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.