Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD E. HOOPMAN,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 822543
 
            QUAKER OATS COMPANY,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRANSPORTATION INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 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 April 26, 1990 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            A motion in limine was sustained by the deputy at the 
 
            hearing, excluding from the record certain economic studies 
 
            of claimant's future loss of earnings.  Loss of earnings is, 
 
            of course, a relevant factor in the determination of 
 
            claimant's industrial disability.  However, this factor is 
 
            limited to an analysis of claimant's loss of earnings from 
 
            his injury as of the time of the hearing.  It would be 
 
            speculation to project that loss of earnings into the 
 
            future.  Claimant may retrain for a better job, or find 
 
            employment that results in a lesser loss of earnings, no 
 
            loss of earnings, or even greater earnings.  
 
            In addition, the reports in question clearly rely on factors 
 
            not relevant to industrial disability.  The projections seek 
 
            to show loss of earning capacity, rather than loss of 
 
            earnings.  The determination of the loss of earning capacity 
 
            is the province of this agency to decide.
 
            For purposes of this de novo appeal, the testimony of Dr. 
 
            Sandberg and Dr. Conway is considered only to the extent 
 
            their reports show claimant's loss of earnings up to the 
 
            date of the hearing.  Those portions of their reports 
 
            purporting to show a future loss of earnings, however, are 
 
            not considered herein.
 
            Defendants' exhibit 9, pertaining to wage and overtime 
 
            information, was admitted into the record over claimant's 
 
            objection.  Defendants acknowledge the exhibit was not 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            timely served under this agency's rules.  Defendants' 
 
            exhibit 9 is not considered a part of the record in this de 
 
            novo appeal.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 2nd Avenue SE
 
            P.O. BOX 2457
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa 52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9999
 
                      Filed September 20, 1991
 
                      BYRON K. ORTON
 
                      BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD E. HOOPMAN,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 822543
 
            QUAKER OATS COMPANY,     :
 
                      :       A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRANSPORTATION INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed April 26, 1990 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD E. HOOPMAN,
 
         
 
              Claimant,
 
                                                    File No. 822543
 
         VS.
 
         
 
         QUAKER OATS COMPANY,                   A R B I T R A T I 0 N
 
          
 
               Employer,                         D E C I S I 0 N
 
         
 
          and
 
         
 
         TRANSPORTATION INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Ronald E. Hoopman, against Quaker Oats, employer, and 
 
         Transportation Insurance Co., insurance carrier, defendants, to 
 
         recover benefits as a result of an injury occurring on April 30, 
 
         1986.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Cedar Rapids, Iowa, on March 1, 1990.  
 
         The record consists of the testimony of the claimant, claimant's 
 
         wife, Marcella Hoopman, and Kevin Crist; claimant's exhibits 1, 
 
         2, 3, 6, 7, 11, 12, 13 and 14; and defendants' exhibits 1, 2, 3, 
 
         7 and 9.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1. The extent of claimant's permanent disability;
 
         
 
              2. Whether claimant is entitled to be reimbursed for copies 
 
         of the depositions of Dr. Sandberg and Mark Anderson.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate.  He said he 
 
         has some special training in computers and now keeps his own 
 
         records on one at home.  He described his work history as 
 
         involving working at a dairy, driving a truck for his father's 
 
         business, a parking lot attendant, and a dye caster until he 
 
         began employment with defendant employer on August 2, 1967 as a 
 
         journeyman millwright.  Claimant stated he was in the army as a
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 2
 
         
 
         
 
         supply sergeant for two years during the above period.  Claimant 
 
         described his duties as a millwright involve the installation, 
 
         repair, removal, maintenance of equipment and keeping the 
 
         machinery running.
 
         
 
              He said he worked five eight hour days plus a lot of 
 
         overtime before his April 30, 1986 injury.  He stated he worked 
 
         one to four hours overtime many nights and some Saturdays and 
 
         Sundays.  He emphasized he always accepted overtime when offered 
 
         except if there were a death or injury involved.
 
         
 
              Claimant described his April 30, 1986 work injury.  
 
         Basically, claimant indicated he was helping to remove a six by 
 
         eight foot tank when it shifted knocking claimant to the floor 
 
         below causing him to fall on a pile of concrete rubble.  Claimant 
 
         was taken to the hospital by ambulance.  He said he fractured two 
 
         vertebrae above the belt line but the pain was in his tailbone.  
 
         Claimant described his medical treatment as being placed in a 
 
         body cast and therapy.
 
         
 
              Claimant said that in November or December 1986, Albert R. 
 
         Coates, M.D., told him he could not use hand tools or return to 
 
         his work as a millwright.  Claimant related that in February 1987 
 
         defendant employer decided to train claimant in a part-time 
 
         computer job.  Claimant was restricted by the doctor from 
 
         bending, flexing, kneeling, climbing ladders and weight 
 
         restrictions of 15-30 pounds.  Claimant said he worked at this 
 
         computer job at a millwright rate from February 1987 until July 
 
         1987 but was limited to 40 hours per week.
 
         
 
              Claimant related that on or around September 15, 1987, he 
 
         was told he was being put in a salary class with wages of $2,000 
 
         per month operating a computer and assigning a ten digit number 
 
         on equipment and machinery.  The job title was "Systems 
 
         Information Coordinator."
 
         
 
              Claimant revealed he went on a one week vacation on April 
 
         15, 1988 and upon return to work his particular job was given to 
 
         another person.  Claimant said he was given a property records 
 
         job at $2,000 per month.  He stated this job involved placing a 
 
         sticker on defendant employer's property and equipment.  He 
 
         stated this job now pays $25,900 per year.  Claimant emphasized 
 
         he does not have all the benefits at his current job that he had 
 
         before his injury like paid lunch, overtime, clothing allowance, 
 
         and company matching funds.  Claimant contends a millwright made 
 
         $39,000 in 1986 and claimant explained he would have made at 
 
         least $44,000 in 1987 with overtime.  Claimant related he made 
 
         $23,737 in 1987 and $24,015 in 1988.  Claimant stated he asked 
 
         defendant employer to move him to a higher paying job.  Claimant 
 
         said he was told his job now is nonexempt; therefore, there is 
 
         nothing else open for a change of jobs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he then looked for other jobs including 
 
         applying for a computer job at St. Luke's Hospital and a security
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS
 
         Page 3
 
         
 
         
 
         guard job.  He related he now works a second job as a security 
 
         guard at $4.00 per hour, 32 hours per week.
 
         
 
              Claimant said his present physical problems require him to 
 
         sit where he can support his arm and also cause the back of his 
 
         leg to tighten up and get numb if he does a lot of moving 
 
         resulting in a charley horse in his toes.  Claimant indicated he 
 
         never had this problem before his April 30, 1986 injury.  He said 
 
         he used to hunt, bowl, camp and drive a motorcycle.  He related 
 
         he gave up bowling and motorcycling and limited his hunting and 
 
         cannot do certain household chores, yard work and gardening.  
 
         Claimant acknowledged he still camps and has purchased a motor 
 
         home which he drivers twice a year to Pennsylvania.  Claimant 
 
         said he does not take any medication now.  He said he has pain 
 
         all the time but if he gets tense, he backs off what he is doing 
 
         and relaxes.
 
         
 
              Claimant acknowledged he has not missed work due to his back 
 
         injury since he returned to work and that he last saw Dr. Coates 
 
         around March 1989.  Claimant admitted Dr. Coates referred him to 
 
         a work hardening program but claimant said the doctor told him 
 
         his condition would not get any better.  Claimant did not go 
 
         through the work hardening program.
 
         
 
              Marcella Hoopman, claimant's wife, testified claimant did 
 
         everything before his April 1986 injury, keeping himself busy, 
 
         including repair work, building cupboards and putting in plumbing 
 
         in the kitchen.  She described claimant as a handyman.  Mrs. 
 
         Hoopman said her husband has been an adviser versus a doer since 
 
         his 1985 injury.
 
         
 
              Kevin Crist, defendant employer's safety and health manager 
 
         for four years, indicated his job includes helping an injured 
 
         employee return to work.  He emphasized claimant could not return 
 
         to work as a normal millwright worker and, therefore, could not 
 
         keep seniority.  Crist indicated he put claimant at a computer 
 
         job with millwright pay thinking claimant could repair equipment 
 
         if it broke down.  Crist said claimant objected to the job and 
 
         questioned whether he could physically do it.  He said claimant 
 
         also discussed this with Dr. Coates, resulting in claimant and 
 
         Dr. Coates having a concern about the job violating claimant's 
 
         restrictions.
 
         
 
              Crist said they worked with Lewis E. Vierling, a 
 
         rehabilitation consultant, to find a job within the company that 
 
         fit claimant's restrictions. crist emphasized claimant had no 
 
         seniority outside the millwright classification and this required 
 
         looking at a job in a different salary class to comply with 
 
         claimant's restrictions.  Crist related this resulted in claimant 
 
         getting his current job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Crist testified that recently there have been 300 workers 
 
         laid off, production is down 15 percent and defendant employer is 
 
         cutting back days to a five day work week.  He said that in 1988
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 4
 
         
 
         
 
         and 1989, the company was operating seven days a week due to the 
 
         oat bran craze and influx of capital to purchase new equipment.  
 
         He indicated that the overtime will not be sustained after the 
 
         new equipment is completely installed because there will be less 
 
         breakdown of equipment.
 
         
 
              Crist testified as to the difference between claimant's 
 
         preinjury status (exempt) and his current nonexempt status.  In 
 
         the exempt status, the employee has security and a better benefit 
 
         package.  An exempt employee can only be fired with cause and is 
 
         under collective bargaining agreement.  A nonexempt employee can 
 
         be terminated without cause, but is eligible for profit sharing 
 
         ranging from 5 to 10 percent of an employee's annual salary and 
 
         other benefits.
 
         
 
              Cindy Thul, manager of financial accounting for defendant 
 
         employer, testified by way of deposition taken October 18, 1989.  
 
         She said she graduated from the University of Iowa in 1986 with 
 
         an accounting degree and upon graduation began working for 
 
         defendant employer.  She said she currently works at overseeing 
 
         the payroll.  Nothing else from her testimony need be set out as 
 
         it does not further affect the outcome of this decision.
 
         
 
              Mark Anderson, a clinical specialist, industrial 
 
         rehabilitation, testified he deals with people who have been 
 
         injured while working and assesses these people on the basis of 
 
         what their functional capabilities and job requirements are and 
 
         then attempts to improve the person's tolerance as much as 
 
         possible within the person's restraints and physical capacity.
 
         
 
              He stated he met with claimant only once, May 4, 1987, at 
 
         the request of Mr. Vierling, who wanted to know if claimant would 
 
         benefit from a rehabilitation program at St. Luke's Hospital.  
 
         Anderson described the intake procedure at St. Luke's.  Mr. 
 
         Anderson said he discussed with claimant the vibration analyst 
 
         job that had been designed by defendant employer to try to meet 
 
         claimant's restrictions that Dr. Coates had imposed.  Anderson 
 
         indicated claimant felt this job was violating some of claimant's 
 
         restrictions.  He stated claimant thought Mr. Anderson was also 
 
         trying to eliminate claimant's restrictions.  Mr. Anderson said 
 
         he told claimant that he works on an objective basis to determine 
 
         the facts and is not biased one way or the other between the 
 
         employer and employee or insurance company.  Mr. Anderson 
 
         explained that claimant doubted his credibility so he decided 
 
         from a professional standpoint that he could not become involved 
 
         with claimant's case.  He emphasized claimant was convinced he 
 
         was involved to reduce arbitrarily claimant's restrictions and 
 
         would not be objective.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A radiology report on April 30, 1986 reflects:
 
         
 
              LUMBAR SPINE: There is a compression fracture of Ll with 
 
              approximately 50% loss of vertebral body height.  There is 
 
              also a longitudinal fracture through the
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 5
 
         
 
         
 
              spinous proces [sic] of T12.  Some spinal canal impingement 
 
              due to the fracture at Ll cannot be excluded.  The remainder 
 
              of the exam shows no evidence of fractures.
 
              
 
              IMPRESSION: Ll compression fracture with possible 
 
              impingement upon the spinal canal.  Horizontal fracture 
 
              through the spinous process of T12.
 
              
 
              THROACIC (sic] SPINE: The AP films are under penetrated.  
 
              T12 is not visualized. [S]ome degenerative changes are noted 
 
              throughout the mid and lower thoracic spine.  No gross 
 
              fractures are identified.
 
         
 
         (Defendants' Exhibit 3, page 6)
 
         
 
              On October 21, 1986, Albert R. Coates, M.D., orthopedic 
 
         surgeon, wrote:
 
         
 
                 I don't feel that he will ever be able to return to work 
 
              as a millwright in evaluating the physical requirements 
 
              which you had generously supplied on the 15th of July.  I do 
 
              feel that he is now capable of being retrained for any type 
 
              of duty which does not require heavy lifting, and that is in 
 
              anything over 30 lbs., pushing or pulling, frequent bending 
 
              or working over the head.
 
         
 
         (Def. Ex. 3, p. 11)
 
         
 
              On April 10, 1989, Dr. Coates wrote:
 
         
 
                 In recording the range of motions and declaring it 
 
              against the A.M.A. "Guides to the Evaluation of Permanent 
 
              Impairment," I come up with a 12% permanent partial 
 
              impairment of the body as a whole for the back range of 
 
              motion.
 
              
 
                 Because of the ulnar neuropathies, I feel that he carries 
 
              an 18% permanent partial impairment of the body as a whole.
 
              
 
                 I realize that this is in significant disagreement from 
 
              that reported by Dr. John Walker from Waterloo, which places 
 
              me in a somewhat compromised position because of the 
 
              appearance to my patient that I am not doing the best that I 
 
              can for him.  On the other hand, this is an honest rating.  
 
              Even though it somewhat exceeds my 15% rating in the past, I 
 
              feel that this is the current, reliable rating.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 Please be advised that I have also reviewed the x-rays 
 
              from Dr. John Walker in which there is slight
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 6
 
         
 
         
 
              anterior subluxation of the tip of the coccyx.  We do not 
 
              have lateral x-rays on the coccyx. on previous films, 
 
              however, the anterior x-ray appears to be unremarkable on 
 
              all of his previous films.  Therefore, I have not 
 
              specifically rated this area of abnormality.
 
         
 
         (Def. Ex. 3, p. 74)
 
         
 
              On April 14, 1989, Dr. Coates wrote:
 
         
 
                 I am in receipt of your letter dated April 12, 1989, for 
 
              clarification on Ronald Hoopman and I apologize for the lack 
 
              of clarity in my dictation but I consider that to be 18% 
 
              body as a whole impairment rating which includes both the 
 
              back and the ulnar neuropathies.
 
         
 
         (Def. Ex. 3, p. 75)
 
         
 
              On May 22, 1987, it appears Dr. Coates continued on a 
 
         permanent basis claimant's restrictions of no "bending, lifting, 
 
         climbing, or reaching." There appears to be no later evidence on 
 
         this question of restrictions and their continuation.
 
         
 
              On February 8, 1989, John R. Walker, M.D., an orthopedic 
 
         surgeon, wrote:
 
         
 
                 Taking all things into consideration, all diagnoses being 
 
              lumped together along with his actual loss of motion, it is 
 
              my opinion that this patient has a permanent, partial 
 
              impairment amounting to 26% of the body as a whole.  The 
 
              industrial disability, however, may be a different matter.  
 
              At the present time I certainly have no particular 
 
              suggestions for treatment except to state that a reducing 
 
              diet is certainly in order.
 
         
 
         (Claimant's Exhibit lc, page 7)
 
         
 
              On October 2, 1987, Kevin C. Crist, from the office of 
 
         defendant employer, wrote regarding claimant's salary position 
 
         versus his nonsalary position:
 
         
 
                 This job will pay $2,000 per month.  In his previous 
 
              position, Ron was making $13.42 per hour.  During 1984 and 
 
              1985, Ron earned $32,273.14 and $33,362.16 respectively.  
 
              Note, however, that this includes time and a half and 
 
              double-time wages.  Straight-time wages would not be so 
 
              high.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 Ron's new position, even though it pays less, does have 
 
              some advantages (refer to the attached).  For example, Ron 
 
              will be eligible for profit sharing each year.  Profit 
 
              sharing is a lump-sum check ranging
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS
 
         Page 7
 
         
 
         
 
              anywhere from 5-10% of an employee's annual salary.
 
              The past couple years, it has been running about 7%.
 
              
 
                  In addition, Ron will have extended coverage under the 
 
              group plan for I&A.  Nonsalaried personnel under the group 
 
              plan do not get paid for individual sick days less than 7 
 
              days in duration, and pays only 66-2/3% after 7 days.  Under 
 
              the salaried plan, Ron will get 100% of his salary while 
 
              off.
 
         
 
         (Def. Ex. 3, p. 67; Cl. Ex. 2, p. 10)
 
         
 
              On December 8, 1987, Mr. Vierling, a rehabilitation 
 
         consultant, wrote:
 
         
 
                 It appears that all remaining questions have been 
 
              resolved, and that Mr. Hoopman is very pleased with his new 
 
              job.  After contact with Mr. Crist, it is now being 
 
              recommended that this case be closed as no further 
 
              rehabilitation services appear to be needed.  Mr. Hoopman 
 
              was informed that this consultant would be closing the case, 
 
              but if he had any remaining questions, to contact the Mc/RS 
 
              office.
 
              
 
               ....
 
              
 
              Mr. Hoopman's case file will be closed, as he has returned 
 
              to work in a permanent position with Quaker Oats.
 
         
 
         (Cl. Ex. 7, p. 41)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered.... In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education,
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 8
 
         
 
         
 
              qualifications, experience and his inability, because of the 
 
              injury, to engage in employment for which he is fitted. * * 
 
              * *
 
         
 
              In Parr v. Nash Finch Co., (appeal decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability." Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
              Claimant is a 57-year-old high school graduate.  He has been 
 
         working as a millwright for approximately nineteen years before 
 
         his April 30, 1986 injury.  There is basically one major dispute 
 
         in this matter; namely, the extent of claimant's permanent 
 
         disability.  Claimant argues his loss of overtime is a major 
 
         consideration.  Claimant cites an example whereby he estimated he 
 
         would have made $39,000 in 1986 and at least $44,000 in 1987 as a 
 
         millwright but instead made $24,015 and $23,737, respectively in 
 
         those years.  Claimant is currently making approximately $26,000 
 
         as a salaried individual.  He described the fringe benefit 
 
         difference between an hourly job and a salary job and the 
 
         difference from an exempt (hourly) versus a nonexempt (salaried) 
 
         job.
 
         
 
              There are no restrictions on claimant that he cannot work 
 
         overtime.  It is obvious his current position does not offer 
 
         overtime.  It appears the old job would no longer offer the 
 
         extensive overtime it once did.  Claimant is filling that void by 
 
         working another job, but at a wage that is substantially lower 
 
         and with no opportunity for time and a half or double time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The evidence is clear that 1988 and 1989 were exceptional 
 
         years for defendant employer due to the oat bran craze as far as 
 
         offering employees substantial overtime.  It appears defendant 
 
         employer is now laying off workers and anticipates a 15 percent 
 
         reduction in production.  It appears that defendant employer has 
 
         had a substantial capital influx to replace old equipment which 
 
         will further reduce the millwright overtime hours due to less 
 
         equipment breakdown.  The undersigned cannot speculate as to the 
 
         future, either as to more or less overtime, more or less layoffs, 
 
         or more or less machinery breakdown.  We must consider the
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS 
 
         Page 9
 
         
 
         
 
         present and the stipulated weekly rate which incorporates by the 
 
         law the rate based on claimant's gross income at the time of this 
 
         April 30, 1986 injury.
 
         
 
              Claimant is motivated as he has found a second job as a 
 
         security guard working 32 hours per week in order to replace his 
 
         lost income, partly resulting from loss of overtime and partly as 
 
         a result of earning less in his current salaried job versus the 
 
         millwright job.
 
         
 
              There was testimony concerning claimant's refusal to work 
 
         with Mark Anderson, a rehabilitation specialist, concerning the 
 
         advisability of a work hardening program.  It seems claimant 
 
         resisted these efforts thinking his restrictions would be reduced 
 
         or eliminated.  This is surprising. one would think claimant 
 
         would want to proceed with care provided for him at the 
 
         employer's expense to try to return claimant to his status, if 
 
         possible, prior to his April 30, 1986 injury.  At least, an 
 
         attempt would be reasonable.  The undersigned believes claimant 
 
         falsely convinced himself that his restrictions were going to be 
 
         removed without his doctor's consultation and final decision and 
 
         that Mr. Anderson, or the defendants, had some other ulterior 
 
         motive.  There could have been no harm in going through the 
 
         program or at least see whether it was for sure advisable.  The 
 
         program could have been successful, resulting in claimant's 
 
         return to the millwright job, it could have proven claimant needs 
 
         the current restrictions continued or actually increase 
 
         restrictions.  Usually, a claimant complains because defendants 
 
         will not pay for such a program and claimant desires to get back 
 
         to his or her status before the injury.  Contrary to what 
 
         claimant may think, his position of refusing medical help does 
 
         not help him and can have an effect on the extent of claimant's 
 
         industrial disability.
 
         
 
              Defendant employer appears to have made considerable effort 
 
         to accommodate the restrictions placed on claimant by Dr. Coates 
 
         in October 1986 (Def.  Ex. 3, p. 11).  It seems as though 
 
         claimant was hard to please and yet didn't want to go through a 
 
         work hardening program.  It is hard to help someone who does not 
 
         want to help themselves.  The employer is to be congratulated for 
 
         its efforts.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's regularly treating doctor, Dr. Coates, an 
 
         orthopedic surgeon, opined an 18 percent impairment to claimant's 
 
         body as a whole.  Dr. Walker, an orthopedic surgeon, whom 
 
         claimant went to for an evaluation in February 1989, opined a 26 
 
         percent permanent partial impairment to the body as a whole.
 
         
 
              Dr. Coates has been treating claimant over a lengthy period 
 
         of time.  The undersigned believes Dr. Coates, opinion is more 
 
         accurate as it relates to claimant's condition.  The undersigned 
 
         finds claimant has an 18 percent permanent partial impairment to 
 
         the body as a whole.
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS
 
         Page 10
 
         
 
         
 
              Claimant definitely has a loss of income.  There is another 
 
         major factor to consider.  Claimant currently can no longer work 
 
         at his millwright position at which he worked for 19 years before 
 
         being injured.  He appeared to have had a full active life before 
 
         his injury.  It appears claimant has a weight problem but this is 
 
         not much different than his condition before his injury.
 
         
 
              There are several factors to consider in determining 
 
         industrial disability.  Some have already been discussed above.  
 
         Considering claimant's age, education, lack of prior injuries, 
 
         length of healing period to which the parties stipulated, 
 
         motivation and loss of income, and all other industrial 
 
         disability criteria, the undersigned finds claimant has a 30 
 
         percent industrial disability.
 
         
 
              Claimant contends defendants should pay for the costs of 
 
         claimant's copies of two depositions taken by defendants.  If a 
 
         party wants a copy of his or her own deposition of witnesses 
 
         taken by the other party, this is a cost of doing business and 
 
         the respective parties shall pay for its own copy.  Claimant, 
 
         therefore, is responsible for paying for his own copies of the 
 
         depositions.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant's work-related injury on April 30, 1986 resulted 
 
         in claimant incurring an 18 percent permanent partial impairment 
 
         to his body as a whole.
 
         
 
              2.Claimant has work restrictions as a result of his April 
 
         30, 1986 injury which resulted in claimant no longer being able 
 
         to perform a job as a millwright.
 
         
 
              3. Claimant has a loss of income as a result of his April 
 
         30, 1986 injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4. Claimant refused to proceed with consultation to consider 
 
         the advisability of a work hardening program aimed at helping 
 
         claimant to return to his former work as a millwright.  
 
         Claimant's reason for refusing is not credible.
 
         
 
              5. Claimant has incurred a loss of earning capacity as a 
 
         result of his April 30, 1986 work injury.
 
         
 
              6. Claimant is responsible for paying for his own copies of 
 
         any depositions taken of any witnesses.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's work injury on April 30, 1986 caused claimant to 
 
         incur an 18 percent permanent partial impairment to his body as a 
 
         whole, restrictions preventing him from doing millwright work, 
 
         and a loss of income.
 
         
 
         
 
         
 
         HOOPMAN V. QUAKER OATS
 
         Page 11
 
         
 
         
 
              Claimant has a 30 percent industrial disability.
 
         
 
              Claimant is responsible for paying for his own copies of 
 
         witness depositions.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              1. That claimant is entitled to one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the weekly rate 
 
         of three hundred seventy and 75/100 dollars ($370.75) beginning 
 
         March 2, 1987.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Claimant have previously paid the 
 
         stipulated healing period benefits and one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits, 
 
         representing a twenty-five percent (25%) industrial  disability.
 
         
 
              Claimant shall be responsible for the payment of the costs 
 
         of their own copies of depositions of witnesses.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              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, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Signed and filed this 26th day of April, 1990. 
 
         
 
         
 
                                         BERNARD J.O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Robert R Rush
 
         Mr Matthew J Nagle
 
         Attorneys at Law
 
         526 2nd Ave SE
 
         P 0 Box 2457
 
         Cedar Rapids IA 52406
 
         
 
         Mr James E Shipman 
 
         Attorney at Law 
 
         1200 MNB Bldg
 
         Cedar Rapids IA 52401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed 4-26-90
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          RONALD E. HOOPMAN,
 
         
 
               Claimant,                 :            File No. 822543
 
         
 
         VS.:                                       A R B I T R A T I O N
 
         
 
          QUAKER OATS COMPANY,                          D E C I S I O N
 
         
 
               Employer,
 
         
 
          and
 
         
 
          TRANSPORTATION INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
         
 
              Claimant awarded 30% industrial disability.  Claimant is a 
 
         57-years-old high school graduate who, after 19 years as a 
 
         millwright, could no longer work in that type of position due to 
 
         his work injury.     Claimant was switched by defendant employer 
 
         to a lesser paying job to comply with claimant's restriction.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE L. THOREN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 846698 & 822586
 
            CROUSE CARTAGE COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Wayne L. 
 
            Thoren, claimant, against Crouse Cartage Company, employer 
 
            (hereinafter referred to as Crouse), and Liberty Mutual 
 
            Insurance Company, insurance carrier, defendants, for work
 
            ers' compensation benefits as a result of alleged injuries 
 
            on April 18, 1986 and April 7, 1987.  On July 19, 1990, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Crouse at the time of the alleged injuries.
 
            
 
                 2.  On April 18, 1986, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Crouse.  The alleged injury of April 7, 1987, is disputed.
 
            
 
                 3.  If defendants are liable for the alleged April 7, 
 
            1987 injury, claimant would be entitled to temporary total 
 
            disability/healing period benefits only from October 1, 1987 
 
            through January 31, 1988.  Claimant admits to payment of his 
 
            full entitlement to such benefits as a result of the April 
 
            18, 1986 injury.
 
            
 
                 4.  The work injury of April 18, 1986, is a cause of 
 
            permanent disability, the extent to which is in dispute.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  Permanent disability benefits as a result of the 
 
            April 18, 1986 injury shall begin on April 3, 1987.  Perma
 
            nent disability benefits for the alleged April 7, 1987 
 
            injury, if awarded, shall begin on February 1, 1988.
 
            
 
                 6.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $365.29 for the April 18, 1986 injury and $348.61 for the 
 
            April 7, 1987 injury.
 
            
 
                 7.  All requested medical benefits have been or will be 
 
            paid by defendants as a result of the April 18, 1986 injury.  
 
            With reference to the medical bills submitted for the 
 
            alleged April 7, 1987 injury, such bills are fair and rea
 
            sonable and causally connected to the medical condition upon 
 
            which the claim is based but that the issue of their causal 
 
            connection to a work injury remained at issue.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment on April 7, 1987;
 
            
 
                  II.  The causal connection of the injuries to perma
 
            nent disability;
 
            
 
                 III.  The extent of claimant's entitlement to permanent 
 
            disability benefits for both injuries; and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits as a result of the April 7, 1987 injury.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the various 
 
            injuries and disabilities.  From their demeanor while testi
 
            fying, claimant and his witnesses were found credible.
 
            
 
                 Claimant, age 57, has worked for Crouse since 1966 and 
 
            continues to do so at the present time.  Claimant has actu
 
            ally worked as a driver out of the same terminal since 1953.  
 
            His former employer was bought out by Crouse in 1966.  
 
            Before the April 18, 1986 work injury, claimant was an 
 
            over-the-road truck driver hauling freight between Crouse 
 
            terminals.  This driving job required loading and unloading 
 
            freight.  Since his return to work in April of 1987 follow
 
            ing the work injury, claimant became a dock worker/pedal 
 
            driver.  As a dock worker, claimant loads and unloads trucks 
 
            mostly operating a forklift truck but occasionally is 
 
            required to perform heavy lifting of approximately 60 
 
            pounds.  Claimant also drives a pedal route or a route in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which he picks up and delivers freight in the Fort Dodge 
 
            area.  At the present time, claimant is engaged in employ
 
            ment covered by a union contract which provides to him the 
 
            highest seniority at the terminal entitling claimant to bid 
 
            and probably receive any union job out of the terminal.  
 
            This would include two over-the-road trucker positions.  In 
 
            his deposition in March 1990, claimant expressed plans to 
 
            retire from Crouse due to his chronic pain, but he had not 
 
            done so at the time of hearing.  Claimant stated that he 
 
            needs the money to support himself and his family and must 
 
            continue to work.  Claimant earned approximately $26,000 
 
            annually from his job as a driver in 1985.  This income 
 
            dropped to approximately $14,000 in 1986 and in 1987.  
 
            Claimant only worked a portion of these years due to treat
 
            ment of injuries claimed worked related herein.  In 1988, 
 
            claimant earned $24,000 and in 1989 he earned $33,000.  
 
            Claimant's current hourly rate is $13.01 per hour.  Both 
 
            claimant and Crouse management testified at hearing that the 
 
            over-the-road trucker position pays considerably more than 
 
            claimant's present position.
 
            
 
                 On or about April 18, 1986, claimant injured his head, 
 
            neck, right hand and right shoulder when he was struck by a 
 
            falling overhead door of a trailer while unloading his 
 
            truck.  Claimant sought and received immediate treatment and 
 
            improved from the treatment.  However, claimant experienced 
 
            chronic pain in the right shoulder.  He was then referred 
 
            for treatment to an orthopedic specialist, Robert 
 
            Weatherwax, M.D.  Dr. Weatherwax diagnosed claimant's condi
 
            tion as chronic impingement of the acromioclavicular joint.  
 
            When conservative care failed to alleviate claimant's 
 
            symptoms, Dr. Weatherwax surgically repaired the shoulder in 
 
            June of 1986.
 
            
 
                 Despite the existence of significant arthritis of 
 
            claimant's right shoulder prior to the injury, the injury of 
 
            April 18, 1986 was a significant cause of claimant's treat
 
            ment and surgery.  The injury aggravated the shoulder which 
 
            had been previously asymptomatic and probably would have 
 
            remained so but for the injury.  This causal connection was 
 
            the uncontroverted opinion of Dr. Weatherwax.
 
            
 
                 The injury of April 18, 1986, also was a cause of a 20 
 
            percent permanent partial impairment to the right arm.  This 
 
            finding is based upon the views of Dr. Weatherwax.  Robert 
 
            Walker, M.D., an orthopedic surgeon from Waterloo, also pro
 
            vided a rating but this rating did not have the same weight 
 
            as that of the treating orthopedic surgeon.  Dr. Weatherwax 
 
            initially imposed work restrictions due to the shoulder 
 
            injury consisting of no overhead lifting, reaching or heavy 
 
            lifting.  Dr. Weatherwax, in his deposition, stated that 
 
            presently he would only limit claimant to those activities 
 
            which would cause him difficulty.  Claimant describes con
 
            tinuing severe reduction in the strength of his right hand 
 
            and arm.
 
            
 
                 After his return to work following the April 18, 1986 
 
            injury, claimant injured his low back on April 7, 1987.  
 
            This injury arose out of and in the course of his employ
 
            ment.  Claimant fell from a dock area onto cement and suf
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            fered the onset of back and leg pain.  Claimant received 
 
            treatment from Samir Wahby, M.D., another orthopedic sur
 
            geon.  This treatment consisted of rest and medication.  
 
            Claimant eventually improved from this treatment and was 
 
            released to return to work by Dr. Wahby on April 15, 1987.
 
            
 
                 Claimant left work again at the end of April 1987 and 
 
            did not return to work until the end of August 1987.  This 
 
            absence from work was due to diverticulitis, a condition 
 
            unrelated to claimant's work.  Claimant said that his back 
 
            improved during this time and did not seek additional treat
 
            ment until October 1, 1987.  At that time claimant reported 
 
            that he had been lifting a 200 pound sack at work causing 
 
            back and buttocks pain.  Claimant was then hospitalized and 
 
            a bulging vertebral disc at the L5-S1 level was confirmed by 
 
            a CAT scan diagnosis.  Claimant's physicians have opined 
 
            that surgery would not be beneficial for claimant's problem 
 
            and claimant's treatment is to remain conservative with 
 
            medication and rest as needed.  Claimant remained off work 
 
            until February 1, 1988, at which time he returned to the 
 
            dock/pedal driver job at Crouse.  In September 1988, a dock 
 
            door fell on claimant's upper torso injuring his head and 
 
            neck.  Claimant complained of shoulder and back pain and 
 
            continuing headaches after this incident.
 
            
 
                 A finding could not be made that the back injury of 
 
            April 7, 1987, was a cause of permanent partial impairment 
 
            or permanent disability.  The evidence presented only shows 
 
            that claimant probably aggravated a chronic long-standing 
 
            problem.  Claimant has had a severe back condition and dis
 
            ability for a number of years.  However, claimant has had 
 
            too many prior and subsequent back injuries to single out 
 
            only the April 7, 1987 injury as the cause.  That injury 
 
            appears relatively mild compared to some of his other back 
 
            injuries before and after April 1987.  At hearing, claimant 
 
            discussed many injuries.  In May 1975, claimant hurt his 
 
            back while lifting steel.  In January 1977, claimant 
 
            reported to Dr. Fisher (first name unknown) severe low back 
 
            pain after lifting at work.  In February 1984, claimant 
 
            reported to Dr. Fisher that he slipped on oil and suffered 
 
            low back pain.  In July 1980, a 55 gallon barrel fell on 
 
            claimant and claimant was off work due to low back pain for 
 
            approximately three months.  In May 1985, Dr. Fisher diag
 
            nosed degenerative disc disease of the spine and progressive 
 
            low back pain.  Subsequent to the injury involved in this 
 
            case, claimant received a back injury on October 1, 1987, 
 
            while lifting at work.  He also reported aggravated back 
 
            pain from the September 1988 incident involving his upper 
 
            torso.
 
            
 
                 The expert testimony offered by claimant in support of 
 
            the causal connection of his chronic back pain to the April 
 
            1987 injury was not convincing.  Dr. Walker certainly opined 
 
            extensive permanent partial impairment due to low back prob
 
            lems but never rendered a causal connection opinion as to 
 
            its cause.  Notably absent from Dr. Walker's report also was 
 
            the fact that claimant was absent during the summer and fall 
 
            of 1987 as a result of problems other than his low back 
 
            pain.  Dr. Wahby and Robert Carlstrom, M.D., both opined in 
 
            this case that claimant's back pain is due to the April 7, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1987 fall at work.  However, neither of these two physicians 
 
            mentioned in their reports any of claimant's prior low back 
 
            injuries or the October 1, 1987 injury.  Their opinions must 
 
            be rejected as they are based apparently on an incorrect 
 
            history.
 
            
 
                 As a result of the work injury of April 18, 1986, 
 
            claimant has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was not 
 
            excellent and he had numerous low back injuries.  Claimant 
 
            claims that his loss of earnings between 1985 and 1986 are 
 
            the result of the loss of his over-the-road trucking job due 
 
            to the shoulder problems.  However, at hearing and in his 
 
            deposition testimony, claimant was asked to describe the 
 
            physical problems which prohibit his over-the-road trucking. 
 
            In response, claimant only mentioned his low back problems 
 
            and stiffness while riding in a truck cab for a prolonged 
 
            period of time.  As set forth above, claimant's continuing 
 
            low back problems are not found due to the April 7, 1987 
 
            injury.  On the other hand, claimant has shown permanent 
 
            partial impairment and restrictions on day-to-day activities 
 
            as a result of his work related upper extremity and shoulder 
 
            problems.  Claimant is 57 years of age and close to retire
 
            ment.  He has only an eighth grade education but is nearing 
 
            the end of his employment life.  Claimant's past employment 
 
            primarily consists of heavy work which he would have diffi
 
            culty performing today.  However, again much of his disabil
 
            ity is due to back problems which are not attributable to 
 
            any injury involved in this case.
 
            
 
                 Claimant submitted medical bills for treatment after 
 
            October 1987.  As this was after the lifting incident of 
 
            October 1, 1987, they could not be found causally connected 
 
            to the April 7, 1987 injury.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active 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 
 
            therein.
 
            
 
                 In the case sub judice, claimant was able to show that 
 
            he suffered an aggravation injury.  However, the preponder
 
            ance of the evidence failed to demonstrate that claimant's 
 
            ongoing permanent chronic low back problems are due to this 
 
            single injury in April of 1987.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  How
 
            ever, in some instances, such as a job transfer caused by a 
 
            work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant failed to show that 
 
            his chronic low back problems were compensable but he was 
 
            able to show that his shoulder injury and his chronic prob
 
            lems stemming from that injury are causally connected to 
 
            permanent partial disability.  Despite the fact that Dr. 
 
            Weatherwax only gave claimant a permanent partial impairment 
 
            rating to the arm, claimant has demonstrated that the injury 
 
            is not confined to the arm and that the injury and treatment 
 
            extended beyond the arm into the shoulder joint which has 
 
            long been recognized as an injury to the body as a whole.  
 
            Alm v. Morris Barick Cattle Co., 240 Iowa ll74, 38 N.W.2d 
 
            161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 
 
            N.W.2d 569 (1943).
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  How
 
            ever, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury of April 18, 1986.  Based upon such a 
 
            finding, claimant is entitled as a matter of law to 100 
 
            weeks of permanent partial disability benefits under Iowa 
 
            Code section 85.34(2)(u) which is 20 percent of 500 weeks, 
 
            the maximum allowable number of weeks for an injury to the 
 
            body as a whole in that subsection.
 
            
 
                 The causal connection of the injury to temporary total 
 
            disability was disputed by the defense.  As claimant 
 
            returned to work on April 15 following the April 7, 1987 
 
            injury, that would appear to be the end of the healing 
 
            period for the April 7, 1987 injury.  Therefore, claimant 
 
            has shown entitlement to temporary total disability from 
 
            April 7, 1987 through April 15, 1987.  There was an extended 
 
            time off work beginning after the October 1, 1987 injury.  
 
            However, a causal connection between that period of disabil
 
            ity and the April 7, 1987 injury could not be found.  There 
 
            is no dispute as to entitlement to temporary total disabil
 
            ity for the April 18, 1986 injury.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of  reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, no finding was 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            made causally connecting claimant's treatment after October 
 
            1, 1987 to the April 7, 1987 injury and, therefore, the 
 
            requested expenses cannot be awarded.
 
            
 
                 Both parties to this case are denied costs due to the 
 
            lack of organization and the duplicitous nature of the writ
 
            ten evidence presented.  According to the prehearing assign
 
            ment order, the parties are to meet in advance of hearing to 
 
            eliminate duplication and to organize the record in a pre
 
            sentable fashion.  This was not done by the parties.  Both 
 
            parties will pay their own costs incurred to date.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 1.  Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred sixty-five and 29/l00 dollars ($365.29) 
 
            from April 3, 1987.
 
            
 
                 2.  Defendants shall pay to claimant temporary total 
 
            disability benefits at the rate of three hundred forty-eight 
 
            and 61/l00 dollars ($348.61) per week from April 7, 1987 
 
            through April 15, 1987.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive a credit against this award for 
 
            the ninety-five (95) weeks of benefits previously paid as 
 
            set forth in the prehearing report.
 
            
 
                 4.  Defendants shall pay interest on unpaid weekly ben
 
            efits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 5.  Each party shall pay their own costs of this 
 
            action.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert L. Ulstad
 
            Attorney at Law
 
            1031 Central Ave
 
            P O Box 1678
 
            Fort Dodge  IA  50501
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge  IA  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 24, 1990
 
                                               LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE L. THOREN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :     File No. 846698 & 822586
 
            CROUSE CARTAGE COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Extent of permanent partial disability benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA PUGH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 822827
 
         MULTIPLEX BUSINESS FORMS,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Linda Pugh, 
 
         claimant, against Multiplex Business Forms, employer, and 
 
         Fireman's Fund Insurance Companies, insurance carrier, 
 
         defendants, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result or an injury occurring April 17, 
 
         1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on August 11, 1988, and was 
 
         considered fully submitted at the close of the hearing.
 
         
 
              The record in this case consists of the testimony of the 
 
         claimant, Cheryl Ashley, Geoffrey Marsh and Richard Williams; 
 
         also, joint exhibits 1, 2, and 4 through 13 were admitted into 
 
         evidence, along with claimant's exhibits A through C and 
 
         defendants' exhibit 2.  Objections were interposed by defendants 
 
         to certain opinions expressed at pages 19 and 86 of exhibit 3; 
 
         ruling was reserved.  The objections are at this time overruled 
 
         and joint exhibit 3 is received into evidence.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted and approved 
 
         August 11, 1988, the issues that remain for determination include 
 
         whether claimant's injury arose out of and in the course of her 
 
         employment, the extent of healing period and permanent partial 
 
         disability, and whether her disability is causally relates to the 
 
         alleged job injury.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant was employed by defendant from April 4, 1974 
 
         through the date of her discharge on June 3, 1986.  At the time 
 
         of the alleged work injury, the claimant worked as a "jogger" on 
 
         the night shift, working a full-time position.
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   2
 
         
 
         
 
         
 
              The employer is in the business of printing and 
 
         manufacturing forms used by hospitals and medical offices, along 
 
         with other businesses.  A "jogger" works as a helper on a 
 
         collating machine and is responsible for gathering together 
 
         collated forms, straightening them out with the assistance of a 
 
         vibrating surface, and boxing them.  Approximately one month 
 
         before the alleged work injury, the claimant was transferred to a 
 
         continuous collator machine, and undertook work similar to that 
 
         which she had previously done, but which she considered somewhat 
 
         heavier.
 
         
 
              The claimant worked her full shift on April 17, 1986.  She 
 
         does not recall any unusual events, injuries, pains or other 
 
         untoward events.  She thought that the work was unusually heavy 
 
         on that particular evening (lifting boxes that averaged 35-40 
 
         pounds).  Production manager (then production supervisor), 
 
         Richard Williams, testified that the employer's business records 
 
         reflect that boxes averaged 14 pounds on that night, and that ail 
 
         boxes fen within a range of 10-20 pounds.  On nights immediately 
 
         preceding the claimed work injury, average weights were 24, 25 
 
         and 26 pounds.
 
         
 
              In any event, the claimant awoke on the morning of April 18, 
 
         1986 with neck pain and stiffness.  Her regular physician did not 
 
         see her, but advised treatment through moist heat and aspirin.  
 
         The claimant next worked on the following Monday, but still 
 
         suffered from pain in the right side of her neck.
 
         
 
              The employer made an appointment for the claimant with Scott 
 
         A. Honsey, M.D., a company doctor.  Dr. Honsey saw the claimant 
 
         on April 26, 1986, at which time she was complaining of neck and 
 
         shoulder discomfort of one week's duration.
 
         
 
              Dr. Honsey reported (letter of May 9, 1986, deposition 
 
         exhibit 3 attached to joint exhibit 1):
 
         
 
              At the time of her initial presentation, Ms. Pugh 
 
              complained of pain in the right shoulder area, 
 
              specifically the trapezius muscle area for 
 
              approximately 7-10 days prior to her arrival in the 
 
              office.  She could not relate a specific injury or 
 
              specific event which initiated her discomfort, but felt 
 
              it might have occurred at work, but was not certain of 
 
              this. * * * Physical exam at that time revealed 
 
              essentially very well localized tenderness to the right 
 
              trapezius muscle.  There was (sic] no neck symptoms at 
 
              all.  She had full range of motion in the neck and 
 
              there was no radiation of the pain.  She did, however, 
 
              have a fair amount of palpable spasm in the trapezius 
 
              muscle.
 
         
 
              * * *
 
         
 
              She returned on 5-2 for a recheck of her neck and was 
 
              seen by Dr. Christopher Rock.  She at that time was 
 
              apparently complaining of continued pain and burning 
 
              sensation and sometimes numbness going down the right 
 
              arm.  Physical exam revealed her to have full range of 
 
              motion of the shoulder, some tenderness in the 
 
              trapezius muscle region and sternocleidomastoid and 
 
              some tenderness over the C5-C6 spinous region.  She had 
 
              full range of motion of the neck and she had normal 
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   3
 
         
 
         
 
              reflexes, strength and sensation in the upper 
 
              extremities.  He assessed her as a shoulder strain, * * 
 
              *. C-spine films were obtained during that visit which 
 
              showed essentially a normal C-spine with some slight 
 
              reversal of the normal cervical spine curve, consistent 
 
              with her soft tissue injury.
 
         
 
              * * *
 
         
 
              I re-evaluated her yesterday and found that she 
 
              continued to have pain in her right lateral neck, as 
 
              well as some mild spasm in the trapezius area.  The 
 
              physical exam was remarkable only for the mild spasm of 
 
              the right trapezius and minimal tenderness along the 
 
              lateral neck.  I was uncertain at the time whether the 
 
              tenderness was real or factitious as per my note. * * * 
 
              As per our conversation, I recommended an orthopedic 
 
              referral be obtained it this persists, as I am not 
 
              certain as to whether or not she has disease enough to 
 
              account for her symptoms.  As per our conversation, she 
 
              did not give a time or date of a specific injury at 
 
              work and I don't really feel that this qualifies as a 
 
              workmans comp. case.
 
         
 
              The claimant later saw neurosurgeon Stuart R. Winston, M.D., 
 
         on May 28, 1986.  His office notes indicate that the claimant 
 
         complained of neck problems, lots of pain in the trapezius area 
 
         and numbness and tingling in her right hand.  Upon examination, 
 
         Dr. Winston found that she had full range of motion of the neck, 
 
         but tension right.  He ordered EMG and nerve conduction studies 
 
         which were reported back as essentially normal on May 30, 1986.  
 
         Dr. Winston reported to Dr. Honsey in a May 28, 1986 letter as 
 
         follows (deposition exhibit 2, joint exhibit 1):
 
         
 
              We saw Linda in the office on the 28th with respect to 
 
              her April 18 onset of neck and some intermittent right 
 
              upper extremity discomfort.  X-rays of her cervical 
 
              spine are essentially normal from Charter taken the 2nd 
 
              of May except for perhaps some mild narrowing at the 
 
              C6-7 level.  She does have some muscular tension of her 
 
              neck although she has full range of motion and I 
 
              question whether she may have some mild paresis of the 
 
              right triceps although her reflexes are symmetric and 
 
              there are no pathologic neurologic signs relative to 
 
              this.
 
         
 
              I can't exclude cervical radicular compression although 
 
              certainly I think she would be having a lot more arm 
 
              pain with the kind of healthy cervical spine film that 
 
              she has should she have frank nerve root compression.  
 
              I am going to be obtaining an EMG and nerve conduction 
 
              study in an attempt to see whether there is anything 
 
              else going on here and will give you some follow up 
 
              following her next visit.
 
         
 
              Dr. Winston reported again to Dr. Honsey on June 2, 1986 
 
         (deposition exhibit 2, employer's exhibit 1):
 
         
 
              Lindas EMG was essentially normal with no indication of 
 
              cervical root compression.  She does have a tendency, 
 
              as most factory workers have, toward a right carpal 
 
              tunnel syndrome but obviously this is not causing the 
 
              cervical discomfort that she has.  My impression is 
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   4
 
         
 
         
 
              that with a job description just preceding the onset of 
 
              this that it probably is due to her work.
 
         
 
              Dr. Winston reexamined the claimant on April 10, 1987, and 
 
         reported in a letter to her attorney of April 20, 1987 
 
         (deposition exhibit 2, employer's exhibit 1) that she suffered 
 
         from chronic cervical strain "and recurrent with limited 
 
         extension and rotation primarily to the right.  She has no 
 
         neurologic deficit and I do not believe that her problem has a 
 
         foundation in the central peripheral nervous system, but rather a 
 
         continuing pain state secondary to such a soft tissue disorder."
 
         
 
              Dr. Winston went on to opine that there existed a causal 
 
         relationship between the claimant's job and the need for 
 
         medication and treatment along with permanent partial impairment 
 
         of three percent.  Dr. Winston's June 2 letter to Dr. Honsey 
 
         indicated that his opinion that the claimant's medical problems 
 
         were related to her work was based on a job description given him 
 
         by the claimant.  His office notes do not indicate that the 
 
         claimant pointed out that the work was particularly heavy 
 
         immediately before her symptoms appeared, but do show "assumed 
 
         from lifting at work" and "boxing & lifting continuous forms is 
 
         her job - at table height."  Dr. Winston's report to Mr. Hedberg 
 
         on April 20, 1987 was based in part upon a two-page medical 
 
         history.prepared by Mr. Hedberg (exhibit 1, pages 10-11).  That 
 
         history is appended to the deposition that constitutes exhibit 1, 
 
         and set forth in pertinent part:
 
         
 
              On April 17, 1986, she had an exceptionally heavy day 
 
              at work.  Four weeks prior to this day she had been 
 
              moved to a new collator machine which required her to 
 
              lift much more and to work with her arms extended out 
 
              in front of her.
 
         
 
              Dr. Winston also relied in his report to Mr. Hedberg on the 
 
         claimant's answer to interrogatory number 15, part of the 
 
         discovery in this case prior to hearing.  That answer is marked 
 
         as deposition exhibit 4 attached to exhibit 1, and consists of 
 
         the following:
 
         
 
              15.  Describe in claimant's own words the event of 
 
              April 17, 1986, in which Claimant contends she 
 
              sustained any injury as alleged in her petition.
 
         
 
              ANSWER:  On April 17, 1986, I had an especially heavy 
 
              night at work.  I worked the 4 p.m. to 12 midnight 
 
              shift.  When I awoke the next day, I had severe pain in 
 
              my neck.  I could hardly turn my head because of the 
 
              pain and tightness in my neck.
 
         
 
                 For most of the 12 years I had worked at Briggs, I 
 
              worked as a collator jogger on a snap-out forms 
 
              collator.  My job was to pick up small, light-weight 
 
              handfuls of snap-out forms, jog them and put them in 
 
              boxes.  About four weeks before my neck injury, I was 
 
              moved to a continuous forms collator.  The continuous 
 
              forms collator was much different.  It involved lifting 
 
              very large and sometimes very heavy bundles of 
 
              continuous forms (800 to 1500 forms per bundle).  On an 
 
              average, the continuous bundles weighed 35 to 40 pounds 
 
              and I would normally lift 50 to 100 bundles a night.  I 
 
              had to lift the large, heavy bundles at waist level 
 
              with my arms stretched out.
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   5
 
         
 
         
 
         
 
              On January 12, 1987, the claimant was examined by Alfredo 
 
         Daniel Socarras, M.D.  Dr. Socarras specializes in neurology.  He 
 
         performed a neurological examination, which involved testing 
 
         various nerves dealing with the face and muscles (exhibit 2, page 
 
         8) and eventually concluded on the basis of the claimant's 
 
         symptomatology (but not signs of any disorder) that she might 
 
         have a mild carpal tunnel syndrome.  He further opined, at page 
 
         10 of his deposition (exhibit 2):
 
         
 
              In addition, I felt that her neck problem was more or 
 
              less due to muscle tension rather than due to any 
 
              structural changes, by that meaning any degeneration of 
 
              the cervical disc or cervical spine.  There was nothing 
 
              indicative of that in my examination, as well as 
 
              viewing the tests that had been performed previously, 
 
              x-rays, and so on.  There was not indication of that.
 
         
 
              Dr. Socarras further noted that the foraminal compression 
 
         test was negative, indicating no inflammation of the nerve in the 
 
         cervical spine, and no muscle weakness or atrophy.  This would 
 
         indicate no compromise of the nerve supply to the muscle.  He saw 
 
         no indication that the claimant's neck was tilted or in a spasm 
 
         (page 12) and concluded that the claimant was fully capable of 
 
         returning to her prior employment in the event that she lost some 
 
         weight.  He believed the claimant capable from a neurological 
 
         standpoint of lifting eight bundles an hour weighing between 
 
         35-40 pounds (page 29).  Dr. Socarras found no muscle spasms in 
 
         the claimant at the time of his examination.  The significance of 
 
         this finding is that it indicates no underlying irritation of the 
 
         soft tissues or pinched nerve (page 21-22).  In discussing Dr. 
 
         Winston's report of cervical strain, he commented at page 23 of 
 
         the deposition:
 
         
 
              Cervical strain is also a big bag for many things, and 
 
              it doesn't necessarily mean--it is just that, a strain 
 
              of the muscles, and I think that is also sometimes a 
 
              reflection of tension.
 
         
 
              People in the daily stresses that we all have, 
 
              sometimes we cannot relax the muscles in the proper 
 
              fashion, and this will cause some discomfort.  So that, 
 
              again, is more sometimes subjective than objective, and 
 
              it is hard to measure.  You cannot measure those 
 
              things.
 
         
 
              Dr. Socarras summarized his findings in a January 12, 1987 
 
         letter to defendants' attorney, Dorothy L. Kelley (deposition 
 
         exhibit 2, attached to exhibit 2):
 
         
 
              On neurological examination:  patient was alert, 
 
              oriented and cooperative.  She was obese.  Her weight 
 
              was 275 lbs.. Her height was 5'4".  Her blood pressure 
 
              was 160/110.  Her speech was normal.  Cranial nerves 
 
              were intact.  Fundi were unremarkable.  Motions of the 
 
              cervical and lumbar spine were within normal limits.  
 
              Foraminal compression test was negative.  I could not 
 
              ellicit [sic] a Tinels sign over the right median nerve 
 
              at the level of the wrist.  The Phalen's sign was also 
 
              negative.  There was no muscle weakness or atrophy.  
 
              Reflexes were active and equal.  There was no 
 
              pathological reflex.  Superficial sensation as well as 
 
              proprioception were normal.  Gait and coordination were 
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   6
 
         
 
         
 
              also normal.  In summary there was no neurological 
 
              deficit.  I could not find any evidence of cervical 
 
              radiculopathy.  Some of her symptoms may be related to 
 
              a mild right carpal tunnel syndrome.  I feel that her 
 
              neck symptoms are most likely related to muscle 
 
              tension.  There is no indication of cervical 
 
              spondylosis.  From the neurological standpoint I find 
 
              no functional impairment.
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of her 
 
         employment.  Iowa Code section 85.3(l).  The claimant must prove 
 
         by a preponderance of the evidence that her injury arose out of 
 
         and in the.course of her employment.  Musselman v. Central 
 
         Telephone Co., 260 Iowa 252, 154 N.W.2d 128 (1967).  The concept 
 
         of arising out of" suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 17, 1986 is causally 
 
         relates 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 
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   7
 
         
 
         
 
         (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 stich an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
                                     ANALYSIS
 
         
 
              The initial question for determination is whether the 
 
         claimant's injury arose out of and in the course of her 
 
         employment.  As noted, a possibility that her injury arose out of 
 
         her employment is insufficient; rather, a probability is 
 
         necessary.  Burt, supra.  The record in this case reflects only 
 
         that the claimant awakened one morning with neck pain and 
 
         stiffness.  The deputy accepts as established that claimant did 
 
         not perform unusually heavy work the night before.  She frankly 
 
         concedes that she can point to no unusual instance of pain, 
 
         "pulling" or the like that occurred at work and which she can 
 
         relate to her symptoms.  As pointed out in defendants' brief, the 
 
         neck muscle spasm found by the most-immediate treating physician, 
 
         Dr. Honsey, may well have resulted from activities at home or 
 
         even sleeping in an awkward position.  The claimant is five feet 
 
         four and one-half inches, and weighed 275 pounds at the time of 
 
         her injury.  It is necessary to review the medical evidence to 
 
         determine whether the claimant has met her burden of proof in 
 
         establishing a probability that her injuries resulted from or 
 
         were caused by a work injury.
 
         
 
              As described earlier, Dr. Honsey was the most-immediate 
 
         treating physician. he had serious questions as to whether the 
 
         claimant's symptomatology was real or factitious and concluded 
 
         that this was not a workers' compensation case.  He found no neck 
 
         symptoms at all, but did find palpable spasm in the trapezius 
 
         muscle (a muscle of the back).  He considered that the claimant 
 
         had a soft tissue injury and considered permanent disability 
 
         unlikely in light of no bony injuries.
 
         
 
              Dr. Socarras found no neurological deficit or functional 
 
         impairment from a neurological standpoint.  He felt that the 
 
         claimant's neck symptoms were most likely related to muscle 
 
         tension.
 
         
 
              It is plain that the medical evidence from Drs. Socarras and 
 
         Honsey do not reflect a probability that the claimant's injury 
 
         was caused by anything arising out of and in the course of her 
 
         employment.  The only evidence in the record other than 
 
         speculation on the part of the claimant tending to establish that 
 
         causation is the report and deposition of Dr. Winston.  However, 
 
         that report and deposition are contaminated by what the deputy 
 
         finds to be an inaccurate medical history.  The record in this 
 
         case does not show that the claimant undertook particularly heavy 
 
         or difficult work on the night before she woke up showing 
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   8
 
         
 
         
 
         symptomatology.  To the extent Dr. Winston's opinions are based 
 
         upon that inaccurate history, they must be given less weight.
 
         
 
              Based upon all of the evidence in the record, the deputy 
 
         finds that there is only a speculative possibility that the 
 
         claimant's soft tissue injuries arose out of and in the course of 
 
         her employment.  This is insufficient to establish liability of 
 
         the defendants.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant suffered a soft tissue injury to her neck which 
 
         she discovered upon awakening April 18, 1986.
 
         
 
              2.  Claimant did not perform unusually heavy work or 
 
         experience any unusual pain, obvious injury or other incident on 
 
         her last shift before her injury.
 
         
 
              3.  It cannot be said that the claimant's injury was caused 
 
         by her employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based upon the principles of law previously 
 
         states, the following conclusion of law is made:
 
         
 
              1.  Claimant has failed to establish by a preponderance of 
 
         the evidence that her soft tissue injury discovered April 18, 
 
         1986 arose out of or in the course of her employment, or that the 
 
         injury or any resulting disability were causally related to the 
 
         employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing as a result of this proceeding.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Service Rule 343-4.33.
 
         
 
              Signed and filed this 22nd day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 

 
         
 
         
 
         
 
         PUGH V. MULTIPLEX BUSINESS FORMS
 
         PAGE   9
 
         
 
         
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1402.30, 1402.40
 
                                             Filed September 22, 1988
 
                                             DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA PUGH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 822827
 
         
 
         MULTIPLEX BUSINESS FORMS,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         FIREMANS FUND INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30, 1402.40
 
         
 
              Claimant failed to sustain her burden of proof as to an 
 
         injury and resulting disability arising out of and in the course 
 
         of her employment where she awakened one morning and discovered a 
 
         soft tissue neck injury; no traumatic events, pain or unusually 
 
         heavy work at her employment preceded the discovery.