before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         JOHN N. PATTEN,     :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 824702
 
         H.J. HEINZ CORP.,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         LIBERTY MUTUAL,     :
 
                   :
 
              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 
 
         November 30, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         135 South LaSalle St., Ste 1527
 
         Chicago, IL  60603
 
         
 
         Mr. Greg A. Egbers
 
         Ms. Vicki L. Seeck
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN N. PATTEN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 824702
 
            H.J. HEINZ CORP.,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            30, 1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN N. PATTEN,
 
         
 
              Claimant,
 
                                                    File No. 824702
 
         H. J. HEINZ COMPANY,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John N. 
 
         Patten, claimant, against H. J. Heinz Company, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants, 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of an alleged injury occurring April 22, 1986.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner on September 21, 1988, in Davenport, 
 
         Iowa, and was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant along with joint exhibits 1 through 19 and claimant's 
 
         exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted and approved on 
 
         September 21, 1988, the issues that remain for determination 
 
         include whether the claimant suffered an injury arising out of 
 
         and in the course of his employment, whether that injury is 
 
         causally connected to disability, whether claimant is entitled to 
 
         temporary total, healing period and permanent partial disability 
 
         benefits, whether claimant is entitled to medical benefits, 
 
         penalty benefits under Iowa Code section 86.13, and whether 
 
         defendants are entitled to credit under Iowa Code section 
 
         85.38(2).
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began his employment with H. J. Heinz Company in 
 
         1979.  He worked as a truck unloader for approximately three 
 
         months, then was transferred to a manufacturing position in the 
 
         can shop for approximately seven years.  Around the time of the 
 
         Christmas holiday, 1985, the claimant was transferred to a 
 
         position which primarily involved moving heavy baskets or bins of 
 
         cat food cans.
 
         
 
              Claimant testified that the new work was much harder on his 
 
         feet since he was required on a full-time basis to push wheeled 
 
         bins of up to 700-800 pounds on a rough cement floor.  He 
 
         testified that suffered pain in both feet, mostly in the heel, 
 
         and that the amount of pain he suffered was closely associated 
 
         with his work; for example, on particularly heavy days or when 
 
         the cart had a bad wheel or other problems, the pain was worse.
 
         
 
              Although claimant had suffered pain in his feet before (he 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   2
 
         
 
         
 
         is flat-footed), his pain increased and became sharper during the 
 
         months that he worked on moving cat food baskets.  He found the 
 
         pain particularly sharp and exacerbated on April 16, 1986.  On 
 
         that day, he went to the company nurse to complain of his pain 
 
         but continued working.  He visited Henry Tack, D.P.M., on April 
 
         22, 1986 and was then taken off work from the following day 
 
         through July 15, 1986.  Dr. Tack "strapped" both feet with 
 
         bandages and prescribed anti-inflammation medications.  Claimant 
 
         saw Dr. Tack on several more occasions for changing of his 
 
         bandages and the preparation of shoe inserts.
 
         
 
              Dr. Tack released claimant to return to work on June 10, 
 
         1986 with restrictions.  He requested that claimant be given a 
 
         sitting job.  Defendant employer had no such work then available 
 
         so claimant remained off work.
 
         
 
              Claimant again saw Dr. Tack on July 15, 1986.  He was 
 
         released to return to light-duty work on his feet.  Dr. Tack 
 
         suggested claimant be given a job doing inspections, allowed some 
 
         walking and standing, but imposed a weight restriction of 
 
         approximately 20 pounds.  Claimant was given a job as an 
 
         inspector that met those requirements.  He returned to work on 
 
         July 16, 1986.
 
         
 
              Claimant was paid accident and sickness benefits under a 
 
         group insurance policy in the sum of $1,747.56 for twelve weeks 
 
         and one day from April 22, 1986 through July 15, 1986.  Benefits 
 
         were paid by the John Hancock Mutual Life Insurance Company.
 
         
 
              After a time when claimant had been called to stand an 
 
         unusual amount on the job, his feet became inflamed and he was 
 
         off work from August 11, 1988 through August 29, 1988.  He was 
 
         returned to work by Dr. Tack with similar restrictions and has 
 
         continued working as an inspector up to the date of hearing.
 
         
 
              In addition to treatment received from Dr. Tack, the 
 
         claimant was seen for evaluation by William Catalona, M.D., 
 
         F.A.C.S., an orthopaedic surgeon, and Ralph H. Congdon, M.D., 
 
         also an orthopaedic surgeon.
 
         
 
              Dr. Tack diagnosed claimant on May 20, 1986 as suffering 
 
         from "plantar fascitis [sic] with calcaneal spurs and pes valgo 
 
         planus."  He further opined that "(t)his is definately [sic] a 
 
         job related problem due to the strain of the work on his feet."  
 
         Dr. Tack had taken x-rays on April 22, 1986, and first made that 
 
         diagnosis at that time.  He repeated the diagnosis of plantar 
 
         fascitis and calcaneal spurs on August 29, 1988.  Claimant 
 
         testified that Dr. Tack had advised him not to undergo surgery 
 
         for his calcaneal spurs because the problem was likely to recur.
 
         
 
             Dr. Catalona saw the claimant for evaluation on May 29 or 30, 
 
         1986.  His review of x-rays by Dr. Tack confirmed the presence of 
 
         calcaneal spurs.  Dr. Catalona expressed no opinion as to whether 
 
         claimant's problems were work-related, but indicated that he had 
 
         never rated any patient for permanent impairment from fascitis or 
 
         calcaneal spurs.
 
         
 
              Claimant was seen by Dr. Congdon on March 21, 1988.  Dr. 
 
         Congdon's examination showed tenderness over the point of 
 
         claimant's plantar fascia "as it insert on the calcaneus 
 
         bilaterally," noted that there was no area of sensory loss, 
 
         stretching did not increase symptoms, that claimant had good foot 
 
         and ankle motion and that peripheral circulation was intact.  Dr. 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   3
 
         
 
         
 
         Congdon noted that x-rays confirmed a "very small reaction" in 
 
         the area determined as a "spur.  Dr. Congdon did not give 
 
         claimant an impairment rating since there was no evidence of 
 
         motion deficit or sensory loss and the mere appearance of spurs 
 
         did not constitute impairment in the doctor's opinion.  In a 
 
         letter of August 29, 1988 to a representative of defendant 
 
         Liberty Mutual Insurance Company, Dr. Congdon stated:
 
         
 
              I have furnished you a copy of his evaluation in which 
 
              I reported to the patient that he had active plantar 
 
              fasciitis.
 
         
 
              It is my understanding of this condition that basically 
 
              this is a longitudinal arch strain.  Certainly his type 
 
              of work could aggravate his problem at times but is not 
 
              the sole causative [sic] agent to his discomfort.
 
         
 
              This type of condition is chronically aggravated by 
 
              activities at work that require weight bearing as do 
 
              most activities.  It takes a concerted effort to quiet 
 
              the symptoms and often refabrication of orthodics are 
 
              necessary in concert with the use of anti-inflammatory 
 
              medicine.
 
         
 
              Claimant seeks recovery of a medical bill from Dr. Tack in 
 
         the sum of $368.00.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 22, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v.Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 7241 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.]  Likewise a personal 
 
              injury includes a disease resulting from an injury .... 
 
              The result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   4
 
         
 
         
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 22, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   5
 
         
 
         
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The first issue to be considered is whether claimant has 
 
         established an injury arising out of and in the course of his 
 
         employment with defendant employer.  Claimant's flat and pronated 
 
         feet predated the claimed injury; there is no evidence whatsoever 
 
         that these problems arose from or were in the course of his 
 
         employment.  However, the issue is closer with respect to 
 
         claimant's diagnosis of plantar fasciitis and calcaneal spurs.  
 
         Prior to the months in which the claimant performed unusually 
 
         heavy work (based on his history) in pushing around bins of cat 
 
         food cans, he may have had some dull ache problems in his feet, 
 
         but there is no indication of such disabling pain as to cause him 
 
         to miss substantial periods of work.  Even if these conditions 
 
         were preexisting, they were aggravated, worsened and "lighted up" 
 
         by the period of heavy work culminating in the sharp pain of 
 
         April 16, 1986 and claimant's being taken off work on April 22, 
 
         1986.  Pushing the bins was the claimant's sole job 
 
         responsibility and the "lighting up" of claimant's injury was 
 
         caused by his work.  Claimant has satisfied his burden of proof 
 
         in establishing a compensable injury of April 22, 1986.  Further, 
 
         the deputy holds that,the recurrence of this problem on or about 
 
         August 11, 1988 as the result of another period of unusually 
 
         heavy work was a continuation of this "lighting up" of this 
 
         injury.  Claimant was still under the same work restrictions at 
 
         the time of this recurrence.  Therefore, claimant is entitled to 
 
         temporary total disability benefits for the periods between April 
 
         23, 1986 through July 15, 1986 and August 11, 1988 through August 
 
         29, 1988.  It was stipulated by the parties that Dr. Tack's fees 
 
         were fair and reasonable and that Dr. Tack would testify that the 
 
         treatment was reasonable and necessary treatment and defendants 
 
         chose not to offer contrary evidence.  On this basis, claimant 
 
         shall be allowed medical benefits of $368.00 under Iowa Code 
 
         section 85.27.
 
         
 
              However, finding of entitlement to temporary total 
 
         disability does not automatically translate into entitlement to 
 
         permanent partial disability.  The only evidence in the record of 
 
         permanency is a surgeon's report submitted on June 3, 1986 to 
 
         Liberty Mutual Insurance Company by Dr. Tack.  On a pre-printed 
 
         form, Dr. Tack indicated that the injury would result in 
 
         "permanent detect" and that the detect was calcaneal spurs.  It 
 
         is noteworthy that the record contains no medical evidence 
 
         whatsoever to the effect that the calcaneal spurs were caused by 
 
         claimant's employment rather than being a defect that was merely 
 
         "lighted up."  While claimant has been found entitled to 
 
         temporary total and medical benefits during the period in which 
 
         he was disabled by this aggravation or "lighting up," it would be 
 
         rampant speculation to conclude that such "lighting up" will 
 
         occur in the future.  As noted, it is claimant's burden of proof 
 
         to establish that any permanent disability arose out of and in 
 
         the course of his employment.
 
         
 
              Dr. Catalona, an orthopaedic surgeon, stated that he had 
 
         never rated a patient for permanent impairment from calcaneal 
 
         spurs.  Dr. Congdon specified that the mere appearance of spurs 
 
         does not constitute impairment.  Therefore, it is held that 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   6
 
         
 
         
 
         claimant has failed to establish permanent disability in this 
 
         case.
 
         
 
              Defendants have asserted a "personal risk doctrine" defense 
 
         based on Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 
 
         35 (1934).  In that case, the court held that personal injury 
 
         does not include metabolism.  That is, the result of changes in 
 
         the human body incident to the general processes of nature do not 
 
         amount to a personal injury.  However, this deputy does not 
 
         believe that the "personal risk doctrine" cited by defendants is 
 
         in the nature of an affirmative defense that would shift the 
 
         burden of proof on the issue to defendants.  Rather, the question 
 
         is subsumed within the issues of "arising out of and in the 
 
         course of" employment, upon which the burden of proof remains 
 
         with claimant.  The record in this case shows periods of 
 
         temporary disability from employment caused by the temporary 
 
         "lighting up" or aggravation of a preexisting condition.
 
         
 
              Under Iowa Code section 85.38(2) where claimant has received 
 
         benefits under any group plan covering nonoccupational diseases 
 
         contributed to wholly or partially by the employer when such 
 
         benefits should not have been paid or payable where rights of 
 
         recovery existed under Chapter 85, then those amounts paid,to the 
 
         claimant are credited against any compensation payments ordered 
 
         under Chapter 85.  However, there is no evidence in the record 
 
         which would permit the deputy to find that the benefits paid to 
 
         the claimant by the John Hancock Mutual Life Insurance Company 
 
         would not have been payable given claimant's recovery of 
 
         temporary total disability and medical benefits in this case.  
 
         Therefore, credits shall not be allowed under 85.38(2).
 
         
 
              Defendants in this case refused to admit liability and make 
 
         voluntary payments.  Under Iowa Code section 86.13 penalty 
 
         benefits may be awarded where there is a delay in commencement of 
 
         benefits "without reasonable or probable cause or excuse." The 
 
         deputy finds that defendants did have reasonable cause and excuse 
 
         for delaying commencement of benefits because liability is not so 
 
         clear as claimant believes.  Where claimant did have preexisting 
 
         toot problems, defendants could very well believe in good faith 
 
         that no liability would accrue on the basis that claimant 
 
         suffered no personal injury arising out of and in the course of 
 
         his employment.  Therefore, penalty benefits shall not be 
 
         allowed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant suffers from plantar fasciitis and calcaneal 
 
         spurs that were caused, aggravated or "lighted up" by a period of 
 
         unusually heavy and physically stressful work culminating in 
 
         sharp pains to claimant's feet on April 16, 1986.
 
         
 
              2.  Claimant was unable to work by reason of this injury 
 
         from April 23, 1986 through July 15, 1986.
 
         
 
              3.  Another period of heavy work caused a recurrence of pain 
 
         from claimant's plantar fasciitis and calcaneal spurs causing him 
 
         to be unable to work from August 11, 1988 through August 29, 
 
         1988.
 
         
 
              4.  The two instances when claimant was unable to work by 
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   7
 
         
 
         
 
         reason of his injury were caused by what has been shown only to 
 
         be temporary aggravation or "lighting up" of conditions which 
 
         have not been shown to be other than preexisting.
 
         
 
              5.  Claimant has incurred reasonable and necessary medical 
 
         expenses in the sum of $368.00.
 
         
 
              6.  It cannot be said that claimant has suffered a permanent 
 
         partial disability by reason of his plantar fasciitis and 
 
         calcaneal spurs.
 
         
 
              7.  It cannot be said that defendants' delay in commencement 
 
         of benefits was without reasonable or probable cause or excuse.
 
         
 
              8.  It has not been shown that benefits paid to the claimant 
 
         under a group plan covering nonoccupational diseases would not 
 
         have been payable given claimant's recovery of temporary total 
 
         disability and medical benefits in this case.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the principles of law previously 
 
         stated, the following conclusions of law are made:
 
         
 
              l.  Claimant has met his burden of proof in establishing an 
 
         injury arising out of and in the course of his employment.
 
         
 
              2.  Claimant has established his entitlement to two separate 
 
         periods of temporary total disability.
 
         
 
              3.  Claimant has established his entitlement to medical 
 
         expenses of $368.00 incurred with Henry Tack, D.P.M.
 
         
 

 
         
 
         
 
         
 
         PATTEN V. H. J. HEINZ COMPANY
 
         PAGE   8
 
         
 
         
 
              4.  Claimant has tailed to establish.that he has suffered a 
 
         permanent partial disability.
 
         
 
              5.  Claimant has failed to establish an entitlement to 
 
         penalty benefits under Iowa Code section 86.13.
 
         
 
              6.  Defendants have failed to establish a right to credits 
 
         under Iowa Code section 85.38(2).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants are to pay to claimant eleven (11) weeks six 
 
         (6) days (1986) and two (2) weeks four (4) days (1988) temporary 
 
         total disability benefits at the stipulated rate of two hundred 
 
         thirty-one and 83/100 dollars ($231.83) per week.
 
         
 
              That defendants are to pay to claimant medical expenses in 
 
         the sum of three hundred sixty-eight and 00/100 dollars 
 
         ($368.00).
 
         
 
              That claimant shall take nothing as and for permanent 
 
         partial disability.
 
         
 
              That the benefits ordered herein shall be paid in a lump 
 
         sun, together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That a Claim Activity Report shall be filed upon payment of 
 
         this award pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 4th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 North Wacker Drive
 
         Chicago, Illinois 60606
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108, 1402.30, 1402.40
 
                                                 1701, 2206, 4000.2
 
                                                 Filed October 4, 1988
 
                                                 DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN N. PATTEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File  No. 824702
 
         H. J. HEINZ COMPANY,
 
                                                   A R B I T R A T I O N
 
              Employer,
 
                                                      D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108, 1402.30, 1402.40, 2206
 
         
 
              Claimant aggravated or had "lighted up" a preexisting 
 
         problem with his feet on two occasions.  Both periods of 
 
         aggravation were temporary.  He was entitled to temporary total 
 
         and medical benefits, but failed to establish a permanent partial 
 
         disability related to his employment.
 
         
 
         1701
 
         
 
              Defendants not entitled to section 85.38(2) credits where it 
 
         was not shown that group plan covering nonoccupational diseases 
 
         would not have been payable given claimant's recovery of 
 
         temporary total and medical benefits.
 
         
 
         4000.2
 
         
 
              Penalty benefits were not awarded where defendants could 
 
         reasonably believe that claimant with preexisting foot problems 
 
         suffered no injury arising out of and in the course of 
 
         employment.
 
         
 
 
         
 
         Page   1
 
         
 
                                       51401, 51402.20, 52905, 52206, 
 
                                       52209, 51402.40, 51801, 51802, 
 
                                       51803, 1807, 51402.60, 52501, 52700
 
                                       Filed November 30, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         JOHN N. PATTEN,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No.  824702
 
         H.J. HEINZ CORP.,             :
 
                                       : R E V I E W - R E O P E N I N G
 
              Employer,                :
 
                                       :        D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401, 51402.20, 52905, 52206, 52209
 
         Claimant did not prove a change of condition nor that his 
 
         long-standing severe foot problems were caused by his employment.
 
         
 
         51402.40, 51801, 51802, 51803
 
         Claimant did not prove that work caused temporary or permanent 
 
         disability.  His feet caused the same problems no matter what he 
 
         did and irrespective of whether he was at work or someplace else.  
 
         Voluntary payments made by the insurance carrier were not an 
 
         admission nor were the remarks of counsel in opening statement 
 
         when the deputy determined there was no change of condition or 
 
         causal connection between the injury aggravation found at the 
 
         first hearing and claimant's subsequent condition.
 
         
 
         1807
 
         Employer finally told claimant they had no work claimant could do 
 
         within his medical restrictions when several attempts to 
 
         accommodate him failed.  Employer was justified in making this 
 
         determination because employer had tried several times without 
 
         success to provide claimant with work he could do, but claimant 
 
         contended that it never worked out for him.
 
         
 
         51402.60, 52501, 52700
 
         Claimant sought new doctors of his own choosing.  He did not 
 
         request permission to see them.  His counsel admitted they were 
 
         not unauthorized.  Thus, no medical benefits were allowed, except 
 
         one bone scan that was ordered by an authorized physician which 
 
         had not been paid.  Defendants were liable for charges incurred 
 
         due to the authorized physician for the bone scan.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN N. PATTEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No.  824702
 
            H.J. HEINZ CORP.,             :
 
                                          : R E V I E W - R E O P E N I 
 
            N G
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            John N. Patten, claimant, against H.J. Heinz, employer and 
 
            Liberty Mutual Insurance Company, insurance carrier, 
 
            defendants for benefits as the result of an injury which 
 
            occurred on April 22, 1986.  A hearing was held on September 
 
            21, 1988, and Deputy Industrial Commissioner David R. Rasey 
 
            filed a decision on October 4, 1988, which awarded claimant 
 
            temporary total disability benefits for two periods of time: 
 
            (1) from April 23, 1986 through July 15, 1986 and (2) from 
 
            August 11, 1988 through August 29, 1988.  Claimant was 
 
            awarded no permanent disability benefits.  Claimant was 
 
            awarded $368 in medical expenses, but failed to prove enti
 
            tlement to penalty benefits under Iowa Code section 86.13 
 
            because, "Where claimant did have preexisting foot problems, 
 
            defendants could very well believe in good faith that no 
 
            liability would accrue on the basis that claimant suffered 
 
            no personal injury arising out of and in the course of his 
 
            employment."  (Arbitration Decision October 4, 1988, page 
 
            7).
 
            
 
                 A hearing was held on this review-reopening petition on 
 
            September 20, 1990, at Davenport, Iowa.  Claimant was 
 
            represented by Nick J. Avgerinos.  Defendants were 
 
            represented by Vicki L. Seeck.  The record consists of the 
 
            testimony of John N. Patten, claimant; Kendall Kelly, 
 
            personnel manager and joint exhibits A through E.  The 
 
            deputy ordered a transcript of the hearing.  Defendants 
 
            presented a description of disputes at the time of the 
 
            hearing.  Both attorneys submitted excellent posthhearing 
 
            briefs.
 
            
 
                 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on April 22, 1986, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary disability.
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is stipulated 
 
            to be scheduled member disability to the feet.
 
            
 
                 That the rate of compensation, in the event of an award 
 
            of benefits, is $231.83 per week.
 
            
 
                 That the fees charged for medical services or supplies 
 
            are fair and reasonable and that the expenses were incurred 
 
            for reasonable and necessary medical treatment.
 
            
 
                 That the causal connection of the expenses to treatment 
 
            to a medical condition upon which claimant is now basing his 
 
            claim is admitted, but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these precedings.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendants paid claimant temporary total 
 
            disability benefits, after the prior decision and the 
 
            payment of its award and prior to this hearing, from January 
 
            20, 1989 through February 7, 1989 at the rate of $231.83 per 
 
            week.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained a change of condition 
 
            subsequent to the hearing on September 21, 1988, which was 
 
            caused by the injury which occurred on April 22, 1986.
 
            
 
                 Whether the change of condition was the cause of 
 
            temporary or permanent disability subsequent to the first 
 
            hearing.
 
            
 
                 Whether claimant is entitled to additional temporary 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            disability benefits after the first decision.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits. 
 
            
 
                 Whether claimant is entitled to the payment of medical 
 
            expenses incurred after the first hearing.
 
            
 
                                preliminary matter
 
            
 
                 Official notice is taken of the decision of Deputy 
 
            Industrial David R. Rasey dated October 4, 1988 and the 
 
            record in that case as found in file number 824702.
 
            
 
                                 findings of fact
 
            
 
                               change of condition
 
            
 
                 It is determined that claimant did not sustain a change 
 
            of condition after the hearing on September 21, 1988, which 
 
            was caused by the injury of April 22, 1986.
 
            
 
                 Actually it should be noted at the outset, that Deputy 
 
            Rasey, in his decision, did not determine that claimant 
 
            sustained an injury on April 22, 1986, but rather, he found 
 
            that claimant's preexisting condition was, "lighted up", by 
 
            a period of heavy work, to wit: moving heavy baskets or bins 
 
            of cat food cans which weighed 700-800 pounds on a rough 
 
            cement floor (arb. dec. pages 2, 6 & 8).  He awarded 
 
            temporary total disability benefits from April 23 through 
 
            July 15, 1986 and again from August 11, 1988 through August 
 
            29, 1988, because of these two periods of unusually heavy 
 
            and physically stressful work (arb. dec. p. 8).  More 
 
            specifically, under his findings of fact, Deputy Rasey 
 
            found:
 
            
 
                 4.  The two instances when claimant was unable to 
 
                 work by reason of his injury were caused by what 
 
                 has been shown only to be temporary aggravation or 
 
                 "lighting up" of conditions which have not been 
 
                 shown to be other than preexisting.
 
            
 
            (Arbitration Decision, October 4, 1988, page 8)
 
            
 
                 Claimant's condition, with respect to his ability to 
 
            return to work, both before and after the hearing on 
 
            September 21, 1988, was the same.  Sometimes the treating 
 
            physician recommended a job where claimant would not be on 
 
            his feet, which translates to a sitting only job.  At other 
 
            times, the treating physician recommended a job where 
 
            claimant could stand and be on his feet part of the time and 
 
            sit part of the time.  
 
            
 
                 For instance, prior to the hearing of September 21, 
 
            1988, Henry C. Tack, D.P.M., recommended a sitting job.  Dr. 
 
            Tack stated, "With the painful heels and feet, we would 
 
            request a job that he doesn't have to be on his 
 
            feet--especially until we can help him to be in less pain." 
 
            (exhibit A, page 9).  Again, Dr. Tack stated on June 10, 
 
            1986, "We requested that John have a sitting job before and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            are again requesting it for him." (ex. A, p. 17).  Employer 
 
            had no work available within these restricitons (ex. A, p. 
 
            17).  Deputy Rasey stated, "Defendant employer had no such 
 
            work then available so claimant remained off work."  Then 
 
            Dr. Tack changed his recommendation to permit some standing.  
 
            On July 15 Dr. Tack stated, "He may do some walking and 
 
            standing." (ex. A, p. 19).  Dr. Tack appeared to allow 
 
            claimant some standing on September 6, 1988, just 
 
            immediately prior to the prior hearing in these words, "We 
 
            suggested less standing and possibly new orthotics of a 
 
            different material." (ex. A, p. 25).
 
            
 
                 Prior to the first hearing, claimant also saw William 
 
            Catalona, M.D., an orthopedic surgeon, who stated on May 30, 
 
            1986, "It would benefit Mr. Patten if he would be given work 
 
            not requiring long periods of standing or walking."  On 
 
            August 29, 1988, just prior to the first hearing, Dr. Tack 
 
            wrote, "John Patten may try to work being on his feet part 
 
            of the time." 
 
            
 
                 Claimant's condition after the hearing of September 21, 
 
            1988, for purposes of comparison is as follows:  
 
            
 
                 Claimant discontinued seeing Dr. Tack and Dr. Catalona 
 
            and consulted his own personal physician M.I. Rajput, M.D., 
 
            a general surgeon.  Dr. Rajput recommended that claimant 
 
            avoid any standing or walking on February 7, 1989, in these 
 
            words, "Because of the immediate percipitation [sic] of 
 
            symptomatology I have advised him to return to duty with the 
 
            stipulation that he is to avoid any standing or walking, 
 
            because this will immediately percipitate [sic] pain.  He 
 
            should seek work which will involve more of sitting and very 
 
            occasionally walking." (ex. C, p. 5).  Dr. Rajput gave a 
 
            medically excused absence on the same date which read, 
 
            "Needs a sitting job-no standing.  May return to work 
 
            2/8/89."   Dr. Rajput adhered to the sitting only 
 
            restriction again on May 2, 1989 in these words, "I have, 
 
            therefore, advised him that he may return to work with a 
 
            stipulation that he is only to sit and not to do any working 
 
            on hard surface or standing on hard surface, as this will 
 
            produce severe pain and metatarsalgia in his feet." (ex. C, 
 
            p. 8).  
 
            
 
                 Just like prior to the first hearing, employer had no 
 
            work for claimant within these restrictions of sitting only.  
 
            Claimant testified, "...they said there was no work 
 
            available for me with those restrictions." (transcript p. 
 
            26).  Claimant further testified, "And so I asked the doctor 
 
            if he could change it--change my restrictions back to a half 
 
            hour on and a half hour off, and then they could put me back 
 
            to work under those restrictions." (tr. p. 27).  On July 11, 
 
            1989, Dr. Rajput changed the restriction that claimant could 
 
            return to work with the stipulation to work standing on his 
 
            feet for one half hour and then sit for one half hour.  (ex. 
 
            C, pp. 11 & 12).  
 
            
 
                 Therefore, it is determined that claimant did not 
 
            sustain a change of condition subsequent to the hearing on 
 
            September 21, 1988.  His condition with respect to his 
 
            ability to return to work was the same both before and after 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the hearing on September 21, 1988.  Both before and after 
 
            the prior hearing, claimant's restrictions alternated 
 
            between: (1) sitting only, and (2) some standing, some 
 
            sitting.
 
            
 
               causal connection-entitlement-additional temporary 
 
                                    disability
 
            
 
                 It is determined that the heavy work of moving 
 
            700-800-pound containers that lighted up claimant's 
 
            preexisting foot condition was not the cause of additional 
 
            time off work or temporary disability.
 
            
 
                 Claimant did not perform this heavy work task of moving 
 
            700-800-pound loads on rough cement again after the hearing 
 
            of September 21, 1988.  He stated that he always performed 
 
            light duty work after the prior decision.  These jobs 
 
            consisted of the inspection job, the case job, and the pouch 
 
            job.  All three of these jobs entailed alternate standing 
 
            and sitting and were considered to be light work because 
 
            they did not involve any heavy work or heavy lifting.  The 
 
            inspection job involved no lifting.  The case job involved 
 
            handling only empty cardboard cases.  The pouch job 
 
            consisted of taping shut cartons with little pouches of 
 
            ketchup.  Therefore, it is determined that the heavy work 
 
            which lighted up claimant's preexisting foot condition and 
 
            permitted the two compensable periods of temporary total 
 
            disability prior to the first hearing did not cause any 
 
            additional time off work or temporary disability.  
 
            
 
                 Furthermore, it is determined that claimant's work for 
 
            employer did not cause his underlying foot condition.
 
            
 
                 On May 26, 1982, Dr. Catalona reported that claimant 
 
            stepped on a can and twisted his left ankle.  On June 11, 
 
            1982, Dr. Catalona diagnosed this as a sprain on the 
 
            calcaneo novic bar and that claimant was to avoid long 
 
            standing, running or climbing (ex. A, p. 4).  On the same 
 
            date the company nurse recorded this as a sprain on the 
 
            calcaneous moric bar (deformity at birth) and that claimant 
 
            was to avoid long standing, running or climbing. (ex. A, pp. 
 
            3 & 5).  
 
            
 
                 On May 20, 1986, Dr. Tack described, "His problem is 
 
            plantar fascitis with calcaneal spurs and pes valgo planus." 
 
            (ex. A, p. 12).  On May 29, 1986, Dr. Catalona reported, 
 
            "This man feels he can't work and doesn't know if he will 
 
            ever be able to work." (ex. A, pp. 13 & 14).  Dr. Tack's 
 
            diagnosis is repeated on June 3, 1986 (ex. A, p. 16), June 
 
            13, 1986 (ex. A, p. 18), and on August 29, 1988 (ex. A, p. 
 
            23).  On September 6, 1988, Dr. Tack describes it as, 
 
            "Severe pronation of feet with strain and inflammation." 
 
            (ex. A, p. 25).  Dr. Catalona repeats and accepts this 
 
            diagnosis on May 29, 1986 (ex. A, p. 13), May 30, 1986 (ex. 
 
            A, pp. 14 & 15).   
 
            
 
                 On August 29, 1988 Dr. Catalona said, "It is my 
 
            understanding of this condition that basically this is a 
 
            longitudinal arch strain." (ex. A, p. 24).  Dr. Rajput 
 
            called claimant's condition traumatic metatarsalgia (ex. C, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            p. 5) and simply metatarsalgia (ex. C, p. 8).  
 
            
 
                 Myron B. Stachniw, M.D., an orthopedic surgeon, said, 
 
            "I think that Mr. Patton's foot pain is coming from several 
 
            sources.  I think he does have a osteoarthritis of the 
 
            metatarsal phalangeal joint as well a tarsal coalition." 
 
            (ex. D, p. 1).  Both an x-ray and a CT scan on September 22, 
 
            1989 showed mild degenerative changes in both feet (ex. D, 
 
            p. 2).  On November 20, 1989, Dr. Stachniw said, "I feel 
 
            that he has chronic osteoarthritis of his feet." (ex. D, p. 
 
            8).
 
            
 
                 On May 20, 1986, Dr. Tack said, "This is definitely a 
 
            job related problem due to the strain of the work on his 
 
            feet. " (ex. A, p. 12).  On May 30, 1986 Dr, Catalona said, 
 
            "Regarding this being related to his work, I believe this 
 
            would have to be determined by the compensation commission 
 
            since it would be very difficult to relate disability of 
 
            this degree to standing and walking at work." (ex. A, p. 
 
            14).  
 
            
 
                 An independent medical examiner, Ralph H. Congdon, 
 
            M.D., an orthopedic surgeon, who saw claimant on March 21, 
 
            1988, said that claimant had been diagnosed with heel spurs 
 
            and arch problems in both feet.  Symptoms are increased 
 
            after standing on his feet for long periods of time.  He 
 
            stated that claimant also notes that he has pain driving his 
 
            car, especially when his heel rests of the gas pedal.  He 
 
            determined that claimant had some rather active plantar 
 
            fascitis.  Dr. Congdon did not specifically state whether it 
 
            was causally connected to work or not (ex. A, p. 22).  
 
            
 
                 On August 29, 1988, Dr. Catalona said, "Certainly his 
 
            type of work could aggravate his problem at times but is not 
 
            the sole causative agent to his discomfort.  This type of 
 
            condition is chronically aggravated by activities at work 
 
            that require weight bearing as do most activities." (ex. A, 
 
            p. 24).  
 
            
 
                 Dr. Rajput said claimant experiences severe intractable 
 
            pain from any prolonged period of standing or walking on 
 
            hard surfaces (ex. C, p. 8).  On March 15, 1990, Dr. Rajput 
 
            said that the diagnosis was consistent with severe 
 
            work-related calcaneal tendonitis bursitis (ex. C, p. 14). 
 
            
 
                 On September 21, 1989, Dr. Stachniw said, "He reports 
 
            pain at rest as well as pain made worse by walking." (ex. D, 
 
            p. 1) and none of Dr. Stachniw's office notes or reports 
 
            indicate that claimant's condition is caused by his work 
 
            (ex. D, pp. 1-10).  Deputy Rasey stated, "The record in this 
 
            case shows periods of temporary disability from employment 
 
            caused by the temporary `lighting up' or aggravation of a 
 
            preexisting condition." (arb. dec. p.7).  In his findings of 
 
            fact he stated the lighting up was from conditions, "which 
 
            have not been shown to be other than preexisting." (arb. 
 
            dec. p. 8).
 
            
 
                 It is determined that claimant's condition of plantar 
 
            fascitis, calcaneal spurs, and pes valgo planus were not 
 
            caused by his work for employer.  Even though claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            work may have aggravated his preexisting condition, by 
 
            standing or walking, so did standing or walking under any 
 
            conditions whether at work or away from work.  Thus, the 
 
            true cause of claimant's disability is his preexisting foot 
 
            condition.  Dr. Catalona stated that it is difficult to 
 
            relate disability of this degree to simply standing and 
 
            walking at work (ex. A, p. 14).  Other persons stand and 
 
            walk at work everyday without these difficulties.  
 
            
 
                 Therefore, it is determined that claimant's work was 
 
            not the cause of his time off work and temporary disability 
 
            after the first hearing on September 21, 1988 and claimant 
 
            is not entitled to additional temporary disability benefits.
 
            
 
                 The fact that defendants made voluntary payments of 
 
            temporary disability benefits from January 20, 1989 through 
 
            February 7, 1989, is not construed as an admission of 
 
            liability.  Iowa Code 86.13.  Nor must a deputy construe the 
 
            remarks of counsel at hearing as dispositive of whether 
 
            there is temporary disability when the deputy has determined 
 
            that claimant has not shown either a change of condition or 
 
            causal connection of the circumstances on April 22, 1986 to 
 
            his condition after September 21, 1988 (tr. p. 6).
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 As of October 4, 1988, Deputy Rasey found in his 
 
            findings of fact at number six, "It cannot be said that 
 
            claimant has suffered a permanent partial disability by 
 
            reason of his plantar fasciitis and calcaneal spurs." (arb. 
 
            dec. p. 8).  In the conclusions of law, Deputy Rasey stated 
 
            at number four, "Claimant has failed to establish that he 
 
            has suffered a permanent partial disability." (arb. dec. p. 
 
            8).  
 
            
 
                 Dr. Tack did not relate any indication that claimant 
 
            had suffered a permanent impairment in any of his notes or 
 
            reports.  Dr. Catalona reported on May 30, 1986 that 
 
            claimant felt that he was entitled to compensation benefits 
 
            for both temporary disability and for permanent partial 
 
            impairment, but added, "I see many patients with plantar 
 
            fasciitis and calcaneal spurs and most of these people are 
 
            able to continue working." (ex. A, p. 14).  The only 
 
            indication of a permanent defect by Dr. Tack was on June 3, 
 
            1986, when he said the calcaneal spurs would be a permanent 
 
            defect (ex. A, p. 16).  However, the calcaneal spurs were 
 
            not caused by claimant's employment.  
 
            
 
                 On March 21, 1988, Dr. Congdon stated, "Since ther[e] 
 
            is no evidence of motion deficit sensory loss, I can not 
 
            give this patient an impairment rating after the usual guide 
 
            lines as put out by the American Medical Association, 2nd 
 
            edition....He's also informed that the mere appearance of 
 
            spurs does not constitue [sic] impairment." (ex. A, p. 21).  
 
            Dr. Rajput never determined an impairment rating for 
 
            claimant in any of his notes or reports.  On November 20, 
 
            1989, Dr. Stachniw said, "I feel that he has chronic 
 
            osteoarthritis of his feet.  This prevents him from working, 
 
            prevents him from being on his feet for more than an hour at 
 
            a time....I feel that his condition is permanent." (ex. D, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            p. 8).  On December 26, 1989, Dr. Stachniw said, "He does 
 
            have a permanent partial disability and I would write it as 
 
            approximately 15-20%." (ex. D, p. 9).  On March 12, 1990, 
 
            Dr. Stachniw added, "...the permanent partial disability 
 
            rating of approximately 15-20% is for both feet."  (ex. D, 
 
            p. 10).
 
            
 
                 In review then, Dr. Tack, Dr. Catalona, Dr. Congdon and 
 
            Dr. Rajput did not give claimant an impairment rating for a 
 
            permanent disability.  Dr. Stachniw gave a rating, but 
 
            indicated it was for chronic osteoarthritis (ex. D, p. 8) 
 
            and in none of his reports or notes does he say it was 
 
            caused by claimant's work for employer (ex. D, pp. 1-10).  
 
            
 
                 It is determined that claimant has not sustained a 
 
            permanent disability caused by the lighting up of his 
 
            preexisting condition on April 22, 1986.  It is further 
 
            determined that claimant did not sustain a permanent 
 
            impairment or disability caused by his work for employer and 
 
            claimant is, therefore, not entitled to any permanent 
 
            disability benefits.
 
            
 
                 This decision concurs with the remarks of defendants' 
 
            counsel in closing argument:
 
            
 
                    If Your Honor will carefully review the medical 
 
                 records in this case that have been generated 
 
                 since the time of the arbitration, you're going to 
 
                 discover two things.  First of all, no physician 
 
                 indicates that the continuing periods of 
 
                 disability are caused by work.  Second, and most 
 
                 important, there is not a single piece of medical 
 
                 evidence that says that Claimant's permanent 
 
                 impairment is attributable to the aggravation of 
 
                 his work as opposed to the underlying degenerative 
 
                 condition.  The fact that the Claimant's feet feel 
 
                 worse is insufficient to constitute the 
 
                 appropriate preponderance of evidence needed to 
 
                 prevail on a question of change of condition 
 
                 entitling him to permanent partial disability 
 
                 benefits.
 
            
 
            (transcript page 78)
 
            
 
                                 medical expense
 
            
 
                 It has been determined that claimant did not sustain a 
 
            change of condition after the hearing on September 21, 1988, 
 
            and that the lighting up of the preexisting condition on 
 
            April 22, 1986, was not the cause of any additional 
 
            temporary disability or any permanent disability.  
 
            Therefore, it must be determined that claimant is not 
 
            entitled to the medical expenses incurred after September 
 
            21, 1988.  Furthermore, through cross-examination 
 
            defendants' counsel established that neither employer nor 
 
            the insurance carrier authorized Dr. Rajput or Dr. Stachniw.  
 
            Claimant's counsel further stipulated that these physicians 
 
            were not authorized by employer (tr. pp. 52 & 53).  Claimant 
 
            testified that at no time did he rquest permission to see 
 
            Dr. Rajput or Dr. Stachniw (tr. p. 53).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, therefore, is not entitled to the medical 
 
            expenses displayed in exhibit E with one exception.  A bone 
 
            scan was ordered by William Catalona on January 30, 1989 
 
            (ex. E, p. 3; tr. p. 79).  This is owed by defendants since 
 
            it was ordered by an authorized treating physician.  
 
            Blankenship v. Smithway Motor Express, file number 798884 
 
            (Appeal Decision May 20, 1989); Pote v. Mickow Corporation, 
 
            file number 694639 (filed June 17, 1986); Butcher v. Valley 
 
            Sheet Metal, IV Iowa Industrial Commissioner Report 49 
 
            (Appeal Decision 1983).
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and 
 
            following principles of law, these conclusions of law are 
 
            made:
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained a change of 
 
            condition subsequent to the hearing on September 21, 1988, 
 
            caused by the lighting up of his preexisting condition that 
 
            occurred on April 22, 1986.  Wagner v. Otis Radio and 
 
            Electric Co., 254 Iowa 990, 993-94, 119 N.W.2d 751, 753 
 
            (Iowa 1963); Henderson v. Iles, 250 Iowa 787, 793-94, 96 
 
            N.W.2d 321, 324 (1959).  
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that either: (1) the lighting 
 
            up of his preexisting condition on April 22, 1986 or (2) his 
 
            employment with employer was the cause of temporary or 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is not entitled to either additional 
 
            temporary disability benefits or any permanent disability 
 
            benefits.  Iowa Code sections 85.33(1); 85.34(1)(2)(3).
 
            
 
                 That claimant is not entitled to medical expenses 
 
            incurred after September 21, 1988, except for the bone scan 
 
            ordered by Dr. Catalona who was an authorized physician.  
 
            Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no weekly benefits are owed by defendants to 
 
            claimant.
 
            
 
                 That defendants pay claimant or the provider of medical 
 
            services one hundred eighty-six dollars ($186) for the bone 
 
            scan ordered by Dr. Catalona.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to Rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants file any claim activity reports 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            requested by this agency pursuant to Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 S LaSalle St  STE 1527
 
            Chicago, Il  60603
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport, Ia  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID EDWARDS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                              File  No.  824997
 
         THOMBERT, INC.,
 
                                            A R B I T R A T I 0 N
 
              Employer,
 
                                              D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         David Edwards, against defendant employer, Thombert, Inc., and 
 
         defendant insurance carrier, Travelers Insurance Company, to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury stipulated to have occurred on May 27, 1986.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Des Moines, Iowa, on October 10, 1988 
 
         and was considered fully submitted on October 14, 1988.  Claimant 
 
         was represented by Roger P. Owens.  Defendants were represented 
 
         by William Scherle.  The record in this case consists of 
 
         claimant's testimony and joint exhibits 1 through 5.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted and approved at 
 
         hearing, the parties have stipulated as follows:
 
         
 
              1.  That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury;
 
         
 
              2.  That claimant sustained an injury on May 27, 1986 which 
 
         arose out of and in the course of that employment relationship;
 
         
 
              3.  That the injury was a cause of temporary total 
 
         disability (or healing period) from May 27, 1986 through January 
 
         1, 1987;
 
         
 
             4.  That if the injury is found to be a cause of permanent 
 
         disability, it is an industrial disability to the body as a 
 
         whole;
 
         
 
              5.  That the commencement date for permanent partial 
 
         disability in the event of liability is January 1, 1987;
 
         
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   2
 
         
 
              6.  That the rate of compensation is $261.77 per week;
 
         
 
              7.  That all medical benefits have been or will be paid by 
 
         defendants;
 
         
 
              8.  That defendants are entitled to credit under Iowa Code 
 
         section 85.38(2) in an amount to be later provided (and then 
 
         provided on October 14, 1988: $3,640.04); and,
 
         
 
              9.  That defendants have not paid any weeks of 
 
         compensation at the stipulated rate.
 
         
 
              The sole issue to be determined is the extent, if any, to 
 
         which claimant has suffered a permanent partial industrial 
 
         disability to the body as a whole.
 
         
 
                              REVIEW OF EVIDENCE
 
         
 
              Claimant suffered an industrial injury while working for 
 
         defendant Thombert, Inc., on March 11, 1985.  His injury was a 
 
         herniated disc at the L4-5 level.  The parties entered into a 
 
         full commutation approved by Deputy Industrial Commissioner 
 
         Michael G. Trier on April 18, 1986.  In pertinent part, the 
 
         commutation was an award for permanent partial disability to the 
 
         body as a whole of 22%, or 110 weeks.
 
         
 
             Claimant testified that he was 42 years on May 27, 1986, the 
 
         date of his second back injury.  The injury occurred when he was 
 
         lifting and returning an 85-pound lid to a tank in order to clean 
 
         an agitator; while replacing the lid, he suffered a sharp pain to 
 
         his right hip and down the right leg which he described as 
 
         dissimilar to the 1985 injury in that it involved less of a 
 
         burning sensation and more of a "ripping" sensation.  From his 
 
         return to work following the 1985 injury (in approximately 
 
         January, 1986) and until the time of his second injury, he felt 
 
         he suffered no serious back problems that interfered with his 
 
         performance of the job.  However, he agreed that he has suffered 
 
         back pain since the first injury.
 
         
 
              Claimant first saw Richard M. Moe, M.D., about two days 
 
         later.  Dr. Moe is the only physician who has provided treatment 
 
         of the injury at issue.  Dr. Moe's report of June 11, 1986 
 
         indicated that claimant described his present discomfort as 
 
         occasional pain in the lower back which may result in shooting 
 
         pain in the right lower extremity.  Dr. Moe's impression at that 
 
         time was "sacroiliac location of discomfort with decreased 
 
         abdominal strength as well as hamstring flexibility."  He advised 
 
         claimant to discontinue working for a couple of weeks and 
 
         prescribed back stretching and abdominal exercises along with 
 
         medication and suggested a weight loss regimen.  A second report 
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   3
 
         
 
         of the same date signed by Dr. Moe and a physical therapist noted 
 
         that claimant described his pain "as sharp and deep with a 
 
         shooting pain that jumps out of his right foot at times."
 
         
 
              Dr. Moe prepared another report on June 26, 1986.  Claimant 
 
         was in on that date and described continuing back pain 
 
         originating in the mid-back and radiating to the right hip.  
 
         Claimant was released to return to work at that time with a 
 
         25-pound lifting restriction.  Dr. Moe had an impression of 
 
         persistent myofascial back syndrome with possible nerve root 
 
         compression on the right and decided to refer claimant to David 
 
         J. Boarini, M.D., for follow-up evaluation.
 
         
 
              Claimant was again seen by Dr. Moe on July 31, 1986.  He 
 
         complained of recurrent back pain and some pain that went down 
 
         his right leg.
 
         
 
              Dr. Moe performed a number of strength and flexibility tests 
 
         on claimant and prepared a report of July 31, 1986.  Dr. Moe 
 
         found that based on those tests claimant had "a very slight 
 
         probability of symptom magnification."
 
         
 
              Dr. Boarini is a neurological surgeon.  He saw claimant on 
 
         July 3, 1986 for evaluation.  Claimant complained of back pain 
 
         with further pain radiating down both legs along with other minor 
 
         and vague complaints of dysesthetic sensations and prickling 
 
         throughout his body.  Dr. Boarini's letters to Dr. Moe on July 7 
 
         and August 8, 1986 indicate a diagnosis of recurrent chronic low 
 
         back strain with a rather normal neurological exam.  Dr. Boarini 
 
         found normal gait, full range of motion in the back, and normal 
 
         strength, sensation and reflexes in the lower extremities.  He 
 
         did not find clinical evidence of a significant recurrent rupture 
 
         or new herniated disc, did not feel that surgical treatment or 
 
         lumbar CT investigations were indicated, and suggested that 
 
         claimant continue physical therapy and back exercises.
 
         
 
              Claimant saw William Boulden, M.D., on October 27, 1986.  
 
         Dr. Boulden is a board-certified orthopaedic surgeon and was the 
 
         treating surgeon with respect to claimant's 1985 injury.  Dr. 
 
         Boulden testified by deposition taken September 29, 1987.  In 
 
         discussing a CT scan taken in 1985, he indicated noting a 
 
         herniated disc at the L4-5 level with some degenerative bulging 
 
         in the L5,Sl disc; but that the lower disc was not herniated so 
 
         that was not felt to be significant.  Surgery was performed on 
 
         August 21, 1965 on the L4-5 disc only; this vas a bilateral 
 
         discectomy.  Dr. Boulden had earlier indicated that he rated 
 
         claimant with a ten percent functional impairment of the back by 
 
         reason of the 1985 injury.
 
         
 
              When claimant saw Dr. Boulden on October 27, 1986, he gave 
 
         history of a sudden low bach pain, right upper buttock pain when 
 
         he suffered the May 27, 1986 injury.  Dr. Boulden ordered a 
 
         dye-enhanced CT scan and a nuclear magnetic radiating study of 
 
         claimant's spine, which he felt showed no evidence of any new 
 
         injuries, but only some residual scar tissue from the previous 
 
         surgery.  The MRI examination showed a degenerating disc at 
 
         L4,Sl.  
 
         Dr. Boulden testified:
 
         
 
              Q.  Based on the MRI and the CAT scan and everything 
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   4
 
         
 
              that you did in October of 1986 you found no additional 
 
              physical damage than what was present at the time of 
 
              the surgery back in August of 1985, is that correct?
 
         
 
              A.  That was our working conclusion, that the problem 
 
              that he had was the underlying degenerative disc that 
 
              he had in his back.  We knew that for a fact because of 
 
              the work-up before, the fact that the disc does not 
 
              rupture from a brand-new normal disc.  It has to 
 
              degenerate before it ruptures.  Therefore, we felt that 
 
              the residual symptoms he was still having was from the 
 
              degenerative disc in his back.
 
         
 
              Q.  Now, in this case Mr. Edwards has been seen by 
 
              Doctor Barbara [sic] who had the 1985 x-rays available 
 
              as well as the 1986 work-up, and in his deposition of 
 
              June 5, 1987 Doctor Barbara [sic] testified that prior 
 
              to May 27, 1986 that the L 5, S 1 disc was not 
 
              herniated.  Do you agree with that?
 
         
 
              A.  Prior to May 27, 1987?
 
         
 
              Q.  1986.
 
         
 
              A.  I agree that it was not herniated.  It showed a 
 
              bulging disc.
 
         
 
              Q.  Doctor Barbara [sic] has however testified that a, 
 
              quote, herniation occurred at the May 1986 accident 
 
              referring to the L 5, S 1 disc.  Did you find any 
 
              evidence in 1986 in october or since then that the L 5, 
 
              S 1 disc is herniated?
 
         
 
              A.  No, I have not found that situation.
 
         
 
              Q.  Has the radiologist that interpreted the CAT scan 
 
              and the MRI as well as the other diagnostic tests given 
 
              any indication or interpretation that the disc at L5, 
 
              Sl is herniated?
 
         
 
              A.  The radiologist that interpreted the CAT scan and 
 
              comparison of the two did not show any evidence of 
 
              herniation at either examination.  The MRI examination 
 
              shows a mid line protrusion and is stated does not 
 
              cause neurocompression so they feel it is 
 
              nonpathological.  In other words, it shows a standard 
 
              degenerating disc with a posterior protrusion or 
 
              bulging. it is not a herniated disc per se, and it does 
 
              not have impingement [sic] on the tissue.  I concurred 
 
              with the MRI radiologist's interpretation also.
 
         
 
              Q.  Are there more than one bulging of the L 5, S 1 
 
              disc in Mr. Edwards shown by the diagnostic work-ups?
 
         
 
              A.  No.  It is more mid line, more the middle of the 
 
              spinal canal.
 
         
 
              Q.  Do you find any evidence that the bulging or what 
 
              Doctor Barbara [sic] classifies as the herniation had 
 
              moved or gone over to the right side of the disc, more 
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   5
 
         
 
              to the right side than where it was back in 1985?
 
         
 
              A.  I did not see that in my interpretation of either 
 
              one of the studies.  The radiologist, as I said, on the 
 
              CAT scan has not seen that either, so therefore you are 
 
              trying to show a preimposed -- Well, this has not been 
 
              the only thing we truly can compare is the CAT scan 
 
              before his injury in May of 1986 and the CAT scan 
 
              afterward, and there really is no difference at the L 
 
              5, S 1 level.
 
         
 
         (Boulden deposition, page 12, line 5 through page 14, line 16)
 
         
 
              Dr. Boulden was unwilling to change the disability rating he 
 
         had given at the time of the earlier injury.  He felt that 
 
         claimant had overused his back and stressed the degenerative disc 
 
         disease without causing any new pathological changes.  On 
 
         cross-examination by claimant's attorney, Dr. Boulden indicated:
 
         
 
              Q.  Doctor Boulden, isn't it also true that when you 
 
              released him to work in December or January of 1986 Mr. 
 
              Edwards was still complaining of low back pain, but he 
 
              had no pain radiating down his legs.  Isn't that true?
 
         
 
              A.  That is correct.
 
         
 
              Q.  Isn't it also true since May 27, 1986 one of his 
 
              chief complaints has been leg pain, pain radiating down 
 
              his legs?
 
         
 
              A.  No, basically that wasn't what his chief complaint 
 
              was to me.
 
         
 
              Q.  If he would have told that to Doctor Boarini and 
 
              Doctor Moe and I even notice in one of your reports he 
 
              indicated he had pain going down his legs --
 
         
 
              A.  In questioning him to be specific that was 
 
              occasional.  Most of his pain was in his back.  Trying 
 
              to break up pain in the back and pain in the leg is very 
 
              important when you are looking at different problems.
 
         
 
              Q.  What would it mean to you if pain was radiating down 
 
              his legs?
 
         
 
              A.  First of all, you would have to classify how is this 
 
              pain radiating.  Is it a dermatomal type of pain, or is 
 
              it myofascial?  Is it a referred pain?  Is it a nerve 
 
              impingement type of pain?  There are a lot of ways you 
 
              look at it, and that is why you have to look at proper 
 
              -- You have to get a real good feeling for where he 
 
              might have his discomfort from.
 
         
 
              You can have back pain and have a severe radiating pain 
 
              and what people say is their legs may only be the upper 
 
              part of their thighs.  Now, if he says he has severe 
 
              radiating pain all the way to his feet, and it is a 
 
              specific dermatomal pattern meaning a nerve pattern, you 
 
              start looking for reasons for nerve irritation.
 
         
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   6
 
         
 
              Q.  If he would have told Doctor Moe he has pain 
 
              radiating all the way to his feet, would that have 
 
              caused you to make other diagnostic tests?
 
         
 
              A.  Yes.
 
         
 
         (Boulden deposition, page 19, line 17 through page 21, line 6)
 
         
 
              Claimant also saw Jerome G. Bashara, M.D., for evaluation on 
 
         March 3, 1987.  Dr. Bashara is also a board-certified orthopaedic 
 
         surgeon.  Dr. Bashara also reviewed medical records and x-rays, 
 
         took a history from claimant and examined claimant.  Dr. Bashara 
 
         testified by deposition taken June 5, 1987.
 
         
 
              Dr. Bashara indicated that claimant complained at the time 
 
         of his examination of lower back pain with pain radiating down 
 
         his right lower extremity.  He stated:
 
         
 
              Q.  Doctor Bashara, do you believe his injury of May 27 
 
              injured a different part of his body or back than his 
 
              injury of March llth, 1985?
 
         
 
              A.  Yes.
 
         
 
              Q.  What is the basis of that opinion?
 
         
 
              A.  Well, it's based on a review of all of his medical 
 
              records, a review of the CT scans that were done before 
 
              and after that May 27th, 1986 injury; based primarily 
 
              on the fact that prior to that time and at the time 
 
              that Doctor Boulden did his operation he found only one 
 
              abnormal disk, which was at the L4-5 level.
 
         
 
              His subsequent CT scan and MRI test which were done 
 
              following the may 1986 injury show a disk herniation at 
 
              the L5-Sl level centrally and to the right side.
 
         
 
              Q.  Doctor Bashara, do you believe there is a causal 
 
              relationship between his L5-Sl injury and the incident 
 
              of May 27, 1986?
 
         
 
              A.  Yes.
 
         
 
              Q.  Based on that incident do you believe there is -- 
 
              do you attribute any disability to Mr. Edwards as a 
 
              result of that injury?
 
         
 
              A.  Yes.
 
         
 
              Q.  Based on the AMA guidelines?
 
         
 
              A.  Yes.
 
         
 
              Q.  What would that disability be?
 
         
 
              A.  Five percent permanent partial physical impairment 
 
              of his body as a whole related to that May 27th, 1986 
 
              injury.
 
         
 
              Q.  You are excluding, I take it, Doctor Bashara, the 
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   7
 
         
 
              March llth, 185 injury when you give that disability 
 
              rating?
 
         
 
              A.  Correct.
 
         
 
         (Bashara deposition, page 6, line 25 through page 8, line 8)
 
         
 
              On cross-examination by Mr. Scherle, Dr. Bashara maintained 
 
         that the L5-Sl disc was not herniated prior to May 27, 1986, not 
 
         that it was herniated but only asymptomatic.  He testified:
 
         
 
              Q.  It is then your opinion that that mild bulge at 
 
              L5-Sl was increased or aggravated by the May 1986 
 
              incident?
 
         
 
              A.  Well, a herniation occurred at the May 1986 
 
              accident, yes.  A disk bulge is not a herniation.
 
         
 
              Q.  Can you explain to me then how the bulge that was 
 
              in the July 1985 x-rays differs either in location or 
 
              nature from what you feel is present in the x-rays 
 
              after May of 1986?
 
         
 
              Is the bulge bigger?  Is it a different location?  I 
 
              assume there is something objectively different in 
 
              those x-rays?
 
         
 
              A.  Well, there are several things that are different.  
 
              A disk which is herniated can move out of the confines 
 
              of its normal space and encroach upon or press upon the 
 
              neural elements, so the size of,the bulge or herniation 
 
              is important.
 
         
 
              Also the location is important.  In the CT scan  and 
 
              the MRI which were done after May of 1986, the 
 
              herniation had gone over to the right side.  There was 
 
              definitely a right-side herniation of the disk.
 
         
 
              Q.  We are talking about L5-Sl?
 
         
 
              A.  Yes.  And was also consistent with the symptoms of 
 
              back pain and right leg pain and so it -- those were 
 
              the two areas where it differed.  It differed in the 
 
              amount.
 
         
 
              Q.  The bulge was larger?
 
         
 
              A.  Yes, and it was also in a different location.  It 
 
              was now pressing against the sciatic nerve on the right 
 
              side.
 
         
 
              Q.  Was it in generally the same location as the bulge 
 
              shown in July of 1985?  It wasn't on the other side of 
 
              the vertebrae, was it?
 
         
 
              Maybe they were both present.  I am just trying to 
 
              decide if it was a worsening of the bulge that was seen 
 
              in July of 185 or whether it was indeed a second 
 
              bulge.
 
         
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   8
 
         
 
              A.  Well, there was a second bulge, yes.
 
         
 
              Q.  So they were -- would have both been observable 
 
              after May of 1986?
 
         
 
              A.  Correct.
 
         
 
              Q.  In your opinion would the bulge that was still 
 
              there, the bulge that had continued to be present from 
 
              July of 185 past May of 1986, contribute in any way to 
 
              the symptomology that Mr. Edwards had?
 
         
 
              A.  No, I don't believe so.
 
         
 
         (Bashara deposition, page 12, line 5 through page 14, line 1)
 
         
 
              A radiographic report was issued by K. S. Quinn, M.D., 
 
         following a November 10, 1986 CT scan after Omnipaque 
 
         enhancement.  Dr. Quinn reported:
 
         
 
              Post-operative change seen at L4-5 where there is a 
 
              diffusely bulging annulus as well as degenerative disc 
 
              disease with vacuum disc phenomenon.  Mild narrowing of 
 
              the right L5 neural foramen.  No evidence of disc 
 
              herniation.
 
         
 
              An electroneuromyographic examination was performed by 
 
         Thomas W. Bower, L.P.T., on November 10, 1986.  He reported:
 
         
 
              2.)  COMMENT
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE   9
 
         
 
         
 
              Nerve conductions for the left peroneal and posterior 
 
              tibial nerves were performed and showed normal 
 
              laboratory values.  H waves obtained bilaterally 
 
              demonstrated 31.6 millisecond latencies bilaterally 
 
              with 1 millivolt amplitudes which are within normal 
 
              limits.  Examination electromyographically of the left 
 
              lower extremity demonstrated no areas of abnormality.  
 
              The exam was terminated prematurely due to patient 
 
              tolerance of needles and fainting.  Therefore, we were 
 
              not able to perform an adequate EMG exam on the left 
 
              lower extremity nor on the paravertebral muscles, nor 
 
              the right lower extremity at all based on that 
 
              situation.
 
         
 
              3.)  IMPRESSION
 
         
 
              Based on the limited study performed to this date, 
 
              there was no abnormalities noted.  This cannot be 
 
              considered a complete study based on the limited EMG 
 
              samplings.
 
         
 
              On the same date, radiologist Dr. De Vries performed a 
 
         magnetic resonance imaging test of the lumbar spine.  His 
 
         findings:
 
         
 
              Magnetic resonance imaging of the lumbar spine was 
 
              performed, utilizing Tl and T2 pulsing sequences in the 
 
              sagittal and transverse projections.
 
         
 
              Bony spinal column was intact and in normal alignment.  
 
              The spinal canal is normal in size, the distal cord is 
 
              normal in appearance.  Changes in the soft tissues are 
 
              seen, indicating a previous laminectomy which appears 
 
              to be right-sided at the L4-5 level.  T2 weighted 
 
              images reveal decreased signal intensity.  Decreased 
 
              signal is also seen arising from the L5-Sl disc, 
 
              indicating degeneration at these two levels with the 
 
              other lumbar discs appearing normal.  Transverse images 
 
              through the L4-5 disc reveal diffuse posterior 
 
              protrusion of the disc, extending posterolaterally on 
 
              the right.  There is obliteration of the fat in the 
 
              right lateral recess.  I cannot clearly differentiate 
 
              the nerve roots from the from the [sic] posterior 
 
              margin of the disc or definitely exclude the presence 
 
              of epidural fibrosis in this region, but the findings 
 
              suggest a recurrent protrusion/herniation with 
 
              right-sided L5 nerve root compression.  Correlation 
 
              with the patient's symptomatology is necessary to 
 
              determine if this is a significant finding, and if 
 
              indicated a myelographic and/or CT study may be 
 
              helpful.
 
         
 
              There is posterior protrusion of the L5-Sl disc with a 
 
              small indentation on the ventral aspect of the thecal 
 
              sac on the right.  Transverse images at this level 
 
              reveal a diffuse disc protrusion which does not 
 
              significantly compress the thecal sac or nerve roots.  
 
              Intervertebral neural foramina are patent bilaterally 
 
              at this level.
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE  10
 
         
 
         
 
              Impression:
 
         
 
              1.  Signal changes and appearances indicating 
 
              degeneration in the L4-5 and L5-Sl discs, somewhat more 
 
              marked at the former level.
 
         
 
              2.  Diffuse posterior protrusion of the L4-5 disc with 
 
              suspected compression of the right L5 nerve root, 
 
              although epidural fibrosis cannot definitely be 
 
              excluded and further evaluation is recommended if 
 
              clinically indicated.
 
         
 
              3.  Mild, noncompressive L5-Sl protrusion.
 
         
 
              Claimant also suffered an injury to his cervical spine in an 
 
         automobile accident of August, 1987 and reinjured his lower back 
 
         in a fall while fishing on May 10, 1988.  A review of the record 
 
         does not indicate any permanent disability or exacerbation of the 
 
         injury under review resulting from either incident.
 
         
 
              Claimant submitted a statement in support of the commutation 
 
         of the 1985 injury that was admittedly false or misleading in at 
 
         least two respects.  In a Statement of Awareness/Affidavit of 
 
         Need filed April 18, 1986, claimant swore that
 
         
 
              approximately Fifteen Thousand Dollars ($15,000) is 
 
              needed to invest in a stained glass business that I now 
 
              run and operate and which I anticipate would provide me 
 
              with further future financial security, an additional 
 
              one Thousand Dollars ($1,000) is needed in connection 
 
              with my employment as a singer ....
 
         
 
              Actually claimant does not sing for pay (although he does 
 
         substantial church singing) and was only investigating a stained 
 
         glass business.  He admitted that his Statement of Need was false 
 
         at the time it was made, but noted that he was unrepresented by 
 
         counsel at that time.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 27, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE  11
 
         
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As has been seen, the parties have stipulated the existence 
 
         of an employment relationship, an injury arising out of and in 
 
         the course of employment, and that the injury was causally 
 
         connected to a period of temporary disability.  This was from May 
 
         27, 1986 through January 1, 1987.  The parties dispute whether 
 
         the work injury is causally related to permanent disability and 
 
         whether claimant is entitled to weekly compensation for permanent 
 
         disability.
 
         
 
              The medical testimony is very much at odds.  Claimant gave 
 
         somewhat different histories to Drs. Bashara and Boulden.  
 
         Claimant has testified as to his inability to work since the 
 
         injury at issue.  However, the deputy does not find claimant to 
 
         be a credible witness.  That impression is based both upon his 
 
         demeanor at hearing and his admittedly false statements to the 
 
         industrial commissioner's office at the time of the commutation 
 
         of benefits relating to his 1985 injury.
 
         
 
              ClaimantOs treating physician was Dr. Moe.  However, he did 
 
         not specifically testify as to causation of permanent injury 
 
         resulting from the incident under consideration.  Also, Dr. Moe 
 
         has not seen the radiological examinations reviewed by 
 
         orthopaedic surgeons Boulden and Bashara.
 
         
 
              The crucial conflict in the evidence is between the opinions 
 
         expressed by Drs. Boulden and Bashara.  Each had the opportunity 
 
         to examine claimant at a time substantially after the injury and 
 
         each had an opportunity to review the results of several 
 
         radiographic examinations.  Dr. Bashara concluded that claimant 
 
         did suffer a herniation of the L5,Sl disc while Dr. Boulden felt 
 
         otherwise.
 
         
 
              For a number of reasons, the deputy has elected to place 
 
         greater weight upon the testimony of Dr. Boulden.  Dr. Boulden 
 
         was the treating physician at the time of claimant's 1985 injury 
 
         and has actually performed surgery on claimant's back.  Because 
 
         he has seen claimant over a substantial period of time which both 
 
         predated and postdated this injury and acted as a treating 
 
         physician, he has had a much better opportunity to personally 
 
         observe claimant and his condition.  On the other hand, Dr. 
 
         Bashara saw claimant only once, and then as an evaluating 
 
         physician.  It is of course not a rule that a treating 
 
         physician's testimony is of more weight than a later physician 
 
         who examines claimant in anticipation of litigation.  Rockwell 
 
         Graphic Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985).  
 
         Rather, all factors such as education, compensation agreements, 
 
         the date of examination, experience, and others go to the value 
 
         of testimony as questions of fact, not law. Id.
 
         
 
              In addition to Dr. Boulden's greater exposure to and 
 
         experience with claimant, it is noteworthy that his opinion is 
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE  12
 
         
 
         consistent with radiologists Quinn and De Vries and neurological 
 
         surgeon Boarini.  Dr. Boarini did not find clinical evidence of a 
 
         significant recurrent rupture or new herniated disc.  Dr. Quinn 
 
         found no evidence of disc herniation.  Dr. De Vries found only a 
 
         mild, noncompressive L5-Sl protrusion which did not significantly 
 
         compress the thecal sac or nerve roots.  Of course, Dr. Bashara 
 
         had a somewhat different history from claimant than did Dr. 
 
         Boulden, but as has been noted, claimant's credibility is 
 
         suspect.
 
         
 
              In any event, it is claimant's burden of proof to establish 
 
         a causal relationship between the work injury and permanent 
 
         disability.  He must meet that burden by a preponderance of 
 
         evidence, which means evidence of greater weight, superior 
 
         influence, or efficacy.  Bauer v. Reavell, 219 Iowa 1212, 260 
 
         N.W. 39 (1935).  The burden is not met by creating a mere 
 
         equipoise.  Volk v. International Harvester Co., 252 Iowa 298, 
 
         106 N.W.2d 649 (1960).  It is held that claimant has failed to 
 
         meet his burden of proof in this case.  No causal connection 
 
         between the stipulated work injury and the alleged permanent 
 
         disability has been established.  Nor has further permanent 
 
         disability itself been established.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant Thombert, Inc., on 
 
         May 27, 1986.
 
         
 
              2.  Claimant was involved in an accident on that date while 
 
         at work while replacing a heavy lid on a tank.
 
         
 
              3.  As stipulated, claimant suffered a recovery period when 
 
         he was disabled from work from May 27, 1986 through January 1, 
 
         1987.
 
         
 
              4.  Claimant suffered a prior back injury while working for 
 
         the same employer on March 11, 1985; as a result of the earlier 
 
         injury, comparative radiological or x-ray examinations are 
 
         available which predate the May 27, 1986 injury.
 
         
 
              5.  Although there is a conflict in the medical evidence, 
 
         claimant has failed to establish permanent disability causally 
 
         connected to the May 27, 1986 injury.
 
         
 
              6.  Claimant is of questionable credibility as a witness.
 
         
 
              7.  Claimant's stipulated rate of compensation is $261.77 
 
         per week.
 
         
 
              8.  Claimant received payment of insurance benefits under a 
 
         nonoccupational group plan within the meaning of Iowa Code 
 
         section 85.38(2) in the sum of $3,640.04.
 
         
 
              9.  The employer has paid or will pay all medical expenses 
 
         resulting from.the injury.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE  13
 
         
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury which arose out of and in 
 
         the course of his employment on May 27, 1986.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused temporary total 
 
         disability from May 27, 1986 through January 1, 1987 (31.286 
 
         weeks).
 
         
 
              4.  Claimant's work injury caused medical expenses for which 
 
         he has been or will be fully compensated by defendants.
 
         
 
              5.  Claimant has failed to establish that his work injury of 
 
         May 27, 1986 is causally connected to alleged permanent partial 
 
         disability, or that he has suffered further permanent partial 
 
         disability.
 
         
 
              6.  Defendants are entitled to credit under Iowa Code 
 
         section 85.38(2) in the sum of $3,640.04.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay to claimant thirty-one point two eight 
 
         six (31.286) weeks of temporary total disability benefits at the 
 
         stipulated rate of two hundred sixty-one and 77/100 dollars 
 
         ($261.77), totalling eight thousand one-hundred eighty-nine and 
 
         74/100 dollars ($8,189.74).
 
         
 
              However, defendants are entitled to credit under Iowa Code 
 
         section 85.38(2) in the sum of three thousand six hundred forty 
 
         and 04/100 dollars ($3,640.04).
 
         
 
              That the net sum due claimant of four thousand five hundred 
 
         forty-nine and 70/100 dollars ($4,549.70) shall be paid as a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file a Claim Activity Report upon 
 
         payment of this award pursuant to Division of Industrial Services 
 
         Rule 343-3.1.
 
         
 
             Signed and filed this 31st day of October, 1988.
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         EDWARDS V. THOMBERT, INC.
 
         PAGE  14
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402. 40
 
                                               Filed October 31, 1988
 
                                               DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID EDWARDS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 824997
 
         THOMBERT, INC.,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant suffered a stipulated work injury that caused 
 
         temporary total disability, but failed to establish permanent 
 
         partial disability caused by the injury.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BILLY L. HEINKEL,
 
         
 
              Claimant,
 
                                                  File No. 825055
 
         vs.
 
                                               A R B I T R A T I O N
 
         OVERHEAD DOOR COMPANY of
 
         DES MOINES, INC.,                        D E C I S I 0 N
 
         
 
              Employer,                              F I L E D
 
         
 
         and                                        OCT 05 1989
 
         
 
         CINCINNATI INSURANCE,                  INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Billy L. 
 
         Heinkel, claimant, against Overhead Door Company of Des Moines, 
 
         Inc., employer and Cincinnati Insurance, insurance carrier, 
 
         defendants, for benefits as the result of an injury that occurred 
 
         on June 9, 1986.  A hearing was held in Des Moines, Iowa, on June 
 
         6, 1989, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Billy L. 
 
         Heinkel, claimant, Bryan Hildreth, coworker, Dave Wathen, 
 
         coworker, Claimant's Exhibits 1 through 8 and Defendants' 
 
         Exhibits A, B and C.  Claimant was represented by Donald 
 
         Gonnerman. Defendants were represented by Frank T. Harrison.  
 
         Claimant's attorney presented a prehearing statement.  
 
         Defendant's attorney presented a prehearing description of 
 
         disputes and a prehearing brief.  Both attorneys were invited to 
 
         file posthearing briefs, if they desired to do so, but none were 
 
         received as of the date of this decision.  The materials 
 
         submitted by both attorney's before the hearing was very helpful 
 
         in making this decision.  The deputy ordered a transcript of the 
 
         hearing.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to employee-employer relationship; 
 
         injury arising out of and in the course of employment on June 9, 
 
         1986; that the injury was the cause of temporary disability; that 
 
         the type of permanent disability is industrial disability to the 
 
         body as a whole; that the rate of compensation is $174.52 per 
 
         week; that the medical expenses were fair and reasonable and also 
 
         reasonable and necessary, but that causal connection to a work 
 
         injury remains disputed; that defendants paid 4 3/7 weeks of 
 
         workers, compensation benefits prior to hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether the injury of June 9, 1986, was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether claimant is entitled to medical benefits, and more 
 
         specifically, whether claimant is entitled to a laminectomy, to 
 
         be performed at a later date, as a result of this injury.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, age 28 at the time of the injury, has a high 
 
         school education and no additional formal education or training.  
 
         Past employments are numerous and varied--lawn maintenance, 
 
         grocery clerk, welder, fork lift driver, assembler, machine 
 
         loader, residential construction, made windows, installed garage 
 
         doors, production line work and supervisory production work 
 
         (Exhibit 1; transcript pages 14-26).  Claimant started to work 
 
         for employer on May 19, 1986, as a garage door installer and 
 
         terminated employment with employer on September 8, 1986, to take 
 
         another job that he felt was more suitable for him (ex. C, pp. 
 
         3-33).  The heaviest doors weighed 150 to 200 pounds, but two 
 
         persons lifted these doors so the maximum weight lifted was 
 
         approximately 75 to 100 pounds in this job (tr. pp. 26-27).  He 
 
         had lifted as much in other employments (tr. p. 28).
 
         
 
              On June 9, 1986, claimant was struck by a curtain guide 
 
         which hit him in the left side of his jaw and neck and spun him 
 
         around. Claimant then tripped on some parts, fell on his rear end 
 
         and hit his head on the concrete. (tr. p. 31).  He was taken by 
 
         ambulance to Greene County Hospital in Jefferson, where he was 
 
         observed overnight for eye dilation, reflexes, jaw and head 
 
         condition (tr. pp. 32 & 33).  He was released the following day, 
 
         June 10, 1986. His wife picked him up and brought him home.
 
         
 
              At home claimant prepared to charcoal some hamburgers.  He 
 
         got the materials together, bent down to pick up the grate, and 
 
         his back locked up for 15 to 20 minutes (tr. p. 34).  It was the 
 
         worst pain he had ever had in his whole life.  Claimant called 
 
         Ken R. Friday, M.D., who had treated him in Jefferson.  Dr. 
 
         Friday advised him to rest.  The following day, June 11, 1986, 
 
         claimant went to see Don C. Green, M.D., at Mercy-Urbandale 
 
         Clinic.  Dr. Green prescribed physical therapy of heat packs, 
 
         massage and pelvic traction.  Eventually, he admitted claimant to 
 
         Mercy Hospital on June 16, 1986 (tr. pp. 35-38).  The 
 
         hospitalization consisted of 10 days of intense physical therapy.  
 
         A lumbar spine x-ray was normal (ex. A, Mercy, p. 9; ex. 3, p. 
 
         9).  Claimant was discharged on June 26, 1986 (tr. p. 39).  
 
         Claimant continued outpatient physical therapy three days a week 
 
         (tr. p. 40). Claimant was released to return to work on July 10, 
 
         1986 (ex. 3, p. 102) and actually returned to work on July 14, 
 
         1986 (ex. C, pp- 33-41).  The list was gone, but his back still 
 
         hurt when he worked.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant continued to work for employer until September 8, 
 
         1986.  He then started to work for his current employer as a spot 
 
         welder making vending machines.  He earned more money in the new 
 
         employment, worked inside all of the time and performed lighter 
 
         work (tr. pp. 41-43).  His back continued to be stiff, but 
 
         claimant worked without missing any time from work.  Claimant did 
 
         well and was eventually promoted to his present position of 
 
         production supervisor.
 
         
 
              Claimant said he learned to live with the pain and followed 
 
         the lifting advice given to him at Mercy Hospital.  His back has 
 
         continued to bother him from the date of the accident until the 
 
         date of the hearing (tr. p. 46-47).  Some days are worse 
 
         depending on how much standing he has done.  He cannot sit for 
 
         very long either, but has to get up and move around (tr. p. 48).  
 
         On July 2, 1986, claimant told the physical therapist that he did 
 
         not need hot packs for his back that day and that his calf didn't 
 
         hurt anymore.  On July 9, 1986, he cancelled his treatment and 
 
         scheduled it for the next day.  On the following day, July 10, 
 
         1986, the therapist noted, "Called to say back feels good now. 
 
         Cancelled appointment.  Back to work tomorrow."  (ex. A, Mercy, 
 
         p. 22; ex. 3, p. 2a).  On July 10, 1986, Dr. Eklund noted, "Low 
 
         back strain resolved.  May return to work July 11, 1986."  (ex. 
 
         A, Mercy, p. 3; ex. 3, p. 3).
 
         
 
              Claimant did not seek medical treatment again until a year 
 
         later in July of 1987, more accurately, June 30, 1987.  He went 
 
         to see Dr. Green again, but saw Harold Eklund, M.D., as 
 
         associate, because Dr. Green was on vacation.  Claimant said that 
 
         his back condition had worsened to the extent that sneezing, 
 
         coughing, bowel movements, dressing and getting in and out of the 
 
         tub caused pain down both legs (tr. pp. 47 & 48).  Dr. Eklund 
 
         ordered a CAT scan which demonstrated a herniated disk at L5, S1 
 
         (tr. p. 49). Claimant was referred to Joshua Kimelman, D.O.  An 
 
         epidural steroid cortisone shot failed to relieve his symptoms 
 
         (tr. p. 50).
 
         
 
              At the hearing, claimant said his back and calves ache all 
 
         of the time (tr. pp. 50, 51 & 64).  He can no longer carry 80 
 
         pounds of shingles up a ladder, bowl or ride horseback.  He can 
 
         no longer ride a bike or do concrete work.  His swimming is 
 
         limited as well as caring for his wife's horses (tr. pp 51, 52 & 
 
         62; ex. C, pp. 52-55).  Claimant said there are things he can no 
 
         longer do at work, but he was not specific about what they were 
 
         (tr. p. 53), other than if something needs lifting, he gets help 
 
         (tr. p. 63). He can no longer do odd jobs for extra income (ex. 
 
         C, p. 56).
 
         
 
              Claimant conceded that in 1986, the pain was down his left 
 
         leg, and in 1987, it was down his right leg.  He added that at 
 
         the time of the hearing it was down both legs (tr. pp. 70 & 77). 
 
         Claimant said he takes Motrin and buys it over the counter by his 
 
         own choice (tr. p. 73).  He last saw Dr. Kimelman for treatment 
 
         on his own volition in 1987 (tr. p. 73, ex. C. p. 49).  Claimant 
 
         was scheduled for a follow-up examination, in 1987, but did not 
 
         return (ex. C, p. 51).  He saw Dr. Kimelman in February of 1989, 
 
         at the suggestion of his attorney, to be evaluated prior to 
 
         hearing. Claimant admitted that no doctor has recommended surgery 
 
         because he has chronic back pain, not acute back pain (tr. p. 
 
         74). Claimant said he rode a motorcycle to work because it was 
 
         cheaper; his wife suspected this was hurting his back, Dr. 
 
         Kimelman recommended against riding the motorcycle and claimant 
 
         then sold it (tr. p 75).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Connie Heinkel, claimant's wife, testified by video 
 
         deposition that she put the charcoal in the grill.  Claimant bent 
 
         down to pick up the grate and could not straighten up.  She 
 
         denied claimant had any serious back problem in the immediate 
 
         past.  She confirmed that claimant can no longer ride horseback, 
 
         bowl or do part-time roofing jobs like he used to do.  Claimant 
 
         can no longer bale hay or feed her horses.  He can no longer take 
 
         a bundle of shingles up a ladder to a roof.  He can lift a bag of 
 
         charcoal or cat food weighing about 30 pounds.  She suspected 
 
         riding his motorcycle might be making his back worse.  She 
 
         checked with Dr. Kimelman, who advised against riding 
 
         motorcycles, so they sold it. His back has hurt ever since the 
 
         injury on June 9, 1986 (ex. 4).
 
         
 
              Bryan Hildreth, another installer, was working with claimant 
 
         when the injury occurred.  Hildreth said claimant had a pretty 
 
         good size lump on the back of his head, but did not complain 
 
         about his low back hurting (tr. pp. 81-86).  Dave Wathen, a 
 
         carpenter, testified he was present when claimant was injured 
 
         (tr. pp. 86-91).  Both of these witnesses testified that claimant 
 
         was hit in the head, twisted, tripped, fell on his hind end, then 
 
         it appeared that he laid down on the concrete of his own volition 
 
         (tr. pp. 81-91).
 
         
 
              Claimant testified that the primary complaints after he was 
 
         hit by the curtain guide were to his head, jaw and neck (tr. p. 
 
         38; ex. C, p. 38).  In his prehearing deposition, claimant was 
 
         asked if he told Dr. Friday at Jefferson about his back.  He 
 
         responded that he told him he was stiff (ex. C, p. 41).  Claimant 
 
         added that he did not have any trouble with his back, "Other than 
 
         a little bit of pain in my leg, not too much." (ex. C, p. 41).  
 
         At the hearing claimant was asked about back pain prior to the 
 
         charcoal incident and he indicated he had some pain going down 
 
         the back of his left leg, but mainly he had a sore head and jaw 
 
         and that he was stiff all over from the fall (tr. p. 38).  
 
         Claimant said that coming home from Jefferson he was stiff, his 
 
         jaw and the back of his head was sore (tr. p. 76).  By 
 
         comparison, after the charcoal incident he was not able to 
 
         straighten up (ex. C, p. 42).
 
         
 
              Dr. Friday's report shows he treated claimant for:  (1) a 
 
         head injury with contusion of the left neck and left jaw; and (2) 
 
         dizziness and observation for head injury.  There is no mention 
 
         of back injury.  Dr. Friday's office notes for June 10, 1989 and 
 
         June 12, 1989, show that claimant called him to report the back 
 
         problem he experienced when he bent over to pick up the charcoal 
 
         grate (ex. 3, pp. 119 & 120; ex. A, pp. 1 & 2).
 
         
 
              The Greene County Medical Center shows that claimant was 
 
         treated for pain in the left side of his neck and jaw and a 
 
         posterior head contusion.  The diagnosis was head injury and 
 
         cervical strain.  Skull, mandible and cervical spine x-rays were 
 
         normal.  There is no mention of back complaints or back treatment 
 
         (ex. A, Greene County Medical Center, pp. 1-13; ex. 3, pp. 
 
         90-101).  The discharge notes, dated June 10, 1986, show that 
 
         claimant was not to return to work until June 13, 1986 (ex. A, 
 
         Greene, p. 12; ex. 3, p. 100).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Harold E. Eklund, M.D., saw claimant on June 11, 1986, for 
 
         low back strain and a list to the right.  X-rays on June 11, 
 
         1986, were negative for fracture.  A year later he referred 
 
         claimant to Dr. Kimelman on July 10, 1987 (ex. A, Eklund, p. 2).
 
         
 
              Dr. Green's office note of June 11, 1986, shows that 
 
         claimant told him that he hurt his back and also his head, but 
 
         there was no immediate pain to his back at that time (ex. A, 
 
         Mercy, pp. 1, 80 & 83; ex. 3, pp. 1, 14 & 17).  On June 16, 1986, 
 
         Dr. Green noted positive straight leg raising test on the left, 
 
         diagnosed acute low back pain, and admitted claimant to Mercy 
 
         Hospital in Des Moines (ex. A, Mercy, p. 2).  After medications 
 
         and physical therapy, Dr. Eklund, on July 10, 1986, released 
 
         claimant to return to work on July 11, 1986 (ex. A, Mercy, p. 3).
 
         
 
              Claimant did not see Dr. Eklund again until June 30, 1987, a 
 
         year later, with severe pain down the right leg which showed also 
 
         a positive straight leg raising test of 10 degrees on the right 
 
         (ex. A, Mercy, p. 3).  Plain x-rays on June 30, 1987, were normal 
 
         (ex. A, Mercy, p. 5; ex. 3, P. 5).  Another plain x-ray on July 
 
         6, 1987, suggested narrowing of L5, S1 interspace.  A CT scan on 
 
         the same day confirmed a large herniated disc centrally located, 
 
         bilaterally, but more to the right (ex. A, Mercy, pp. 6 & 87, ex. 
 
         3, p. 6).  Dr. Eklund referred claimant to Dr. Kimelman on July 
 
         10, 1987 (ex. A, Mercy, p. 4, ex. 3, p. 4).
 
         
 
              Dr. Kimelman diagnosed L5-S1 disc without neurologic deficit 
 
         (ex. A, Kimelman, p. 2).  On July 21, 1987, claimant was referred 
 
         for an epidural cortisone injection (ex. A, Kimelman, p. 3).  
 
         Claimant's attorney sent Dr. Kimelman a questionaire on March 18, 
 
         1988 (ex. A, Kimelman, p. 5 through 9).  Dr. Kimelman wrote to 
 
         claimant's attorney on May 6, 1988.  Dr. Kimelman diagnosed 
 
         herniated nucleus pulposa, central and right at L5, S1.  He said 
 
         that it could be the result of a fall as described by claimant. 
 
         Impairment without surgery was estimated at 10 to 20 percent and 
 
         after surgery possibly 10 percent.  Claimant should avoid 
 
         bending, twisting and lifting with or without the surgery (ex. A, 
 
         Kimelman, p. 10).
 
         
 
              Dr. Kimelman gave a deposition on May 2, 1989 (ex. B).  The 
 
         parties stipulated that he is a licensed, practicing, board 
 
         certified orthopedic surgeon.  Dr. Kimelman described and 
 
         discussed disc herniation in some detail.  By clinical testing he 
 
         determined there was disc herniation, but no nerve damage.  The 
 
         CT scan disclosed a huge central right herniated disc.  He 
 
         diagnosed herniated disc at L5, S1 without neurologic deficit 
 
         (ex. B, pp. 14-16).  Claimant described his pain as ranging from 
 
         four to seven on a scale of one to ten, but Dr. Kimelman said if 
 
         that were so, it would require more than Tylenol or aspirin 
 
         periodically once a week.  Claimant had not requested any 
 
         medication between July 21, 1987 and February 8, 1989 (ex. B, pp. 
 
         19-21).
 
         
 
              Dr. Kimelman said that claimant did not give him the history 
 
         of bending down to pick up the charcoal grill when his back 
 
         locked up.  This action was consistent with a disc herniation and 
 
         a list to the right.  This knowledge would cause him to reassess 
 
         the opinion he gave to claimant's attorney on May 6, 1988, that 
 
         the fall in Jefferson could be the cause of the disc herniation 
 
         (ex. B, pp. 21-24).  Dr. Kimelman said that the kind of work that 
 
         claimant was doing when he was making vending machines could also 
 
         bring on disc herniation (ex. B, pp. 34 & 25).  Dr. Kimelman said 
 
         it was unlikely that the problems in 1987 were the result of the 
 
         injury in June of 1986.  He said that if a disc herniation 
 
         occurred in 1986, it would have been at the time of picking up 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the grate because that is when pain in the left leg occurred.  If 
 
         the disc had developed at the time of the fall, then he should 
 
         have developed the pain at that time (ex. B, pp. 25-28).  Dr. 
 
         Kimelman said he had never recommended surgery and claimant was 
 
         not a surgical candidate at the time of the deposition.  In 
 
         addition, the amount of impairment was reduced between July of 
 
         1987 and February of 1989 (ex. b, pp. 28, 55 & 56).  Claimant 
 
         should continue to be treated conservatively (ex. B, p. 57).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 9, 1986, is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516,1133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did not prove that the fall on June 9, 1986, was 
 
         the cause of his back pain on June 10, 1986, when he bent down 
 
         for the charcoal grill or the cause of the flare-up of his back 
 
         in July of 1987.  Claimant gave Dr. Kimelman a history of the 
 
         fall.  Claimant failed to tell Dr. Kimelman about his back 
 
         locking up,when he bent over to pick up the charcoal grate on 
 
         June 10, 1986.  When Dr. Kimelman learned the true and complete 
 
         history he stated that it was "unlikely" that the fall of 1986 
 
         gave rise to claimant's back problems in July of 1987.
 
         
 
              Claimant was also seen and treated by Dr. Friday, Dr. Green 
 
         and Dr. Eklund.  None of these doctors submitted any evidence on 
 
         the point of causation.  The only doctor to testify, Dr. 
 
         Kimelman, said the causation was unlikely.  No physician 
 
         testified that there was causation.  Therefore, claimant failed 
 
         to sustain the burden of proof by a preponderance of the evidence 
 
         that the injury of June 9, 1986, was the cause of back trouble 
 
         that occurred on June 10, 1986, or the flare-up in July of 1987, 
 
         or his current diagnosis of a herniated disc at L5, S1 central 
 
         and right, without neurological deficit.
 
         
 
              Dr. Kimelman's opinion is supported by several other facts 
 
         in the case.  First, the records of Dr. Friday and the Greene 
 
         County Hospital for June 9 and 10, 1986, showed absolutely no 
 
         evidence of a back complaint or a back injury.  Second, as Dr. 
 
         Kimelman pointed out, the severe acute symptoms occurred when 
 
         claimant bent over to pick up the charcoal grate and could not 
 
         straighten up; therefore, that is when his back injury occurred.  
 
         Third, the records of Urbandale-Mercy Medical Clinic for June 11, 
 
         1986, June 12, 1986, June 14, 1986, July 3, 1986 and July 10, 
 
         1986, which dates are the complete treatment record on his back 
 
         in 1986, do not show that claimant told them about bending down 
 
         to pick up the barbecue grate and being unable to stand up on 
 
         June 10, 1986. Claimant related only the fall on June 9, 1986, 
 
         for the history for his back complaints.  Therefore, if Dr. Green 
 
         or Dr. Eklund had given an opinion on issue of whether the fall 
 
         on June 9, 1986, caused the back complaints on June 10, 1986 and 
 
         also a year later on June 30, 1987, the opinion of these doctors 
 
         would be based upon an incomplete history.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, on July 3, 1986, claimant was improving and 
 
         straight leg raising was negative.  On July 10, 1986, Dr. Eklund 
 
         said the low back strain was resolved.  He released claimant to 
 
         return to work the following day, July 11, 1986.  Claimant 
 
         continued to work for approximately a year without any medication 
 
         or medical treatment.  During this period of time claimant rode 
 
         his motorcycle to work until his wife suspected this might be the 
 
         cause of his back complaints, called Dr. Kimelman, who 
 
         recommended against it on August 18, 1987, and claimant then sold 
 
         the motorcycle.  Dr. Kimelman also testified that claimant's work 
 
         on the production line making vending machines could also have 
 
         caused or aggravated his back problem.  Dr. Kimelman found that 
 
         claimant's evaluation of his pain of four to seven on a scale of 
 
         one to ten was unrealistic.  Even though claimant has a diagnosed 
 
         herniated disc, there is no neurological deficit.  Dr. Kimelman 
 
         has never recommended surgery.  He testified that claimant is not 
 
         a surgical candidate at this time.  Both claimant and Dr. 
 
         Kimelman testified that claimant's back problem is chronic, but 
 
         not acute. Surgery is not recommended for simply chronic back 
 
         pain.  Dr. Kimelman said chronic back conditions seem to do as 
 
         well or better without surgery.  Dr. Friday took claimant off 
 
         work from June 10, 1986 to June 13, 1986, when he was discharged 
 
         from Greene County Hospital for the jaw, neck and head injury, 
 
         but since this is only a 3 day period of time, no temporary 
 
         disability benefits can be awarded (Iowa Code section 85.32).
 
         
 
              In conclusion, it is determined that claimant did not prove 
 
         that the injury on June 9, 1986, was the cause of his subsequent 
 
         back problem, which arose on June 10, 1986, when he bent over to 
 
         pick up a charcoal grate, his back locked up, and he could not 
 
         straighten up.  Nor did he prove that the injury of June 9, 1986, 
 
         was the cause of his recurrence of back pain in July of 1987. 
 
         Consequently, claimant is not entitled to temporary disability 
 
         benefits.  Claimant is not entitled to permanent disability 
 
         benefits.  Claimant is not entitled to the payment of the medical 
 
         expenses in exhibit 2.  Claimant is not entitled to an order that 
 
         defendants pay for a laminectomy at a future date.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented the following 
 
         findings of fact are made.
 
         
 
              Claimant was employed by employer from May 19, 1986 to 
 
         September 8, 1986, as a garage door installer.
 
         
 
              That claimant sustained an injury on June 9, 1986, which 
 
         arose out of and in the course of employment when he was struck 
 
         by a curtain guide in the left jaw and the left side of the neck 
 
         as stipulated to by the parties.
 
         
 
              That claimant was off work from June 10, 1986 through July 
 
         10, 1986 and returned to work on July 11, 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of June 9, 1986, 
 
         was the cause of his back problems that began on June 10, 1986, 
 
         and recurred on June 30, 1987, and persist in some degree at the 
 
         time of the hearing.
 
         
 
              That the only physician to testify on causal connection, Dr. 
 
         Kimelman, testified that it was unlikely the fall on June 9, 
 
         1986, caused claimant's back problem.
 
         
 
              That claimant did prove a period of time off work, due to 
 
         the jaw and neck injury, of three days from June 10, 1986 through 
 
         June 12, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That the injury of June 9, 1986, was the cause of three days 
 
         of temporary disability from June 10, 1986 to June 13, 1986.
 
         
 
              That the period of time claimant was off work for his left 
 
         jaw and neck of three days is not compensable pursuant to Iowa 
 
         Code section 85.32.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of June 9, 1986, 
 
         was the cause of claimant's back problems that began on June 10, 
 
         1986 and recurred on June 30, 1987.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to temporary 
 
         disability benefits for his back.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to medical 
 
         benefits for treatment to his back.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to an order 
 
         that defendants pay for a laminectomy, at a future date, on his 
 
         back.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendants to claimant as a 
 
         result of the injury that occurred on June 9, 1986.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including:  (1) the cost of the attendance of the court reporter 
 
         at the hearing; (2) the cost of the transcript of the hearing; 
 
         (3) one hundred fifty dollars ($150) for the cost of the expert 
 
         witness fee of Dr. Joshua Kimelman; (4) two hundred forty and 
 
         20/100 dollars ($240.20) for the court reporters fee for the 
 
         deposition of Dr. Kimelman; (5) as well as any other valid costs 
 
         provided by the Code of Iowa.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 5th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Donald Gonnerman
 
         Attorney at Law
 
         212 Equitable Bldg
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Frank Harrison
 
         Attorney at Law
 
         2700 Grand Ave
 
         Terrace Center, STE 111
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51108.50; 51401; 51402.40; 
 
                                       51402.60;
 
                                       51801; 51803; 52505; 52602
 
                                       Filed October 5, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BILLY L. HEINKEL,
 
         
 
              Claimant,
 
                                                  File No. 825055
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         OVERHEAD DOOR COMPANY of
 
         DES.MOINES, INC.,                        D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CINCINNATI INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51108.50; 51401; 51402.40; 51402.60; 51801; 51803; 52505; 52602
 
         
 
              Claimant was hit in the left jaw and left side of the neck 
 
         with a heavy object.  He failed to prove that this injury was the 
 
         cause of subsequent back complaints.  Therefore, he was not 
 
         awarded compensation or medical benefits.  He was not entitled to 
 
         an order for a laminectomy at a future date.