Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD BUTLER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 816925
 
            ROWLEY INTERSTATE             :
 
            TRANSPORTATION CO., INC.,     :        A P P E A L
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LUMBERMENS MUTUAL CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
 
 
            
 
 
 
                 Claimant appeals from an arbitration decision denying 
 
 
 
            claimant temporary or permanent disability as a result of 
 
 
 
            his October 11, 1985 injury and awarding claimant medical 
 
 
 
            expenses.
 
 
 
            
 
 
 
                 The record on appeal consists of the transcript of the 
 
 
 
            arbitration hearing and joint exhibits 1 through 14.  Both 
 
 
 
            parties filed briefs on appeal.
 
 
 
            
 
 
 
                                      issue
 
 
 
            
 
 
 
                 The issue on appeal is whether there is a causal 
 
 
 
            connection between claimant's alleged injury and the 
 
 
 
            disability.
 
 
 
            
 
 
 
                              review of the evidence
 
 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
 
 
                 The arbitration decision dated April 27, 1989 
 
 
 
            accurately reflects the pertinent evidence and it will not 
 
 
 
            be reiterated herein.
 
 
 
            
 
 
 
                                  applicable law
 
 
 
            
 
 
 
                 The citations of law in the arbitration decision are 
 
 
 
            appropriate to the issue and evidence.
 
 
 
            
 
 
 
                                     analysis
 
 
 
            
 
 
 
                 The analysis of the evidence in conjunction with the 
 
 
 
            law in the arbitration decision is adopted.
 
 
 
            
 
 
 
                                 findings of fact
 
 
 
            
 
 
 
                 1.  Claimant established that he received an injury 
 
 
 
            arising out of and in the course of his employment while 
 
 
 
            pushing a pallet on October 11, 1985.
 
 
 
            
 
 
 
                 2.  Claimant established that he incurred medical 
 
 
 
            expenses as a result of the injury on October 11, 1985 in 
 
 
 
            the amount of $94.00.
 
 
 
            
 
 
 
                 3.  Claimant established that he injured his back at 
 
 
 
            home on January 6, 1986.
 
 
 
            
 
 
 
                 4.  Only one physician opined there is a possibility 
 
 
 
            (but not to a reasonable degree of medical certainty) that 
 
 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's back problems are related to his injury on 
 
 
 
            October 11, 1985.
 
 
 
            
 
 
 
                                conclusions of law
 
 
 
            
 
 
 
                 Claimant failed to meet his burden of proof in 
 
 
 
            establishing that his injury on October 11, 1985 caused 
 
 
 
            either temporary or permanent disability.
 
 
 
            
 
 
 
                 Claimant incurred $94.00 in medical expenses at Lowell 
 
 
 
            General Hospital.
 
 
 
            
 
 
 
                 WHEREFORE, the decision of the deputy is affirmed
 
 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
 
 
                                      order
 
 
 
            
 
 
 
                 THEREFORE, it is ordered:
 
 
 
            
 
 
 
                 That defendants are liable for the payment of the 
 
 
 
            following medical expenses:
 
 
 
            
 
 
 
                      Lowell General Hospital      $94.00
 
 
 
            
 
 
 
                 That defendants shall receive credit for benefits 
 
 
 
            previously paid.
 
 
 
            
 
 
 
                 That defendants pay the costs of this action including 
 
 
 
            the costs of transcription of the arbitration hearing.
 
 
 
            
 
 
 
                 That defendants file claim activity reports pursuant to 
 
 
 
            Division of Industrial Services Rule 343-3.1(2).
 
 
 
            
 
 
 
                 Signed and filed this ______ day of May, 1990.
 
 
 
            
 
 
 
            
 
 
 
            
 
 
 
            
 
 
 
                                         _____________________________
 
 
 
                                               DAVID E. LINQUIST
 
 
 
                                            INDUSTRIAL COMMISSIONER
 
 
 
            
 
 
 
                 
 
 
 
            Copies To:
 
 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
 
 
            Mr. Michael J. Coyle
 
 
 
            Attorney at Law
 
 
 
            200 Security Bldg.
 
 
 
            Dubuque, Iowa 52001
 
 
 
            
 
 
 
            Mr. Roger A. Lathrop
 
 
 
            Attorney at Law
 
 
 
            600 Union Arcade Bldg.
 
 
 
            Davenport, Iowa 52801
 
 
 
            
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51108.50 - 51402.30
 
                                          Filed May 31, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD BUTLER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 816925
 
            ROWLEY INTERSTATE             :
 
            TRANSPORTATION CO., INC.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LUMBERMENS MUTUAL CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            51108.50 - 51402.30
 
            Affirmed the deputy industrial commissioner's decision that 
 
            held that claimant failed to establish a work-related injury 
 
            where one physician could find only a possibility of causal 
 
            connection (and not to a reasonable degree of medical 
 
            certainty).
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                                 51108.50; 51402.30
 
                                                 Filed April 27, 1989
 
                                                 MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        EDWARD BUTLER,
 
        
 
             Claimant,
 
             
 
        vs.                                   File No. 816925
 
        
 
        ROWLEY INTERSTATE TRANSPORTA-       A R B I T R A T I O N
 
        TION, CO., INC.,
 
                                              D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        LUMBERMENS MUTUAL CASUALTY
 
        COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
        51108.50; 51402.30
 
        
 
            Where one physician could find only a possibility of causal 
 
        connection (and not to a reasonable degree of medical certainty), 
 
        claimant failed to establish a work injury causative of back 
 
        problems.
 
        
 
        
 
 
            
 
           
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            EDWARD BUTLER,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 816925
 
            ROWLEY INTERSTATE     
 
            TRANSPORTATION CO., INC.,       
 
                                                 R E M A N D
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LUMBERMENS MUTUAL CASUALTY      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This matter is on remand from the Iowa District Court.  The 
 
            district court remanded this case for purposes of 
 
            consideration of lay as well as expert testimony in 
 
            determining whether there is a causal connection between an 
 
            alleged work injury on October 11, 1985 and claimant's 
 
            claimed disability.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The facts presented in the arbitration decision filed April 
 
            27, 1989 and the findings of fact in the appeal decision 
 
            filed May 3, 1990 are incorporated by reference as the 
 
            findings of fact in this decision.
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R.App.P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
            The expert opinion in this matter comes from Dr. Rothberg.  
 
            Dr. Rothberg was unable to say with any degree of medical 
 
            certainty which of claimant's back injuries were responsible 
 
            for his extruded disc.  Dr. Rothberg opined that according 
 
            to claimant's description of the October 11, 1985 incident 
 
            it was possible that the incident caused the herniated disc,  
 
            However, Dr. Rothberg did not treat claimant until February 
 
            1986 which was four months after the incident.  There is 
 
            some confusion from Dr. Rothberg's notes as to whether the 
 
            date related to him for the incident was in August or 
 
            October 1985.  Dr. Rothberg did not observe claimant's 
 
            symptoms until February 1986, which was after claimant's 
 
            nonwork-related snow shoveling incident.  For these reasons, 
 
            Dr. Rothberg's opinion can be given little, if any, weight.  
 
            The lay testimony in this matter comes from the claimant.  
 
            Claimant testified that he had an injury on October 11, 1985 
 
            and that he was in intense pain.  His diagnosis on October 
 
            12, 1985 was cervical strain (Exhibit 10).  When claimant 
 
            was treated on January 6, 1986 the medical records indicate 
 
            that he had low back pain and that he had pain for about one 
 
            month (Ex. 11).  The surgery performed on claimant was at 
 
            the L3-L4 level (Ex. 19).  Claimant's testimony that he told 
 
            the emergency room nurse the day after the October 11, 1985 
 
            injury that he had pain in his lower back is inconsistent 
 
            with the medical records (Ex. 10).  Claimant's surgery on 
 
            his lower back occurred on February 22, 1986, four months 
 
            after the October 11, 1985 work incident and after a 
 
            nonwork-related snow shoveling incident.
 
            
 
            After claimant's initial treatment on October 12, 1985 he 
 
            did not seek medical treatment until January 6, 1986.  He 
 
            stated that he did not seek medical treatment during that 
 
            time because he could not afford it.  However, he did seek 
 
            medical treatment at that time.  It would appear that 
 
            claimant's physical condition changed about that time.  The 
 
            change coincided with the nonwork-related snow shoveling 
 
            incident.
 
            
 
            When all the evidence in this case is considered, claimant 
 
            has failed to prove that a work injury of October 11, 1985 
 
            is the cause of his current disability.  Claimant's current 
 
            disability is the result of a lower back injury and 
 
            resulting surgery.  The expert testimony in this case is 
 
            inconsistent with other facts.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants are liable for payment of ninety-four dollar 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ($94.00) medical expense of Lowell General Hospital.
 
            That claimant take nothing other than the ninety-four dollar 
 
            ($94.00) medical expense in this matter.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
            Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Bldg.
 
            Dubuque, Iowa 52001
 
            
 
            Mr. Roger A. Lathrop
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801
 
            
 
            Mr. David A. Lemanski
 
            Attorney at Law
 
            1141 Main St.
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
 
 
 
 
              
 
 
 
                                                 1108; 1402.30
 
                                                 Filed May 24, 1993
 
                                                 BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            EDWARD BUTLER,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 816925
 
            ROWLEY INTERSTATE     
 
            TRANSPORTATION CO., INC.,       
 
                                                 R E M A N D
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LUMBERMENS MUTUAL CASUALTY      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
                  
 
            1108; 1402.30
 
            
 
            On remand it was determined that when both expert and lay 
 
            testimony was considered, claimant had failed to meet his 
 
            burden of proving a causal connection between a work injury 
 
            and his claimed disability.  The work injury occurred in 
 
            October 1985 and the medical records indicated a cervical 
 
            strain at that time.  Four months later (after a non-work 
 
            incident) claimant sought treatment for lower back pain.  
 
            Surgery was eventually performed on claimant's lower back.  
 
            The medical opinion on causal connection was not reliable 
 
            because there were inconsistencies of when the doctor 
 
            thought the work injury occurred and the doctor's opinion 
 
            was that there was a possible causal connection.  The lay 
 
            testimony (claimant's) was inconsistent with other facts in 
 
            the case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DALE KOHLI,
 
         
 
              Claimant,                             File No. 816936
 
         
 
         vs.                                        A T T 0 R N E Y
 
         
 
         IOWA PUBLIC SERVICE COMPANY,                    F E E
 
         
 
              Employer,                             D E C I S I O N
 
              Self-Insured,
 
              Defendant.                               F I L E D
 
         
 
                                                      MAY 9 1989
 
         
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Attorney John Behnke against 
 
         Dale Kohli for approval of attorney fees and his alleged attorney 
 
         lien in the case of Dale Kohli against Iowa Public Service 
 
         Company.  In that case, claimant received permanent total 
 
         disability and medical benefits as a result of a work injury 
 
         pursuant to an agreement of settlement approved by the 
 
         undersigned on May 17, 1988.
 
         
 
              On September 22, 1988, a hearing was held on Behnke's 
 
         petition filed herein and the matter was considered fully 
 
         submitted at the close of this hearing.  Oral testimony was 
 
         received during the hearing from John Behnke, Dale Kohli and 
 
         Kohli's wife.  The exhibits received into the evidence are listed 
 
         in the prehearing report.
 
         
 
              The only issue presented by the parties is whether the 
 
         claimed attorney fee and/or lien is fair and reasonable.  This 
 
         agency has no statutory authority to enforce the alleged contract 
 
         between Behnke and Kohli or to enforce the claimed attorney lien. 
 
         Such enforcement is accomplished in the Iowa District Court.  
 
         This agency's jurisdiction and authority in attorney fee cases is 
 
         limited to the approval of the amount of the fee or lien under 
 
         Iowa Code section 86.39.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              The evidence indicates that John Behnke initiated a 
 
         proceeding against Dale Kohli in the Iowa District Court in and 
 
         for Black Hawk County seeking attorney fees under his attorney 
 
         fee contract with Kohli with reference to Kohli's workers' 
 
         compensation claim against Iowa Public Service Company.  
 
         According to exhibit 4, this proceeding was set for trial on 
 
         April 21, 1987. Due to the failure of John Behnke to appear for 
 
                                                
 
                                                         
 
         this trial, his claim was dismissed with prejudice by District 
 
         Associate Judge James Coil.  Judge Coil assessed costs against 
 
         John Behnke.
 
         
 
              A further summary of the evidence is unnecessary.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The Iowa Rules of Civil Procedure are applicable to these 
 
         proceedings by virtue of Division of Industrial Services Rule 
 
         343-4.35.  Iowa Rule 217 states that:  "All dismissals not 
 
         governed by RCP 215 are not for want of jurisdiction or improper 
 
         venue, shall operate as adjudications on the merits unless they 
 
         specify otherwise."  A dismissal with prejudice is a decision on 
 
         the merits of the alleged claim and is res judicata as to any 
 
         future pursuit of the same claim.  Butler v. Butler 114 N.W.2d 
 
         595, 253 Iowa 1085 (Iowa 1962).
 
         
 
              Iowa Code section 86.39 states as follows:
 
         
 
              All fees or claims for legal, medical, hospital, and burial 
 
              services rendered under this chapter and chapters 85, 85A, 
 
              85B, and 87 are subject to the approval of the industrial 
 
              commissioner, and no lien for such service is enforceable 
 
              without the approval of the amount of the lien by the 
 
              industrial commissioner....
 
         
 
              In the case sub judice, claimant could have raised section 
 
         86.39 as a defense in the small claims action.  However, whether 
 
         raised as a defense or not, this code section does not remove 
 
         subject matter jurisdiction from the district court to enforce 
 
         attorney liens, attorney fee contracts or applications of the 
 
         equitable doctrine of "quantum meruit."  This agency's role in 
 
         such matters is limited to the approval of the amount of fees if 
 
         asked.to do so by a party.  If the undersigned would approve of 
 
         any fee for Attorney Behnke in this case, Behnke would still be 
 
         required to return to district court to collect his fee against 
 
         Kohli.  Mr. Behnke's problem is that the District Court has 
 
         extinguished his right to do so as a sanction for his failure to 
 
         appear at trial.  The undersigned is serving only as an 
 
         administrative law judge in this proceeding and cannot overturn a 
 
         final judgment of a District Associate Judge.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  On April 21, 1987, James D. Coil, District Associate 
 
         Judge, for the Iowa District Court in and for Black Hawk County 
 
         by order, dismissed with prejudice John Behnke's claim for 
 
         attorney fees arising from Dale Kohli's claim for workers' 
 
         compensation benefits against Iowa Public Service Company as a 
 
         result of a work injury on January 8, 1986.
 
         
 
              2.  John Behnke did not appeal the above order of Judge 
 
         Coil.
 
                              CONCLUSIONS OF LAW
 
                                                
 
                                                         
 
         
 
     The issue of the reasonableness of any fee for Attorney 
 
         Behnke is moot.  By action of the District Court, Behnke no 
 
         longer has any claim for any attorney fees against Dale Kohli in 
 
         this matter.
 
         
 
                                      ORDER
 
         
 
              1.  Attorney Behnke's application for approval of fees is 
 
         denied and dismissed.
 
         
 
              2.  Costs of this action are assessed against John Behnke.
 
         
 
              Signed and filed this 9th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John E. Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa  50665
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette St.
 
         P. 0. Box 2634
 
         Waterloo, Iowa  50704-2634
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1001
 
                                            Filed May 9, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DALE KOHLI,
 
         
 
              Claimant,                              File No. 816936
 
         
 
         vs.                                         A T T 0 R N E Y
 
         
 
         IOWA PUBLIC SERVICE COMPANY,                     F E E
 
         
 
              Employer,                              D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1001 - Attorney Fee Approvals
 
         
 
              Held that an attorney's right to claim fees in this matter 
 
         was extinguished by the district court when his claim previously 
 
         filed in small claims court was dismissed with prejudice when he 
 
         failed to appear for trial.  The application for approval of fees 
 
         submitted to this agency was dismissed as moot.
 
         
 
              Held that the role of this agency in attorney fee disputes 
 
         is limited to approval of the amount of such fees when asked to 
 
         do so.  This agency does not enforce liens or fee contracts.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIANA CASTANON,
 
         
 
              Claimant,                               File No. 816938
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         H. J. HEINZ,                                 D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        APR 18 1990
 
         LIBERTY MUTUAL INSURANCE,
 
         COMPANY,                              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Juliana Castanon, against H. J. Heinz, employer, and Liberty 
 
         Mutual Insurance Company, insurance carrier, to recover benefits 
 
         as a result of alleged injuries sustained on January 23, 1985, 
 
         February 11, 1985, mid-1985, and November 4, 1985.  The matter 
 
         came on for hearing before the deputy industrial commissioner in 
 
         Davenport, Iowa, on January 11, 1990.  The record consists of the 
 
         testimony of the claimant, claimant's husband, Guillermo 
 
         Castanon, Ron Albright, Nancy Darnell, Mary M. Garvey, and Laura 
 
         Freyermuth; claimant's Exhibits 1 through 4; and Joint Exhibits 1 
 
         through 23.
 
         
 
                                      ISSUES
 
         
 
              Regarding the February 11, 1985 injury, the issues are:
 
         
 
              1.  Whether claimant's alleged disability is causally 
 
         connected to her injury;
 
              
 
              2.  The nature and extent of claimant's disability;
 
              
 
              3.  Whether claimant is entitled to Iowa Code section 85.27 
 
         medical benefits - authorization and causal connection;
 
              
 
              4.  Whether claimant is an odd-lot employee.
 
         
 
              Regarding the other three alleged injuries of January 23, 
 
         1985, mid-1985, and November 4, 1985, everything is in dispute 
 
         except employer-employee relationship.  The main issues being:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of her employment;
 
         
 
              2.  Whether claimant's condition is causally connected to 
 
         her alleged injuries;
 
         
 
              3.  Whether claimant's alleged disability is causally 
 
         connected to her injuries;
 
         
 
              4.  The nature and extent of claimant's disability;
 
              
 
              5.  Claimant's entitlement to Iowa Code section 85.27 
 
         medical benefits - authorization and causal connection;
 
              
 
              6.  Whether claimant brought her action timely as provided 
 
         by Iowa Code section 85.26;
 
         
 
              7.  Whether claimant gave timely notice of her injuries as 
 
         provided by Iowa Code section 85.23;
 
         
 
              8.  Whether claimant is an odd-lot employee.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified at the hearing and by way of depositions 
 
         on October 16, 1986 and November 28, 1989.  Claimant said she is 
 
         48 years old and was born of emigrant parents in Texas.  Claimant 
 
         stated her parents did field work in Missouri, Florida, Texas and 
 
         Muscatine, Iowa.  Claimant related she did not go to school at 
 
         all and has no other formal education.  Claimant testified she 
 
         doesn't read or write English or Spanish.  She said she can sign 
 
         her name and write numbers but cannot do simple arithmetic.
 
         
 
              Claimant revealed she first worked at age 9 or 10 picking 
 
         cotton and tomatoes in fields all over the country until she got 
 
         married at age 27 in 1968.  Claimant stated she started working 
 
         in a factory after her marriage.  Claimant testified she began 
 
         working for defendant employer full-time in January 1984.  
 
         Claimant said she had various types of employment between 1968 
 
         and 1984 and also was not working during several of those 
 
         intervening 16 years. Claimant said she had worked off and on for 
 
         defendant employer prior to 1984 during the tomato season.  
 
         Claimant described the work she did from January 1984 until 
 
         February 11, 1985 in defendant employer's can shop.
 
         
 
              Claimant said that on February 11, 1985, defendant employer 
 
         gave her a job she did not want because of her qualifications. 
 
         Claimant stated that there was only one person on the floor 
 
         instead of the normal two for this particular part of the job on 
 
         that particular date.  She related there were four machines 
 
         operating and she had to do everything.  Claimant indicated there 
 
         were several bent cans causing some problems and the foreman 
 
         wanted her to do both jobs involving the can machine which 
 
         required her to go up and down a stairway or platform and push on 
 
         the pallet with a long stick in her hand.  Claimant stated she 
 
         fell backwards on a rail as she went to push the pallet of cans 
 
         with her long stick.  Claimant indicated the corner of her back 
 
         hit the rail.  Claimant testified that others saw the incident 
 
         and that her husband picked her up as he was working the same 
 
         shift in the same department.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said the employer sent her for treatment with 
 
         William Catalona, M.D., and he indicated nothing was wrong.  
 
         Claimant returned to light duty.  Claimant said her back 
 
         continued to hurt so she received treatment and cold packs at the 
 
         plant.  She was not taken off work.  Claimant was sent back to 
 
         full-time work on February 26, 1985.  Claimant said she insisted 
 
         she was hurting but the company nurse looked at her and returned 
 
         her to work.
 
         
 
              Claimant said she continued to work until November 5, 1985, 
 
         but insisted her back problems were getting worse.  Claimant 
 
         testified she eventually sought outside medical help because the 
 
         company nurse told her it was too late and the company would not 
 
         pay for it.  Claimant said she could not stand the pain so she 
 
         went to Jeffrey A. Shay, D.C., in October 1985.  She stated she 
 
         saw him three times a week but he discontinued treatment and 
 
         referred her to David C. Naden, M.D., an orthopedic surgeon, 
 
         since claimant's insurance would not pay for a chiropractor.  
 
         Claimant related Dr. Naden took x-rays and indicated a disc 
 
         problem. Claimant said she was then off work six months beginning 
 
         November 5, 1985.  Claimant said she did nothing during this six 
 
         months but followed doctor's orders, which involved taking pain 
 
         pills. Claimant explained her back never got well, but did not 
 
         get worse either.  Claimant returned to work on March 4, 1986 to 
 
         light duty. Claimant indicated that due to company layoffs, she 
 
         was actually off most of the time between March 4, 1986 and June 
 
         16, 1986. Claimant said she was having trouble getting out of a 
 
         chair and the doctor took her off work around June 16, 1986.  
 
         Claimant had a myelogram and surgery on June 25, 1986.
 
         
 
              Claimant described her continuing problems and another 
 
         surgery that occurred in April 1987.  Claimant indicated she 
 
         received some relief after the second surgery but said it became 
 
         worse again.  Claimant stated she was hospitalized and put into a 
 
         cast around December 1987 but that this did not help.
 
         
 
              Claimant said the insurance company sent her to Franciscan 
 
         Rehabilitation Center in August 1988 to go through a work 
 
         hardening program.  Claimant contended she became worse as a 
 
         result of this program.  Claimant related the medical center told 
 
         her the treatment was supposed to hurt in order for her to get 
 
         better.  Claimant said she went there two or three times a week, 
 
         72 miles round trip, between August 1988 and sometime in March 
 
         1989.  Claimant stated she hurt more after the round trip drive 
 
         in a car.  She said her husband drove her to the work hardening 
 
         program.  Claimant said she had her attorney inquire as to why 
 
         she had to go to Iowa City rather than have the treatment locally 
 
         in Muscatine so as to prevent the driving.  Claimant said the 
 
         insurance company then terminated her treatment.  Claimant 
 
         related she has been sued by Mercy Hospital and has a judgment 
 
         against her and her husband.
 
         
 
              Claimant said she has pain when sitting too long, riding in 
 
         a car, or making tortillas with a roller or attempting to do the 
 
         various household chores.  Claimant related she last worked 
 
         anywhere on June 16, 1986.  She said she looked for work at a 
 
         factory but they rejected her.  She acknowledged she would not 
 
         have been able to do the work anyway.  Claimant stated she has 
 
         never had a supervisory, foreman or desk job and could not handle 
 
         a reading job or one requiring arithmetic.  She explained she 
 
         never had a job that did not require physical labor.  Claimant 
 
         acknowledged she slipped on a wet and greasy floor at defendant 
 
         employer's in mid-1985 while doing some janitor work, but this 
 
         was not serious and indicated no problem developed from it.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant also revealed a slip and fall on the ice on January 
 
         23, 1985 while at work.  She said she fell on her butt and back 
 
         but did not hurt herself and any pain from this fall was gone in 
 
         one week.  Claimant said she did not go to the doctor for this 
 
         fall.
 
         
 
              Claimant indicated in her deposition of November 28, 1989 
 
         that when she went to the nurse to tell her her medical problems, 
 
         the nurse would tell her the same old thing, namely, to take 
 
         aspirin or that the company was not responsible and would not 
 
         cover it or they didn't believe her.  Claimant said one of the 
 
         nurses was always on the phone and another was so busy she 
 
         ignored her and she just got tired of going to the nurses.  
 
         (Joint Exhibit 17, pages 18 and 19)
 
         
 
              Claimant's testimony in her depositions is often confusing. 
 
         There is obviously a communication problem and this is 
 
         contributed to by the claimant's limited education.  It appears 
 
         the time sequence of events relative to certain injuries are 
 
         interchanged. In her deposition on November 28, 1989, claimant 
 
         was asked to describe her condition before she slipped on the 
 
         soapy floor in mid-1985.  Claimant responded "I felt something 
 
         like I had always something stuck into my lower back.  That pain 
 
         was always there, when I fell on the soapy floor, I felt 
 
         something just broke it all to pieces, it just, opened up on me 
 
         and that's when the intense pain came."
 
         
 
              Claimant emphasized she was not having,back pain before her 
 
         February 11, 1985 injury.  After the defendants rested, claimant 
 
         was recalled as a witness.  Claimant said she received ice pack 
 
         therapy four times a day at work after her February 11, 1985 
 
         injury up to February 26, 1985 from the nurse in defendant 
 
         employer's medical department.  Claimant said she took the ice 
 
         packs to the bathroom and put them on herself.  She explained she 
 
         did not know about aspirin or ice massages being prescribed four 
 
         times a day.  Claimant said she gave the doctor slip to the lead 
 
         man and he gave it to the nurse.  Claimant said she couldn't read 
 
         a doctor slip.  She related she went to the employer's medical 
 
         department two or three times a day between February and November 
 
         1985 when she was at work.
 
         
 
              Guillermo Castanon, claimant's husband, testified he works 
 
         at defendant employer but is presently on a partial layoff since 
 
         October 9, 1989.  He stated he currently is working one or two 
 
         days a week.  He related he injured his left hand and arm at work 
 
         resulting in surgery and has been placed on light duty.  He said 
 
         before his injury, he worked all the time 40 hours per week.  Mr. 
 
         Castanon recalled his wife's February 1985 injury.  He said 
 
         claimant couldn't work or do anything soon after the accident.  
 
         He said his wife was very ill and he and his kids had to do the 
 
         work around the house.  He stated claimant stayed in bed most of 
 
         the time.  He acknowledged claimant worked after the February 11, 
 
         1985 accident until November 1985 but could not recall if she was 
 
         laid off part of the time.  Mr. Castanon testified Dr. Catalona 
 
         wouldn't give claimant pills and said nothing was wrong with her. 
 
         He explained claimant went to Dr. Shay, a chiropractor, because 
 
         she was feeling so bad.  Claimant said his wife was not hurting 
 
         much after her slip on the soapy floor in mid-1985.  He related 
 
         that when he broke his arm in May 1987, Dr. Catalona told him 
 
         nothing was wrong and put him on light duty.  He explained he 
 
         then saw another doctor who said his arm was broken.  Mr. 
 
         Castanon said since he had a lot of pain and now has a crooked 
 
         arm, the company put him on light duty.  He revealed a lot of 
 
         people are working today at Heinz with lower seniority and he 
 
         believes with his seniority he should be working more.  He said 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         his wife doesn't drive.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Ron Albright testified he has been defendant employer's 
 
         transportation supervisor for 22 years and was the personnel 
 
         assistant in 1985.  He stated he works with workers' 
 
         compensation, group benefits, etc.
 
         
 
              Albright said claimant worked after her February 1985 injury 
 
         until November 5, 1985.  He stated Dr. Catalona was the 
 
         authorized doctor and Dr. Naden was not authorized nor was Ralph 
 
         Congdon, M.D., who took over Dr. Naden's practice.  Albright said 
 
         claimant was laid off a lot of the time between February 1985 and 
 
         November 1985.  Albright said claimant was released by Dr. Naden 
 
         without restrictions and claimant returned to work on March 3, 
 
         1986 until June 17, 1986 and has not been back since.  He stated 
 
         the layoffs are determined on plant seniority and ability due to 
 
         the job classification.  Albright was asked about his January 18, 
 
         1986 letter to Dr. Naden and claimant.  Basically, the conclusion 
 
         of his response resulted in a denial of liability.  Albright 
 
         indicated that the company felt the medical treatment claimant 
 
         was getting and the bills he was receiving in November and 
 
         December 1985 were not the result of the February 11, 1985 
 
         injury, so claimant had a free choice of doctors.  Albright also 
 
         said around this time he was changing positions in defendant 
 
         employer's organization.
 
         
 
              Mary M. Garvey testified she is defendant employer's second 
 
         shift nurse and has been with defendant employer 16 years.  She 
 
         referred to the January 23, 1985 notation on claimant's record 
 
         whereby claimant told her she slipped on the ice.  She related 
 
         there was no reason for claimant to see a doctor and claimant 
 
         said nothing as to her back.  Garvey acknowledged claimant 
 
         reported the February 11, 1985 injury to her.  She said she has 
 
         no report in her records of the mid-1985 injury.  She testified 
 
         that every time an employee reports an injury, it is noted on the 
 
         employee's record.
 
         
 
              Nancy Darnell testified she has been a nurse at defendant 
 
         employer's for nine years.  She said she doesn't know claimant. 
 
         She stated Dr. Catalona returned claimant to light duty on 
 
         February 12, 1986 and indicated claimant could return to regular 
 
         duty with no restrictions on February 26, 1985.  Ms. Darnell 
 
         indicated every time an employee comes to the office to report, 
 
         it is documented.  Likewise, she said all requests to see a 
 
         doctor are also documented.  Darnell agreed if claimant was given 
 
         an ice massage, it would be noted.  She stated a separate book is 
 
         kept for doctor consultations and doctor slip information.
 
         
 
              Darnell could not recall any ice massages being given 
 
         claimant even though her records indicate claimant was to be 
 
         given them.  Darnell acknowledged the company could make mistakes 
 
         but she tries to write everything down.  She has no explanation 
 
         why ice massages were not written down.  Darnell said she offered 
 
         claimant ice packs but it doesn't appear ice massages were done. 
 
         She doesn't recall claimant coming in to get massages.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              It appears from her testimony that the company got Dr. 
 
         Catalona's note but that claimant never saw it or knew about its 
 
         contents.  It is obvious defendant employer didn't tell claimant 
 
         what defendants' chosen doctor prescribed for claimant.
 
         
 
              Laura Freyermuth testified she is defendant employer's third 
 
         shift nurse.  She does not know claimant but is familiar with the 
 
         nurse's notes.  (Jt. Ex. 1)  She said if an employee reports an 
 
         accident, it is documented.  She indicated that if claimant had 
 
         come in for a massage four times a day, it would have been 
 
         documented.  She related the records show no new injury reported 
 
         after February 11, 1985.  Freyermuth mentioned she took 
 
         information on the October 30, 1988 entry (Jt. Ex. 1, p. 3) from 
 
         the 5 x 8 index card.  She said all the information on index 
 
         cards is supposed to end up on claimant's record unless an error 
 
         is made.  She emphasized job injuries and nonjob injuries are to 
 
         be noted, even a headache.  She indicated that if ice massages 
 
         were to be done by defendant employer's medical department, they 
 
         would be done unless claimant refused them.  Freyermuth 
 
         acknowledged claimant is given a yearly hearing test but that 
 
         these tests were not noted in the medical file.
 
         
 
              Dennis Miller, M.D., an orthopedic surgeon, testified by way 
 
         of deposition on January 20, 1988 that he and his partner, Dr. 
 
         Congdon, continued the orthopedic practice of Dr. Naden, who had 
 
         left the practice.  Dr. Miller said he first saw claimant on 
 
         November 20, 1987 and indicated the language barrier made it 
 
         difficult to take claimant's history.  He described the 
 
         difficulty he had examining claimant because of her leg and back 
 
         pain.  He indicated she said she had been in bed and had 
 
         difficulty walking. He stated she came into his office in a 
 
         nightgown.  He said it took two people to help her out of the car 
 
         and walk into his office.
 
         
 
              Dr. Miller indicated he saw claimant for a second opinion 
 
         and she was accompanied by her husband.  After the examination, 
 
         Dr. Miller recommended a more thorough evaluation by a hospital 
 
         admittance in order to do a bone scan, medical consultation and 
 
         possibly a psychiatric evaluation.  He said claimant and her 
 
         husband said they could not do that and indicated they had to go 
 
         to another doctor.  Mr. Miller thought this was unusual.  He said 
 
         claimant and her husband did return again and saw Dr. Congdon who 
 
         then followed through with Dr. Miller's recommendation.  He said 
 
         he has not treated claimant since he last saw her on November 20, 
 
         1987.
 
         
 
              Ralph Congdon, M.D., an orthopedic surgeon, testified by way 
 
         of deposition on September 15, 1989 that he took over Dr. Naden's 
 
         medical practice around the beginning of October 1986 when Dr. 
 
         Naden moved out of the state.  He took over Dr. Naden's records 
 
         which included claimant's records.  He said Dr. Naden's records 
 
         reflect similar histories that he took and that Dr. Naden 
 
         performed surgery on claimant around July 1986.  He described the 
 
         surgery performed by Dr. Naden (Jt. Ex. 20, pp. 8-9).  This will 
 
         be shown in more detail in the medical records.  Dr. Congdon 
 
         emphasized the problems he saw would result in real physical 
 
         problems causing physical complaints.  Dr. Congdon testified that 
 
         in December 1986 Dr. Miller's notes show that claimant said she 
 
         was better and wanted to return to work, so Dr. Naden released 
 
         her.  Dr. Congdon indicated claimant had a real down turn in her 
 
         symptomatology and claimant returned to see him in January 1987 
 
         with increased symptoms.  He stated claimant told him she had 
 
         been going for physical therapy with Loren Arps, a physical 
 
         therapist, and claimant went through an extensive evaluation on 
 
         the Cybex equipment.  He said it appears that therapy was 
 
         aggravating her symptoms to such an extent that claimant stopped 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         going to therapy because it hurt her so much.  He said he was 
 
         sorry this Cybex equipment therapy took place since it caused her 
 
         an increase in pain.  He said the Cybex therapy was an impediment 
 
         more than it was useful.  Dr. Congdon.described claimant's 
 
         deteriorating condition between January 1987 and April 1987 and 
 
         said a second surgery was performed on April 23, 1987.  He 
 
         related the findings making the second surgery necessary and the 
 
         findings after the surgery was performed.  (Jt. Ex. 20, pp. 
 
         15-16)  Dr. Congdon said claimant was prescribed a corset-type 
 
         support to avoid overtaxing the muscles that were violated by the 
 
         second surgery.  Dr. Congdon said claimant for the most part was 
 
         trying to recondition herself under his guidelines.  He indicated 
 
         later that in 1987 claimant was not improving as well as he had 
 
         hoped as a result of wearing the corset and claimant was getting 
 
         depressed.  He said he stayed with the program until October 1987 
 
         when he felt some objective testing should be done again.  After 
 
         he was unable to determine the underlying cause of claimant's 
 
         pain, he stated that he asked for a fresh opinion from one of his 
 
         partners, Dr..Miller, to which Dr. Miller agreed.  He said 
 
         claimant at that time had scheduled an appointment with James E. 
 
         Crouse, M.D., in Waterloo, and claimant opted to have that 
 
         examination instead.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Congdon said claimant then came back to his office in 
 
         December 1987 and accepted his office's original offer to 
 
         hospitalize her.  Dr. Congdon said claimant was put into a 
 
         lumbosacral cast to simulate a back fusion situation to see if 
 
         this could solve claimant's problem.  Another MRI and myelogram 
 
         was given.  He revealed they showed no objective findings. 
 
         Claimant was sent home in a cast.  Dr. Congdon then concluded 
 
         back fusion surgery would have been useless.  He noted since this 
 
         time claimant has also gone through a rather extensive work 
 
         hardening program and said the weekly reports imply claimant is 
 
         improving. Dr. Congdon disagreed with these implications.  He 
 
         said he saw no improvement in her status resulting therefrom.  
 
         Dr. Congdon said he gave claimant permission to stop the work 
 
         hardening program testing as he felt it was not doing what it was 
 
         intended to do.  He emphasized that he did not feel from the very 
 
         beginning that the work hardening program in this particular 
 
         individual was basically going to succeed, but he allowed the 
 
         program to have a trial because he certainly did not want to 
 
         stand in anyone's way when there might be a chance that this 
 
         program would work.  He said he and the claimant had tried pretty 
 
         hard on a conditioning program on their own.
 
         
 
              Dr. Congdon was asked "Do you think that she is likely to 
 
         make any further significant improvement from the point she is 
 
         now?"  Dr. Congdon then answered, "I doubt it."  (Joint Exhibit 
 
         20, page 12)  Dr. Congdon also emphasized that the strain of 
 
         someone with a back problem riding in a car is much greater than 
 
         is understood.  He indicated that a 74 mile round trip from 
 
         Muscatine to Rock Island, Illinois for the work hardening program 
 
         is not going to work.  He said claimant is a good example.  He 
 
         testified even if claimant did not have to travel so far, he 
 
         didn't know if that would change the result in claimant's 
 
         situation.  Dr. Congdon was then asked a lengthy question by 
 
         claimant's attorney relating to the two other falls claimant had 
 
         (January 1985 and mid-1985) and recalling his history and 
 
         treatment of claimant for her February 11, 1985 injury.  Dr. 
 
         Congdon said he had an opinion as to whether her current problems 
 
         from which he treated claimant were causally related to her 
 
         injury of February 11, 1985.  Dr. Congdon opined:  "I think the 
 
         episode in February for which she began having -- from which she 
 
         began having symptoms did, in fact, aggravate her condition and 
 
         cause her to seek medical care that resulted in all of this -- of 
 
         the two surgeries and her physical therapy and persistent 
 
         problems." (Jt. Ex. 20, p. 27)  He was then asked and answered:
 
         
 
              Q.  Do you think that Juliana has real, physically-based 
 
              complaints resulting from her injury?
 
         
 
              A.  Yes.
 
         
 
              Q.  Do you think there's also a hysterical element to her 
 
              complaints?
 
         
 
              A.  I do.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 20, p. 27)
 
         
 
              Dr.  Congdon emphasized that he didn't think claimant was 
 
         faking or lying because the symptoms were so persistent that it 
 
         would be very difficult to constantly fake.  Dr. Congdon further 
 
         opined when asked about claimant's permanent impairment:
 
         
 
              I think she has a permanent impairment.  I think the amount 
 
              that I would be able to declare her impaired is based on the 
 
              guidelines of the third edition of the book that's been put 
 
              out by the American Medical Association covering that issue. 
 
              And I think she most readily fits into the category that's 
 
              described where a person has a multiply operated spine, 
 
              lumbosacral area or back and with persistent pain.  That 
 
              offering is in the range of 15 to 18 percent of her whole 
 
              body.
 
         
 
                   I think the other way of testing for an impairment, 
 
              which involves measuring back motions and the defects in the 
 
              motions, is -- would be suspect in this particular case 
 
              because of her difficulties, the pain influence in 
 
              performing the testing.  I think it would be more 
 
              reproduceable [sic] to give her the rating on the other 
 
              method.
 
         
 
         (Jt. Ex. 20, p. 29)
 
         
 
              Dr. Congdon opined that he did not feel it was likely that 
 
         claimant could reenter the work force.  He said he has worked 
 
         with many injured workers and with placement and rehabilitation 
 
         consultants in trying to get workers back to work.  He said it 
 
         was highly unlikely based on watching claimant for two years that 
 
         she might improve.  Dr. Conglon describes spinal stenosis as:
 
         
 
              Spinal stenosis, basically, is a squeezing of the nerve 
 
              elements for whatever reason.  Usually it is.a combination 
 
              of enlargement of the small joints, and if there is -- as in 
 
              her original case, some enlargement of the soft tissue 
 
              lining of those joints that balloons out, thickening of 
 
              ligaments.
 
         
 
                   All of this added up can cause a swelling or -- I'm 
 
              sorry.  Can cause a constriction of the nerve elements.  If 
 
              it's -- if something is added to that, such as swelling or 
 
              something like that, it can tip this over the balance of 
 
              being tolerable.
 
         
 
         (Jt. Ex. 20, p. 32-33)
 
         
 
              He was further asked and answered:
 
         
 
              Q.  But the stenosis in this patient, was that, in your 
 
              opinion, caused by trauma, or is that a --
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A.  I think that her symptoms were certainly the result of 
 
              the fall, but would be, in my understanding, more of an 
 
              aggravation of something that was coming on but apparently 
 
              had not been reported as symptomatic to that point.
 
         
 
              Q.  Based on what you know about her condition, after having 
 
              reviewed Dr. Naden's records and you having performed a 
 
              surgical procedure on her, is it possible that these 
 
              physical complaints that she had could occur even without 
 
              any trauma?
 
         
 
              A.  It's possible that they could.
 
              
 
              Q.  She had a back condition that was somewhat abnormal, 
 
              didn't she?
 
         
 
              A.  When we operated upon her?
 
         
 
              Q.  Yes.
 
         
 
              A.  She had an abnormal back, yes.
 
         
 
         (Jt. Ex. 20, pp. 33)
 
         
 
              Dr. Congdon was asked by claimant's attorney and answered as 
 
         follows:
 
         
 
              Q.  On cross-examination you were asked if at the time of 
 
              her first surgery Juliana had a normal back; you indicated 
 
              she did not.  I believe that probably there was the 
 
              pre-existing spinal stenosis.  Do those pre-existing 
 
              problems that were present in Juliana make her a higher risk 
 
              for back injury than someone who has a completely normal 
 
              back?
 
         
 
              A.  Yes.
 
         
 
              Q.  Is Juliana the only patient that you have encountered 
 
              who had symptomatology, even though they had no greater 
 
              level of physical findings than you found in Juliana?
 
         
 
              A.  No.
 
         
 
         (Jt. Ex. 21, p. 16)
 
         
 
              Dr. Congdon last saw claimant in March 1989.  He said he 
 
         initially thought the April 23, 1987 surgery performed on 
 
         claimant was a successful procedure and that he felt the physical 
 
         constriction was definitely relieved.
 
         
 
              Byron W. Rovine, M.D., a neurologist, testified by way of 
 
         deposition on September 26, 1989 that he first saw claimant on 
 
         March 22, 1988 at the request of defendant insurance company for 
 
         purposes of an evaluation.  Dr. Rovine was asked several 
 
         questions as to claimant's history and the February 11, 1985 
 
         accident.  He was then referred to claimant's January 1985 fall 
 
         and a mid-1985 fall and his opinion of causation of impairment 
 
         remain the same except he stated a question may arise whether the 
 
         January 23, 1987 slip and fall in the parking lot may have 
 
         initiated some of the processes resulting in claimant's 
 
         condition.  Otherwise, he said his opinion would remain 
 
         substantially the same.  Dr. Rovine agreed that claimant's 
 
         contention that the 35 mile one way trip to Rock Island for 
 
         physical therapy and work hardening caused her additional 
 
         difficulties and is consistent with the doctor's experience 
 
         concerning problems claimant was having.  He also agreed that 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         such trips can take away the positive aspect of such therapy.  
 
         (Jt. Ex. 21,.p. 14)  Dr. Rovine also expressed concern about the 
 
         Cybex exams and the procedures used.  He said you run the risk of 
 
         making one's condition worse by overstressing someone who has a 
 
         residual problem.  He said he has seen this a number of times.  
 
         After examining claimant, Dr. Rovine concluded as to the cause of 
 
         claimant's symptomatology:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Well, it was my opinion that she had evidence of instability 
 
              in the lower part of her lumbar spine and the relationship 
 
              of symptomatic relief associated with rest and increase in 
 
              symptoms and deterioration in her physical condition every 
 
              time she attempted or an attempt was made to increase her 
 
              activity and to increase her tolerance to activity are 
 
              fairly characteristic of the unstable lumbar spine.
 
         
 
                   If you leave it alone and let it rest it doesn't feel 
 
              so bad but if you.get these people up and make them move 
 
              around and do a lot of back exercises, they get worse and 
 
              worse because the.more exercise they do, the more motion 
 
              there is of the unstable segments of the spine and, 
 
              therefore, the more tissue irritation, swelling, 
 
              inflammation, et cetera.
 
         (Jt. Ex. 21, pp. 16-17)
 
         
 
              Dr. Rovine further testified he was not optimistic about the 
 
         possibility of claimant becoming rehabilitated through exercise 
 
         and physical therapy.  He suggested consideration should be given 
 
         to fusing claimant's spine.  He said he could not conjecture 
 
         whether claimant would be able to return to work after a spinal 
 
         fusion.  On cross-examination, the doctor indicated he was 
 
         unaware of possible alleged falls or injuries to claimant on 
 
         January 23, 1985, mid-1985 or November 1985.  He emphasized that 
 
         all he can go on is what claimant told him which was the one 
 
         fall.  He said there is no magic by which a doctor can look at an 
 
         injury and determine which of several incidents caused the 
 
         injury.
 
         
 
              Robert J. Chesser, M.D., a physical medicine and 
 
         rehabilitation specialist, testified by way of deposition on 
 
         September 20, 1989 that he is the medical director of the 
 
         Franciscan Rehabilitation Center.  He said the significant part 
 
         of the work fitness center is to prepare people to reenter the 
 
         work force.  He said he assists in the planning and 
 
         recommendations to the patients as to the kinds of work for which 
 
         the patient may be suited.
 
         
 
              He said he had the opportunity to review the work fitness 
 
         center's records of claimant which included reports, surgical 
 
         history and current symptoms and then issued an April 4, 1989 
 
         report.  He said he found claimant's complaints consistent with 
 
         the history she gave him.  He acknowledged that at the time of 
 
         the actual visits of claimant he thought there was a reasonable 
 
         possibility or likelihood that claimant could improve with an 
 
         appropriate program to where she could do light and sedentary 
 
         work.  He emphasized many other matters besides the physical 
 
         situation must be ultimately looked at to determine a potential 
 
         job, if any, for a person.
 
         
 
              Dr. Chesser testified that considering claimant's work 
 
         history and educational background, "[I]t would not be very 
 
         likely that she would be able to find a job.  There would need to 
 
         be a commitment to very extensive retraining and possibly some 
 
         education...."  (Jt. Ex. 22, p. 13)  Dr. Chesser opined that "her 
 
         ongoing symptomatology was related to the fall that had occurred 
 
         in 1985, in February of 1985."  (Jt. Ex. 22, p. 18)  Dr. Chesser 
 
         said he did not feel the drive by claimant to the fitness center 
 
         in Moline, Illinois was detrimental to her reconditioning or 
 
         caused her any progression of her symptoms.  On 
 
         cross-examination, the doctor was given some additional history 
 
         and facts from defendants' viewpoint.  The doctor then indicated 
 
         that if there was a lapse of time between February 1985 and 
 
         October 1985 in which claimant did not have complaints or 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         radiculitis and then the radiculitis began in October or November 
 
         of 1985, then the causation would not be related to the February 
 
         1985 injury.  Dr. Chesser further said:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   I might just point out that you could -- you know, a 
 
              herniated disk or ruptured disk can be a kind of gradual 
 
              process too.  It doesn't necessarily -- it's not necessarily 
 
              an all or nothing and you can get a mild bulging and that 
 
              could progress to a more significant bulging over time.
 
         
 
         (Jt. Ex. 22, p. 30)
 
         
 
              Dr. Chesser was then asked and answered as follows:
 
         
 
              Q.  And equally true, Doctor, isn't it a fact that perhaps 
 
              the more falls that this lady suffers that would produce 
 
              more stress on that disk could ultimately require the 
 
              surgery that she had?
 
         
 
              A.  Yes.
 
         
 
              Q.  And without the falls after February of 1985, isn't it 
 
              possible that she may never have had to have surgery?
 
         
 
              A.  Correct.
 
         
 
         (Jt. Ex. 22, p. 30)
 
         
 
              The doctor emphasized that his medical opinions are based 
 
         upon the history that is given to him by the patient and any 
 
         other medical reports or information given him.  He acknowledged 
 
         that claimant never mentioned to him any falls or injuries on 
 
         January 23, 1985, mid-1985 or November 1985.
 
         
 
              James E. Crouse, M.D., an orthopedic surgeon, testified by 
 
         way of deposition on October 16, 1989 that he first saw claimant 
 
         on November 24, 1987 through a referral from claimant's attorney 
 
         at that time, Mr. Mealy.  Dr. Crouse described his examination 
 
         and the prior medical records he had from Dr. Congdon and Naden.  
 
         The doctor said he recommended fusion of claimant's L4 through 
 
         the sacrum.  Dr. Crouse said claimant related a February 11, 1985 
 
         fall and that his findings were consistent with claimant's 
 
         complaints. Dr. Crouse opined that claimant's complaints 
 
         concerning her low back and radiating pain into her legs were 
 
         causally connected to her February 11, 1985 fall.  (Jt. Ex. 23, 
 
         p. 13)  The doctor explained that an injury to the disc, further 
 
         activity including more lifting, can aggravate the condition 
 
         causing the type of syndrome that claimant has.  The doctor 
 
         indicated that when he first saw claimant in November 1987, he 
 
         had a history of claimant's mid-1985 fall but not of claimant's 
 
         January 1985 fall. Dr. Crouse said claimant was going to take his 
 
         fusion recommendation under advisement, but was somewhat reticent 
 
         to go ahead with back surgery.  He.agreed that if claimant did 
 
         not go forward with the fusion, her healing period had plateaued 
 
         in November 1987.  Dr. Crouse said "it is not unusual to see an 
 
         injury to a disc, for example, without radicular pain.  But 
 
         because of the injury and the pressure in the disc, the annulus 
 
         slowly bulging and finally decompensating allowing the disc to 
 
         press the nerve and cause radicular pain."  (Jt. Ex. 23, p. 20)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Loren Arp, a licensed physical therapist, testified by way 
 
         of deposition on December 14, 1988 that he first saw claimant for 
 
         treatment between November 4, 1986 and February 7, 1987.  He said 
 
         Dr. Congdon referred claimant to him and the referral ran out on 
 
         February 7, 1987.  Arp said his goal with claimant was to 
 
         decrease her pain and inflammation, increase her flexibility, and 
 
         increase her strength significantly enough so that she could 
 
         resume her normal function.  Arp said claimant still had need for 
 
         additional physiotherapy on February 7, 1987.  He said her low 
 
         back strength was 20 percent below normal according to the Cybex 
 
         test.  He thought she might be able to regain some of that 
 
         strength deficiency.
 
         
 
              Arp said he saw claimant again on July 7, 1988 for a back 
 
         rehabilitation reconditioning program through defendant insurance 
 
         company's referral.  He said he saw claimant until August 18, 
 
         1988.  He said claimant's symptoms were basically the same except 
 
         she had a second surgery.  He said that claimant eventually 
 
         wasn't making any progress and he notified the insurance company.  
 
         He said claimant was very compliant in her treatments but he 
 
         questioned whether claimant was giving maximum effort.  He did 
 
         not contend claimant was malingering.  He stated some people by 
 
         their nature and personality are overprotective of themselves 
 
         when they have pain.
 
         
 
              On January 13, 1987, William Catalona, M.D., the company 
 
         doctor wrote:
 
         
 
                   Whereas this patient appears to be free from back pain 
 
              and any neurological deficit or restricted motion of her 
 
              back at this time, considering her past history she will be 
 
              in jeopardy of having recurrent back pain should she return 
 
              to the type of work I have described.  This is a risk that 
 
              you will have to assume should you hire her for such 
 
              activities. You could protect yourself by providing her with 
 
              sedentary type of work which would require lifting no more 
 
              than 15 to 25 pounds and avoid motions and activities which 
 
              I have described.
 
         
 
         (Jt. Ex. 2, p.  5)
 
         
 
              On January 21, 1987, Dr. Catalona wrote:
 
         
 
                   I received a physical therapy report from River Rehab 
 
              on 1/17/87 and learned that patient has been seeing Dr. 
 
              Congdon who referred her to River Rehab for strengthening 
 
              exercises. A Cybex back test done,by River Rehab showed her 
 
              extensor back muscle strength to be 20% below normal.  
 
              Considering this weakness of her back muscles, I advise that 
 
              this patient undergo an intensive physical conditioning 
 
              program to strengthen her back muscles before returning to 
 
              work.  I will be glad to re-evaluate her after this 
 
              conditioning program and a Cybex test which shows that she 
 
              has regained her back muscle strength.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 2, p. 6)
 
         
 
              The October 17, 1985 notes of Jeffrey A. Shay, D.C., 
 
         reflect, in part:  "Pain in right shoulder and hip - started a 
 
         week ago...much worse this morning.  (Jt. Ex. 3, p. 1)  Dr. Shay 
 
         later wrote to defendants' attorney:
 
         
 
                   This is in response to your letter requesting further 
 
              information on Juliana Castanon.
 
         
 
                   The sentence concerning the possibility of injury from 
 
              heavy work during the summer was a supposition made by me as 
 
              a possibility.  This was not given to me directly by the 
 
              patient.
 
         
 
                   She related no information to me concerning falls that 
 
              may have involved injury to the thigh, hip or low back.
 
         
 
                   In response to your last question, she did complain of 
 
              radiculopathy at that time.
 
         
 
         (Jt. Ex. 3, p. 9)
 
         
 
              Notes dated November 15, 1985 of David C. Naden, M.D., an 
 
         orthopedic surgeon, reflect that claimant saw him on this date 
 
         concerning her back problems.  Claimant's history reflects the 
 
         doctor knew of the February 11, 1985 fall and the mid-1985 slip 
 
         and fall.  The doctor's notes further reflect:
 
         
 
              Diag:  1) A lumbosacral strain with acute and chronic
 
         
 
                       features which is secondary to,
 
         
 
                    2) degenerative disc disease producing
 
         
 
                    3) instability in the lower back and
 
         
 
                    4) an acute trochanteric bursitis - right.
 
         
 
              Disp:  I feel that this woman initially injured her disc 
 
              space at the L-5, S-1 area with her fall on her buttocks. 
 
              Actually she might have even developed a bulging disc there 
 
              for a short period of time.  Fortunately, she probably made 
 
              a fairly decent recovery from this, and this was the reason 
 
              she was.able to continue working early on.  However, now she 
 
              has evidence of instability in the lower back that's finally 
 
              starting to catch up with her, and now that her 
 
              para-vertebral musculature is worn out, she's starting to 
 
              develop a trochanteric bursitis on the right-hand side which 
 
              follows this phenomena.
 
         
 
                   At the present time, I feel that she has about a 10-15% 
 
              PPD rating of the whole body as a result of this affliction. 
 
              I do feel that it is work-incurred and developed in Feb. 
 
              1985, in view of the fact that she had not had any previous 
 
              problems with her back or right lower extremity.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 5, p. 2)
 
         
 
              On June 17, 1986, after claimant had x-rays, a myelogram, 
 
         and a CT scan, Dr. Naden's records reflect:
 
         
 
              IMPRESSION:  I think the patient has evidence of a herniated 
 
              disc at 4/5, but also spinal stenosis involving this level 
 
              as well as the L5/S1 level.  I think she needs a 
 
              decompression of the area and evaluation of the 
 
              intervertebral foramina and removal of the disc material if 
 
              possible.  Will discuss this with the patient.
 
         
 
         (Jt. Ex. 5, p. 11)
 
         
 
              On June 25, 1986, claimant had surgery and the postoperative 
 
         diagnosis reflects:
 
         
 
              Severe spinal stenosis with excessive boney [sic] overgrowth 
 
              from the zygoepophyseal joint.  Excessive thickening of the 
 
              ligamentum flavum and severe stricture deformity of the 
 
              canal at the L5 level.  The disc areas were mildly bulging 
 
              and not boney [sic] hard.  Active synovitis of the 
 
              zygoepophyseal joint.
 
         
 
         (Jt.  Ex. 5, p. 15)
 
         
 
              On November 11, 1986, Dr. Naden wrote:
 
         
 
                   I received your letter of November 6, 1986 and feel 
 
              that the breakdown of Ms. Castanon's' physical impairment is 
 
              as follows:  As a result of her fall in February, 1985 and 
 
              subsequent surgery done by me, I feel 2/3 of her physical 
 
              impairment was due to this injury and subsequent surgery.  I 
 
              would attribute 5% of her disability to a pre-existing 
 
              natural degenerative process.
 
         
 
         (Jt. Ex. 5, p. 21)
 
         
 
              On February 3, 1987, Dr. Naden wrote:  "It is my opinion 
 
         that Juliana Castanon's total physical impairment is 15%.  I 
 
         would attribute 5% of this due to a pre-existing condition and 
 
         10% of it to the work-related accident."  (Jt. Ex. 5, p. 22)  On 
 
         April 23, 1987, claimant had a second operation, namely, a second 
 
         decompression and partial discectomy of L5-S1.  (Jt. Ex. 7, p. 
 
         19) Dr. Congdon performed the surgery.
 
         
 
              On January 19, 1987, Dr. Congdon wrote to Loren L. Arp, a 
 
         licensed physical therapist:
 
         
 
                   Juliana seems to have increased her symptoms with the 
 
              Cybex Back Evaluation in the form of some numbness over her 
 
              calf.  I think it is probably inappropriate to run her 
 
              through this test again for sometime.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                   In the meantime, I've sent her back for continued back 
 
              rehabilitation exercises.
 
         
 
         (Jt. Ex. 7, p. 29)
 
         
 
              On April 6, 1989, Dr. Congdon wrote the Work Fitness Center:
 
         
 
                   It is true I have advised Juliana Castanon not continue 
 
              her work hardening program.  She has pleaded her case of 
 
              continued increase of symptoms.  She brought.with her her 
 
              husband who gave testimony to her severe increase in 
 
              symptoms and difficulty with dealing with this problem at 
 
              the home after each recent workout.
 
         
 
                   As in the past, I have very little doubt that this 
 
              patient will not become employable.
 
         
 
                   I have not released her to return to work.
 
         
 
                   I do not know of a solution for this problem in that 
 
              the patient has signs and symptoms that are beyond normal 
 
              explanations for her difficulties.
 
         
 
                   It is very unlikely this patient is going to be able to 
 
              continue in the employment pool.
 
         
 
         (Jt. Ex. 7, p. 34)
 
         
 
              On March 22, 1988, Dr. Rovine wrote:
 
         
 
                   Objective physical and neurologic examination does not 
 
              reveal any strikingly abnormal findings.  The absent 
 
              Achilles reflexes are an expected residual of her surgeries, 
 
              and are of no consequence.  There is certainly no objective 
 
              evidence to indicate that there is any persistent or 
 
              recurrent nerve root compression at this time.  I also note 
 
              that EMG studies, done in October of last year, were normal.  
 
              I believe that the pain experienced by Mrs. Castanon is 
 
              undoubtedly on the basis of the lumbosacral instability that 
 
              has been diagnosed by Dr. Crouse.  That is a condition that 
 
              will certainly preclude any possibility of Mrs. Castanons 
 
              return to any sort of heavy work.  I have a feeling that 
 
              although spinal fusion might help to make Mrs. Castanon more 
 
              comfortable, it probably will not improve the likelihood of 
 
              her returning to heavy work.  I believe that for purposes of 
 
              permanent/partial disability rating we will consider that 
 
              her lumbosacral instability is essentially the same thing as 
 
              spondylolisthesis and should be rated at 20%, plus an 
 
              additional 5% for the fact that she had spinal surgery done. 
 
              They would arrive at a permanent/partial disability of 25% 
 
              of the person, which I believe is appropriate.
 
         
 
         (Jt. Ex. 8, p. 2-3)
 
         
 
              On April 25, 1988, Dr. Rovine wrote:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   It is my opinion that the lumbosacral instability, 
 
              which is at present contributing to Mrs. Castanons symptoms, 
 
              is related to her injury at Heinz on February 11, 1985.  In 
 
              addition, the 25% impairment of the person as a whole, is in 
 
              my opinion, entirely attributable to this injury.
 
         
 
         (Jt. Ex. 8, p. 5)
 
         
 
              On December 15, 1989, Dr. Rovine wrote:
 
         
 
                   As as [sic] result of my review of this deposition, 
 
              together with my previous knowledge of this case, it is my 
 
              opinion that her condition at present must be regarded 
 
              medically as having been caused by the injury of February 
 
              11, 1985.  The "mid-1985" and November 5, 1985 injuries must 
 
              be regarded as aggravations of a previously existing 
 
              condition.
 
         
 
         (Jt. Ex. 8, p. 8)
 
         
 
              On November 24, 1987, Dr. Crouse wrote:
 
         
 
                   Mrs. Castanon, at this time, has persistent disability 
 
              because of the lumbosacral instability.  She is not going to 
 
              be able to return to work as a laborer.  At this point she 
 
              is only able to do very limited activities at home for a 
 
              very short time.  She gets severe pain in her back with the 
 
              feeling that her legs are givingout [sic] after just a short 
 
              period of standing doing dishes or trying to vacuum.  I 
 
              believe that Mrs. Castanon would be improved by a fusion 
 
              extending from L-4 to the sacrum.  At this point, however, I 
 
              would estimate a 25% permanent impairment of the body as a 
 
              whole due to the severe back pain and the referred leg pain. 
 
              Mrs. Castanon cannot be expected to get back to her work as 
 
              a laborer even if she did have successful fusion surgery.  
 
              She should be permanently restricted to very light or 
 
              sedentary type of activities.
 
         
 
         (Jt. Ex. 9, p. 2)
 
         
 
              On June 7, 1988, Ernest M. Found, Jr., M.D., an assistant 
 
         professor at the Spine Diagnostic and Treatment Center, 
 
         Department of Orthopaedic Surgery at the University of Iowa 
 
         Hospitals and Clinics, wrote, in summary:
 
         
 
                   In summary, our therapists felt that you were extremely 
 
              deconditioned and that your continuing low activity level 
 
              was contributing to this deconditioning.  At this time you 
 
              [sic] level of functioning is not compatible with any type 
 
              of employment.  Thus, you were instructed in a 
 
              reconditioning program by our therapists and this program 
 
              should be performed on a regular basis if you are to 
 
              increase your current level of activity.  We feel that you 
 
              have a permanent partial impairment of 18% of your body as a 
 
              whole and feel that at this time it will be most difficult 
 
              for you to return to your former level of activity without a 
 
              great deal of effort on your part to improve and learn to 
 
              deal with your pain.  Dr. Congdon in Davenport will be 
 
              continuing to follow your medical needs.  Should you have 
 
              any questions or concerns regarding this evaluation please 
 
              do not hesitate to let us know.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 11, p. 2)
 
         
 
              Robert J. Chesser, M.D., of the Franciscan Rehabilitation 
 
         Center, wrote on April 4, 1989 the following assessment:
 
         
 
              At this time, in regards to further work hardening, I feel 
 
              that this would be reasonable only if the goals for her 
 
              employment would be to have her return to work at a 
 
              sedentary or light job classification.  I do not see her as 
 
              being able to return to factory-type work.  The patient does 
 
              indicate that she does not read or write English and, 
 
              therefore, there are significant concerns as to what she 
 
              could reasonably be retrained for, and the time and expense 
 
              required for this to be achieved.  However, from a physical 
 
              standpoint, I do feel that if this was the direction that 
 
              the carrier would want to go, then, again, I feel that 
 
              further work hardening would be indicated.  If not, then I 
 
              would see not [sic] purpose in continuing with work 
 
              hardening since she would not be able to return to the 
 
              heavier duty-type work.  I do feel that if work hardening is 
 
              resumed the goals needs [sic] to be very clearly explained 
 
              to the patient and her husband in order to make sure they 
 
              understand that the end result is not to have her return to 
 
              factory work, but that it is to have her return at a much 
 
              lighter duty job activity.  In regards to further specific 
 
              treatment, I would have no recommendations for symptomatic 
 
              relief.  I do feel it would be worthwhile to have her 
 
              continue to wear the back brace since she does not [show] 
 
              improvement with this and to continue with her present 
 
              medication on an as-needed basis.
 
         
 
         (Jt. Ex. 12, p. 2)
 
         
 
              On May 9, 1989, the Work Fitness Center, which is affiliated 
 
         with the Franciscan Medical Center, wrote:  "It is recommended by 
 
         the staff of the Work Fitness Center that Ms. Castanons 
 
         rehabilitation file be closed due to the client's lack of 
 
         cooperation toward participating in the work hardening program at 
 
         the Work Fitness Center, as prescribed by Dr. Chesser."  (Jt. Ex. 
 
         13, p. 143)
 
         
 
              It should be noted that Dr. Congdon had earlier written on 
 
         April 6, 1989 that he advised claimant not to continue her work 
 
         hardening (Jt. Ex. 13, p. 135).  This appears contrary to Dr. 
 
         Chesser's instructions or conditional recommendations for work 
 
         hardening (Jt. Ex. 13, p. 134).  Dr. Chesser is connected with 
 
         the work hardening program and Franciscan Medical Center.
 
         
 
              Michael Huston, M.S., with the Great River Mental Health 
 
         Center, wrote a summary on December 5, 1989 after performing an 
 
         intellectual evaluation as follows:
 
         
 
                   These results seem to be a reliable estimate of her 
 
              current level of intellectual functioning.  She appears to 
 
              be functionally illiterate in writing or reading English, 
 
              and shows some very limited ability to understand and speak 
 
              English.  She was very cooperative and related well verbally 
 
              to the interpreter.  She seems to have adequate manual 
 
              skills when abstract reasoning is not involved.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 15, p. 2)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on January 23, 1985, 
 
         mid-1985, and November 4, 1985, which arose out of and in the 
 
         course of her employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 23, 1985, February 11, 
 
         1985, mid-1985, and November 4, 1985 are causally related to the 
 
         disability on which she now bases her claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. 
 
         Boggs 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 6201 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Claimant is a 48-year-old woman who has not had any formal 
 
         education.  She was raised by her Mexican emigrant parents and 
 
         began working in the fields at age 9 or 10.  Claimant cannot read 
 
         English or Spanish and is not able to work with arithmetic. 
 
         Claimant spoke English at the hearing but it was obvious her 
 
         understanding of the English language is very minimal.  This is 
 
         reflected in the answers to questions both at the hearing and in 
 
         her deposition.  A Spanish interpreter was provided at the 
 
         hearing, as provided by law, and also an interpreter was present 
 
         at one of claimant's depositions.
 
         
 
              It is obvious from the pleadings and contentions of the 
 
         parties that the emphasis of the parties is on the February 11, 
 
         1985 injury.  It appears with the complexity of this case, the 
 
         language and education problems of the claimant, and the many 
 
         doctors involved at different times, that there could be 
 
         allegations of causations resulting from other slips and falls or 
 
         an accumulation of micro traumas, all at work.  This complex 
 
         factual situation is made easier by the undisputed evidence that 
 
         all the alleged injuries occurred in the course of claimant's 
 
         employment.  Where the dispute then arises is whether the notice 
 
         and timely filing occurred as to all the alleged injuries other 
 
         than the February 11, 1985 injury.  Defendants admit an injury 
 
         occurred on February 11, 1985.  Defendants agree, as alleged, 
 
         that claimant was injured on that date.  Of course, defendants 
 
         dispute the nature of claimant's February 1985 injury and any 
 
         alleged disability therefrom.
 
         
 
              It is obvious from the evidence claimant's problems of 
 
         communication and lack of education have been pounced upon by the 
 
         defendants and emphasized to draw attention away from the real 
 
         and material injury date and the issue.of causation.  The 
 
         undersigned can fully appreciate claimant's problems.  There is 
 
         substantial evidence that enables the undersigned to sift through 
 
         the confusion.  The undersigned believes Claimant is credible and 
 
         any inconsistencies are understandable and resolved basically 
 
         from misunderstanding, and the fact that claimant is 
 
         "functionally illiterate in writing or reading English, and shows 
 
         some very limited ability to understand and speak English" as 
 
         concluded by Michael Huston, M.S., of the Great River Mental 
 
         Health Center (Jt. Ex. 15, p. 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Medical evidence is overwhelming as to the doctors' opinions 
 
         of a causation of claimant's condition to her February 11, 1985 
 
         injury, but this is tempered in many instances when, on 
 
         cross-examination, it was apparent the doctors' histories only or 
 
         mainly included claimant's February 11, 1985 injury.  Most of the 
 
         doctors did not know originally or until the respective dates of 
 
         their depositions that claimant was alleging or amended her 
 
         petition to include a January 23, 1985, a mid-1985, and a 
 
         November 4, 1985 injury.  Of course, claimant knew all along that 
 
         her problems stem from the February 11, 1985 injury and that is 
 
         why she emphasized that injury.  She had nothing to hide or prove 
 
         to not mention her mid-1985 or November 4, 1985 injuries.  She 
 
         has consistently felt bad from her February 11, 1985 injury.  It 
 
         is obvious the November 4, 1985 alleged injury is based on a 
 
         cumulative or repetitive injury basis of which claimant would be 
 
         entirely ignorant of its significant or lack thereof.  As to the 
 
         January 23, 1985 injury, which occurred at work, it is undisputed 
 
         that it was not causing her any problems as of the February 11, 
 
         1985 fall.
 
         
 
              The greater weight of medical evidence reflects that upon 
 
         further questioning doctors either do not change their original 
 
         opinion of causation or modified it with a qualification.  The 
 
         undersigned believes Dr. Rovine expresses what the undersigned 
 
         believes is the best summary or conclusion from the medical 
 
         evidence; in other words, that claimant's "condition at present 
 
         must be regarded medically as having been caused by the injury of 
 
         February 11, 1985.  The mid-1985 and November 5, 1985 injuries 
 
         must be regarded as aggravations of a previously existing 
 
         condition."  "It is definite that she ceased to have symptoms 
 
         from the injury of January 23, 1985, prior to the time she was 
 
         injured on February 11, 1985."  (Jt. Ex. 8, p. 8)
 
         
 
              Claimant contends there was a considerable lapse of time 
 
         between the February 11, 1985 injury and November 4, 1985 when 
 
         claimant was complaining of extreme pain and had to quit work and 
 
         began seeking extensive medical care again.  Claimant was working 
 
         between February 11, 1985 and November 4, 1985.  Ron Albright, 
 
         defendants' personnel assistant in 1985, testified claimant was 
 
         laid off a lot of the time between the above dates.
 
         
 
              Defendants contend they keep near perfect records of the 
 
         employees, their medical treatment at work and doctors' 
 
         consultations to which an employee is sent.  There is no need to 
 
         go into a lot of specifics but the undersigned believes the 
 
         employer's records and attention to this claimant was far from 
 
         perfect.  Claimant was obviously injured on February 11, 1985 
 
         when she fell on her back against a rail as she was pushing a 
 
         pallet of cans with a stick.  Dr. Catalona did a poor job of 
 
         attending to claimant.  It seems he did a poor job with 
 
         claimant's husband, also, when he insinuated claimant's husband 
 
         was not injured and Mr. Castanon knew better.  He went to another 
 
         doctor for proper medical care and found out his arm was, in 
 
         fact, broken.  The company doctor ordered ice massages for 
 
         claimant four times a day. She was given none but instead was 
 
         given an ice pack which she took to the bathroom and applied 
 
         herself.  The company paid no attention to their doctor's 
 
         instructions as to ice massages.  The company acts as though 
 
         claimant refused the ice massages or did not want them.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant cannot read and defendant employer knew or should 
 
         have known it.  Claimant did not receive the care from the 
 
         employer's doctor to which she was entitled.  The undersigned 
 
         believes claimant when she said she told defendant employer's 
 
         nurses day after day when at work that she hurt and they appeared 
 
         to be busy or apparently took the same old position that claimant 
 
         was not hurt or it was too long since her February 11, 1985 
 
         injury, therefore, a different injury was involved.  The 
 
         undersigned is convinced the education, ethic and cultural status 
 
         of claimant played a part in claimant's care or lack of care by 
 
         defendant employer.
 
         
 
              The undersigned finds that claimant was injured at work on 
 
         February 11, 1985, which injury arose out of and in the course of 
 
         her employment.  The undersigned further finds that claimant's 
 
         current condition is causally connected to her February 11, 1985 
 
         injury and that claimant's slip and fall in mid-1985 at work was 
 
         an aggravation of a dormant health condition already in 
 
         existence. Claimant did not officially notify defendants of the 
 
         mid-1985 injury as it was not significant in the fact that the 
 
         real injury occurred in February 1985 and claimant was getting 
 
         progressively worse as Dr. Rovine wrote (Jt. Ex. 21).
 
         
 
              Dr. Congdon wrote that he believed claimant had a 
 
         preexisting spinal stenosis and made her a higher risk for a back 
 
         injury than someone with a normal back (Ex. 20, p. 38).
 
         
 
              The evidence shows claimant had no back problems prior to 
 
         February 11, 1985 except the January 23, 1985 slip and fall which 
 
         resulted in no impairment or problems as of February 11, 1985.  
 
         The undersigned finds claimant has a preexisting back condition 
 
         which was not bothering her and was dormant and that the February 
 
         11, 1985 fall materially aggravated her back and lighted up and 
 
         worsened her condition, resulting in claimant's current condition 
 
         and claimant having to have two surgeries, one on June 25, 1986 
 
         and the other on April 23, 1987.
 
         
 
              With the above findings, the undersigned,finds that 
 
         claimant's alleged injuries on January. 23, 1985, mid-1985, and 
 
         November 4, 1985 are not causally connected to claimant's current 
 
         condition or the surgeries she incurred.  With this finding, all 
 
         other remaining issues as to these three alleged injuries are 
 
         moot and will not be further discussed.  The balance of the 
 
         discussion will be devoted on the basis that claimant's February 
 
         11, 1985 injury is the cause of her permanent impairment and 
 
         disability and current condition.
 
         
 
              There have been several medical opinions by experts on the 
 
         extent of claimant's impairment to her body as a whole.  Dr. 
 
         Rovine, a neurologist, opined a 25 percent, Dr. Crouse, an 
 
         orthopedic surgeon, opined 25 percent, Dr. Found, an assistant 
 
         professor at the University of Iowa Hospitals and Clinics, opined 
 
         18 percent, and Dr. Naden 15 percent.  The undersigned finds 
 
         claimant has a 25 percent impairment to her body as a whole as a 
 
         result of her February 11, 1985 work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was off work November 4, 1985 up to and including 
 
         March 3, 1986, upon which date claimant tried light duty work. 
 
         Claimant was off June 16, 1986 and has not worked since.  During 
 
         the March 4, 1986 up to June 16, 1986 period, claimant was off 
 
         most of the time due to company layoffs.
 
         
 
              Claimant incurred a first surgery on June 25, 1986 and this 
 
         did not solve her problem.  She proceeded with medical treatment 
 
         and tests.  Claimant underwent her second operation on April 23, 
 
         1987.  There is little testimony referring to any healing period. 
 
         Dr. Crouse testified that he recommended a back fusion.  The 
 
         other doctors did not think that would solve claimant's problem. 
 
         Claimant was reticent to go ahead with a third surgery.  She 
 
         never did have a third surgery which would involve a back fusion.  
 
         Dr. Crouse opined in November 1987 that claimant's healing period 
 
         had plateaued, if she wasn't going to have a back fusion.  The 
 
         undersigned finds claimant incurred two healing periods, the 
 
         first one beginning November 5, 1985 to and including March 3, 
 
         1986 (17 weeks), and the second period beginning June 17, 1986 up 
 
         to and including November 24, 1987 (75.143 weeks) for a total 
 
         healing period of 92.143 weeks.  Now that we have resolved the 
 
         causation issue, it appears undisputed from the medical and 
 
         nonmedical evidence and considering claimant's age, education, 
 
         work history, length of healing period, and body as a whole 
 
         impairment that she is unemployable in any work force.  Although 
 
         the undersigned determines disability and the doctors determines 
 
         impairment, it is clear that the doctor's knowledge of working 
 
         with patients, rehabilitation consultants, work hardening 
 
         programs and other tests, that claimant is physically 
 
         unemployable.  The undersigned could dwell on this issue but the 
 
         evidence is so overwhelming that it is unnecessary.
 
         
 
              Claimant raised the odd-lot employee doctrine.  It is 
 
         unnecessary to further discuss whether it is applicable in light 
 
         of the fact that it is moot as hereafter shown.  Claimant has not 
 
         worked since June 16, 1986, and in observing claimant it is 
 
         obvious she is in extreme pain and discomfort.  It would be 
 
         useless for claimant to try to find work.  The evidence is 
 
         basically unanimous that claimant could not return to her former 
 
         work.  Claimant couldn't fill out an employment application 
 
         herself.  She is untrainable and if trainable it would take years 
 
         to bring her to an acceptable level.  It is hard enough for an 
 
         intelligent.injury-free person to begin her education at age 46 
 
         let alone an illiterate, severely injured person who can't write 
 
         or spell, work with numbers or use a phone with proper 
 
         comprehension.  After considering all the criteria in determining 
 
         industrial disability, the undersigned finds that claimant has a 
 
         100 percent loss of earning capacity which equates to a 100 
 
         percent industrial disability.
 
         
 
              Defendants contend claimant's medical bills with certain 
 
         doctors should not be paid.  The undersigned could go into 
 
         elaborate detail on this issue.  It appears unnecessary.  Ron 
 
         Albright, defendant employer's personnel assistant in February 
 
         1985, responded when asked about his January 18, 1986 letter 
 
         (Claimant's Exhibit 3, page 1) that it amounts to a denial of 
 
         liability.  Defendants seem to jump in and out at their 
 
         convenience regarding certain medical care for this claimant. 
 
         Defendants' actions clearly were a waiver of the right to choose. 
 
         In addition thereto, the treatments and surgeries appear 
 
         necessary and helped but did not solve claimant's problems.  They 
 
         were worth the attempt to get claimant back to work and limit the 
 
         industrial disability.  The fact that they did not reduce her 
 
         final industrial disability rating is immaterial at this point. 
 
         Defendant insurance company's adjustor also denied liability as 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         to the February 11, 1985 injury.  (Cl. Ex. 3, p. 2)  Defendants 
 
         shall pay all of claimant's claimed medical expenses.  This 
 
         includes satisfying in full the judgment of Mercy Hospital versus 
 
         claimant and her husband as evidenced by claimant's exhibit 4.  
 
         Muscatine County Law No. C4615-688.  Defendants shall also see 
 
         that the satisfaction of the judgment at the courthouse is 
 
         conveyed to the credit bureau or whatever like source locally 
 
         exists to clear and correct claimant and her husband's credit as 
 
         it may be affected by the judgment.  Defendants are also 
 
         responsible for claimant's mileage expense.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was injured at work on February 11, 1985, when 
 
         she fell while pushing with a stick in both hands a pallet of 
 
         cans in a machine.
 
         
 
              2.  Claimant incurred a low back injury on February 11, 1985 
 
         which resulted in claimant having two low back surgeries on June 
 
         25, 1986 and April 23, 1987, respectively.
 
         
 
              3.  Claimant incurred a 25 percent permanent impairment to 
 
         her body as a whole as a result of her work-related injury on 
 
         February 11, 1985.
 
         
 
              4.  Claimant incurred a healing period beginning November 5, 
 
         1985 to and including March 3, 1986 (17 weeks) and a second 
 
         period beginning June 17, 1986 to and including November 24, 1987 
 
         (75.143 weeks).
 
         
 
              5.  Claimant has not worked since June 16, 1986.
 
         
 
              6.  Claimant is not able to read or write English or Spanish 
 
         or work with simple arithmetic.
 
         
 
              7.  Claimant has a preexisting spinal stenosis and 
 
         spondylolysis condition which was dormant and not bothering her 
 
         and which was materially aggravated, worsened and lighted up by 
 
         her February 11, 1985 work-related injury.
 
         
 
              8.  Claimant slipped and fell at work on January 23, 1985. 
 
         This fall did not materially contribute to claimant's current 
 
         condition and treatment herein, nor was there any residual 
 
         impairment from this injury as of February 11, 1985.
 
         
 
              9.  Claimant slipped and fell at work in mid-1985, which 
 
         injury did not cause claimant's current condition, but did 
 
         aggravate an already existing back condition that existed and was 
 
         becoming worse as a result of her February 11, 1985 injury.
 
         
 
              10.  Claimant did not incur a specific or cumulative work 
 
         injury on November 4, 1985 but experienced increased problems in 
 
         her body which began and grew worse as a result of her February 
 
         11, 1985 work injury.
 
         
 
              11.  Claimant gave defendants timely notice of her January 
 
         23, 1985 slip and fall and timely filed her petition.
 
         
 
              12.  Claimant did not timely notify defendants of her 
 
         mid-1985 fall, as provided by Iowa Code section 85.23.
 
         
 
              13.  Defendants, through their actions, effectually waived 
 
         their right to choose claimant's medical care and defendants are 
 
         responsible for all of claimant's medical bills, including 
 
         satisfying the Mercy Hospital judgment and paying claimant's 
 
         mileage connected with the medical.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              14.  Claimant's condition is not the result of a November 4, 
 
         1985 specific or cumulative injury.
 
         
 
              15.  Claimant is a credible witness.
 
              
 
              16.  Claimant has a 100 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on February 11, 1985 arose out of and in 
 
         the course of claimant's employment.
 
         
 
              Claimant's low back injury, two surgeries on June 25, 1986 
 
         and April 23, 1987, and her 25 percent permanent impairment to 
 
         her body as a whole are causally connected to her work-related 
 
         injury on February 11, 1985.
 
         
 
              Claimant's February 11, 1985 injury caused her to incur two 
 
         healing periods beginning November 5, 1985 to and including March 
 
         3, 1986 (17 weeks) and the second period beginning June 17, 1986 
 
         to and including November 24, 1987 (75.143 weeks).
 
         
 
              Claimant has not worked since June 16, 1986.
 
         
 
              Claimant is not able to read or write English or Spanish or 
 
         work with simple arithmetic.
 
         
 
              Claimant's slip and fall on January 23, 1985 and mid-1985 
 
         did not cause claimant's low back injury, surgeries, permanent 
 
         impairment or current condition.
 
         
 
              Claimant's slip and fall in mid-1985 aggravated an already 
 
         existing condition that was caused by and was becoming worse 
 
         because of claimant's work-related February 11, 1985 inJury.
 
         
 
              Claimant did give defendants timely notice as to her January 
 
         23, 1985 work injury in accordance with Iowa Code section 85.23. 
 
         Claimant timely filed her petition, as provided by Iowa Code 
 
         section 85.26, but this January 23, 1985 injury did not cause any 
 
         of claimant's low back problems, surgeries, impairments or 
 
         disability.
 
         
 
              Claimant did not give defendants timely notice as to her 
 
         mid-1985 injury, as provided in Iowa Code section 85.23.
 
         
 
              Claimant's condition is not caused by any specific or 
 
         cumulative work injury occurring on November 4, 1985.
 
         
 
              Defendants are responsible for all of claimant's medical 
 
         bills and mileage.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of two hundred thirty-seven and 66/100 
 
         dollars ($237.66) for the periods of November 5, 1985 to and 
 
         including March 3, 1986 (17 weeks) and June 17, 1986 to and 
 
         including November 24, 1987 (75.143 weeks), the total weeks being 
 
         ninety-two (92.143) weeks.
 
         
 
              That defendants pay claimant compensation for permanent 
 
         total disability at the stipulated rate of two hundred 
 
         thirty-seven and 66/100 dollars ($237.66) per week for the period 
 
         of claimant's disability commencing November 25, 1987.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and receive credit for any benefits previously paid.  
 
         The parties stipulated that defendants would have a credit of six 
 
         thousand one hundred eighty-eight and 45/100 dollars ($6,188.45) 
 
         for sick pay paid to the claimant.
 
         
 
              That defendants shall pay interest on the benefits awarded 
 
         herein, as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay claimant's medical expenses and 
 
         mileage.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, as provided by Division 
 
         of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 18th day of April, 1990
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Terrence L Mealy
 
         Attorney at Law
 
         301 E Second St
 
         Muscatine, IA  52761
 
         
 
         Mr Roger L Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         Des Moines, IA  50309
 
         
 
         Mr Greg A Egbers
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E Third St
 
         Davenport, IA  52801-1596
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108; 5-1802
 
                                            5-1804; 2700
 
                                            Filed April 18, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIANA CASTANON,
 
         
 
              Claimant,
 
                                                     File No. 816938
 
         vs.
 
         
 
         H. J. HEINZ,                             A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1804
 
         
 
              Forty-eight year old claimant awarded permanent total 
 
         disability.  Claimant is a Mexican immigrant who has never been 
 
         to school.  She cannot read or write Spanish or English or work 
 
         with simple arithmetic.  She has only done laborer-type work.
 
         
 
         5-1108
 
         
 
              Found claimant's total disability was causally connected to 
 
         one of four alleged injuries.
 
         
 
         5-1802
 
         
 
              Claimant awarded 92.173 weeks healing period benefits and 
 
         medical benefits.
 
         
 
         2700
 
         
 
              Cybex equipment involved.  Doctor said it did more harm than 
 
         good.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOEL HARRISON,
 
         
 
              Claimant,
 
                                                 File No. 816943
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         FLOYD VALLEY PACKING,
 
                                                  D E C I S I 0 N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    FEB 14 1989
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,                               INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Joel 
 
         Harrison, claimant, against Floyd Valley Packing, employer, and 
 
         National Union Fire Insurance Company, insurance carrier, 
 
         defendants, for benefits as a result of an alleged injury which 
 
         occurred on or about March 11, 1986.  A hearing was held on 
 
         November 24, 1987, at Sioux City, Iowa, and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Joel Harrison, claimant, Pearl Harrison, 
 
         claimant's wife, Penny Hodge, industrial nurse, Walt Graves, 
 
         safety and security manager, and joint exhibits 1 through 25.  
 
         Both attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period disability, if 
 
         defendants are found liable for the injury, is from March 13, 
 
         1986 to July 31, 1986.
 
         
 
              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 partial disability 
 
         benefits, in the event that such benefits are awarded, is August 
 
         1, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $224.91 per week.
 
         
 
              That the provider of medical supplies and services would 
 
         testify that the fees charged are fair and reasonable for the 
 
         supplies and services rendered.
 
         
 
              That the provider of medical services would testify that the 
 
         expenses incurred were for reasonable and necessary medical 
 
         treatment.
 
         
 
              That defendants are entitled to a credit for the previous 
 
         payment of income disability benefits in the amount of $2,024 and 
 
         medical benefits in the amount of $7,664.44 (Exhibit 1, page 2) 
 
         under an employee nonoccupational group health plan.
 
         
 
              That defendants claim no credit for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on or about March 11, 
 
         1986, that arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of 
 
         benefits.
 
         
 
              Whether claimant is entitled to medical expenses.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was born on June 8, 1954.  He is age 33, married, 
 
         has four children, is 5 feet 11 inches tall and weighs 195 
 
         pounds. He is a high school graduate with no additional formal 
 
         education or training.  He was an average student receiving C 
 
         grades in high school.  Past employments include automobile parts 
 
         delivery man, a stock room worker that unloaded trucks and a 
 
         spray painter.  He also worked at IBP on the kill floor as a 
 
         liver skinner and trimming livers.  He also worked as a transfer 
 
         man pushing 250 to 350 pound barrels of meat in offal for two 
 
         weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant denied any serious illnesses.  He did relate an 
 
         automobile accident that occurred in 1972 when he hit a utility 
 
         pole sideways and injured the left side of his neck.  He was 
 
         hospitalized and treated by David G. Paulsrud, M.D., an 
 
         orthopedic surgeon, at that time.  Claimant testified that he 
 
         recovered without any further problem and has worked productively 
 
         since that time.  Claimant denied any other accidents prior to 
 
         this instant injury which might have occurred either in the plant 
 
         or at home. Claimant testified that he has had no prior workers' 
 
         compensation claims.  Claimant testified that he could not enlist 
 
         in the military service when he was age 18 because of high blood 
 
         pressure and because he had a history of hearing since childhood.
 
         
 
              Claimant started to work for employer in October of 1975.  
 
         He worked on the cut floor for 30 days, helped around the small 
 
         gut machine for one year, trimmed snouts for one year, gutted 
 
         hogs for three to three and one-half years and then moved to 
 
         government station number one where he has trimmed legs, trimmed 
 
         the hog from the shoulder to the head, trimmed jowls and cut off 
 
         heads for approximately six or seven years.  Claimant stated that 
 
         he processes up to 5,500 to 6,000 hogs in an eight hour day.  
 
         They are either heavy butchers or sows, which are twice as big, 
 
         and weigh up to 250 pounds.  Claimant demonstrated that he uses a 
 
         hook in his left hand to hook the animals and then trims them 
 
         with a knife held in his right hand.  Claimant said that the job 
 
         involves a lot of twisting and bending.  He said that lifting is 
 
         involved when you cut off the head and throw it into the barrel.  
 
         The head of a hog weighs approximately eight to ten pounds and 
 
         the head of a sow weighs approximately 20 to 25 pounds.
 
         
 
              Claimant testified that in January of 1986 his shoulder 
 
         blades ached while trimming heads and throwing them in a barrel. 
 
         He went to see Gary Tapper, D.C., his personal chiropractor.  Dr. 
 
         Tapper's records show that claimant saw him on January 20, 1986, 
 
         for back and leg pain.  The patient's confidential information 
 
         form shows that claimant had or previously had sleeping problems, 
 
         back pain, irritability and pins and needles in his legs.  
 
         Claimant checked that his condition was aggravated by working, 
 
         exercise, sitting, lifting, walking, standing, bending and 
 
         sneezing.  Claimant also indicated that he had previously had a 
 
         crushed neck vertebra and a smashed disc in his lower back (ex. 
 
         5, p. 1).  Dr. Tapper's x-rays disclosed vertebrogenic 
 
         radiculitis (ex. 5, p. 3).  Claimant was treated 11 times between 
 
         January 20, 1986 and February 26, 1986, for low back pain (ex. 5, 
 
         p. 4).
 
         
 
              The medical records also show that on January 19, 1986, 
 
         claimant received an epidural flood injection containing Depo 
 
         Medrol and Duramorph which was administered by an 
 
         anesthesiologist with lidocaine for low back pain (ex. 20).  
 
         Claimant described the occurrence of his injury in the following 
 
         words:
 
         
 
                 Q.  Tell us about what happened on March 11, 1986.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                 
 
                 A.  Well, we were working and early that morning it 
 
              started.  Every time I'd bend down to pick up a head that 
 
              we'd cut off and throw it, I'd feel a sharp pain in my lower 
 
              back starting, but I didn't really think much of it, but it 
 
              got worse and worse toward the end of the day where after 
 
              work I went down and took a shower and come out it took me 
 
              20 minutes just to get my socks on, so I knew something was 
 
              wrong.  Pain starts going down both legs.
 
                 
 
                 Q.  When the hogs come to you, to your work station, are 
 
              they head down?
 
                 
 
                 A.  Yes.
 
                 
 
                 Q.  When you're trimming the snouts and the jowls, then, 
 
              how far would you need to bend?
 
                 
 
                 A.  Oh, on regular hogs, maybe a quarter over and on 
 
              sows you got to bend all the way over.
 
                 
 
                 Q.  Okay. Let's -- Let 's talk about where the head 
 
              would be in relation to your body.
 
                 
 
                 A.  About waist high.
 
                 
 
                 Q.  If the hog's head is waist high, do you need to bend 
 
              to make your cuts?
 
                 
 
                 A.  Not all of them, just some of them.  On the average 
 
              it's waist high.
 
         
 
                 Q.  If the hog is at waist height, then you would just 
 
              make your cuts and then turn to your left?
 
                 
 
                 A.  Mm-hmm (yes).
 
                 
 
                 Q.  To --
 
                 
 
                 A.  To flip the snout off.
 
                 
 
                 Q.  Okay.  Go on with your story.  You had some trouble 
 
              getting your socks on?
 
         
 
         (Ex. 2, pp. 16 & 17)
 
         
 
              At the hearing, claimant admitted that the amount of work 
 
         that he did depended upon the number of imperfections that the 
 
         government inspector wanted remedied.  Claimant testified that 
 
         sometimes he made these decisions on his own because of his long 
 
         experience in this job.  He conceded that he only cut off heads 
 
         when there was a serious problem with them.
 
         
 
              Claimant did not report this injury to the nurse when it 
 
         occurred (Ex. 2, p. 17).  Claimant testified at the hearing that 
 
         he first felt pain in his lower back and right leg in the morning 
 
         around break time.  He mentioned it to one of his coworkers, Al 
 
         Heisman, at that time (Ex. 2, p. 22).  After break it got worse 
 
         and worse and he told his wife, who was a coemployee, at lunch 
 
         time.  By noon he could not bend over.  Claimant testified that 
 
         he told his supervisor, Ed Fowler, that he was going to see a 
 
         doctor when he got off work at 3:30 p.m.  Claimant's wife took 
 
         him to see James F. Eisele, D.C.  Both claimant and his wife 
 
         testified that they saw Ed Fowler, at the doctor's office and 
 
         talked to him about claimant's back at that time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In his deposition, which was given on September 2, 1987, 
 
         claimant denied that he had had any previous pains in the lower 
 
         part of his back (Ex. 2, pp. 18 & 19).
 
         
 
              Dr. Eisele's report shows that he saw claimant on March 11, 
 
         1986, for pain in the lower back and hips which was of four 
 
         months duration (Ex. 8, p. 1).  Dr. Eisele's records also show 
 
         that claimant had trouble in July of 1985 for two or three weeks 
 
         and had been bothered off and on since then (Ex. 8, p. 4).  Dr. 
 
         Eisele's records show that claimant saw him numerous times.  The 
 
         record shows some 53 entries from March 11, 1986 to December 3, 
 
         1986 (Ex. 6).  Nothing in Dr. Eisele's records indicates that 
 
         claimant's treatment is for a work-related injury (Exs. 6 & 8).  
 
         On the contrary), a health claim form completed by Dr. Eisele on 
 
         December 29, 1986, reported that he saw claimant for a probable 
 
         L-4 disc protrusion, attendant sciatica neuralgia and lumbar 
 
         facit syndrome. However, in item 10, Dr. Eisele checked that the 
 
         condition was not related to claimant's employment (Ex. 7).
 
         
 
              Claimant testified that he had his wife call in sick for him 
 
         on March 12, 1986 and March 13, 1986.  On March 13, 1986, his 
 
         condition became much worse.  His wife, brother and mother came 
 
         and got him and took him to Marion Health Center.  He was moved 
 
         from the automobile to the emergency room on a stretcher.  The 
 
         doctor on duty at that time was Terry H. Mitchell, M.D.  (Ex. 2, 
 
         pp. 20 & 21).  The admitting diagnosis was probable herniated 
 
         L-4-5, and L5-S1 disc.  The admitting form checked "no" in answer 
 
         to the question of whether the injury or sickness arose out of 
 
         the patient's employment (Exs. 4 & 9).
 
         
 
              The following day, claimant began treatment with Dr. 
 
         Paulsrud, an orthopedic surgeon, who took a myelogram and a CT 
 
         scan and diagnosed a ruptured L-4, L-5 disc.  Claimant refused 
 
         surgery, but did consent to a chymopapain injection (Ex. 2, pp. 
 
         21-23). Claimant testified that he used crutches and also a 
 
         walking cane in his right hand as a matter of his own choice. 
 
         They were not prescribed by a physician (Ex. 2, pp. 24-26). 
 
         Claimant said that Dr. Paulsrud released him to return to work 
 
         on light duty in August of 1986; however, the Floyd Valley 
 
         Packing plant was closed by then.  Claimant testified that he 
 
         drew unemployment compensation benefits from August of 1986 to 
 
         May of 1987.  Claimant said that he was not employed again 
 
         until August of 1987.  Claimant chose to see Dr. Eisele, as 
 
         well as Dr. Paulsrud, after his chymopapain injection.  Dr. 
 
         Eisele prescribed a back brace, exercises and disczym, a pill 
 
         which was supposed to put minerals back into the disc where 
 
         part of it had deteriorated from the rupture (Ex. 2, pp. 
 
         26-30).
 
         
 
              Claimant stated that he was earning $9.20 per hour at the 
 
         time the Floyd Valley Packing plant closed.  In addition, he had 
 
         full employee benefits.  His next employment began in August of 
 
         1987 at Verschoor Meats at $5 per hour without any employee 
 
         benefits.  He performed the job of cutting off heads and washing 
 
         them (Ex. 2, pp. 35-37).  Claimant testified that he quit this 
 
         job because of low pay and poor working conditions.  Claimant 
 
         said that he could now drive a truck for short distances but not 
 
         for long distances.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At his deposition on September 2, 1987, claimant testified 
 
         that his only complaint then was some low back pain.  He did not 
 
         have pain down his legs.  He said he was not taking medication, 
 
         but he continued to see Dr. Eisele as preventative treatment (Ex. 
 
         2, pp. 30 & 34).  He has to be careful bending.  He can't touch 
 
         his toes.  At his deposition he said that his self-imposed weight 
 
         restriction was 30 pounds (Ex. 2, p. 33).  At the hearing, he 
 
         said that his self-imposed weight restriction was 50 pounds.  He 
 
         can carry groceries.  He does not shovel the walk or mow the 
 
         lawn.  He avoids quick movements to the right or left (Ex. E, pp. 
 
         33 & 34). He can no longer hunt, walk, ski, remodel houses or do 
 
         lawn work. If he bends, twists or lifts, he gets a sharp pain 
 
         once in awhile.
 
         
 
              Claimant said that he is currently looking for work through 
 
         the unemployment office.  He would like to have a warehouse job. 
 
         He did not specify any particular jobs that he had applied for, 
 
         however.
 
         
 
              Pearl Harrison, claimant's wife, who also was an employee of 
 
         employer, said that on the way to work on March 11, 1986, that 
 
         claimant was okay.  At break time he was having pains in the back 
 
         from a pulled muscle.  After the break he came to her and said it 
 
         hurt real bad.  At noontime he could hardly walk.  After work she 
 
         took him to see Dr. Eisele.  They saw Ed Fowler, claimant's 
 
         supervisor, at Dr. Eisele's office.  Claimant's wife said that 
 
         she also took him to the Marion Health Center on March 13, 1986, 
 
         where he had to be carried into the emergency room.  She said 
 
         that she handled claimant's insurance papers.  She stated that 
 
         she was told by the company that the bills could not be put on 
 
         workers' compensation.  She was told that they had to go on the 
 
         group health plan.  Mrs. Harrison claimed that she told employer 
 
         several times that it was work related and should be a workers' 
 
         compensation claim.  She verified that claimant can no longer mow 
 
         the lawn, lift, bowl or ski.  He stays home a lot.
 
         
 
              Penny Hodge testified that she was a registered  nurse for 
 
         employer at the time of claimant's alleged injury on March 11, 
 
         1986.  She first learned of it when claimant's wife called in and 
 
         said that he could not work.  Hodge testified that claimant's 
 
         wife did not say it was an injury that occurred at work.  Hodge 
 
         added that she was never told that there was a claim for an 
 
         injury at work.  Hodge testified that claimant applied for group 
 
         income disability rather than workers' compensation.  Hodge 
 
         admitted that she left the employment of employer on March 19, 
 
         1986, and that if a work injury was reported after that then she 
 
         would not know about it.
 
         
 
              Pearl Harrison testified in rebuttal that she took in the 
 
         insurance papers after March 19, 1986, after claimant got out of 
 
         the Marion Health Center on March 27, 1986.  Mrs. Harrison 
 
         testified that she gave the papers to Dorothy Porter and not to 
 
         Penny Hodge.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Walt Graves testified that he has been in the meat packing 
 
         industry for 20 years.  He has performed all of the labor jobs in 
 
         the plant.  He is now a safety and security manager.  He 
 
         testified that there are many jobs in the packing house, 
 
         approximately 200 of them, that do not require repetitive 
 
         stooping, bending or lifting over 40 pounds.  He said that he 
 
         reviewed claimant's personnel file prior to hearing and stated 
 
         that claimant did not have a good attendance record.  Graves said 
 
         that sometimes he gets involved in hiring.  Two persons, possibly 
 
         more, with back problems have been hired by his present employer, 
 
         John Morrell and Company.
 
         
 
              The medical evidence is as follows:
 
         
 
              Dr. Mitchell said on April 16, 1987, in a letter to 
 
         claimant's counsel, that his review of his notes, which are 
 
         primarily the hospital records, do not show that claimant 
 
         mentioned that his problem was exacerbated or caused by his 
 
         employment.  Dr. Mitchell granted, however, that certainly one 
 
         could make a case for any strenuous work having an exacerbation 
 
         effect on a chronic underlying back illness, especially in view 
 
         of the fact that claimant had some injuries 13 years ago (Ex. 
 
         10).
 
         
 
              Dr. Mitchell said on July 13, 1987, in a letter to 
 
         defendants' counsel, that he reviewed the records and did not 
 
         find any reference at that time of a causal relationship to 
 
         employment, but added that one would consider that this could 
 
         certainly play a factor in causing back discomfort (Ex. 11).
 
         
 
              Dr. Paulsrud's records show that he saw claimant on May 18, 
 
         1976, for low back strain (Ex. 13).  He also saw claimant when he 
 
         was admitted to Marion Health Center on March 13, 1986.  He 
 
         treated him during his hospitalization and after he was 
 
         discharged on March 27, 1986.  Dr. Paulsrud continued to see 
 
         claimant on May 1, 1986, May 15, 1986, June 5, 1986, June 26, 
 
         1986, July 31, 1986 and September 11, 1986.  On September 11, 
 
         1986, Dr. Paulsrud gave a permanent functional impairment rating 
 
         and imposed work restrictions as follows:
 
         
 
              9/11/86 OV*** The patient is doing satisfactorily.  He still 
 
              has some stiffness in his low back, but his straight leg 
 
              raising is negative.  His reflexes are equal and active.  I 
 
              think he has reached maximum medical benefits.  His back 
 
              flexes from zero to 40 degrees.  He extends to 10 degrees.  
 
              He has 20 degrees of right and left lateral bending, plus he 
 
              has a non-operated intervertebral disc lesion with 
 
              residuals.  He has a 16% permanent partial impairment.  He 
 
              should not return to work that requires repetitive stooping 
 
              or bending or heavy lifting over 40 lbs.
 
         
 
         (Ex. 14, p. 2)
 
         
 
              Dr. Paulsrud issued a not-to-work slip on March 15, 1986, 
 
         stating that claimant had a rupture in the L-4-5 disc (Ex. 15).  
 
         On July 31, 1986, Dr. Paulsrud reported to Job Service that 
 
         claimant had an acute herniated lumbar disc, whether it was 
 
         employment related or not was questionable.  He stated that the 
 
         workers' compensation was in litigation.  He verified that 
 
         claimant could not perform his occupation from March 13, 1986 to 
 
         July 31, 1986 (Ex. 17).  In a letter to claimant's counsel dated 
 
         May 21, 1987, Dr. Paulsrud stated that the job did aggravate his 
 
         condition, but that he was not able to apportion the disability 
 
         between the work injury and claimant's preexisting condition (Ex. 
 
         19).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When claimant was admitted to Marion Health Center on March 
 
         13, 1986, for back, hip and leg pain on the right side, which was 
 
         diagnosed as a herniated L4/5 disc by Dr. Mitchell, there was no 
 
         indication in the hospital records that it occurred at work (Ex. 
 
         21, pp. 1-14).  The car accident that occurred 13 years ago that 
 
         injured his neck, and possibly his back, were mentioned as 
 
         history in the records (Ex. 21, pp. 4, 5 & 14).  The course of 
 
         claimant's treatment in Marion Health Center was summarized as 
 
         follows by Dr. Mitchell:
 
         
 
              Roentgenographic evaluation - initially lumbosacral spine 
 
              films were negative.  CAT scan revealed a moderate central 
 
              disc herniation of L4/5 with some inferior migration after 
 
              which he was seen in consultation by Dr. Paulsrud who 
 
              ordered myelogram revealing the large central disc 
 
              herniation of L4/5 with right lateral extension and some 
 
              attenuation of the L5/S1 nerve root.  He underwent 
 
              chemonucleolysis.  He was placed at bedrest [sic] and was 
 
              feeling well at bedrest [sic] although still having a fair 
 
              amount of discomfort.
 
         
 
              He subsequently has felt that he would at least follow this 
 
              for another two to three weeks before considering more 
 
              aggressive therapy in the form of surgical discectomy and, 
 
              because of that, it is my feeling that he could go home and 
 
              be followed at bedrest [sic] at home, waiting for the 
 
              Chymopapain to work or to fail.  He subsequently was 
 
              discharged by me to be followed up as described above.
 
         
 
         (Ex. 21, p. 2)
 
         
 
              Dr. Paulsrud gave a deposition on July 1, 1987 (Ex. 12).  He 
 
         stated that he was a board certified orthopedic surgeon.  He 
 
         testified that he saw claimant in 1972 following his automobile 
 
         accident in which he sustained a neck injury.  What claimant told 
 
         Dr. Eisele was a shattered vertebra was described by Dr. Paulsrud 
 
         as a partial dislocation of his cervical spine (Ex. 12, P. 4).
 
         
 
              X-rays in 1972 showed some disc narrowing at L-1 and L-2 
 
         (Ex. 12, p. 5).
 
         
 
              Dr. Paulsrud said he saw claimant again in 1976 for low back 
 
         pain which Dr. Paulsrud diagnosed as strain.  X-rays were normal, 
 
         he was not hospitalized and claimant had no pain in his legs at 
 
         that time.  Claimant was treated with bed rest, rehabilitation 
 
         exercises and graduated activity for four months.  He recovered 
 
         without surgery (Ex. 12, pp. 5-7).
 
         
 
              Dr. Paulsrud said that the routine permanent functional 
 
         impairment rating for back surgery or chemonucleolysis without 
 
         residuals is 5 to 10 percent.  The doctor said that he routinely 
 
         recommends no repetitive stooping, bending or lifting over 40 
 
         pounds (Ex. 12, pp. 12 & 13).  Dr. Paulsrud explained that the 
 
         reason he believed that claimant's job aggravated his back 
 
         condition was because he believed claimant was doing repetitive 
 
         stooping, bending and lifting while working on the kill floor.  
 
         The doctor considered repetitive as meaning four or five times an 
 
         hour (Ex. 12, pp. 13-15).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Paulsrud assessed that claimant has sustained a 16 
 
         percent permanent functional impairment (Ex. 12, p. 15).  He said 
 
         he thought that picking up heads and throwing them in a barrel 
 
         was consistent with claimant's injury (Ex. 12, p. 16).  Again, he 
 
         added that it was impossible for him to allocate or apportion how 
 
         much of the rating was attributable to claimant's previous disc 
 
         degeneration and the sudden increase in his symptoms that caused 
 
         the pain down his legs, but because of the sudden increase in his 
 
         symptoms with the new symptoms of pain radiating down his leg, 
 
         that he did feel that his job aggravated his condition (Ex. 12, 
 
         pp. 17 & 18).
 
         
 
              Claimant submitted medical bills as follows:
 
         
 
              Terry H. Mitchell, M.D.       $  435.00     Ex. 22
 
              James F. Eisele, D.C.            441.00     Ex. 23
 
              G.L. Tapper, D.C.                250.00     Ex. 24
 
              Marion Health Center           6,029.52     Ex. 25
 
         
 
              No claim was made for mileage.
 
         
 
              Dr. Tapper's bill is for treatment which predated the 
 
         alleged injury date and it is for treatments from January 20, 
 
         1986 through February 26, 1986 (Ex. 24).
 
         
 
                           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 March 11, 1986, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The 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).
 
         
 
              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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 11, 1986, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595.
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369), 112 N.W.2d 299; 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121 125 N.W.2d 251, 257.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on or about March 11, 
 
         1986, which arose out of and in the course of his employment with 
 
         employer.  It clearly appears, however, that claimant himself did 
 
         not initially know or believe that he sustained a job-related 
 
         injury.  Claimant did not report a work injury to the plant nurse 
 
         when it occurred.  He did not describe a work injury to Dr. 
 
         Eisele on March 11, 1986.  He did not describe a work injury to 
 
         Dr. Mitchell, Dr. Paulsrud or the Marion Health Center on March 
 
         13, 1986, at the time of his hospitalization.  The first 
 
         indication that claimant may have considered that he had a 
 
         work-related injury was on April 24, 1986, the date of the 
 
         original notice and petition which was filed in the industrial 
 
         commissioner's office on April 25, 1986.
 
         
 
              Claimant also was not correct when he denied at the hearing 
 
         and in his deposition that he had not had any previous back 
 
         trouble.  Dr. Paulsrud treated him for a back strain in 1976. 
 
         Claimant had been receiving a series of chiropractic treatments 
 
         from Dr. Tapper for low back pain from January 20, 1986 through 
 
         February 26, 1986.  Claimant had received an epidural flood of 
 
         Depo Medrol and Duramorph with lidocaine from an anesthesiologist 
 
         on January 19, 1986.  On March 11, 1986, the alleged date of 
 
         injury, he told Dr. Eisele that he had a history of pain in his 
 
         lower back and hips for approximately four months.
 
         
 
              There are only three physicians involved in claimant's 
 
         treatment.  Dr. Eisele did not give an opinion on whether 
 
         claimant's job caused or aggravated his alleged injury.  Dr. 
 
         Mitchell said that claimant did not mention his work at the time 
 
         that he treated him at the Marion Health Center from March 13, 
 
         1986 to March 27, 1986; but he added that it was entirely 
 
         possible that his work exacerbated a chronic underlying back 
 
         illness (Ex. 10) and that his work could certainly play a factor 
 
         in causing back discomfort (Ex. 11).
 
         
 
              Dr. Paulsrud, claimant's treating physician, plainly stated 
 
         in his letter of May 21, 1987, that his job did aggravate his 
 
         condition (Ex. 19).  Dr. Paulsrud further explained in his 
 
         deposition that he felt that repetitive bending, stooping and 
 
         lifting aggravated claimant's back condition.  He further defined 
 
         repetitive as four or five times in an hour (Ex. 12, pp. 13-15). 
 
         Claimant testified that he processed up to 5,500 to 6,000 hogs 
 
         per day weighing up to 250 pounds.  He hooks the animals with his 
 
         left hand and uses a knife in his right hand.  Claimant testified 
 
         that he did a lot of twisting and bending.  He said he bends and 
 
         twists as the hogs approach him on the rail.  Bending and lifting 
 
         is involved when he bends over to cut the head off and throw the 
 
         head into a barrel.  A hog's head weighs approximately 8 to 10 
 
         pounds. A sow's head weighs approximately 20 to 25 pounds.  
 
         Claimant testified that on the date of injury every time he bent 
 
         down to pick up a head, cut it off and throw it into the barrel, 
 
         he would feel a sharp pain in his back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In summary, Dr. Eisele gave no opinion.  Dr. Mitchell said 
 
         it is possible that claimant's job aggravated claimant's 
 
         preexisting back condition.  Dr. Paulsrud unequivocally testified 
 
         that claimant's work of bending and lifting did aggravate 
 
         claimant's preexisting back condition.  Dr. Paulsrud's testimony 
 
         is not contradicted, controverted or refuted by any other 
 
         physician. Therefore, it is determined that claimant did sustain 
 
         the burden of proof by a preponderance of the evidence that he 
 
         sustained an injury on or about March 11, 1986, which arose out 
 
         of and in the course of his employment while trimming hogs.
 
         
 
              The parties stipulated that claimant's entitlement to 
 
         temporary disability benefits was from March 13, 1986 to July 31, 
 
         1986, and that the commencement date for permanent partial 
 
         disability benefits was August 1, 1986.
 
         
 
              Dr. Paulsrud evaluated claimant's total permanent functional 
 
         impairment from all causes as 16 percent.  He could not say how 
 
         much of this percentage was attributable to this injury.  He did 
 
         say that 5 to 10 percent was routinely assessed for back surgery 
 
         or chemonucleolysis without residuals.  On September 11, 1986, at 
 
         the time Dr. Paulsrud gave a 16 percent rating, he stated that 
 
         claimant has a nonoperated intervertebral disc lesion with 
 
         residuals.  He did not describe the residuals however, other then 
 
         to impose the restriction of no repetitive stooping, bending or 
 
         lifting over 40 pounds (Ex. 14, p. 2).
 
         
 
              Claimant did not lift over 40 pounds in his job trimming 
 
         hogs in the first place.  Even the heavier sows heads only 
 
         weighed 20 to 25 pounds.  It is possible that claimant might have 
 
         to bend over, cut off a hog's head and throw the head into the 
 
         barrel more than four or five times per hour if he was.processing 
 
         5,500-6,000 hogs per day.
 
         
 
              After this injury, claimant performed a similar job at 
 
         Verschoor Meats cutting the heads off of hogs and washing them.  
 
         He was fully able to perform this job.  Claimant testified that he 
 
         quit this job due to low pay and poor working conditions, but he 
 
         admitted that he was able to perform the work.  Therefore, it 
 
         appears that claimant could have returned to his old employment 
 
         with employer if the plant had not closed.  It could be said that 
 
         claimant is foreclosed from performing heavy work in the future; 
 
         however, claimant was not performing heavy work at the time of the 
 
         injury nor did he perform heavy work in any of his past 
 
         employments delivering automobile parts, unloading trucks or spray 
 
         painting.  It cannot be said that claimant's method of earning a 
 
         living, that he was performing at the time of the injury and in 
 
         the past, has been foreclosed to him.  Michael v. Harrison Co., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (appeal decision January 30, 1989).
 
         
 
              Claimant's temporary disability ended on July 31, 1986.  He 
 
         drew unemployment compensation from August of 1986 to May of 
 
         1987. He then worked for Verschoor Meats for a short time between 
 
         August of 1987 and the date of this hearing on November 24, 1987. 
 
         Claimant was not employed at the time of the hearing.  He had 
 
         quit his job at Verschoor because of what he considered low pay 
 
         and poor working conditions.  Claimant testified that he was 
 
         looking for work through the unemployment office but he did not 
 
         testify that he had made any job searches or applications.  Since 
 
         claimant has not worked, or tried to work, during the period of 
 
         time that he could work, it is difficult to tell how much 
 
         claimant has been impaired due to this injury.  Since claimant 
 
         has not made a strong effort to be employed, there is no showing 
 
         of what claimant can do or not do within the boundaries of his 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disability and restrictions.  Schofield v. Iowa Beef Processors, 
 
         Inc., II Iowa Industrial Commissioner Report 334, 336.(1981).  
 
         His post-injury earnings of $5 per hour without employee benefits 
 
         for Verschoor is not necessarily indicative of his earning 
 
         capacity.  2 Larson, Workmen's Compensation Law, Section 57.21 
 
         and Section 57.31.  An employee making a claim for industrial 
 
         disability will benefit by showing some attempt to find work.  
 
         Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
         (appeal decision 1981); Beintema v. Sioux City Engineering Co., 
 
         II Iowa Industrial Commissioner Report 24 (1981); Cory v. 
 
         Northeastern States Portland Cement Co., Thirty-third Biennial 
 
         Report of the Industrial Commissioner 104 (1976).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is age 33.  He is a high school graduate who 
 
         received average grades.  He has a varied employment background. 
 
         He is young enough to go into practically any field of endeavor 
 
         that interests him.  His work restrictions are not severely 
 
         limiting.  He could return to his former job.  Graves testified 
 
         that there are numerous other jobs that claimant could perform 
 
         with these restrictions in the packing house.  The evidence does 
 
         not support a severely limiting disability.  At age 33, claimant 
 
         is young enough to enter a completely new field altogether.  He 
 
         is young enough to be retrained.  The feasibility of retraining 
 
         is one of the considerations involved in determining industrial 
 
         disability.  Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).
 
         
 
              Industrial disability can be equal to, less than, or greater 
 
         than functional impairment.  Lawyer and Higgs, Iowa Workers' 
 
         Compensation--Law & Practice, Section 13-5, page,116.
 
         
 
              Therefore, in consideration of all the foregoing matters and 
 
         all of the factors that are used to determine industrial 
 
         disability, it is determined that claimant has sustained a 10 
 
         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 March 11, 1986, 
 
         trimming heads, when his work cutting off the heads of hogs and 
 
         throwing them into a barrel aggravated his preexisting back 
 
         condition and resulted in an injury arising out of and in the 
 
         course of his employment with employer.
 
         
 
              That Dr. Paulsrud, the treating physician, testified that 
 
         claimant's work aggravated his preexisting condition.
 
         
 
              That the parties stipulated that claimant was off work for a 
 
         period of recovery, from this injury, from March 13, 1986 to July 
 
         31, 1986.
 
         
 
              That Dr. Paulsrud testified that 5 to 10 percent is a 
 
         routine permanent functional impairment rating following back 
 
         surgery or a chemonucleolysis without residuals.
 
         
 
              That Dr. Paulsrud testified that claimant's overall 
 
         permanent functional impairment rating from all causes was 16 
 
         percent of the body as a whole, but was unable to apportion or 
 
         allocate how much of it was due to the instant injury.
 
         
 
              That Dr. Paulsrud imposed restrictions that claimant should 
 
         not perform repetitive bending, stooping and lifting more than 40 
 
         pounds.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the parties stipulated that the commencement date for 
 
         permanent partial disability benefits is August 1, 1986.
 
         
 
              That claimant sustained a 10 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant's medical expenses caused by this injury are 
 
         (1) Dr. Mitchell-$235, (2) Dr. Eisele-$441, and (3) Marion Health 
 
         Center-$6,029.52.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant sustained an injury on or about March 11, 
 
         1986, which arose out of and in the course of his employment with 
 
         employer, while trimming hogs.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         March 13, 1986 to July 31, 1986.
 
         
 
              That claimant is entitled to 50 weeks of permanent partial 
 
         disability benefits commencing on August 1, 1986, based upon a 10 
 
         percent industrial disability to the body as whole.
 
         
 
              That claimant is entitled to medical expenses for Dr. 
 
         Mitchell, Dr. Eisele and Marion Health Center in the total amount 
 
         of $6,905.52.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty point one four three 
 
         (20.143) weeks of healing period benefits for the period from 
 
         March 13, 1986 to July 31, 1986, at the rate of two hundred 
 
         twenty-four and 91/100 dollars ($224.91) per week in the total 
 
         amount of four thousand five hundred thirty and 36/100 dollars 
 
         ($4,530.36).
 
         
 
              That defendants pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         twenty-four and 91/100 dollars ($224.91) per week in the total 
 
         amount of eleven thousand two hundred forty-five and 50/100 
 
         dollars (11,245.50) commencing on August 1, 1986.
 
         
 
         
 
              That defendants are entitled to a credit in the amount of 
 
         two thousand twenty-four dollars ($2,024) for income disability 
 
         benefits paid to claimant prior to hearing from an employee 
 
         nonoccupational group health plan as stipulated to by the 
 
         parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That all accrued amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue on weekly workers' compensation 
 
         benefits pursuant to Iowa Code section 85.30.
 
         
 
              That defendants pay to claimant or to the provider of 
 
         medical services six thousand nine hundred five and 52/100 
 
         dollars ($6,905.52) in medical benefits as set forth above.
 
         
 
              That defendants are entitled to a credit for medical 
 
         expenses in the amount of seven thousand six hundred sixty-four 
 
         and 44/100 dollars ($7,664.44) as shown in exhibit 1 page 2 and 
 
         stipulated to by the parties in the prehearing report.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              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 14th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         PO Box 1194
 
         Sioux City, IA  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         PO Box 3086
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1106, 1108.50, 1401, 1402.20, 
 
                                            1402.30, 1402.40, 1402.60, 
 
                                            1403.10, 2206, 1802, 1803, 
 
                                            2501, 2700
 
                                            Filed February 14, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOEL HARRISON,
 
         
 
              Claimant,
 
                                                   File No. 816943
 
         vs.
 
                                                A R B I T R A T I O N
 
         FLOYD VALLEY PACKING,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 1403.10, 
 
         2206
 
         
 
              Claimant did prove that his work of cutting off hogs heads 
 
         and throwing them into a barrel aggravated his preexisting bad 
 
         back condition and resulted in an injury arising out of and in 
 
         the course of employment even though claimant was not aware of an 
 
         employment injury at the time it occurred.  Treating physician's 
 
         finding of causal connection was not contradicted or refuted by 
 
         defendants.
 
         
 
         1802, 1803
 
         
 
              Claimant awarded healing period and permanent partial 
 
         disability benefits.  Doctor awarded 16 percent permanent 
 
         functional impairment for all causes and said 5 percent to 10 
 
         percent was typical following back surgery or chemonucleolysis. 
 
         Ten percent industrial disability was awarded for this 
 
         nonoperated protruding disc following chemonucleolysis.
 
         
 
         2501, 2700
 
         
 
              Claimant awarded unpaid medical expenses.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LILLIAN CARLSON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 816945
 
            AALF'S MANUFACTURING,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYER'S MUTUAL COMPANIES,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 9, 1989 is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 Claimant states that one of the issues on appeal is 
 
            "whether this case should be remanded to another Deputy 
 
            Industrial Commissioner who can make a decision based solely 
 
            on the review of the case as presented at the original 
 
            hearing or in the alternative, to allow the case to be heard 
 
            de novo."  Claimant contends that the deputy industrial 
 
            commissioner who was reassigned to the contested case should 
 
            have recused himself.  The deputy was employed with Job 
 
            Service and had heard a case in which claimant was awarded 
 
            unemployment benefits. 
 
            
 
                 Rule 343 IAC 4.38 deals with self-disqualification by 
 
            the hearing officer.  By its language, the rule is invoked 
 
            only when the deputy subjectively concludes that an 
 
            appearance of impropriety exists.  Miller v. Woodard State 
 
            Hospital School, File No. 853647, Appeal Decision May 31, 
 
            1990.  The deputy stated in his arbitration decision that he 
 
            made no memory of the Job Service hearing or the decision.  
 
            In addition, the arbitration decision itself is, by statute, 
 
            reviewed de novo on appeal.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                              BYRON K. ORTON
 
                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. W. Giles, III
 
            Attorney at Law
 
            722 Frances Building
 
            Sioux City, Iowa 51101
 
            
 
            Mr. Denny M. Dennis
 
            Mr. Brian L. Campbell
 
            Attorneys at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9999
 
                      Filed September 23, 1991
 
                      BYRON K. ORTON
 
                      DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LILLIAN CARLSON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 816945
 
            AALF'S MANUFACTURING,    :
 
                      :       A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYER'S MUTUAL COMPANIES,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed October 9, 
 
            1989, with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                     
 
                     
 
         LILLIAN CARLSON,
 
         
 
              Claimant,                              File No. 816945
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         AALF'S MANUFACTURING,                       D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            OCT 9 1989
 
         
 
         EMPLOYER'S MUTUAL COMPANIES,              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Lillian Carlson against defendant employer Aalf's Manufacturing 
 
         and defendant insurance carrier Employer's Mutual Companies to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury allegedly sustained on June 11, 1984.  This 
 
         matter came on for hearing before Deputy Industrial Commissioner 
 
         Garry Woodward in Sioux City, Iowa, on April 18, 1988.  The case 
 
         was considered fully submitted at the close of evidence, although 
 
         the parties subsequently submitted briefs.  The record in the 
 
         case consisted of exhibits that were eventually identified as 
 
         joint exhibits 1 through 9, along with the testimony of claimant 
 
         and Sue Mills.
 
         
 
              After the case was submitted, Deputy Woodward discontinued 
 
         his employment with the Division of Industrial Services.  By 
 
         Order of July 22, 1988, jurisdiction of the matter was assigned 
 
         by the industrial commissioner to the undersigned deputy for the 
 
         purpose of preparing and filing a proposed agency decision.
 
         
 
                                      ISSUES
 
         
 
              A prehearing report was submitted by the parties at hearing, 
 
         although not approved of record by Deputy Woodward.  Pursuant to 
 
         the prehearing report, the following matters have been 
 
         stipulated: That an employment relationship existed between 
 
         claimant and employer at the time of the alleged injury; that the 
 
         appropriate rate of weekly compensation is $95.36; that 
 
         affirmative defenses are waived; that claimant's entitlement to 
 
         medical benefits is no longer in dispute.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Issues identified as requiring resolution include:  Whether 
 
         claimant sustained an injury on June 11, 1984, arising out of and 
 
         in the course of her employment; whether the alleged injury bears 
 
         a causal relationship to temporary or permanent disability; the 
 
         extent of claimant's entitlement to temporary and permanent 
 
         disability; whether claimant's disability is to a scheduled 
 
         member or to the body as a whole; taxation of costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified to being 30 years of age and a high 
 
         school graduate (1975).  She obtained a realtor's license in 
 
         1986, but has never made use of that license professionally.
 
         
 
              Claimant testified to a work history before her employment 
 
         with defendant Aalf's as a filing, inventory and accounts 
 
         receivable clerk, sales clerk, bookkeeper, and service station 
 
         attendant.  She began her employment with defendant on April 10, 
 
         1984, as a "felled inseamer."  The position involved sewing blue 
 
         jeans.
 
              
 
              Claimant testified that she suffered injury on June 11, 
 
         1984. After working for a time that day, the fingers on her left 
 
         hand became weak, numb and tingly, with a "falling asleep" 
 
         sensation. She was referred to Daniel Rhodes, M.D., on the same 
 
         date.  Dr. Rhodes initially had an impression of carpal tunnel 
 
         syndrome and treated claimant with a splint, pain medication and 
 
         heat.  Dr. Rhodes returned claimant to light-duty work at once.
 
              
 
              Claimant testified to continuing light-duty work in the 
 
         laundry for somewhat over a month until returned to work by Dr. 
 
         Rhodes for regular duty effective June 29, 1984.  Claimant 
 
         testified that she felt unable to return to her regular work at 
 
         that time and asked for alternate employment, but was refused.  
 
         She thereupon resigned her employment with defendant Aalf's 
 
         Manufacturing.  As noted hereafter, she has since then held 
 
         several other jobs and applied for numerous others without 
 
         success.
 
         
 
              At page 40 of the hearing transcript, claimant testified 
 
         succinctly as to the pain she experienced at the time of injury:
 
         
 
              A.  Injury?  Okay.  My left wrist and my index finger and my 
 
              thumb.  And it pulled up into the forearm.
 
              
 
              Q.  Did you have pain anywhere else?
 
              
 
              A.  Yes.
 
              
 
              Q.  Where?
 
           
 
              A.  From up into my shoulder and underneath my arm.  I would 
 
              say the breastbone or the rib, whatever it is, one of the 
 
              highest bones there.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  What type of pain were you experiencing in your 
 
              breastbone?
 
              
 
              A.  Well, it burns, burning sensation.  And it swells and it 
 
              kind of makes the top of my shoulder burn and around the 
 
              upper part of my arm.  And it pulls into my breast, too, at 
 
              times.
 
              
 
              Q.  Are you still experiencing those problems?
 
              
 
              A.  Yes.
 
              
 
         (Transcript of Proceedings, page 40, lines 3 through 20)
 
         
 
              While claimant was treating with Dr. Rhodes, who was 
 
         authorized by defendants as the treating physician, she also 
 
         continued to see James D. Smith, D.C.  Claimant had regularly 
 
         obtained chiropractic care from Dr. Smith beginning in 1976. 
 
         Claimant testified that she saw Dr. Smith for numerous general 
 
         problems, not simply skeletal or joint complaints.  For example, 
 
         she has seen Dr. Smith for colds or sinus problems.  When asked 
 
         if it was fair to say that Dr. Smith had treated her many times 
 
         over the course of many years for neck-related pain and problems 
 
         before beginning employment with Aalf's, claimant responded in 
 
         the affirmative and further agreed that Dr. Smith had treated her 
 
         for problems with her left arm before beginning that employment 
 
         (transcript, page 74).
 
         
 
              Claimant did not see Dr. Rhodes from June, 1984 until July 
 
         10, 1985.  However, she continued treating with Dr. Smith during 
 
         this time.  She agreed that she saw Dr. Smith for back problems, 
 
         sciatic nerve, stomach problems and rib problems.  She agreed 
 
         that when she last saw Dr. Smith on May 5, 1985, her only 
 
         complaint at that time was low back pain.  From May, 1985, 
 
         claimant did not visit Dr. Smith again until January, 1986.  She 
 
         at that time complained of aching in both legs and believed it 
 
         could be part of a flu syndrome.
 
         
 
              In her deposition, claimant described her current condition:
 
         
 
              Q.  How would you compare your symptoms today with the way 
 
              they were at the time you felt you had to leave Aalfs? 
 
              Better, worse?
 
              
 
              A.  Worse and the same.  It's in the wrist, the fingers.  It 
 
              doesn't wake me up, you know, maybe once in awhile it wakes 
 
              me up.  I can't lay on my left side, you know, not even lay 
 
              on my arm.  I can't even lay on my left side.
 
              
 
              Q.  How have your symptoms gotten worse since you left 
 
              Aalfs?
 
              
 
              A.  This under here (indicating).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Q.  Under your arm?
 
              
 
              A.  Yes.
 
              
 
              MR. GILES:  Left arm.
 
              
 
              Q.  Has been more aggravating?
 
              
 
              A.  Yes.
 
              
 
              Q.  Explain the type of pain or sensation you feel under 
 
              your left arm?
 
              
 
              A.  Burning.
 
              
 
              Q.  Is it all the time or part of the time?
 
              
 
              A.  Part of the time.
 
              
 
              Q.  Is there anything besides burning and swelling?
 
              
 
              A.  Around my shoulder in both ways, around this way and 
 
              around this (indicating) way.
 
              
 
              Q.  In other words, you have pain under your shoulder, under 
 
              your armpit as well as on top of your shoulder?
 
                
 
              A.  Down my arm, in the forearm, on the outside or 
 
              underside, in the wrist itself or my fingers.
 
              
 
              Q.  Are all the fingers affected?
 
              
 
              A.  Sometimes.
 
              
 
              Q.  Any fingers that are more affected than any others?
 
              
 
              A.  The first three.
 
              
 
              Q.  That would be your thumb and the index finger and the 
 
              middle finger?
 
              
 
              A.  Yes.
 
         (Carlson deposition, page 85, line 19 through page 87, line 7)
 
                
 
              Notwithstanding claimant's complaints of pain, she filed for 
 
         and received unemployment benefits from Job Service of Iowa. 
 
         Continuing eligibility involved conducting an earnest and active 
 
         search for work and being able and available to accept 
 
         employment. Claimant certified on each benefit claim as to her 
 
         ability to work and search for work.  In a decision of August 29, 
 
         1984 contained in exhibit 1, a job service hearing officer found, 
 
         based solely upon claimant's testimony without participation by 
 
         defendant Aalf's:
 
         
 
              The claimant was employed by the employer, but suffered a 
 
              medical problem known as carpal tunnel syndrome, resulting 
 
              in her leaving her employment.  The claimant left her 
 
              employment effective June 29, 1984, although then released 
 
              by her physician to return to work, with restrictions, which 
 
              caused the employer to not have work available for her, 
 
              given the work-related restrictions.  Another decision 
 
              issued July 18, 1984, (reference 05), found that the 
 
              claimant's separation was for good cause attributable to the 
 
              employer.  Yet another claims deputy's decision issued July 
 
              27, 1984, (reference 08), found that medical evidence had 
 
              been furnished to the Department that the claimant was able 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              and available for work, pursuant to her physician's 
 
              statement, and benefits were then allowed effective July 22, 
 
              1984.  The claimant's physician, Dan Rhodes, indicated in 
 
              his statement to the Department, on Form IESC 174Q, that he 
 
              had last seen the claimant on June 28, 1984, and that she 
 
              was released as being able to work, although she was 
 
              restricted to light duty.  The claimant testified and the 
 
              hearing officer views as credible, that her physician did 
 
              release her for work effective the next day, June 29, 1984.  
 
              Prior to that date, the claimant was disabled from work due 
 
              to her medical syndrome.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              The above decision was issued in Job Service hearing number 
 
         84A-UI-9763-R2T.  The face of the decision contains a signature 
 
         line.  The Job Service clerical department failed to affix the 
 
         signature stamp of the hearing officer.  By coincidence, the 
 
         undersigned deputy industrial commissioner was previously 
 
         employed as a hearing officer for Job Service and personally 
 
         wrote the subject decision.  The "R2" in the last group of the 
 
         hearing number refers to and identifies the hearing officer 
 
         assigned to the case.  The "T" refers to a telephone hearing.  
 
         The undersigned must note for the record that he has absolutely 
 
         no present recollection of this particular telephone conference 
 
         hearing, but does recognize the somewhat stilted language as his 
 
         own.
 
         
 
              Claimant has also held a number of jobs since leaving 
 
         defendant Aalf's.  She testified that she began seeking 
 
         employment immediately after leaving the subject position and 
 
         then obtained a seamstress position with a drapery manufacturer 
 
         in October, 1985. She has also worked in a car wash, taken a 
 
         decorating position, and provided housecleaning services and home 
 
         care for an elderly person, along with housecleaning work in a 
 
         motel.
 
              
 
              Claimant testified to and medical exhibits also reflect a 
 
         substantial history of upper extremity and back problems before 
 
         beginning work with Aalf's.  Although claimant answered an 
 
         interrogatory to the effect that she had suffered no previous 
 
         injuries, she testified to previous problems with her vision, 
 
         neck, back, headaches, shoulder, and elbow problems in 1982 and 
 
         1983.  Claimant had neck and back pain the day before she began 
 
         work with Aalf's.  Her medical placement form dated April 10, 
 
         1984, the date she began work, answered a question as to whether 
 
         claimant had any illness, injury or condition that might 
 
         interfere with her work in the affirmative:  "Tennis 
 
         elbow-pinched nerve in left arm."
 
         
 
              Claimant also testified that she sometimes chooses not to 
 
         indicate that she has a physical limitation when filling out 
 
         employment applications.  At page 104 of the trial transcript, 
 
         claimant testified that these omissions sometimes occur even when 
 
         employers specifically ask for physical problems.
 
         
 
              Claimant testified to a 1982 incident involving her left 
 
         elbow:
 
         
 
              Q.  Did you ever hurt your left elbow?
 
              
 
              A.  Yes.
 
              
 
              Q.  When would that have been?
 
              
 
              A.  1982, I believe.
 
              
 
              Q.  Can you tell us what happened then?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  I was at my sewing machine at home, and I knocked my 
 
              elbow, my left elbow, on a metal cabinet right at the funny 
 
              bone, like, because it -- You know, when you hit your funny 
 
              bone it -- that's where it hit me.  And it made me dizzy and 
 
              all, and I went up to St. Luke's and Doctor Helt checked my 
 
              arm.  And he said it wasn't broken or anything like that, so 
 
              he just gave me a pain killer and sent me home.
 
              
 
         (Transcript, page 48, line 25 through page 49, line 13)
 
         
 
              Claimant also testified to a subsequent injury to her left 
 
         elbow in 1986.  She testified as to seeing Dr. Smith in April, 
 
         1986.  Claimant conceded that she had not complained about left 
 
         arm or wrist pain from October, 1984 until April, 1986.  With 
 
         respect to the fall itself, claimant admitted that when she saw 
 
         Dr. Smith she complained of pain in her left shoulder, neck and 
 
         upper back as well as the left elbow.
 
         
 
              Dr. Smith's records note that claimant complained of 
 
         possible neck problems and that her neck had been "thrown and 
 
         head was hit" in two accidents in the past five years, when 
 
         claimant was first seen.  Further records show that complaints of 
 
         neck and back were made on September 28, 1981.  Claimant 
 
         complained of neck stiffness and shoulder blade problems which 
 
         had been sore for two weeks after lifting or everyday activities 
 
         as of April 9, 1984.  This was the day before she began 
 
         employment with defendant Aalf's.
 
         
 
              A notation of September 7, 1982 is that claimant had bumped 
 
         left elbow and suffered from pain and numbness.
 
         
 
              In a letter of February 10, 1988, Dr. Smith stated that 
 
         claimant had been experiencing a carpal tunnel syndrome injury 
 
         while working at Aalf's Manufacturing Company and that claimant 
 
         still had recurring pain and numbness down her left arm and in 
 
         the left axillary region over the area of the third or fourth 
 
         rib.  Dr. Smith's examination revealed grip strength of 200 
 
         pounds on the left and 250 pounds on the right, tenderness over 
 
         the third and fourth ribs and over the distal aspect of the left 
 
         ulna lateral, tingling in the first and second digits caused by 
 
         hyperextension of the left wrist and myofascial trigger point in 
 
         the left trapezius. Dr. Smith opined that claimant was 
 
         permanently impaired to the degree of 40 percent of the whole 
 
         person "due to the above mentioned findings."
 
         
 
              However, Dr. Smith cleared up some inconsistencies in his 
 
         deposition testimony.  Not the least of those was pointing out a 
 
         typographical error to the effect that claimant should be rated 
 
         with a 4 percent functional impairment of the whole person and 
 
         not a 40 percent impairment.  Dr. Smith gave the following 
 
         testimony as to how this impairment rating was determined:
 
         
 
              Q.  Can you describe generally the process that you used in 
 
              order to come up with the 4 percent permanency rating?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  Yes.  We used the American Medical Association guides to 
 
              evaluation of impairment.
 
              
 
              Q.  As I understand those guides, they would include two 
 
              factors for a nerve -- Would this be under the nerve injury 
 
              category?
 
              
 
              A.  Right.
 
              
 
              Q.  And one factor would be a reduced motion and the other 
 
              factor is any desensitization?
 
              
 
              A.  Right.
 
              
 
              Q.  And in this instance she would have no reduced mobility; 
 
              is that correct?
 
              
 
              A.  Right.
 
         
 
              Q.  So then the 4 percent would have come from some type of 
 
              reduced sensation or pain?
 
              
 
              A.  Both, both is how it was factored.
 
              
 
              Q.  So am I correct that the 4 percent relates to the 
 
              subjective complaints that she was giving you at the time?
 
         
 
              A.  Well, also -- That's correct.  Now, she had also a -- 
 
              Yes, what you say is correct, that's right.
 
              
 
         (Dr. Smith deposition, page 55, line 20 through page 56, line 18)
 
         
 
              Along with testifying generally as to claimant's history of 
 
         treatment, Dr. Smith testified:
 
         
 
              Q.  Let me ask you for a moment to look at your notes 
 
              generally and see whether or not you agree with this:  The 
 
              record will speak for itself since we went through each 
 
              clinical observation, but it appears to me that the notes 
 
              don't relate to any left wrist problem from about July of 
 
              '84 up until 1-14 of '86.
 
              
 
              A.  That, I believe, would be for the most part correct. 
 
              September of '84 there is a note concerning the wrist.
 
              
 
              Q.  Would it also be correct -- Well, let me ask you.  The 
 
              symptoms relating to the armpit, the swelling area in the 
 
              armpit, apparently remanifested themselves within the last 
 
              two months.  That appears to be the main nature of her 
 
              complaints during the last couple of months; is that right?
 
              
 
              A.  That's correct.
 
              
 
              Q.  She's been complaining about pain under her armpit for 
 
              the last two months, but there has been a long period of 
 
              time in which she has seen you where she was being treated 
 
              for things other than that. did she ever complain of the 
 
              armpit pain before, say, February of '88?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  She did.  But I'm telling you that from memory.  She did 
 
              on occasion, she would mention that.
 
              
 
              Q.  But you wouldn't have that in your notes?
 
              
 
              A.  Correct.
 
              
 
              Q.  And that would be because it wasn't the primary purpose 
 
              of her visit.  Is that fair?
 
              
 
              A.  Yes.  I'd like to comment on it, if I could.
 
              
 
              Q.  Go ahead.
 
              
 
              A.  The EMG was negative, what, four years after when both 
 
              the M.D. and I thought that she had carpal tunnel syndrome. 
 
              Now, the adjustment of the rib and the rhomboid area, the 
 
              trigger point, what have you, back here (indicating), I 
 
              think that's really the problem.  And I think that she's had 
 
              that problem ever since.
 
              
 
              And for some reason the last few months it has manifested 
 
              itself more.  It radiates pain around the intercostal nerve 
 
              under the rib into the armpit area, the axilla.  And 
 
              especially in light of the fact that the EMG was negative 
 
              for carpal tunnel syndrome, I believe the primary cause of 
 
              her problem is nerve pressure down there in the dorsal 
 
              spine.
 
              
 
         (Dr. Smith deposition, page 50, line 8 through page 52, line 6)
 
         
 
              When asked as to causation, Dr. Smith testified:
 
              
 
              Q.  Doctor, do you have any reason to doubt that since the 
 
              date of injury back in 1984 and basically all the time that 
 
              you've treated her that Lillian has and did have pain in the 
 
              left wrist radiating into the dorsal spine area?
 
              
 
              A.  No, I don't have any reason to doubt that.
 
              
 
              Q.  And you also testified that pain she was experiencing 
 
              was related to nerve pressure in the dorsal spine?
 
              
 
              A.  Yes.
 
              
 
              Q.  Do you have an opinion as to the etiology of that pain?
 
              
 
              A.  I believe that it relates clear back to 1984 when her 
 
              troubles really started in that area.
 
              
 
              Q.  Okay.  Why is that?
 
              
 
              A.  From the injury at Aalfs.  I think that's what really 
 
              started it.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              MR. MILLER:  I have no further questions.
 
              
 
              REDIRECT EXAMINATION
 
              
 
              BY MR. CAMPBELL:
 
              
 
              Q.  And is your opinion on the source of that again 
 
              attributed to her history of complaints that she's given you 
 
              during the past four years?
 
              
 
              A.  Yes.
 
              
 
         (Dr. Smith deposition, page 56, line 24 through page 57, line 25)
 
         
 
              Testifying as to his first contact with claimant after the 
 
         injury, Dr. Smith stated:
 
         
 
              Q.  Then you next saw her again on 6/14 of '84; is that 
 
              correct?
 
              
 
              A.  Yes.
 
              
 
              Q.  And what were her symptoms at that time?
 
              
 
              A.  She had developed numbness in the left wrist and fingers 
 
              at work the week of June the 4th. She went to the company 
 
              doctor, Doctor Rhodes.  His diagnosis was carpal tunnel 
 
              syndrome.  He gave her a splint to wear on her wrist and 
 
              Naprosyn and light duties and told her to come back in a 
 
              week.  And he told her that if she was not improved that he 
 
              would start other treatment.
 
              
 
              I examined her at the time, and hyperflexion of the wrist 
 
              was positive, which is a carpal tunnel syndrome test.  
 
              Percussion of the wrist with a percussion hammer on the 
 
              medial anterior side was also negative.  The grip strength 
 
              was 270 pounds on the right and 210 on the left.
 
              
 
              The sensitivity to a pinwheel was decreased.  I did a great 
 
              job there.  I didn't say where, which fingers.  Reflexes 
 
              were plus two or normal.  The strength of the opponens 
 
              musculature in the hand was normal.
 
              
 
              I gave her an adjustment on the neck and dorsal region, also 
 
              the left radius.  And I gave her ultrasound and sine wave 
 
              therapy to the left anterior carpal tunnel, and I have her 
 
              Vitamin B-6, 250 milligrams three times a day.
 
              
 
         (Dr. Smith deposition, page 21, line 9 through page 22, line 13)
 
         
 
              Dr. Smith testified that he next saw claimant on June 16, 
 
         1984 and treated her with ultrasound and sine wave therapy of the 
 
         wrist.  The same treatment was given on June 18, June 25, July 2, 
 
         and July 5, 1984.  On June 9, claimant received only the 
 
         ultrasound and sine wave, but no manipulation.  Dr. Smith 
 
         testified in general that manipulation is generally given every 
 
         time a patient comes in.  Throughout that summer, Dr. Smith 
 
         continued adjusting the neck, dorsal, lumbar and wrist areas.  
 
         Rib problems first appear on December 3, 1984, when claimant was 
 
         having pain on the left R-8 rib "from a recent upper respiratory 
 
         infection."  In April, 1985, Dr. Smith found that claimant was 
 
         negative as to the breasts and abdominal pain, but the left fifth 
 
         rib was adjusted on April 19.  Claimant suffered further pain in 
 
         the sacroiliac region on May 10, 1985, but did not seek Dr. Smith 
 
         again until January 14, 1986.  Claimant then had achyness of the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         arms and legs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Smith also noted that when he saw claimant on April 24, 
 
         1986, she had fallen the day before and landed on the left elbow. 
 
         Claimant reported pain in the left shoulder, neck and dorsal 
 
         region.  She was treated with adjustments to the neck and dorsal 
 
         region.
 
         
 
              Dr. Rhodes saw claimant on June 11, 1984.  She at that time 
 
         was complaining of her left arm falling asleep, especially the 
 
         third and fourth fingers.  Interestingly, he noted that the 
 
         complaints awakened claimant at about 4:00 to 5:00 in the morning 
 
         with tingling sensation and claimant also noted pain in the left 
 
         upper back and left upper arm area.  Dr. Rhodes had an impression 
 
         of carpal tunnel and myositis, left upper back.  Claimant was 
 
         treated with a wrist splint and released to light duty with the 
 
         left arm.
 
              
 
              Dr. Rhodes saw claimant again on June 18, 1984.  He felt the 
 
         carpal tunnel was improved.  On June 25, 1984, claimant's Tinel's 
 
         sign was equivocally positive, but the wrist had full range of 
 
         motion.  Carpal tunnel studies were scheduled.
 
              
 
              On June 28, 1984, Dr. Rhodes notes that carpal tunnel 
 
         studies confirmed that claimant did not suffer from the ailment.  
 
         Claimant was felt to have mild tendonitis in the left arm at that 
 
         time.
 
         
 
              Dr. Rhodes reported on July 10, 1985, that claimant still 
 
         had achyness in the left arm generally.  On July 24, she showed 
 
         minimal arm discomfort with full range of motion of the wrist, 
 
         elbow and arm.
 
              
 
              Claimant was seen with further complaints on October 30 and 
 
         November 11, 1985.  Respectively, Dr. Rhodes' impressions were 
 
         probably mild tendonitis ("Probably residual from her AALFs job 
 
         although not 100% clear."), and myotenositis of the left arm with 
 
         mild epicondylitis.
 
              
 
              Dr. Rhodes repeatedly reported on workers' compensation 
 
         forms that the injury was work related from July 10 through 
 
         November 11, 1985.  Claimant was released to return to full 
 
         employment effective July 2, 1984.
 
              
 
              Dr. Rhodes referred claimant to K. M. Keane, M.D., in 
 
         November, 1985.  Dr. Keane could find no orthopaedic reason for 
 
         claimant's complaints (she did have full range of motion in all 
 
         joints of the upper extremities and neck).  He suggested 
 
         consideration of neurological or psychological evaluation.  Dr. 
 
         Keane diagnosed overuse syndrome of the left wrist and indicated 
 
         there may be some element of tendonitis involved.  On history, 
 
         Dr. Keane noted "while working for Aalf's Manufacturing stitching 
 
         [sic] inseams she had onset of symptoms in the left wrist and 
 
         arm."
 
         
 
              Electrodiagnostic studies were performed by B. Krysztofiak, 
 
         M.D., who reported on June 27, 1984, that claimant was within 
 
         normal limits and had in particular no evidence of carpal tunnel 
 
         syndrome, ulnar nerve entrapment or thoracic outlet syndrome.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also seen for evaluation by R. Schuyler 
 
         Gooding, M.D.  Dr. Gooding reported on March 24, 1988, that 
 
         claimant revealed a moderate decrease in the range of motion of 
 
         the cervical spine, a mild Tinel's response on the left, slight 
 
         weakness of grip on the left, and slightly depressed biceps and 
 
         brachioradialis reflexes on the left.  He felt that his 
 
         examinations suggest that claimant might have sustained a 
 
         ruptured cervical disc at the time of her original injury, as 
 
         well as having a mild or incipient left carpal tunnel syndrome.  
 
         By claimant's testimony, Dr. Gooding was not aware of claimant's 
 
         ten-year history or chiropractic care.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It has been stipulated that an employment relationship 
 
         existed between claimant and Aalf's Manufacturing at the time of 
 
         the alleged injury.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 11, 1984 which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
              
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
              
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury.  The result of changes in the human body incident 
 
              to the general processes of nature do not amount to a 
 
              personal injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted to 
 
              labor and hard work.  Such result of those natural changes 
 
              does not constitute a personal injury even though the same 
 
              brings about impairment of health or the total or partial 
 
              incapacity of the functions of the human body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [ Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
                   
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the in jury of June 11, 1984 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W. 2d 732 ( 
 
         1955 ).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
           
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover. Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
                 
 
              It is necessary to examine claimant's credibility as a 
 
         witness in this case.  Because the undersigned was not the 
 
         hearing deputy and did not have an opportunity to observe 
 
         claimant's demeanor while testifying, demeanor cannot be a factor 
 
         in evaluating her credibility.  However, it seems evident that 
 
         claimant's credibility is subject to measurement in this case by 
 
         such traditional means as examining prior inconsistent 
 
         statements, especially testimony.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              As has been seen, the undersigned deputy has already issued 
 
         a decision involving claimant and the injury under review shortly 
 
         after she left her employment with Aalf's.  The writer has 
 
         considered whether it would be appropriate to recuse himself from 
 
         this case because of that previous decision.  However, recusal 
 
         appears unnecessary.  The undersigned has no memory whatsoever of 
 
         the previous Job Service hearing or decision and the following 
 
         comments concerning claimant's testimony are based solely upon a 
 
         review of what that decision reported as the facts of the case, 
 
         since claimant was the only source of evidence.  No exhibits were 
 
         identified as having been admitted into the record and no other 
 
         witnesses participated.  The following comments concerning the 
 
         findings of that decision would be equally valid no matter who 
 
         the hearing officer in that case might have been.
 
                 
 
              As set forth above, claimant testified in the Job Service 
 
         hearing held on August 23, 1984, that she suffered carpal tunnel 
 
         syndrome.  Claimant's testimony and the medical records in the 
 
         present case make it clear that she knew before August 23 that 
 
         carpal tunnel syndrome had been ruled out, and her diagnosis at 
 
         that time was of mild tendonitis.  In her first hearing claimant 
 
         testified that she left her employment when released by her 
 
         physician to return to work with restrictions effective June 29, 
 
         1984, and that Aalf's did not have work available for her because 
 
         of the restrictions.  Claimant's testimony and the record as a 
 
         whole in this case demonstrate the falseness of this testimony.  
 
         In fact, claimant was initially released to restricted employment 
 
         and was given the same by Aalf's, but only resigned her 
 
         employment when later given an unrestricted release which she 
 
         apparently viewed as unjustified.
 
         
 
              Claimant's testimony at the Job Service hearing was under 
 
         oath, the same as her testimony in this case. Her testimony in 
 
         the Job Service case was at variance with her testimony here and 
 
         served her purposes well insofar as she was awarded unemployment 
 
         benefits by the subject decision.  Had claimant told the truth in 
 
         that hearing, it is at least arguable that the hearing officer 
 
         would have imposed a disqualification on the basis of claimant 
 
         not being truly "available" for work under Iowa Code section 
 
         96.4-3 since she had voluntarily left a job for which she had 
 
         been given a full medical release.
 
         
 
              It might also be noted that claimant testified that she 
 
         intentionally withheld the fact of her claimed injury when 
 
         applying for other work.  It has been pointed out that her 
 
         answers to interrogatories are in certain respects inconsistent 
 
         with known fact (e.g., whether she had prior accidents or 
 
         injuries).
 
         
 
              In the Job Service decision, the undersigned found as a fact 
 
         that claimant was credible.  He is now of the opposite opinion. 
 
         Claimant's testimony concerning her symptoms and alleged injury 
 
         is unreliable and has been discounted accordingly.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Nevertheless, there is still evidence in this record that 
 
         would support findings in claimant's favor.  There is no question 
 
         but that claimant complained of an injury and saw a physician on 
 
         June 11, 1984.  Dr. Smith has testified to his belief that the 
 
         injury is causally related to permanent disability.  Dr. Keane 
 
         noted that claimant had onset of symptoms while working for 
 
         Aalf's Manufacturing.  Dr. Gooding found symptoms of permanent 
 
         disability and felt that claimant might have sustained a ruptured 
 
         cervical disc at the time of her injury.  Therefore, the medical 
 
         opinions presented in this case must be reviewed to help 
 
         determine whether that evidence establishes a work-related injury 
 
         and resultant disability standing apart from claimant's 
 
         testimony.
 
         
 
              It is noteworthy that claimant signed a medical placement 
 
         form on April 10, 1984, the day before she began employment with 
 
         Aalf's, noting "Tennis elbow-pinched nerve in left arm."  Dr. 
 
         Rhodes noted when he first saw claimant on the day of the alleged 
 
         injury that she had awakened at about 4:00 to 5:00 in the morning 
 
         with tingling sensation in the left upper back and left upper arm 
 
         area.  Since the note was made the very day of the injury, this 
 
         condition obviously preceded the claimed injury by at least some 
 
         hours.  Claimant's complaints in her testimony as to the pain she 
 
         experienced at the time of injury related to her left wrist, 
 
         index finger and thumb, along with pain into the shoulder, 
 
         underneath her arm, to the breastbone and rib.  In addition, the 
 
         top of claimant's shoulder burned and around the upper part of 
 
         her arm and the pain pulled into her breast.
 
         
 
              Dr. Rhodes found that claimant had full range of motion of 
 
         the wrist, elbow and arm when she was released to unrestricted 
 
         employment.  Although Dr. Rhodes felt that claimant probably had 
 
         mild tendonitis that was "probably residual" from her employment, 
 
         he has not directly testified to permanent impairment.  Dr. 
 
         Rhodes' testimony may be enough to establish causal connection to 
 
         temporary or healing period disability, but claimant was employed 
 
         with her restrictions until her full release, so there was no 
 
         compensable temporary disability.
 
         
 
              Neither Dr. Keane nor Dr. Gooding commented upon the finding 
 
         that claimant's symptomatology at least in part preceded the 
 
         claimed injury.  Rather, Dr. Keane appeared to be of the 
 
         erroneous impression that claimant had onset of symptoms while 
 
         working.  Dr. Keane could find no orthopaedic reason for 
 
         claimant's complaints and did not express any opinion as to 
 
         whether claimant sustained any permanent disability. Dr. Gooding 
 
         was unaware of claimant's extensive and lengthy history of 
 
         chiropractic care affecting most of the parts of claimant's body 
 
         of which she now complains and did not express any opinion 
 
         directly as to causation or as to whether claimant now suffers a 
 
         permanent impairment.
 
         
 
              Dr. Smith opined in his letter of February 10, 1988 that 
 
         claimant was permanently impaired and repeated that view in his 
 
         deposition testimony.  However, it is apparent that Dr. Smith 
 
         believed on February 10, 1988, that claimant had experienced a 
 
         carpal tunnel syndrome injury.  In his testimony, Dr. Smith makes 
 
         clear that he now agrees with Dr. Rhodes that carpal tunnel 
 
         syndrome has been ruled out.  The opinion of February 10, 1988 is 
 
         based upon a faulty assumption.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In Dr. Smith's deposition testimony, he relates to the 
 
         injury pain in the wrist, around the intercostal nerve under the 
 
         rib into the armpit area, the axilla and the rhomboid area.  
 
         However, Dr. Smith is unable to relate physical findings to 
 
         explain pain in such diverse and widely scattered areas of the 
 
         body, particularly important since claimant has by history 
 
         received continuous and extensive treatment for many of the same 
 
         areas for years before the claimed injury.  In addition, Dr. 
 
         Smith admits that his estimate of claimant's physical impairment 
 
         relates not to any observable or quantifiable fact, but only to 
 
         claimant's subjective complaints.  Of course, claimant's 
 
         credibility has already been discussed.
 
              
 
              Viewed in its totality, the medical evidence does not 
 
         persuade the undersigned that claimant has met her burden of 
 
         proof in establishing either an injury arising out of and in the 
 
         course of employment or a causal relationship to any disability 
 
         thereafter.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was employed by defendant Aalf's 
 
         Manufacturing on June 11, 1984.
 
              
 
              2.  Claimant lacked credibility as a witness.
 
              
 
              3.  Claimant had a lengthy history of chiropractic treatment 
 
         to her spine and extremities prior to June 11, 1984.
 
         
 
              4.  Claimant was awakened on or immediately before the date 
 
         of the claimed injury with tingling sensation and pain in the 
 
         left upper back and left upper arm.
 
              
 
              5.  Claimant has not shown that she suffered a work injury 
 
         on June 11, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              1.  Claimant has failed to establish by her burden of proof 
 
         that she sustained an injury arising out of or in the course of 
 
         her employment on June 11, 1984.
 
              
 
              2.  Claimant has failed to meet her burden of proof in 
 
         showing a causal relationship between her alleged injury and 
 
         claimed disability.
 
         
 
                                      ORDER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
              
 
              The costs of this action shall be assessed to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
              
 
              Signed and filed this 9th day of October, 1989.
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W. J. Giles
 
         Attorney at Law
 
         722 Frances Building
 
         Sioux City, Iowa  51101
 
         
 
         Mr. William L. Miller
 
         Attorney at Law
 
         509 Ninth Street
 
         P.O. Box 3107
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Brian L. Campbell
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                              3700, 51400
 
                                              Filed October 9, 1989
 
                                              DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LILLIAN CARLSON,
 
         
 
              Claimant,
 
              
 
         vs.
 
                                                File No. 816945
 
         AALF'S MANUFACTURING,
 
                                             A R B I T R A T I O N
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
              
 
         EMPLOYER'S MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         3700, 51400
 
         
 
              Claimant gave demonstrably false testimony in a Job Service 
 
         hearing on related issues.  She was found to lack credibility. 
 
         Claimant failed to establish right to recovery.