant 
 
        could not sit, could not get comfortable and had a "real bad 
 
        headache." Mr. Burkhardt stated that claimant was living about 
 
        three doors down from his own home at that time, that he saw 
 
        claimant about every day, that claimant complained his "back was 
 
        sore," he could not sleep and could not lie down. Mr. Burkhardt 
 
        opined that claimant is not "physically as strong," that he 
 
        cannot lift like he used to, eats aspirin like candy, and cannot 
 
        do anything.
 
        
 
            J. R. Lee, M.D., orthopedic surgeon, testified he first saw 
 
        claimant June 2, 1986, on referral from the Franciscan Hospital 
 
        emergency room, and found claimant's neck to be "slightly tender 
 
        and stiff. Movement of the neck was slightly restricted. There 
 
        was a minimum tenderness in his mid back and lower back. His 
 
        x-ray of cervical spine was normal. Otherwise, the rest of the 
 
        examination was negative." (Joint Exhibit 8, page 5) Dr. Lee 
 
        diagnosed cervical strain and carpal tunnel compression syndrome 
 
        based on claimant's history and a review of claimant's records 
 
        and recommended conservative care and stating that h~ did not 
 
        believe claimant's symptoms with regard to the carpal tunnel were 
 
        severe enough to warrant surgery. Dr. Lee testified that when 
 
        claimant was next seen on June 16, he ordered a CT scan of the 
 
        neck and bones and blood test all of which were normal, and Dr. 
 
        Lee recommended only clinical follow-up. Dr. Lee released 
 
        claimant to return to work June 24, 1986, and explained
 
             
 
             Q. At that point, did you feel that his condition was 
 
             basically stabilized or was in a period of healing or had 
 
             reached maximum healing when you sent him back to work?
 
                  
 
             A. Yes, I feel that his condition was stable.
 
             
 
             Q. Did you expect it to further improve from that point on?
 
             
 
             A. Yes, I did.
 
             
 
             Q. When you sent him back to work, did you send him back 
 
             with any restrictions as to the type of work he could do, 
 
             how strenuous it could be, any kind of restrictions as to 
 
             carrying or lifting things in view of his complaints that 
 
             his arms went numb and his neck was still hurting?
 
             
 
             A. I sent him back with intention for return to full duty.
 
             
 
             Q. Did you feel that there was any reason based on the 
 
             physical findings that it would be dangerous for him to be 
 
             climbing ladders or carrying hot buckets of tar, carrying 
 
             heavy things with his complaints that his arms went so numb, 
 
             that he supposedly couldn't grasp things or couldn't carry 
 
             things? Was there -- I guess what I am saying, was there 
 
             any physical finding or anything on your exam to make you 
 
             feel that this would be a hazard for him?
 

 
        
 
 
 
 
 
             
 
             A. No, I feel he would be more quite capable to do the job 
 
             that he used to before injury.
 
                  
 
        (Jt. Ex. 8, pp. 9-10)
 
        
 
             Claimant did not return to see Dr. Lee until September of 
 
             1986, at which time Dr. Lee made a diagnosis of"cervical strain, 
 
             symptoms were minimal" and found nothing which would make 
 
             claimant unable to work a full week. On October 16, 1986, Dr. 
 
             Lee opined: "Upon review of Michael Burkhardt's medical records, 
 
             regarding his carpal tunnel compression syndrome and injury of 
 
             December 1985. I feel the injury is a possible cause of this 
 
             carpal tunnel compression syndrome." (Jt. Ex. 4, p. 11) Dr. Lee 
 
             testified he continued to see claimant on a somewhat regular 
 
             basis with claimant continuing to complain of the same headache 
 
             and neck and arm pain, that he observed no change in claimant's 
 
             condition throughout this period of time, and that he recommended 
 
             no treatment other than clinical follow-up. In January of 1987, 
 
             Dr. Lee referred claimant to Dr. Sanguino "to make an examination 
 
             as to the cause of his headaches." Dr. Lee saw claimant on 
 
             follow-up visits during 1987 with claimant presenting the same 
 
             symptoms and with Dr. Lee not recommending any treatment. Dr. 
 
             Lee explained he had not restricted claimant's employability in 
 
             any way and after seeing claimant on approximately two occasions 
 
             in 1988, Dr. Lee testified:
 
             
 
             Q. Did you have any further recommendations for him, as far 
 
             as treatment?
 
             
 
             A. No.
 
             
 
             Q. Is it your opinion, Dr. Lee, that the injury that Mr. 
 
             Burkhardt allegedly suffered in December of 1985 when he 
 
             fell and hit the back of his neck is the cause of all these 
 
             symptoms of neck pain and headache throughout all these 
 
             months?
 
                  
 
             A. My opinion is it is possible cause.
 
             
 
             Q. What portion of these complaints would you assign to the 
 
             carpal tunnel compression syndrome, if you had to proportion 
 
             it out, or is it possible to proportion out what part of 
 
             these are due to the diagnosis of cervical strain or 
 
             diagnosis of the carpal tunnel compression syndrome?
 
             
 
             A. During the follow-up, he complained more of neck pain 
 
             than the hand problem, so I would say more percentage is in 
 
             the neck, assigned to the neck.
 
                  
 
                  ....
 
             
 
             Q. And what is the possibility or the probability that the 
 
             neck pain and the headaches could be a result of the carpal 
 
             tunnel compression syndrome problem rather than any problem 
 
             with the cervical spine?
 
             
 
             A. It is a possible cause of neck pain and headache.
 
                  
 
        (Jt. Ex. 8, pp. 31-32)
 
        
 
             On cross-examination, Dr. Lee stated:
 
             
 
             Q. As I understand it, at the present time, you still have 
 
             two diagnoses for him, cervical strain and carpal tunnel 
 
             syndrome; is that correct?
 

 
        
 
 
 
 
 
             
 
             A. Yes.
 
             
 
             Q. And I also understand that you feel his present 
 
             conditions of ill-being in these two areas are a possible 
 
             cause of the accident as he described it to you of December 
 
             31, 1986. Is that also correct?
 
             
 
             A. That's correct.
 
             
 
             Q. Would you say that the accident is a probable cause as 
 
             opposed to possible cause of this condition, these 
 
             conditions of ill-being and these symptoms you have told us 
 
             about?
 
             
 
             A. I would say it is a possible cause.
 
             
 
             Q. Have you performed any type of disability ratings to any 
 
             part or parts of his body at any time during the last year 
 
             or so?
 
             
 
             A. I did not.
 
             
 
             Q. Do you have any opinion as to any limitations of 
 
             movement as to any parts of his body?
 
             
 
             A. He has no limitation of movement of any part of his 
 
             body.
 
             
 
        (Jt. Ex. 8, pp. 34-35)
 
             
 
             M. A. Sanguino, M.D., a neurologist, testified he first saw 
 
             claimant January 26, 1987 with complaints of pain in the cervical 
 
             area and a numbness sensation in the left arm. Dr. Sanguino 
 
             stated he confirmed the diagnosis of carpal tunnel syndrome and 
 
             made a diagnosis of "post-traumatic vascular headaches" based on 
 
             claimant's explanation of what happened December 30, 1985. Dr. 
 
             Sanguino denied any knowledge of the incident of January 26, 1986 
 
             when claimant was driving his car or when claimant hit his head 
 
             in November of 1986, and stated:
 
             
 
             Q. If had told you about these incidence that I have 
 
             mentioned in January of '86 and November of '86, would that 
 
             have changed your diagnosis or opinion at all as to what the 
 
             cause of his current problems were?
 
             
 
             A. Probably if I had got that information, but telling me 
 
             that he had an injury by itself, I don't know if I can make 
 
             a diagnosis. I have to get details about the injury.
 
             
 
        (Jt. Ex. 9, p. 6)
 
        
 
             Dr. Sanguino prescribed some medication but did not 
 
             recommend any further treatment. Dr. Sanguino testified:
 
        
 
             Q. What is the mechanism by which a bump to the neck would 
 
             cause vascular headaches such as the ones Mr. Burkhardt 
 
             complained of?
 
             
 
             A. The mechanism, we don't know really the clear-cut 
 
             mechanism, but we assume there is a sympathetic reaction 
 
             over the nervous system, dysfunction.
 
             
 
             Q. And is there any organic or physiologic finding which 
 
             supports the diagnosis of post-traumatic vascular headache?
 
             
 

 
        
 
 
 
 
 
             A. Objective?
 
             
 
             Q. Right.
 
             
 
             A. No.
 
             
 
            Q. There is no test or --
 
        
 
             A. No, ma'am.
 
             
 
             Q. Or any physical finding that will support this?
 
             
 
             A. No physical finding, that's correct.
 
             
 
        (Jt. Ex. 9, p. 8)
 
        
 
             Dr. Sanguino opined that there could be other causes for 
 
             claimant's headaches such as migraine or tension and that 
 
             although tension has not been ruled out as a possible cause 
 
             (stating there may be a tension component to vascular headaches 
 
             and some of claimant's pain could be due to the headaches rather 
 
             than the injury of December of 1985), claimant had no history of 
 
             migraines. Dr. Sanguino found no connection between the carpal 
 
             tunnel syndrome and pain in the cervical spine, stating:
 
        
 
             A. ...Some patients with carpal tunnel syndrome, they may 
 
             complain of some pain in the wrist and particularly at night 
 
             they complain of some pain in the elbow and sometimes in the 
 
             shoulder, but that is extremely unusual to see with vascular 
 
             headaches. I never heard of that.
 
        
 
             Q. What is extremely unusual?
 
             
 
             A. To see a patient with carpal tunnel complaining of 
 
             vascular headaches. It is my feeling they are independent 
 
             and separate entities.
 
             
 
        (Jt. Ex. 9, p. 18)
 
             
 
             Dr. Sanguino testified:
 
             
 
             Q. Throughout the time that you have seen him starting back 
 
             at the first, your first visit with him, did you ever 
 
             indicate to him that there were any limitations as to what 
 
             kind of work he could do?
 
             
 
             A. No.
 
             
 
             Q. Based on his physical condition?
 
             
 
             A. I did not. But he was concerned.
 
             
 
             Q. Did you feel there was any reason for concern as far as 
 
             there being any danger in him climbing ladders or carrying 
 
             heavy things due to his carpal tunnel compression syndrome 
 
             problem?
 
             
 
             A. No.
 
             
 
             Q. Did you feel that the physical findings indicated that 
 
             he would experience problems with failure to grasp things or 
 
             being unable to grasp things?
 
             
 
             A. No, ma'am.
 
             
 
             Q. So there were no physical finding that would indicate 
 

 
        
 
 
 
 
 
             that sort of problem would occur for him; is that correct?
 
             
 
             A. That's correct, except that he was taking medication, 
 
             the Propranolol and Amitriptyline.
 
             
 
             Q. And would those pose limitations as to the kind of work 
 
             he could do?
 
             
 
             A. Not really, but we are very cautious, because he was 
 
             working on the roof. I was very concerned.
 
             
 
             Q. Do those drugs have any kind of problems with 
 
             drowsiness?
 
             
 
             A. Dizziness and drop of blood pressure.
 
             
 
             Q. So did you advise him that he should limit the kind of 
 
             work that he did?
 
             
 
             A. No, I did not, but he told me in October that he had 
 
             been afraid of falling because he couldn't trust himself.
 
             
 
             Q. Did he say why he was afraid of falling?
 
             
 
             A. No, ma'am.
 
             
 
             Q. Did he indicate he was afraid of falling, or he couldn't 
 
             grasp things?
 
             
 
             A. He couldn't trust himself. That's his statement.
 
             
 
             Q. So you don't know why he was afraid of falling?
 
             
 
             A. No.
 
             
 
             Q. And do you have any reason to feel that he should be 
 
             afraid he would fall based on his physical findings or 
 
             medications he was taking?
 
             
 
             A. Not based on the physical finding, but I was concerned 
 
             because of medication.
 
             
 
             Q. But you didn't tell him that he needed to limit his 
 
             work?
 
             
 
             A. No.
 
             
 
             Q. So your concern was not great enough that you felt he 
 
             needed to limit himself as far as the work he performed?
 
             
 
             A. That's correct.
 
             
 
        (Jt. Ex. 9, pp. 27-29)
 
        
 
             On February 3, 1986, Krista J. Monson, Physical Therapist at 
 
             Rock Valley Physical Therapy Center, reported to John A. Baker, 
 
             M.D.:
 
        
 
                  Mike Burkhardt continues to be seen at Rock Valley 
 
                      Physical Therapy for treatment of cervical spine sprain. 
 
                      His sessions vary from three to five times a week depending 
 
                      on his symptoms, and on his schedule.
 
                  
 
                  For one week prior to January 28, 1986, the patient 
 
                      experienced absolutely no pain, and his Range of Motion in 
 
                      the cervical spine was within normal limits. At that time, 
 

 
        
 
 
 
 
 
                      the patient was doing so well that we had implemented more 
 
                      strengthening exercises for the cervical spine, scapular 
 
                      musculature, and the upper extremities. The patient then 
 
                      reported that on January 28, 1986 he was driving a car, 
 
                      turned his head to look for on coming traffic, and he 
 
                      experienced immediate pain in the neck and upper back, as 
 
                      well as along the spinal column. He was performing left 
 
                      cervical rotation at that time, and this motion has remained 
 
                      limited since that time. The patient came into therapy the 
 
                      following day and all of his objective signs showed another 
 
                      acute insult to the cervical spine. All cervical Range of 
 
                      Motion was limited, especially left rotation. All cervical 
 
                      and trapezius musculature was inflamed [sic] and acutely 
 
                      tender to the touch. The patient held his head and neck in 
 
                      an extreme rigid posture, and had no accessory movement of 
 
                      the upper extremities during gait or stance. We have been 
 
                      treating him as an acute sprain since that time with moist 
 
                      heat, phonophoresis when tolerated, and soft tissue 
 
                      mobilization. The patient is just now beginning to respond 
 
                      to conservative treatments again.
 
             
 
                  In review the patient had apparently recovered from his 
 
                      initial cervical spine sprain, and had begun a strengthening 
 
                      program. Since his re-injury of January 28, 1986, we have 
 
                      had to step back and treat him conservatively again. He is 
 
                      making slow progress and we would like to continue working 
 
                      with him on cervical Range of Motion, decreasing muscle 
 
                      spasms in the cervical and trapezius region, and decreasing 
 
                      his pain.
 
             
 
        (Jt. Ex. 3, p. 5)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            Of first concern is whether or not claimant has established 
 
        he sustained an injury on December 30, 1985 which arose out of 
 
        and in the course of his employment with Quality Roofing Company. 
 
        Initially, it must be noted that the undersigned has no evidence 
 
        to refute claimant's recitation of what occurred on December 30, 
 
        1985 while he was at work. Therefore, it is accepted that on 
 
        December 30, 1985, claimant slipped on some ice and fell off of a 
 
        pallet. However, a finding that such an incident occurred does 
 
        not necessitate a conclusion that claimant has sustained an 
 
        injury arising out of and in the course of his employment.
 
        
 
             The claimant must prove by a preponderance of the evidence 
 
             that his injury arose out of and in the course of his employment. 
 
             Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
             (1967).
 
        
 
            In the course of employment means that the claimant must 
 
        prove his injury occurred at a place where he reasonably may be 
 
        performing his duties. McClure v. Union, et al., Counties, 188 
 
        N.W.2d 283 (Iowa 1971).
 
        
 
            Arising out of suggests a causal relationship between the 
 
        employment and the injury. Crowe v. DeSoto Consolidated School 
 
        District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of December 30, 1985 is causally 
 
        related to the disability on which he now bases his claim. 
 

 
        
 
 
 
 
 
        Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
        Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
        possibility is insufficient; a probability is necessary. Burt v. 
 
        John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960.
 
        
 
            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.
 
        
 
            As cited above in Crowe, supra, the question of causal 
 
        connection is essentially within the domain of expert testimony. 
 
        Consequently, review is first given to the medical evidence 
 
        presented by the parties.
 
        
 
            Claimant has a diagnosed condition of carpal tunnel syndrome 
 
        and the undersigned does not dispute that claimant suffers from 
 
        such an ailment. Dr. Sanguino has expressed no opinion with 
 
        regard to the origin of his condition or its connection to 
 
        claimant's employment with defendant employer. Dr. Lee has 
 
        stated only that the incident in December 1985 is a "possible" 
 
        cause of the carpal tunnel syndrome. A possibility of causal 
 
        connection is not sufficient; a probability is necessary. Burt, 
 
        supra. It is concluded claimant has failed to show any 
 
        connection between the incident on December 30, 1985, his 
 
        employment, and the carpal tunnel syndrome.
 
        
 
             Claimant also complains of headaches, neck pain and back 
 
             pain. Dr. Sanguino has opined, at least with regard to 
 
             claimant's headaches, that these are causally connected to the 
 
             incident of December 30, 1985. However, it is clear from the 
 
             record that Dr. Sanguino has been operating on a blatantly 
 
             incomplete history. Dr. Sanguino professed no knowledge of the 
 
             incident in November of 1986 when claimant hit his head or the 
 
             incident of a "popping" sensation when claimant was driving in 
 
             January 1986. Without any knowledge of these events, Dr. 
 
             Sanguino's opinions are subject to some question. Dr. Sanguino 
 
             has rendered a somewhat nebulous diagnosis of "post-traumatic 
 
             vascular headaches" and has acknowledged that the definite 
 
             source, nay even probable source, has not been determined since 
 
             he has not ruled out tension and was not aware of the other 
 
             incidence which may have caused the headaches.
 
        
 
            Claimant has no objective symptoms of injury. (The carpal 
 
        tunnel syndrome has been addressed above.) All test results have 
 
        been normal. No restrictions have been placed on claimant's 
 
        employability. The mere fact that claimant presents himself with 
 
        subjective symptoms is not sufficient to establish a causal 
 
        connection to his employment. Therefore, while it is accepted 
 
        claimant had an incident at work, claimant has failed to show 
 
        that the incident resulted in any injury causally connected to 
 
        his employment with defendant employer.
 
        
 
            Accordingly, claimant shall take nothing as a result of 
 
        these proceedings and the other issues presented for resolution 
 
        need not be addressed.
 

 
        
 
 
 
 
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on the evidence presented, the following 
 
             findings of fact are made:
 
        
 
            1. Claimant began employment with Quality Roofing Company 
 
        in September 1985 as a laborer (apprentice) removing old roofing 
 
        and carrying tar and insulation.
 
        
 
            2. On December 30, 1985, claimant slipped and fell off of a 
 
        pallet.
 
        
 
            3. Claimant, after the fall, continued working the rest of 
 
        the day and part of the following day.
 
        
 
            4. Claimant reported to the emergency room with complaints 
 
        of headache, numbness and pain in the neck, and was referred to 
 
        John A. Baker, M.D., who released claimant to return to work.
 
        
 
            5. Dr. Baker diagnosed carpal tunnel syndrome and suggested 
 
        surgery.
 
        
 
             6. Claimant sought a second opinion with J. R. Lee, M.D., 
 
             who released claimant to return to work without restriction.
 
        
 
             7. In January 1986, while driving, claimant felt something 
 
             pop when he turned his head.
 
             
 
             8. In November 1986, claimant walked off a roof and ran 
 
             into a beam, pushing his head back.
 
             
 
             9. Claimant was referred to M. A. Sanguino, M.D., who 
 
             diagnosed post-traumatic vascular headaches.
 
             
 
             10. Dr. Sanguino opined the cause of claimant's headaches 
 
             was the accident of December 30, but Dr. Sanguino has not ruled 
 
             out other causes and was not aware of the other instances of 
 
             injury.
 
        
 
              11. Dr. Lee found claimant's accident could be a possible 
 
             cause of the carpal tunnel syndrome.
 
             
 
             12. Claimant has no objective symptoms of injury.
 
        
 
             13. No restrictions have been placed on claimant's 
 
             employability.
 
             
 
             14. Claimant did not sustain an injury arising out of and 
 
             in the course of his employment.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Therefore, based on the principles of law previously stated, 
 
             the following conclusions of law are made:
 
             
 
             Claimant has failed to meet his burden of proof that he 
 
             sustained an injury on December 30, 1985 which arose out of and 
 
             in the course of his employment.
 
        
 
                                     ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
             Claimant shall take nothing further as a result of these 
 
             proceedings .
 

 
        
 
 
 
 
 
        
 
            Costs are assessed against defendants pursuant to Division 
 
        of Industrial Services Rule 34-4.33.
 
        
 
            Signed and filed this 18th day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                 DEBORAH A. DUBIK
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Don D. Thuline
 
        Attorney at Law
 
        1718 8th Ave
 
        P.O. Box 399
 
        Moline, IL 61265
 
        
 
        Mr. John A. Templer, Jr.
 
        Mr. Dean C. Mohr
 
        Attorneys at Law
 
        3737 Woodland, Ste 437
 
        West Des Moines, IA 50265
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                       51100
 
                                       Filed May 18, 1989
 
                                       Deborah A. Dubik
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MICHAEL M. BURKHARDT,
 
        
 
             Claimant,
 
                                             File No. 816112
 
        vs.
 
        
 
        QUALITY ROOFING COMPANY,         A R B I T R A T I O N
 
        
 
            Employer,                      D E C I S I O N
 
        
 
        and
 
        
 
        ADJUSTCO, INC.,IOWA CONTRACTORS
 
        COMPENSATION GROUP,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51100
 
        
 
             Claimant failed to show he sustained an injury arising out 
 
             of and in the course of his employment where there were no 
 
             objective signs of injury, no restrictions on employability, and 
 
             two other incidents which were not work-related which could 
 
             account for claimant's subjective symptoms. No award made.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD ROLLINGS,
 
         
 
              Claimant,                            File No. 816122
 
         
 
         vs.
 
                                                     A P P E A L
 
         J. L. BRANDEIS & SONS,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation.  The record on appeal consists of the transcript of 
 
         the arbitration hearing; joint exhibits 1 through 13; and 
 
         defendants' exhibits A through F.  No briefs were filed on 
 
         appeal.
 
         
 
                                      ISSUE
 
         
 
              As no brief was filed by appellant, the arbitration decision 
 
         will be considered generally without specified error to determine 
 
         its compliance with the law.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant was employed by defendant J. L. Brandeis & Sons 
 
         (hereinafter Brandeis) as a security guard.  On March 8, 1986, 
 
         claimant fell through the ceiling at the Brandeis store.  
 
         Claimant testified that at the time he fell he had moved out of 
 
         the security tower area above the ceiling and onto the ceiling 
 
         itself to observe a female shoplifter. (Transcript, page 23)  
 
         Claimant stated that he had been told by John Garland, director 
 
         of loss prevention, "to be ingenious in locating shoplifters."  
 
         Claimant maintains that he would be able to get a better view of 
 
         the shoplifter in the position to which he was moving.  Claimant 
 
         denies he was attempting to look in the ladies fitting room which 
 
         was near the security tower and near the area in which claimant 
 
         fell.  Claimant admits that Vicki Ostrander, personnel manager, 
 
         warned him about climbing onto the ceiling tiles in the china 
 
         stockroom, but he opines that the ceiling in the area where he 
 
         fell is different.
 
         
 

 
         
 
         
 
         
 
         ROLLING V. J. L  BRANDIES & SONS
 
         Page   2
 
         
 
              John G. Garland testified that he is director of loss 
 
         prevention for all Brandeis stores and that he is in charge of 
 
         security for all Brandeis stores.  Garland stated that he 
 
         worked with claimant 'about five or six times.  Garland 
 
         testified that he instructed claimant to stay within the area 
 
         of the security tower because the ceiling would not support 
 
         someone of claimant's weight.
 
         
 
              Vicki R. Ostrander testified that she is personnel 
 
         director and operations manager for the Brandeis store where 
 
         claimant was employed.  Ostrander stated that she told claimant 
 
         to stay out of the ceilings because they would not support 
 
         someone of his weight.  Ostrander also disclosed that she made 
 
         this warning to claimant on numerous occasions.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Garland's and Ostrander's testimony establishes that 
 
         claimant had been warned to stay out of the ceiling while 
 
         observing shoplifters.  Moreover, Ostrander disclosed that she 
 
         had made this warning to claimant on numerous occasions.  
 
         Claimant admits that Ostrander warned him about climbing on the 
 
         false ceiling on at least one occasion.  It is uncontroverted 
 
         that claimant was injured when he fell through the ceiling 
 
         outside the security tower.
 
         
 
              The greater weight of evidence establishes that claimant had 
 
         been warned to stay within the security tower while observing 
 
         shoplifters and that claimant was injured when he fell through 
 
         the ceiling outside the security tower.  Therefore, claimant was 
 
         performing a prohibited act in stepping outside the structural 
 
         area of the security tower.
 
         
 
              The findings of fact, conclusions of law, and order of the 
 
         deputy are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was employed as a security guard at J. L. 
 
         Brandeis & Sons on March 8, 1986.
 
         
 
              2.  Claimant fell from the false ceiling of the store on 
 
         March 8, 1986.
 
         
 
              3.  Claimant fell in the customer area of the store from an 
 
         area in the vicinity of the store security tower.
 

 
         
 
         
 
         
 
         ROLLING V. J. L  BRANDIES & SONS
 
         Page   3
 
         
 
         
 
              4.  The security tower was used by security guards to 
 
         observe shoplifters in the store.
 
         
 
              5.  Claimant was expressly instructed to stay within the 
 
         structural area of the tower while observing from the tower.
 
         
 
              6.  Claimant had climbed into the store's false ceiling on 
 
         other occasions and had been expressly instructed to not continue 
 
         to do so.
 
         
 
              7.  Claimant violated the above instructions in entering the 
 
         area outside the structural area of the tower.
 
         
 
              8.  In stepping outside the structural area of the tower, 
 
         claimant was doing a prohibited act.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established an injury of March 8, 1986 
 
         which arose out of and in the course of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That all costs including the cost of the transcription of 
 
         the hearing are charged to claimant.
 
         
 
              Signed and filed this 13th day of April, 1988.
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         803 Third Avenue
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Theodore J. Stouffer
 
         Mr. David A. Blagg
 
         Attorneys at Law
 
         8805 Indian Hills Drive, Suite 300
 
         Omaha, Nebraska 68114
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1111
 
                                                       Filed 4-13-88
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD ROLLINGS,
 
         
 
              Claimant,                            File No. 816122
 
         
 
         vs.
 
                                                     A P P E A L
 
         J. L. BRANDEIS & SONS,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1111
 
         
 
              Claimant's injury was sustained during the performance of an 
 
         act prohibited by his employer--stepping outside the security 
 
         tower area onto the false ceiling.  Claimant's injury did not 
 
         arise out of and in the course of his employment.
 
 
 
         
 
         
 
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         LARRY HART,      
 
                     
 
              Claimant,                        File No. 816126
 
                     
 
         vs.                                      A P P E A L
 
                     
 
         FRENCH & HECHT,                        D E C I S I O N
 
                     
 
              Employer,   
 
              Self-Insured,    
 
              Defendant.       
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 16, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Claimant has shown a change of circumstances.  Although 
 
         claimant's plan to keep working another year and a half before 
 
         taking a non-disability early retirement was mentioned in the 
 
         original arbitration decision, clearly claimant's employment at 
 
         the time of the hearing and his anticipated further employment 
 
         were contemplated in that decision.  The deputy recited that the 
 
         employer's willingness to keep claimant employed and the fact 
 
         that he was still employed reduced claimant's industrial 
 
         disability.
 
         
 
         Subsequent to the arbitration decision, claimant's medical 
 
         reports showed a deterioration and his condition.  His primary 
 
         treating physician's earlier prognosis that claimant could return 
 
         to work was changed to a recommendation that he retire.  Claimant 
 
         did not work after the arbitration hearing, resulting in a loss 
 
         of earnings.  Claimant has carried his burden to show a change of 
 
         condition not contemplated by the arbitration decision.
 
         When a claimant shows a change of condition in review-reopening, 
 
         additional benefits awarded accrue from the date of the 
 
         review-reopening decision awarding the benefits.
 
         Defendant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                 ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   2
 
         
 
                                    
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E. Third St.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HART,                   :
 
                                          :
 
                 Claimant,                :      File No. 816126
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            FRENCH & HECHT,               :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case, with the following additional analysis:
 
            A claimant's subjective retirement plans prior to the injury 
 
            are given little weight in the determination of industrial 
 
            disability.  Brittain v. Fisher Controls, Appeal Decision, 
 
            February 28, 1989. 
 
            Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Executive Square, Suite 102
 
            400 Main St.
 
            Davenport, Iowa 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                          1804; 1108
 
                                          Filed November 30, 1993
 
                                          Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LARRY HART,      
 
                        
 
                 Claimant,                      File No. 816126
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            FRENCH & HECHT,                     D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            1804
 
            In a review-reopening decision, claimant found permanently, 
 
            totally disabled.  In prior arbitration decision, claimant 
 
            found to have 45 percent industrial disability  and still 
 
            had job and no lost wages.  Employer was accommodating him.  
 
            At review-reopening hearing, claimant had lost his job 
 
            because he could no longer perform it and evidence showed 
 
            claimant was not employable.
 
            
 
            1108
 
            Found claimant's total permanent disability was causally 
 
            connected to his original work injury.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9999
 
                                          Filed July 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HART,                   :
 
                                          :
 
                 Claimant,                :      File No. 816126
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            FRENCH & HECHT,               :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision, with brief 
 
            additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         LLOYD HART,
 
         
 
              Claimant,                           File No.  816126
 
         
 
         VS.
 
                                         A B I T R A T I 0 N
 
         
 
         FRENCH AND HECHT,
 
                                         D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Lloyd Hart, 
 
         claimant, against French and Hecht, employer and self-insured 
 
         defendant, for benefits as the result of an alleged injury that 
 
         occurred on November 13, 1985.  A hearing was held in Davenport, 
 
         Iowa, on October 24, 1989, and the case was fully submitted at 
 
         the close of the hearing.  Claimant was represented by James M. 
 
         Hood.  Defendant was represented by Larry L. Shepler.  The record 
 
         consists of the testimony of Lloyd Hart, claimant; Loren Clasen, 
 
         co-employee; and joint exhibits A through N. The deputy ordered a 
 
         transcript.of the hearing.  Claimant's attorney submitted an 
 
         excellent posthearing brief.  Defendant's attorney did not submit 
 
         a posthearing brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That causal connection and claimant's entitlement to 
 
         temporary disability benefits are not issues in dispute in this 
 
         case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is April 12, 
 
         1987.
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $237.76 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendant.
 
         
 
              That defendant makes no claim for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan.
 
         
 
              That defendant is currently paying workers' compensation 
 
         permanent disability benefits to claimant and is entitled to a 
 
         credit for the benefits they have paid in the event of an award 
 
         of permanent disability benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on November 13, 1985, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born August 2, 1939, was 46 years old at the time 
 
         of his injury and 50 years old at the time of hearing.  He 
 
         completed 11 1/2 years of formal education.  There was no 
 
         evidence of any additional education, training or a GED.  Past 
 
         employments are store clerk and laborer.  He started for employer 
 
         at age 21 on May 11, 1961, and was still employed there at the 
 
         time of hearing.  He is a career employee of employer and he has 
 
         worked for employer all of his adult life for over 28 years and 
 
         hopes to be able to continue to work until he is eligible for 
 
         early retirement at the end of 30 years at approximately age 52.
 
         
 
              For employer he has been employed as tow motor driver, 
 
         performed piece work on the rim line, performed hub and spindle 
 
         assembly, served as    millwright trainee, and eventually became 
 
         oiler when the previous oiler fell off a ladder and got hurt real 
 
         bad.  The oiler drives a tow motor, dumps barrels of oil down on 
 
         a line, pumps oil into machines and greases fittings.  The job 
 
         requires a lot of bending, twisting, turning, climbing and 
 
         lifting.  Before he was injured, claimant said he lifted 473
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 3
 
         
 
         
 
         pound barrels of oil and moved them around.  He climbs under, 
 
         over, around and on top of machines.  He has to walk on a narrow 
 
         one foot track about 10 feet over the machines on the E-coat line 
 
         and bend over to get the bearings.  Prior to this injury, he was 
 
         always in good health, had no trouble with his back and neck 
 
         whatsoever, and had no loss of sensation in his left hand 
 
         (transcript pages 10-17).
 
         
 
              On November 13, 1985, claimant was checking the oil level on 
 
         a machine which was about 20 feet in the air.  He was walking up 
 
         to the middle row and was looking up when he stepped into a pit 
 
         which had the cover (grate) knocked off and was left wide open.  
 
         He fell about one and one-half feet into the pit.  As he did so, 
 
         he felt a sharp pain in his back, tingling down his left arm and 
 
         received a cut on his leg.  He reported the accident to the 
 
         company nurse and she sent him to the company doctor, Jan 
 
         Koehler, M.D. (tr. pp. 15-18).  Dr. Koehler and the nurse also 
 
         sent him to a chiropractor, D.D. Stierwalt, D.C., for 11 spinal 
 
         adjustments between November 19, 1985 and January 27, 1986 
 
         (exhibit C).  Claimant said that he understood Dr. Stierwalt to 
 
         say that he had a pinched nerve in his neck and that he could not 
 
         help him.
 
         
 
              Dr. Koehler saw claimant eight different time for cervical 
 
         radiculopathy beginning on November 14, 1986 and ending on April 
 
         4, 1986.  About two weeks after the initial injury, while seeing 
 
         the chiropractor, claimant developed more severe pain in his 
 
         neck.  Dr. Koehler referred claimant to John E. Sinning, M.D., an 
 
         orthopedic surgeon, on January 30, 1986.  Dr. Koehler's office 
 
         notes are illegible.
 
         
 
              Dr. Sinning saw claimant beginning on February 3, 1986 and 
 
         ending in April 1986.  An EMG on January 28, 1986 suggested a C6 
 
         or C7 radiculopathy.  Claimant said if he lowered his head or 
 
         turned his head to the left, it sent pain shooting down his left 
 
         arm to this thumb and index finger.  Dr. Sinning diagnosed C6, 
 
         radiculopathy, left arm with probable cervical disc herniation.  
 
         He prescribed medications, physical therapy and commented that 
 
         claimant was wearing a cervical collar.  When he failed to 
 
         improve, he sent him to Byron Rovine, M.D., a neurosurgeon, on 
 
         February 11, 1986 (ex. N).
 
         
 
              Dr. Rovine saw claimant on February 11, 1986.  He said 
 
         claimant was suffering from a sixth cervical nerve root on the 
 
         left side from the accident at work.  He determined that surgery 
 
         was necessary and set it up, but Dr. Koehler directed claimant to 
 
         someone else (ex. G).  Dr. Rovine was critical of the care that 
 
         had been provided earlier to claimant for this injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Koehler sent claimant to Harry Honda, M.D., a 
 
         neurosurgeon, for an evaluation.  Dr. Honda saw claimant on
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 4
 
         
 
         
 
         February 14, 1986 and February 28, 1986.  Claimant reported a 
 
         stabbing pain in his neck that went into his left arm and down to 
 
         his thumb and second finger on flexion or lateral movements of 
 
         his neck.  He found weakness of the deltoid, biceps and brachial 
 
         radialis on the left side.  He diagnosed cervical radiculopathy 
 
         of C5-C6 on the left side with herniated nucleus pulposus at the 
 
         C5-6 level.  He recommended cervical traction and ultrasound to 
 
         the left shoulder for two weeks and if there was no improvement, 
 
         the patient may require myelography and other treatment.  The 
 
         other treatment cannot be determined because this exhibit has the 
 
         bottom sentence or sentences cut off by the copy machine.  
 
         Claimant was taking Tylenol with codeine every three hours.  Dr. 
 
         Honda planned to make injections of cortisone and Motrin (ex.  
 
         D).
 
         
 
              Claimant was next seen by Richard A. Roski, M.D., a 
 
         neurosurgeon, on April 11, 1986, who diagnosed left C7 
 
         radiculopathy, possibly left C6.  He planned to admit claimant to 
 
         the hospital for myelography and possible surgery.  Dr. Roski's 
 
         exhibits are fragmentary.  Documents appear to be missing.  There 
 
         is a gap in his office notes and there are no surgical reports.  
 
         On April 22, 1986, he said claimant was status post a two level 
 
         anterior cervical discectomy and fusion which relieved his severe 
 
         neck and arm pain.  Claimant was wearing a soft collar on May 12, 
 
         1986.  On May 12, 1986 and June 2, 1986, claimant reported 
 
         posterior midline neck pain and paresthesia into the left hand.  
 
         Dr. Roski questioned whether he was collapsing his bone plug at 
 
         the lower level on May 12, 1986.  Dr. Roski's records then skip 
 
         to January 16, 1989; February 17, 1989; May 12, 1989 and June 8, 
 
         1989.  On those dates claimant was still complaining of neck 
 
         pain, shoulder pain and paresthesias into his arms.
 
         
 
              Another EMG on June 8, 1989, showed no radiculopathy.  No 
 
         further surgery was recommended.  Claimant got relief from weekly 
 
         physical therapy and Voltaren, but Dr. Roski was reluctant to 
 
         continue either one of them indefinitely.  Dr. Roski preferred 
 
         that he do exercises on his own.  A better chronology of Dr. 
 
         Roski's surgeries is contained in the Mayo Clinic report which 
 
         follows.
 
         
 
              Claimant said that Dr. Roski took two bones out of his hip 
 
         and fused two discs in his upper neck.  He said he was off work 
 
         for approximately three months.  Claimant related that he 
 
         returned to work after the first double disc surgery and, "it 
 
         blew out again completely."  Then he did a second operation on 
 
         two discs again this time from the back of the neck and "drilled 
 
         all the ruptured tissue in between thig disks out."  Claimant 
 
         understood Dr. Roski to say his "bone was rare something, it 
 
         dissolved or something.  He says it's rare but it happens."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              . On April 12, 1988, Dr. Roski told claimant's counsel that 
 
         according to the AMA Guidelines, claimant would qualify for a 13
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 5
 
         
 
         
 
         percent permanent partial disability of the whole person because 
 
         of his two level cervical disc problem.
 
         
 
              On May 12, 1988, Dr. Roski said, in a letter to employer, 
 
         that claimant continued to have problems with pain in the neck 
 
         and extending into the arm along with some weakness of the left 
 
         hand.  Subsequent examinations have not disclosed a recurrent 
 
         disc so further surgical intervention was not recommended.  Dr. 
 
         Roski said that based on the two level cervical disc disease he 
 
         has, with involvement of the C6 and C7 roots, he qualifies for a 
 
         20 percent permanent partial disability of the whole person based 
 
         on the AMA Guidelines.  He hoped that the 30 pound weight 
 
         restriction would be temporary since he hoped for further 
 
         improvement.
 
         
 
              There is no reconciling explanation for these two different 
 
         ratings, 13 percent and 20 percent, issued by Dr. Roski only 
 
         about a month apart.
 
         
 
              Claimant was seen at the impairment evaluation center of the 
 
         Mayo Clinic on July 15, 1988.  It shows claimant received his 
 
         first myelogram and anterior surgical decompression and fusion on 
 
         April 15, 1986.  This initially improved his situation, but the 
 
         pain returned.  On November 12, 1986, a second myelogram and 
 
         surgery was performed posteriorly which were C5-7 foraminotomies 
 
         and decompression.
 
         
 
              In spite of extensive postoperative phyiotherapy and 
 
         medication, he has never made a full recovery and is still 
 
         bothered with neck and arm pain.  He underwent a third myelogram 
 
         in February 1988, but no further surgery was recommended.  His 
 
         complaints at that time were neck pain, intrascapular pain and 
 
         pain radiating down his left upper extremity into the ring and 
 
         little finger on the left hand.  He works a full day, doing light 
 
         duty.  He uses Motrin, three Darvocets a day and Elavil for sleep 
 
         at night.  X-rays, EMG and MRI did not show anything new or 
 
         different.  The diagnosis was: (1) postoperative cervical fusion 
 
         with foraminotomies and (2) residual inactive multiple 
 
         radiculopathies.  It was not felt that further investigation or 
 
         surgery would be necessary.  He was instructed to continue with 
 
         physical medicine and the medication he had been on.  Hopefully, 
 
         with time, his symptomology will improve.  His working full time 
 
         ,in a lighter capacity seemed to be reasonable for the future.  
 
         Sherwin Goldman, M.D., of the Mayo Clinic Impairment Evaluation 
 
         Center, assessed a 20 percent permanent partial impairment of the 
 
         whole body (ex. A).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that he was off work for about a year and a 
 
         half after the second surgery.  Since claimant has returned to 
 
         work, he does not lift the 473 pound drums with a two-wheeler.  
 
         He only puts a small quantity of oil in a bucket to carry and use
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 6
 
         
 
         
 
         at one time.  He restricts himself to "light stuff".  He avoids 
 
         pushing or pulling because one day he was lifting a grate off of 
 
         a pit to pump oil out of it and he reinjured himself.  If he 
 
         lifts even a grease gun above his head, it hurts where they 
 
         operated.  Other employees perform the work that he is not able 
 
         to do.  He cannot drive the tow motor because he cannot stand the 
 
         bouncing and he cannot turn his neck to see to maneuver it.  He 
 
         can no longer climb on the 10-foot-high track because one day he 
 
         lost his grip in his left hand for some unknown reason and if he 
 
         ever fell from there "that'd be it."
 
         
 
              It causes him pain to turn his head.  If he walks 15 
 
         minutes, he gets tingling down the arm.  Changes in temperature 
 
         provoke terrible pains in his neck and bad headaches.  Claimant 
 
         said he can only move his head laterally to the right and left 
 
         about half of what it was before the injury without getting pain.  
 
         He cannot touch his chin to his chest.
 
         
 
              Claimant estimated his backward extension loss was 25 
 
         percent of what it was before.  Backward extension causes pain.  
 
         He was told not to do that.  Claimant said raising his arms 
 
         overhead causes pain and he cannot work with his arms extended 
 
         overhead.  Lifting and weather changes cause numbness and 
 
         tingling in his left arm and to a certain extent, in the right 
 
         arm also.  If he turns his head too far, it sets off tingling in 
 
         his left little finger and ring finger.
 
         
 
              Claimant testified that he planned to work another year and 
 
         a half and take early retirement because of this injury.  Just 
 
         going to work and walking around in the morning causes tingling.  
 
         He tries to sit down and rest whenever he can and he takes 
 
         medicine three times a day.  He said there were complaints about 
 
         him sitting down too much and holding his neck even after he 
 
         brought in a slip from the doctor.
 
         
 
              Claimant admitted he liked the oiler job.  He bid for it.  
 
         It is the easiest job in the company.  A successor company 
 
         purchased this business and he now works for the successor 
 
         company.  There were two oilers.  Now he is the only one.  
 
         Claimant agreed that some of the machinery is two stories high 
 
         and there are catwalks and walkways to the upper parts of the 
 
         machines.  Some of the machinery is up on the roof outside.  He 
 
         has not oiled this.higher equipment for over a year.  Other 
 
         employees have done it for him.  Other employees move the 473 
 
         pound 55 gallon drums for him.  Claimant said the most he lifts 
 
         is a grease gun and a gallon of oil in a three gallon bucket.  He 
 
         pulls them on a cart.  When he lifts his arms to climb a ladder 
 
         to get a high oiler it causes pains in his arms.  He said he has 
 
         worked in pain everyday since the injury.  Claimant granted that 
 
         he has been permitted to do his job as oiler without supervision
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 7
 
         
 
         
 
         for 18 years and that accommodations have been made for him since 
 
         his injury.
 
         
 
              Claimant conceded that he was initially released to return 
 
         to work without any restrictions, but after lifting grates he 
 
         thought he reinjured his back.  Lifting other things bothered him 
 
         too.  Dr. Roski then issued the 30 pound weight restriction which 
 
         was still in effect at the time of the hearing.  Claimant agreed 
 
         that he returned to work April 12, 1988, and that he was still 
 
         receiving permanent partial disability benefits at the time of 
 
         the hearing on October 24, 1989.
 
         
 
              Claimant related that he was having pain down his legs 
 
         recently and that defendants' counsel set up an appointment with 
 
         Dr. Roski on the day of the hearing and Dr. Roski had taken him 
 
         off work that very day while he runs tests on this new 
 
         development.
 
         
 
              Claimant is earning about $5 or less per hour, but it is not 
 
         due to the injury, but rather a renegotiated labor contract.
 
         
 
              Loren Clasen testified that he is a 21 year employee of 
 
         employer and he is a co-employee of claimant.  His job is 
 
         building maintenance.  He filled in for claimant when claimant 
 
         was off work.  Clasen testified that when he started claimant 
 
         worked on the hub bench.  That job called for claimant to bend up 
 
         and down and turn back and forth and lift 30 to 35 pounds.  He 
 
         confirmed that claimant had no trouble handling the 473 pound 
 
         barrels with a two wheeler.  Clasen confirmed that he has been 
 
         helping claimant do his job as an oiler with the knowledge of 
 
         their foreman.  He corroborated that: (1) claimant cannot operate 
 
         the tow motor because of the bouncing and because he cannot turn 
 
         his head to look backward and (2) that he can no longer stand the 
 
         jolt to his back to tilt the two wheeler with a 475 pound barrel 
 
         on it.  Clasen said he does these jobs for claimant.
 
         
 
              Clasen said claimant still climbs, but not as high as he 
 
         used to and he had to be more careful.  He used to climb like a 
 
         squirrel before this injury, but now has to avoid the high 
 
         places.  Clasen said he did the heavy stuff for claimant like 
 
         putting away oil and lifting and moving the skimmer.  Claimant 
 
         has trouble pushing and pulling too.  Don, the plumber, tries to 
 
         help him too.  But if either one of them is not around and 
 
         claimant tries the tow motor or pulling the barrels on a cart, 
 
         then he has to sit down and hold his neck.  Claimant rests a lot 
 
         more than he used to.  They used to shoot pool together once a 
 
         week and play volleyball, but claimant is unable to twist 
 
         anymore.  Clasen said he still climbs, but is more gun-shy, 
 
         cautious and careful.  Clasen agreed that their foreman had 
 
         permitted all of these accommodations for claimant's benefit.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 8
 
         
 
         
 
              Defendant did not present any witnesses or separate 
 
         exhibits.
 
         
 
                           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 November 13, 1985, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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 November 13, 1985, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 9
 
         
 
         
 
         '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).
 
         
 
              In addition, the following is excerpted from claimant's 
 
         brief:
 
         
 
              ... The extent to which a work injury and a resulting 
 
              medical condition has resulted in an industrial disability 
 
              is determined from examination of several factors.  These 
 
              include the employee's medical condition prior to the 
 
              injury, immediately after the injury, and presently; the 
 
              situs of the injury, the severely (sic) and 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 as a result of the injury to engage in employment 
 
              for which the employee is fitted....   Olson v Goodyear 
 
              Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
              (1963).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on November 13, 1985, 
 
         which arose out of and in the course of employment with employer.  
 
         Claimant testified to a severe, accidental, traumatic injury to 
 
         his neck when he stepped into an unguarded pit which had the 
 
         grate removed and fell approximately one and one-half feet to the 
 
         bottom of the pit.  He said he jerked his neck and felt pain down 
 
         his arm at that time.  Dr. Honda said he landed on his tail bone 
 
         and jerked his neck.  He reported the injury immediately and was 
 
         treated by the plant nurse; Dr. Koehler, the plant physician; Dr. 
 
         Stierwalt; and Dr. Honda.  All of them proceeded to treat and 
 
         continued to treat claimant on the basis of this history.  None 
 
         of the doctors nor his employer disputed the accidental nature of 
 
         this injury at work as claimant described.  Dr. Rovine 
 
         specifically said it was caused as claimant described.  Dr. Roski 
 
         and Mayo Clinic did not question this account of the injury.  
 
         Claimant's testimony is not disputed or even questioned by
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 10
 
         
 
         
 
         anyone, either by way of evidence or by way of argument.  
 
         Consequently, it is determined that claimant sustained an injury 
 
         on November 13, 1985, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              The same is true as to causal connection of the work injury 
 
         to claimant's disability.  Claimant testified that he enjoyed 
 
         good health prior to this injury.  There is no evidence of any 
 
         neck or back complaints or treatment in the medical evidence 
 
         prior to this injury.  Claimant's ability to climb like a 
 
         squirrel, lift heavy weights and work long, energetic and 
 
         strenuous hours was attested to by Clasen.  There is no evidence 
 
         of any prior loss of time from work due to neck or back 
 
         complaints in his 28 years of service for employer.  Therefore, 
 
         it is determined that the injury was the cause of claimant's 
 
         permanent disability.
 
         
 
              Both Dr. Roski, the operating neurosurgeon, in one of his 
 
         two different impairment ratings, and Dr. Goldman at the Mayo 
 
         Clinic Impairment Evaluation Center, determined that claimant 
 
         sustained a 20 percent physical and functional permanent 
 
         impairment to the body as a whole.  This is a rather substantial 
 
         permanent impairment rating and a substantial loss of physical 
 
         and functional ability for claimant.
 
         
 
              The loss is made worse because it occurred when claimant was 
 
         approximately 46 years old and near the peak of his earnings 
 
         capacity.  Claimant's physical loss, functional loss and 
 
         industrial loss is more detrimental to him than it would be to an 
 
         older or younger employee.  Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company, Inc., file numbers 782670 & 805200 (Appeal Decision 
 
         April 28, 1989)
 
         
 
              The feasibility of retraining is one of the considerations 
 
         involved in determining industrial disability.  At age 50, which 
 
         is claimant's current age; lack of a full and complete high 
 
         school education; no formal education or vocational training 
 
         after high school; and following 28 years of manual labor, it is 
 
         determined that educational or vocational retraining would be 
 
         extremely difficult if not totally impossible.  Claimant has 
 
         never oven sought a GED, nor expressed any plans to do so. Conrad 
 
         v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).
 
         
 
              The only work that claimant has ever performed is strenuous 
 
         manual labor in heavy industry.  He is now foreclosed from doing 
 
         that kind of work.  Michael v. Harrison County, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 218, 220 (Appeal
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 11
 
         
 
         
 
         Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co.
 
         , I Iowa Industrial Commissioner Report 282 (1984).
 
         
 
              It is true that employer has restored him to his regular job 
 
         as oiler, which is commendable; however, claimant cannot actually 
 
         perform the duties of this job without a number of significant 
 
         job modifications.  Claimant testified he cannot lift the 473 
 
         pound barrels onto the two wheeler and tilt it up.  The doctor 
 
         imposed a 30 pound weight restriction and claimant does not think 
 
         he can lift, push or pull this much weight.  He cannot lift a 
 
         grate off of a pit.  He cannot lift a grease gun over his head.  
 
         He cannot lift a full bucket of oil.  He cannot work with his 
 
         hands over his head.  He cannot climb or work in high places 
 
         because he cannot rely on his left arm not going numb and giving 
 
         out.  Claimant contended he has lost the grip strength in his 
 
         left hand.  He must avoid operating the tow motor because he 
 
         cannot stand the bouncing and he cannot rotate his head in order 
 
         to see to maneuver it, especially in backing up or getting into 
 
         or out of tight places.  Flexion, extension or lateral movement 
 
         of his head causes pain in his neck which goes down his left arm 
 
         and his right arm to some degree.  The only consolation he 
 
         received from Dr. Roski, the operating neurosurgeon, and Mayo 
 
         Clinic, the ultimate medical facility, is to hope that it will 
 
         improve with time.
 
         
 
              Claimant's debilities were corroborated by Clasen and were 
 
         not controverted, contradicted, rebutted or refuted in any manner 
 
         by defendant by way of evidence or argument.  Since employer has 
 
         returned claimant to his old job as oiler, and has permitted him 
 
         the critical job modifications that he needs to remain in the 
 
         job, then claimant's industrial disability has been substantially 
 
         reduced. otherwise, he would be foreclosed from practically all 
 
         manual labor type jobs in the competitive labor market.  Claimant 
 
         is foreclosed from the most plentiful and easiest jobs to obtain 
 
         in the competitive labor market and the only jobs that he is 
 
         qualified to do.
 
         
 
              The fact that employer has made the needed accommodations so 
 
         that claimant can continue to work and hopefully complete 30 
 
         years of service and qualify for early retirement within the next 
 
         year and a half is highly commendable and substantially reduces 
 
         claimant's industrial disability at this time.  However, 
 
         employer's toleration for claimant's disabilities will not 
 
         necessarily transfer or translate to the competitive labor market 
 
         as a whole.  Hartwig v. Bishop Implement Company, IV Iowa 
 
         Industrial Commissioner Report 159 (Appeal Decision June 28, 
 
         1984).  Claimant is not likely to find other employers as 
 
         gracious with a 50-year-old employee, with no skills, lacking a 
 
         high school education and no GED, who sustained a work injury 
 
         that required an anterior cervical decompression and fusion of 
 
         two vertebrae and a second posterior cervical foraminotomy and
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 12
 
         
 
         
 
         decompression on two vertebrae, who cannot fully flex, extend or 
 
         laterally bend his head without encountering pain in his neck and 
 
         down his left arm, and who takes an anti-inflammatory agent and 
 
         three pain pills a day in order to perform the easiest job in the 
 
         plant with several significant accommodations.  Todd v. 
 
         Department of General Services, Buildings and Grounds, IV 
 
         Industrial Commissioner Report 373 (1983).
 
         
 
              No consideration is given to claimant's recent development 
 
         of lumbar pain and pain down his legs because that is a separate 
 
         and distinct matter from the injury to his neck and left arm.
 
         
 
              Claimant is motivated to work and has worked every time work 
 
         was offered or made available to him.  He has not avoided or 
 
         shirked work, but rather has continued to work even when it has 
 
         been difficult for him to do so.  He may have worked too much.
 
         
 
              In making a determination of industrial disability it is 
 
         proper to take into consideration a claimant's plans for 
 
         retirement or early retirement.  Swan v. Industrial Engineering 
 
         Equipment Co., IV Iowa Industrial Commissioner Report 353 (1984); 
 
         McDonough v. Dubuque Packing Co., I-1, Iowa Industrial 
 
         Commissioner Decisions 152 (1984).  In this case, claimant 
 
         testified that the reason he planned to retire at the end of 30 
 
         years was because of this injury.  There is no evidence that 
 
         claimant otherwise had planned to retire after 30 years of 
 
         service.
 
         
 
              Wherefore, based upon the foregoing considerations, all of 
 
         the considerations used to determine industrial disability, and 
 
         employing agency expertise (Iowa Administrative Procedure Act 
 
         17A.14(5)] it is determined that claimant has sustained a 45 
 
         percent industrial disability to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer on November 13, 1985, 
 
         as an oiler.
 
         
 
              That claimant sustained an injury arising.out of and in the 
 
         course of employment on November 13, 1985, when he stepped into a 
 
         pit which was unguarded because the grate that was supposed to 
 
         cover it had been knocked off and claimant fell approximately one 
 
         and one-half feet into the pit and jerked his neck and felt pain 
 
         down his left arm.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That Dr. Rovine stated that the work accident was the cause 
 
         of claimant's neck injury; that several other doctors treated or
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 13
 
         
 
         
 
         evaluated claimant based on this history; that employer and none 
 
         of the doctors disputed claimant's testimony of how the injury 
 
         occurred either by way of evidence or argument.
 
         
 
              That claimant sustained a rupture of one or more discs in 
 
         his cervical spine.
 
         
 
              That claimant received an anterior cervical decompression 
 
         and fusion of two cervical vertebrae on April 15, 1986, and 
 
         subsequently received a posterior cervical foraminotomy and 
 
         fusion of two vertebrae on November 12, 1986, by Dr. Roski, a 
 
         neurosurgeon.
 
         
 
              That claimant was off work for substantial periods of time 
 
         after each surgery.
 
         
 
              That Dr. Roski imposed a 30 pound lifting restriction which 
 
         is still in effect.
 
         
 
              That Dr. Roski, the operating neurosurgeon, assessed a 20 
 
         percent permanent functional impairment rating and Dr. Goldman, 
 
         at the Mayo Clinic Impairment Evaluation Center, assessed a 20 
 
         percent permanent impairment rating.
 
         
 
              That claimant has returned to his former job as oiler, but 
 
         performs it with difficulty, even though it is the easiest job in 
 
         the plant and significant accommodations and modifications have 
 
         been either made or permitted on claimant's behalf.
 
         
 
              That claimant experiences pain when he flexes, extends, or 
 
         laterally moves his head which causes pain down his left arm.
 
         
 
              That claimant has sustained weakness in his left arm and the 
 
         grip in his left hand.
 
         
 
              That claimant's.ability to lift, climb, operate a tow motor 
 
         or work with his arms over his head is limited.
 
         
 
              That claimant takes an anti-inflammatory medication and 
 
         three pain killers every day in order to perform his job.
 
         
 
              That claimant is age 50, did not complete high school and 
 
         does not have a GED, and that claimant can no longer perform 
 
         unskilled manual labor types of jobs for employer or in the 
 
         competitive labor market.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is not a suitable candidate for retraining 
 
         educationally or vocationally.
 
         
 
              That claimant has sustained a 45 percent industrial 
 
         disability to the body as a whole.
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 14
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant sustained an injury on November 13, 1985, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant sustained an industrial disability of 45 
 
         percent to the body as a whole.
 
         
 
              That claimant is entitled to 225 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant two hundred twenty-five (225) 
 
         weeks of permanent partial disability benefits at the rate of Two 
 
         Hundred Thirty-seven and 76/100 Dollars ($237.76) per week in the 
 
         total amount of Fifty-three Thousand Four Hundred Ninety-six 
 
         Dollars ($53,496) commencing on April 12, 1987, as stipulated to 
 
         by the parties.
 
         
 
              That defendant is entitled to a credit for permanent partial 
 
         benefits paid to claimant prior to hearing.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.  That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including the cost of the transcript.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 343- 
 
         3.1.
 
         
 
              Signed and filed this 25th day of January, 1990.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT
 
         Page 15
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg
 
         Davenport, IA 52801
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         Executive Square, STE 102
 
         400 Main St.
 
         Davenport, IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106; 51108.50; 51401; 51402.20 
 
                                         51402.30; 51402.40; 51402.60;         1803 
 
                                         Filed January 25, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LLOYD HART,
 
         
 
              Claimant,                          File No. 816126
 
         
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         FRENCH AND HECHT,
 
         
 
                                         D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         Claimant, age 50, 28 year career employee of employer, stepped in 
 
         a pit that had the grate left off and injured his neck.  He 
 
         received a two vertebrae anterior cervical laminectomy and later 
 
         a two vertebrae posterior cervical laminectomy.  He still had 
 
         pain down his left arm when he turned his head.  The only 
 
         encouragement Mayo Clinic and the operating neurosurgeon could 
 
         give was that they hoped it would improve with time.  Claimant 
 
         was foreclosed from performing his current job, but employer 
 
         allowed him to keep the job as oiler and permit other employees 
 
         to perform the strenuous work for claimant.  Claimant is 
 
         foreclosed from all manual labor jobs in the competitive labor 
 
         market.  Operating neurosurgeon awarded 20 percent permanent 
 
         impairment.  Mayo Clinic awarded 20 percent permanent impairment.  
 
         Claimant is not to lift more than 30 pounds.  Claimant said he 
 
         could no longer lift, bend, crawl, climb, work with his arms 
 
         overhead and that he could not even lift 30 pounds.  He takes an 
 
         anti-inflammatory medication and three pain killers everyday in 
 
         order to do his job.  Neck flexion, extension, or lateral bending 
 
         causes neck pain and sends pain down his left arm.  He can no 
 
         longer tilt 473 pound barrels up onto the two wheeler and cannot 
 
         operate the tow motor because he cannot turn his head to see to 
 
         maneuver it in tight places and when driving backwards.  Claimant 
 
         described his job as the easiest in the plant, but he still was 
 
         not able to do it without help from other employees.  Claimant 
 
         could no longer work on high places because his left arm goes out 
 
         and he has a loss of grip strength in his left hand.  Claimant 
 
         awarded 45 percent industrial disability to the body as a whole.
 
         
 
         The award was substantially reduced because of the employment 
 
         modifications and accommodations that employer had made to keep 
 
         claimant employed until he qualifies for early
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HART V. FRENCH AND HECHT 
 
         Page 2
 
         
 
         
 
         retirement in about a year and a half.  Defendant presented no 
 
         controverting evidence of any kind.  Defendant called no 
 
         witnesses and introduced no separate exhibits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HART,                   :
 
                                          :      File No. 816126
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       R E V I E W -
 
                                          :
 
            FRENCH & HECHT,               :     R E O P E N I N G
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on November 19, 1992, at 
 
            Davenport, Iowa.  This is a proceeding in review-reopening 
 
            wherein claimant seeks additional permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on November 13, 1985.  The prior arbitration 
 
            decision was filed on January 25, 1990.  The record in the 
 
            proceeding consists of the testimony of the claimant and 
 
            joint exhibits 1 through 19.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is a causal connection as to 
 
            claimant's injury and any additional permanent disability 
 
            over and above the 45 percent industrial disability 
 
            previously awarded;
 
            
 
                 2.  The extent of permanent disability over and above 
 
            the prior 45 percent industrial disability awarded in the 
 
            decision of January 25, 1990.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 53 years old and indicated he completed 
 
            tenth grade and started the eleventh grade of high school.
 
            
 
                 The undersigned is taking official notice of the 
 
            arbitration decision which was filed on January 25, 1990.  
 
            Said decision is also represented by joint exhibit 19.
 
            
 
                 The claimant testified as to his work history and the 
 
            nature of his work.  The arbitration decision fully sets out 
 
            the nature of claimant's work and work history.  It also set 
 
            out similar information as to what claimant testified to at 
 
            the hearing regarding his medical and his understanding of 
 
            his medical and his medical problems up to the date of his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hearing of October 24, 1989.  Since this is a 
 
            review-reopening and the issue is to whether there is a 
 
            change of circumstances since the October 24, 1989 hearing, 
 
            the undersigned sees no necessity of resetting all the same 
 
            or similar information that is already set out in the 
 
            arbitration decision.  The undersigned incorporates that 
 
            history herein as if it was all again specifically set out.
 
            
 
                 Claimant testified that on November 11, 1988, he went 
 
            back to work as he was released with no restrictions but 
 
            that he was lifting a grate and hurt himself again, so they 
 
            gave him a 30 pound weight limit.  Claimant indicated that 
 
            the company then modified his job in November of 1988 and 
 
            people were helping him with the heavy work - lifting the 
 
            drums, etc., because of his 30 pound weight limit.
 
            
 
                 From November 11, 1988 to the date of the hearing, 
 
            October 24, 1989, claimant indicated that he was only 
 
            carrying one gallon instead of three gallons of oil and that 
 
            he could still do some greasing but eventually indicated he 
 
            couldn't lift the gun.
 
            
 
                 The undersigned might note that it looks like these 
 
            dates may be different than reflected in the arbitration 
 
            decision (Joint Exhibit 19, page 7).  The 30 pound limit at 
 
            that time may have been put on in April rather than November 
 
            of 1988.
 
            
 
                 Claimant testified that November 28, 1989 was his last 
 
            day of work as he was getting worse and could only put a 
 
            little oil in the carrier as it hurt so bad and he was 
 
            sitting down a lot but still working eight hours a day and 
 
            still doing the things above his head such as oiling.  He 
 
            related how little work he was doing compared to what his 
 
            normal duties would be and how they lessened on this last 
 
            day.
 
            
 
                 Claimant's testimony was very confusing and he was 
 
            either confused by the questions or the nature of the 
 
            questions as he was mixing up what he was doing the last day 
 
            or last week to what he was doing part of that day.  The 
 
            undersigned is further confused by his testimony as the 
 
            hearing was on October 24, 1989 and claimant indicated his 
 
            last day of work was on November 28, 1989.  It later appears 
 
            claimant's last day of work was October 24, 1989, the date 
 
            of his prior hearing.
 
            
 
                 Claimant testified that he went to Richard A. Roski, 
 
            M.D., the day of the hearing because of shoulder pain.  
 
            Claimant indicated he thought he was getting to the end of 
 
            being able to work.  Through clarification it appeared that 
 
            this doctor appointment was before claimant's hearing on 
 
            October 24 as the trial began in the afternoon and 
 
            apparently claimant went to the doctor in the morning.
 
            
 
                 Claimant indicated at the last hearing he was working 
 
            eight hours a day and would sleep eight hours but that since 
 
            that time he does not sleep that much and wakes up and 
 
            cannot work a full eight hours.  He indicated that any 
 
            movement of his neck causes terrible pain, that the weather 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            affects him and his injury affects his neck and shoulders.
 
            
 
                 Claimant had started working for defendant employer at 
 
            age 21 on May 11, 1961, and had approximately 28 1/2 years 
 
            working for defendant employer as of his last day of work on 
 
            November 28, 1989.  At claimant's arbitration hearing, he 
 
            testified that he hoped to be able to continue working for 
 
            defendant until he was eligible for his early retirement at 
 
            the end of 30 years at age 52 (Jt. Ex. 19, p.2).  Claimant 
 
            reiterated that at his current hearing.  He again said he 
 
            wanted to work 30 years and then get another job he could do 
 
            but he did want to get his 30 years in.
 
            
 
                 Claimant was referred to joint exhibit 17, page 39, in 
 
            which Dr. Roski wrote to the Social Security Administration 
 
            on July 9, 1991, that claimant's pain level was such that he 
 
            should curtail his work activity and that it would be 
 
            difficult for claimant to continue in any type of work 
 
            activity.  The undersigned might note that that page is also 
 
            marked as claimant's exhibit 8 but it is obvious in looking 
 
            at the joint exhibits as a whole, that it is page 39 of 
 
            joint exhibit 17.
 
            
 
                 Claimant related some apparent correspondence or 
 
            contact with the defendant employer concerning getting his 
 
            30 year pension and who was going to pay and whether he was 
 
            to sign up for social security first before he signed for 
 
            his pension, etc.  As it turned out, the defendant employer 
 
            did consider claimant having his 30 years in and claimant 
 
            signed the papers accordingly and began receiving his 
 
            checks.  Apparently, part of this delay had to do with the 
 
            fact that defendant employer was bought by another company 
 
            and there apparently had been some litigation between the 
 
            companies that affected claimant, at least indirectly.  
 
            Although claimant had earlier indicated he intended to work 
 
            thirty years, he in fact didn't work thirty years but the 
 
            main thing he was working for at the time, his thirty years 
 
            retirement for a pension, did in fact occur.  Claimant said 
 
            he looked for work since he was only 51 but no one would 
 
            hire him.  He indicated he sought work at two gas stations.
 
            
 
                 Claimant was extensively cross-examined.  He 
 
            acknowledged that at his last hearing in October of 1989, he 
 
            knew he was at his last end because he kept getting worse.  
 
            Although claimant earlier testified he quit work on November 
 
            28, 1989, he seemed to indicate on cross-examination that he 
 
            knew on October 24, 1989 that he would never go back to work 
 
            again.  It was obvious from claimant's testimony that as of 
 
            the last hearing he wanted to hang on long enough to get his 
 
            thirty years retirement in. It is also obvious from the 
 
            arbitration decision that the defendant was doing all they 
 
            could to accommodate the claimant in that respect. The 
 
            deputy, in that decision, congratulated the employer (Jt. 
 
            Ex. 19, p. 11).
 
            
 
                 Claimant indicated that he only orally applied to work 
 
            for two places since he quit defendant employer and he said 
 
            they were not hiring.   He indicated it has been over a year 
 
            since he looked for a job.  Later on in claimant's 
 
            cross-examination and with additional redirect and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            recross-examination, it appears from claimant's testimony 
 
            that he did not work after October 24, 1989, rather than 
 
            November 28, 1989.  It seems that Dr. Roski may have taken 
 
            him off work when he saw him on the date of the hearing.  
 
            Claimant seemed to indicate that at the first hearing he 
 
            left the impression that he had no intention of going back 
 
            to work.  Then, after additional cross-examination and 
 
            redirect examination, it appears that claimant is now saying 
 
            or meant that at the time of the October 24, 1989 hearing, 
 
            it wasn't his intention not to go back to work but in 
 
            retrospect now it appeared that he wouldn't be able to.  
 
            Claimant contends January 17, 1991 was the first time Dr. 
 
            Roski told the claimant he couldn't go back to work.
 
            
 
                 Dr. Roski testified through his deposition taken on 
 
            July 13, 1992, represented by joint exhibit 18.
 
            
 
                 Dr. Roski was referred to his May 12, 1988 letter in 
 
            which he was somewhat optimistic that claimant's symptoms 
 
            would improve over time and that the 30 pound weight limit 
 
            may be temporary in terms of six months to a year (Jt. Ex. 
 
            17, p. 18).  The doctor then was referred to his January 17, 
 
            1991 letter (Jt. Ex. 17, p. 38) and agreed that that letter 
 
            indicated he opined claimant should not go back to work with 
 
            defendant employer.  He then agreed that it would be a fair 
 
            assumption that he felt prior to October 24, 1989, claimant 
 
            could work at defendant employer with the restrictions he 
 
            had.
 
            
 
                 The doctor then was asked regarding the last date he 
 
            saw claimant prior to the October hearing date.  The last 
 
            prior visit was September 11, 1989.  The doctor indicated 
 
            that as of that date claimant had been asymptomatic for 
 
            close to three years but he felt that things were very 
 
            stable and expected claimant to stay on the same course he 
 
            was on.
 
            
 
                 On cross-examination, the doctor acknowledged that 
 
            between October 24, 1989 to the present (date of deposition, 
 
            July 13, 1992), there had been no change in claimant's 
 
            physical condition and that from the time of claimant's 
 
            second surgery to the present there has been no physical 
 
            changes that could be documented objectively by an EMG 
 
            study, myelogram, x-rays or other studies.  The doctor did 
 
            conclude that whatever is causing claimant's problems cannot 
 
            be surgically corrected.  Joint exhibit 1, p. 11, an April 
 
            25, 1990 letter from Mayo Clinic, reflects that claimant's 
 
            condition continues to worsen.  They noted that they had not 
 
            seen claimant for about two years so that a majority of this 
 
            time would have been passing prior to the last hearing.  
 
            They also note that claimant may have to retire if light job 
 
            modification is not available and they recommended claimant 
 
            refrain from overhead or repetitive work due to the 
 
            difficulty with both arms.
 
            
 
                 Joint exhibit 7, which is a physical rehabilitation 
 
            services report, shows that claimant continued to get 
 
            services from them not only shortly before his last hearing 
 
            but have continued on into 1992.  The record indicates he is 
 
            experiencing considerable pain and continues to experience 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            it and appears to becoming depressed because of his 
 
            condition.  Page 25 of this exhibit, dated December 16, 
 
            1991, reflects that claimant was continuing to take a 
 
            significant amount of medication to control his pain and 
 
            that he could not tolerate being in an upright position for 
 
            prolonged periods of time without resting supine.  It also 
 
            indicated he could not lift any weight with either upper 
 
            extremity without pain.  He told the physical therapist that 
 
            he was at a breaking point in his frustration and that he 
 
            was anxious about his future long-term consequences on his 
 
            finances due to his inability to work.
 
            
 
                 Joint exhibit 8 is a work fitness center vocational 
 
            assessment.  Claimant's aptitude in every category on the 
 
            aptitude tests shows claimant's level either below or well 
 
            below average.  The report also indicates that claimant is 
 
            not placeable and that at most he would be only marginally 
 
            employable but at the most, if at all, would be part-time.  
 
            The rehabilitation specialist concluded in the report on 
 
            page 10 that he was unable to cite any potential job goals 
 
            that he felt claimant could realistically obtain and 
 
            maintain over a period of time.
 
            
 
                 Joint exhibit 9, pages 1 and 4, reflects that on July 
 
            9, 1992 and July 23, 1992, claimant had a right 
 
            suprascapular nerve neurolytic destruction and paracervical 
 
            trigger point injections.  These were to attempt to 
 
            eliminate claimant's pain.  Claimant had been notified of 
 
            the risks of such procedure but was willing to proceed with 
 
            the therapy.  Joint exhibit 13 reflects that claimant had 
 
            several types of injections some referred to as either 
 
            myofascial trigger point injections, cervical thoracic 
 
            spine, occipital nerve blocks, two thoracic trigger point 
 
            injections, bilateral occipital nerve blocks and cervical 
 
            thoracic trigger point injections, etc.  These occurred on 
 
            February 14, 1991, March 7, 1991, May 21, 1991, July 15, 
 
            1991, September 26, 1991, December 2, 1991, January 30, 1992 
 
            and March 12, 1992.
 
            
 
                 Dr. Roski, who claimant had seen for several years for 
 
            problems relating to his neck, received a letter from 
 
            defendant's then attorney regarding clarification and reply 
 
            concerning claimant's complaints of very recent episodes of 
 
            low back pain with radiculopathy into both legs.  The 
 
            attorney's letter was dated December 4, 1989 (Jt. Ex. 17, p. 
 
            26).  On page 28, Dr. Roski replied that he could find 
 
            nothing in his notes about claimant having previous low back 
 
            problems and if he did, they were not significant enough to 
 
            mention.
 
            
 
                 On January 17, 1991 (Jt. Ex. 17, p. 38), Dr. Roski 
 
            wrote to defendant indicating that he thought claimant's 
 
            chance of getting back to his full-time work activity was 
 
            essentially nil and that he would certainly support 
 
            claimant's plan of looking into long-term disability.  Joint 
 
            exhibit 17, page 48, is a note by Dr. Roski dated October 
 
            24, 1989 in which he took claimant off work.  The doctor's 
 
            notes beginning March 7, 1990 through January 4, 1991, have 
 
            repeated notes of claimant being off either indefinitely or 
 
            no work activity (Jt. Ex. 17, p. 53-62).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The central issue is whether there has been a causal 
 
            change in claimant's condition related to his original 
 
            injury since the original award was made on October 24, 
 
            1989.  Defendant contend that there has been no physical 
 
            change in that the claimant was having the same problems at 
 
            the time of his first hearing as he is currently having and 
 
            that physically claimant was really unable to do many of the 
 
            things he was trying to do as of October 24, 1989, that he 
 
            now contends he can't do.  Because of the condition claimant 
 
            was suffering, he actually intended to quit and felt as of 
 
            October 24, 1989, that he wasn't going to be able to 
 
            continue.  Defendant also contends that there has been no 
 
            economic change because claimant intended to quit or felt he 
 
            wasn't able to continue as of his October 24, 1989 injury 
 
            and, in fact, did not work after that date.
 
            
 
                 Joint exhibit 19 is the January 25, 1990 arbitration 
 
            decision issued pursuant to the October 24, 1989 hearing.  
 
            The decision is very clear that the employer has made the 
 
            needed accommodations so claimant could continue to work and 
 
            hopefully complete 30 years of service and qualify for early 
 
            retirement within the next year and a half and this was very 
 
            commendable and substantially reduced claimant's industrial 
 
            disability at that time.  The decision further states that 
 
            the employer's toleration for claimant's disabilities will 
 
            not necessarily transfer or translate to the competitive 
 
            labor market as a whole.  It is obvious that the employer 
 
            was making considerable accommodations for claimant and it 
 
            was proper at the time to commend the employer for their 
 
            efforts.  Likewise, it saved them a substantial amount of 
 
            workers' compensation payments by accommodating the 
 
            claimant.  At the time of the first hearing claimant had 
 
            worked approximately 27 years and his goal was 30 years, at 
 
            least, at which time he would get a pension.  This was an 
 
            added incentive and gave additional motivation.  It is not 
 
            unreasonable for one to be hyped by the desire of a 
 
            retirement pension after working 30 years for a company.  
 
            That is a lot of years.  The employer understood this and 
 
            eventually allowed claimant his pension without actually 
 
            completing the full 30 years.  Page 12 of the arbitration 
 
            decision indicates that no consideration was given to 
 
            claimant's recent development of lumbar pain and pain down 
 
            his legs.  Dr. Roski has been treating claimant for several 
 
            years and made it clear in his December 6, 1989 letter to 
 
            defendant's attorney at the time that claimant was not 
 
            having previous low back problems.  It appears that these 
 
            problems started to develop close to the time of claimant's 
 
            arbitration hearing and that they became worse.  The 
 
            undersigned finds that this is a change in claimant's 
 
            medical and physical condition.  The medical evidence is 
 
            very clear through the exhibits and letters of the various 
 
            doctors subsequent to claimant's arbitration hearing that he 
 
            is not able to work or that his limitations are such that he 
 
            would not be able to or could not do the work he was doing 
 
            at defendant employer's place of business as of October 24, 
 
            1989.  Claimant's lack of transferable skills in any other 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            type of business is essentially nil.  It was only through 
 
            the accommodation of defendant employer that he was able to 
 
            work.  It is obvious to the undersigned that claimant's 
 
            medical record and condition would cause him to be 
 
            unemployable in the job market.  As indicated earlier, the 
 
            defendant did have economic reasons to continue to employ 
 
            claimant and this accommodation also benefited claimant.  
 
            There should be more employers willing to do what defendant 
 
            employer did.
 
            
 
                 There appears to be no dispute that claimant is unable 
 
            to work any longer for defendant employer.  Defendant only 
 
            contends that claimant's condition now is the same as it was 
 
            at the arbitration hearing.  The inference would be that he 
 
            was unable to work then and unable to work now.  The 
 
            undersigned finds the greater weight of medical evidence 
 
            shows that claimant's condition has worsened and continues 
 
            to deteriorate and that this was not contemplated at the 
 
            time of the initial award.  The undersigned finds of even 
 
            more importance is the fact of claimant not being able to 
 
            work any longer was not anticipated at the time of the 
 
            arbitration hearing,  As indicated earlier, it was very 
 
            clear from said decision that defendant accommodating the 
 
            claimant substantially reduced claimant's industrial 
 
            disability.  Claimant then had no loss of income.  His wages 
 
            were the same proportionally at the time of his arbitration 
 
            hearing as they were before his injury other than possibly 
 
            any normal wage increases.  The undersigned finds that the 
 
            overwhelming evidence shows that claimant's change of 
 
            condition both physically and economically is causally 
 
            connected to his November 13, 1985 injury.
 
            
 
                 Claimant has not looked for work but that is 
 
            understandable.  He really only knew one job and that was 
 
            with defendant employer and was in a limited area.
 
            
 
                 Joint exhibit 8 is the vocational assessment and it 
 
            shows claimant scored below or well below average in 
 
            aptitude.  It also concluded that the rehabilitation 
 
            specialist was unable to cite any potential job goals that 
 
            he felt claimant could realistically obtain and maintain 
 
            over time.  As far as claimant's placability, they opined 
 
            that claimant was not placable.  They could see few 
 
            employers who would be able to or find it reasonable to make 
 
            accommodations for claimant with his restrictions.
 
            
 
                 The undersigned finds that claimant has carried his 
 
            burden to show that there is a change in condition related 
 
            to claimant's original injury since the original award was 
 
            made.  This change is both physical and economical but is 
 
            more economical than physical.  Claimant is no longer able 
 
            to work and the medical doctors agree.
 
            
 
                 The only work that claimant has ever performed is 
 
            strenuous manual labor and heavy industry.  He is now 
 
            foreclosed from doing that type of work.  Claimant is 53 
 
            years old.  He would be at the peak of his earning capacity.  
 
            There have been several questions concerning claimant's 
 
            intent to quit when he reached his 30 years which would have 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            numerically been in 1991.  The implication from the 
 
            defendant appears to be that at that time he would retire 
 
            and do nothing and, therefore, he has no loss of income or 
 
            further loss of earning capacity because they let him retire 
 
            on a pension as if he had worked there 30 years.  It does 
 
            not appear to the undersigned that claimant was going to lie 
 
            down and do nothing.  At age 52, when he would have had his 
 
            30 years in, claimant is at a stage in life wherein he would 
 
            have other avenues open to him but not necessarily in heavy 
 
            duty manual labor.  The fact is, claimant at age 52 and 
 
            after receiving a 30 year pension from one employer, could 
 
            be available if he weren't injured to continue said work for 
 
            someone else if he desired because of his past experience.  
 
            The fact is he was foreclosed from doing that by his injury.  
 
            He is now foreclosed from doing light duty work considering 
 
            his transferable skills.  His education is very lacking, his 
 
            aptitude is low or well below average.  Claimant is 53 years 
 
            of age and is well below the normal retirement age.  The 
 
            undersigned considers normal as being age 65.
 
            
 
                 Joint exhibit 17, page 12, reflects that the deputy in 
 
            the arbitration decision found there was no evidence that 
 
            claimant otherwise had planned to retire after 30 years of 
 
            service other than because of his injury.  The undersigned 
 
            agrees with that finding and further states it is apparent 
 
            to the undersigned that it was this injury and claimant's 
 
            physical condition which caused claimant to consider the 30 
 
            years and was hoping to reach it because of the pension 
 
            involved.  It would appear that that 30 years was important 
 
            and it was determinative normally whether there would be any 
 
            pension or extent of any pension received by the claimant 
 
            unless there was some additional arrangement or 
 
            circumstances provided by the employer.
 
            
 
                 Taking into consideration all those criteria that are 
 
            considered in determining the extent of one's industrial 
 
            disability, including but not necessarily limited to 
 
            claimant's age; medical and work history; intelligence; 
 
            impairment; vocation; and the severity of claimant's injury, 
 
            the undersigned finds that claimant is totally and 
 
            permanently disabled and that his total permanent disability 
 
            is causally connected to his November 13, 1985 work injury.
 
            
 
                 The undersigned further finds that the change of 
 
            condition, at least as to the economic change, occurred 
 
            beginning October 25, 1989, and that claimant's total 
 
            permanent disability benefits should begin from that date.  
 
            Of course, defendant shall be given credit for all 
 
            disability benefits previously paid.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            13, 1985, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition. Meyers v. Holiday 
 
            Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 
 
            1978).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work injury on November 13, 1985, 
 
            in which he was awarded 45 percent industrial disability, 
 
            pursuant to an arbitration decision filed January 25, 1990, 
 
            pursuant to an October 24, 1989 hearing.
 
            
 
                 Claimant has incurred both an economical and physical 
 
            change of circumstances since his hearing on October 24, 
 
            1989, and that claimant's physical and economical condition 
 
            has worsened or deteriorated in the manner not contemplated 
 
            at the time of the initial award.
 
            
 
                 Claimant has an increase in loss of earning capacity in 
 
            that he was fully employed with no loss of wages as of the 
 
            date of his hearing and no longer has employment nor is he 
 
            able to obtain employment because of his medical condition.
 
            
 
                 As a result of his work injury, claimant has incurred a 
 
            permanent total disability and that said payments shall 
 
            begin on October 25, 1989.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Claimant's permanent total disability was causally 
 
            connected to his November 13, 1985 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay claimant compensation for 
 
            permanent total disability at the stipulated rate of two 
 
            hundred thirty-seven and 76/100 dollars ($237.76) per week 
 
            for the period of claimant's disability commencing October 
 
            25, 1989.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Ms Vicki Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1804; 1108
 
                                          Filed December 16, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HART,                   :
 
                                          :      File No. 816126
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       R E V I E W -
 
                                          :
 
            FRENCH & HECHT,               :     R E O P E N I N G
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1804
 
            In a review-reopening decision, claimant found permanently, 
 
            totally disabled.  In prior arbitration decision, claimant 
 
            found to have 45% industrial disability  and still had job 
 
            and no lost wages.  Employer was accommodating him.  At 
 
            review-reopening hearing, claimant had lost his job because 
 
            he could no longer perform it and evidence showed claimant 
 
            was not employable.
 
            
 
            1108
 
            Found claimant's total permanent disability was causally 
 
            connected to his original work injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY EPPLING,
 
         
 
              Claimant,                            File No. 816146
 
         
 
         VS.                                    A R B I T R A T I O N
 
         
 
         IBP, INC.,                                D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Larry Eppling 
 
         against IBP, Inc., his self-insured former employer.  Claimant 
 
         alleges that he sustained a hernia injury, either directly or as 
 
         an aggravation of a preexisting hernia, while in the employ of 
 
         IBP, Inc., on or about February 13, 1985.  Claimant seeks 
 
         compensation for temporary total disability, payment of medical 
 
         expenses and mileage.
 
         
 
              The evidence in this case consists of testimony from Larry 
 
         Eppling, Elaine Eppling, Robert Sorenson and Maxine Brisbois.  
 
         The evidence also consists of joint exhibits 1 through 23.
 
         
 
                             ISSUES AND STIPULATIONS
 
         
 
              The issues identified by the parties are: Whether claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment; whether the alleged injury is a cause of any 
 
         temporary disability; and, determination of the employer's 
 
         liability under section 85.27.  The employer affirmatively 
 
         asserts that claimant failed to give notice of injury as required 
 
         by section 85.23.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              When receiving the evidence in this case, the undersigned 
 
         observed the appearance and demeanor of both claimant and his 
 
         wife.  The demeanor they exhibited was in line with what the 
 
         undersigned would have expected from individuals approximately, 
 
         half the age of claimant and his wife.  They appeared to be
 
         extremely immature.  The undersigned suspected that they were 
 
         affected by severe learning disabilities.  At the conclusion of 
 
         the hearing, the undersigned was informed by claimant's counsel 
 

 
         
 
         
 
         
 
         EPPLING V. IBP, INC.
 
         Page   2
 
         
 
         
 
         that claimant and his wife are both affected by a condition 
 
         which lay individuals commonly refer to as retardation.  When 
 
         considering the evidence in this case, most of the apparent 
 
         inconsistencies and conflicts were considered to be 
 
         manifestations of their underlying disabilities, rather than 
 
         intentional misrepresentation or deceit.
 
         
 
              Claimant began working for IBP, Inc. on January 25, 1985, 
 
         shortly after he had been given a preemployment physical.  He 
 
         worked on the ham trim for several days and became a leaf lard 
 
         puller on February 9, 1985.  On that day, he went home from 
 
         work early due to diarrhea and vomiting (exhibits 1 and 2). On 
 
         February 11, 1985, claimant returned to work and worked pulling 
 
         leaf lard until February 13, 1985.  On February 13, 1985, 
 
         claimant went to the hospital emergency room with complaints of 
 
         upper abdominal pain, which had been present for approximately 
 
         two weeks (exhibit 4).  The diagnostic tests showed claimant to 
 
         have some mild irritability of the duodenal bulb of his 
 
         gastrointestinal tract (exhibit 5) and a small tear in the 
 
         proximal stomach (exhibits 7, 9 and 10).
 
         
 
              Claimant's employment was terminated on or about February 
 
         25, 1985, even though Thomas L. Duncan, M.D., had indicated 
 
         that claimant's absenteeism from work was justified medically 
 
         (exhibit 9).
 
         
 
              Claimant was subsequently seen by David VanGorp, M.D., on 
 
         June 28, 1985.  Dr. VanGorp diagnosed claimant as having a 
 
         large right inguinal hernia.  Claimant was referred to K. M. 
 
         Johannsen, M.D., who performed a surgical repair of the hernia 
 
         on July 5, 1985 (exhibit 12).  Claimant recovered from the 
 
         surgery uneventfully and was released to return to work without 
 
         restrictions effective August 19, 1985 (exhibits 14 and 15).
 

 
         
 
         
 
         
 
         EPPLING V. IBP, INC.
 
         Page   3
 
         
 
         
 
         
 
              Claimant testified that the thirteenth of February is the 
 
         day when he was hurt.  He testified that he experienced pain, 
 
         mostly in his chest, and described it as a kind of pain that he 
 
         had not previously felt at any time in his life.  Claimant 
 
         testified that he treated with Thomas L. Duncan, M.D., for 
 
         quite a while, but that his pain continued to worsen to the 
 
         extent that he sought treatment from K. 0. Garner, M.D., in 
 
         Cherokee, Iowa.  When claimant was refused hospitalization at 
 
         Cherokee, he saw Dr. VanGorp.  Claimant testified that the pain 
 
         for which he went to see Dr. VanGorp was the same pain that had 
 
         started while he was pulling leaf lard.
 
         
 
              Claimant testified that Dr. Duncan had examined his chest 
 
         and stomach, but had not examined his groin area.  Claimant 
 
         testified that he had not complained to Dr. Duncan of pain in 
 
         the groin area and that he was not, at that time, having pain 
 
         in his groin.  Claimant testified that the bulge in his groin 
 
         had not been present when he had physical examinations prior to 
 
         the time he began working for IBP.  He testified that no one 
 
         else in his family has had a hernia.  Claimant related that the 
 
         hernia operation relieved his pain.
 
         
 
              Elaine Eppling, claimant's wife of three years, testified 
 
         that claimant had never had stomach pain before he began 
 
         working for IBP and that the treatment from Dr. Duncan did no 
 
         good.  Mrs. Eppling testified that, after February 13, 1985, 
 
         claimant complained of pain all the time and that it did not go 
 
         away.  She related that the continuing pain led them to Dr. 
 
         VanGorp.
 
         
 
              Robert Sorenson, safety director at IBP, Inc., testified 
 
         that the leaf lard is removed from the inside of a hog carcass 
 

 
         
 
         
 
         
 
         EPPLING V. IBP, INC.
 
         Page   4
 
         
 
         
 
         by reaching down to a height of approximately mid-thigh level 
 
         and then pulling up.  He stated that the lard weighs 
 
         approximately one to two pounds and that pulling it is like 
 
         lifting an eight to ten-pound weight.  Sorenson denied having 
 
         knowledge of anyone ever developing a hernia while pulling leaf 
 
         lard.
 
         
 
              Maxine Brisbois, the IBP plant nurse during 1985, 
 
         testified that a typical preemployment physical consists 
 
         primarily of asking questions and testing individuals' hands, 
 
         but that it does not involve any objective tests for hernias.
 
         
 
              Regarding the cause of claimant's hernia, Dr. Johannsen 
 
         stated, "I have no knowledge of any injury that would have 
 
         caused his hernia" (exhibit 16).  Dr. Johannsen indicated that 
 
         the origin of an inguinal hernia is considered to be hereditary 
 
         and that, while heavy lifting and straining can hasten the 
 
         development of the hernia, the underlying basis is a hereditary 
 
         weakness (exhibit 13).  Dr. VanGorp also indicated that a 
 
         hernia is an inherited defect and that it was not a direct 
 
         result of claimant's employment (exhibit 12).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on or about February 13, 1985 
 
         which arose out of and in the course of his employment. McDowell 
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 13, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 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).
 

 
         
 
         
 
         
 
         EPPLING V. IBP, INC.
 
         Page   5
 
         
 
         
 
         
 
              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).
 
         
 
              For an injury to arise out of employment, the employment 
 
         must be a proximate cause of the injury.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; in need 
 
         not be the only cause.  Blacksmith v. All American, Inc., 290 
 
         N.W.2d 348 (Iowa 1980).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The only references in claimant's treatment records from 
 
         February, 1985 speak of claimant's upper abdomen.  At no point is 
 
         there any reference to his groin area as a source of pain.  Dr. 
 
         VanGorp and Dr. Johannsen do not relate the hernia to claimant's 
 
         employment.  Claimant's burden of proof is to show a probability, 
 
         rather than a mere possibility.  In this case, it is possible 
 
         that his condition was misdiagnosed by Dr. Duncan.  It is 
 
         possible that the employment either caused the hernia to develop 
 
         or aggravated and worsened a preexisting hernia.  The record 
 
         lacks sufficient definiteness concerning the timing and sequence 
 
         of events to support a finding that claimant's hernia is an 
 
         injury which arose out of and in the course of employment with 
 
         IBP, Inc.  It will not be found, under the record made, that Dr. 
 
         Duncan misdiagnosed the condition.  The record indicates that the 
 
         condition continued to worsen after claimant left employment with 
 
         IBP, Inc.  It is therefore concluded that claimant has failed to 
 
         prove, by a preponderance of the evidence, that he sustained 
 
         injury which arose out of and in the course of his employment 
 
         with IBP, Inc. on or about February 13, 1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Larry Eppling suffered from a hernia which was diagnosed 
 
         on June 28, 1985 and which was surgically repaired on July 5, 
 
         1985.
 
         
 
              2.  It cannot be determined, from the evidence presented in 
 
         this case, whether or not any of claimant's work activities with 
 
         IBP, Inc. were a substantial factor in either causing or 
 
         aggravating the hernia.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         EPPLING V. IBP, INC.
 
         Page   6
 
         
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained injury which arose out of and in the 
 
         course of his employment with IBP, Inc. on or about February 13, 
 
         1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that each party pay the costs incurred 
 
         by that party in participating in this proceeding.
 
         
 
         
 
              Signed and filed this 23rd day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Marvin Miller
 
         Attorney at Law
 
         216 West Main Street
 
         Cherokee, Iowa 51012
 
         
 
         
 
         
 
         Mr. Marlon Mormann
 
         Attorney at Law
 
         IBP, Inc.
 
         P.O. Box 515, Hwy. 35
 
         Dakota City, Nebraska  68731
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30
 
                                                 Filed December 23, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY EPPLING,
 
         
 
              Claimant,                             File No. 816146
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         IBP INC.,
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Claimant failed to produce evidence sufficient to establish 
 
         that his hernia was an injury which arose out of and in the 
 
         course of employment.