BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES RAY COLEMAN,
 
         
 
              Claimant,                               File No. 829225
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         DUBUQUE PACKING COMPANY,                     D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 17 1988
 
         SENTRY INSURANCE COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Charles Ray 
 
         Coleman, claimant, against Dubuque Packing Company, employer, and 
 
         Sentry Insurance Company, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained July 30, 1986.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner December 2, 1987. 
 
         The record was considered fully submitted upon the receipt of Dr. 
 
         William Hamsa's deposition.  The record in this case consists of 
 
         the testimony of the claimant; claimant's exhibits 1 through 14, 
 
         inclusive, and defendants' exhibits 1 through 4, inclusive. 
 
         Claimant has submitted a brief.  No brief was received from 
 
         defendants.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved December 2, 1987, the issues presented for resolution 
 
         are:
 
         
 
              1.  Whether claimant's work injury is the cause of a 
 
         permanent disability and, if so, the nature and extent thereof; 
 
         and
 
         
 
              2.  Claimant's entitlement to reimbursement for Iowa Code 
 
         section 85.39 examination and mileage.
 
         
 
                                FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment July 30, 1986, when he felt a "snap" in 
 
         his left arm as he was bagging rounds.  Claimant was sent to the 
 
                                                
 
                                                         
 
         emergency room at Dennison Memorial Hospital, coming under the 
 
         care of Dennis Crabb, M.D., and a few days later was sent to 
 
         Omaha to see William R. Hamsa, M.D.  Claimant explained he was 
 
         released for light duty work a few weeks later, that he returned 
 
         to work, and that he was discharged in October 1986 for an 
 
         "insufficient probationary period."  Claimant testified he has 
 
         not been under any continuing medical care since his separation 
 
         from employment, that he takes no prescribed medications, and 
 
         that he has returned to see doctors only on the request of 
 
         defendants.  Claimant asserted he continues to have problems with 
 
         pain in his shoulder, headaches, a "crampy, stiff" feeling in his 
 
         neck, that his hand "falls asleep" if he holds it "out front," 
 
         and that he is unable to work with his arms overhead as such 
 
         movement causes "unbearable pain" and irritates his shoulder.  
 
         Claimant admitted to some improvement in his shoulder since the 
 
         injury, feeling he is able to do more work and that it is 
 
         considerably better with reference to pain.
 
         
 
              Claimant explained that since his separation from employment 
 
         with defendant employer he worked for three months, six days per 
 
         week, from "sunrise to sunset" with a relative laying in 
 
         agricultural drainage tile.  He acknowledged he was able to lift 
 
         the spools of tile which weighed from 75 to 125 pounds but that 
 
         when his shoulder and neck began to hurt he would stop.  He also 
 
         maintained he did not do this regularly once a hydraulic hoist 
 
         was purchased.  Claimant stated that if he was not in the field 
 
         laying tile, he would be doing maintenance work including engine 
 
         overhaul which required he lift an engine head weighing about 75 
 
         pounds. Claimant is currently employed at a retirement center as 
 
         a "handyman," doing housekeeping, security and working under the 
 
         supervision of a third grade engineer learning to operate a 
 
         boiler as he studies to become a stationary engineer.
 
         
 
              William R. Hamsa, Jr., M.D., orthopedic surgeon, testified 
 
         he initially saw claimant August 4, 1986 on referral from Dennis 
 
         W. Crabb, M.D., and at that time rendered opinions that claimant 
 
         had a stretch injury to the rotator cuff or biceps tendon of the 
 
         left shoulder and that he did not believe claimant had done any 
 
         significant injury to the arm.  Dr. Hamsa reports that when 
 
         claimant was next seen on October 17, 1986 claimant had normal 
 
         range of motion in his neck and low back and normal passive range 
 
         of motion of the left upper extremity.  After claimant was last 
 
         seen on September 18, 1987, Dr. Hamsa told him his work activity 
 
         would be determined by pain tolerance and imposed no specific 
 
         restrictions stating only lifting 25 to 40 pounds would probably 
 
         be within limit.  Dr. Hamsa concluded he was unable to assign any 
 
         percentage rating as to loss of functional use, stating:
 
         
 
              Generally this type of thing requires only symptomatic 
 
              support.  As to whether there will be some permanent 
 
              residual disability, this can only be determined one year 
 
              post injury, but I rather doubt that he will have any 
 
              specific degree of disability, and more than likely his main 
 
              disability may be chronicity of symptoms which I think he is 
 
              going to have put up with.
 
                                                
 
                                                         
 
         
 
         (Claimant's Exhibit 8, page 2)
 
         
 
              Dennis W. Crabb, M.D., treated claimant with physical therapy 
 
         muscle relaxants and pain medication and noted on August 26, 1986 
 
         claimant seemed to have essentially a full range of motion, that 
 
         claimant was no longer taking his muscle relaxant and released 
 
         claimant to light duty work September 2, 1986.  Addressing the 
 
         issue posed by claimant's counsel of whether or not claimant would 
 
         suffer any permanent impairment, Dr. Crabb wrote on January 19, 
 
         1987:
 
         
 
                   In reference to the degree of permanency, it is going 
 
              to be very difficult to assess a percentage at this point in 
 
              time.  The injury occurred on July 30, 1986 and I feel that 
 
              the nature of this problem, and the length of time that has 
 
              gone past already, would indicate that he probably is not 
 
              going to effect complete recovery, however, before we can 
 
              adequately assess the degree of recovery, we may need to 
 
              wait a year before we are able to give you an exact 
 
              percentage.
 
         
 
         (Cl. Ex. 3)
 
         
 
              Dr. Crabb's notes reflect he last saw claimant October 7, 
 
         1986.
 
         
 
              Claimant was seen for evaluation by Peter D. Wirtz, M.D., of 
 
         Orthopedists Limited, June 26, 1987, who found claimant suffered 
 
         a muscular ligamentous strain to the left shoulder and that the 
 
         condition had cleared in that claimant has a full range of motion 
 
         without evidence of neurological in the upper extremity 
 
         concluding there is no impairment related to the muscular strain.  
 
         Dr. Wirtz reports:  "There is no orthopedic condition that would 
 
         limit him from employment at the present time, nor is there any 
 
         condition that would be restrictive in his activities."  (Def. 
 
         Ex. 4)
 
         
 
              Claimant was seen on June 17, 1987 by Horst G. Blume, M.D., 
 
         Ph.D., for "the purpose of establishing a rating of permanent 
 
         partial disability" who concluded:
 
         
 
                   It is my opinion that within reasonable medical 
 
              probability, that the patient has a permanent partial 
 
              disability of 8% as a whole as a result of the work related 
 
              injury dated July 30, 1986 while working at the Dubuque 
 
              Packing Plant at Denison, Iowa.
 
         
 
         (Cl. Ex. 1, p. 2)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
                                                
 
                                                         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 30, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
                                
 
                                                         
 
              Iowa Code section 85.27 provides in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              Iowa Code section 85.39 provides, in part:
 
         
 
                   If an evaluation of permanent disability has been made 
 
              by a physician retained by the employer and the employee 
 
              believes this evaluation to be too low, the employee shall, 
 
              upon application to the commissioner and upon delivery of a 
 
              copy of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.
 
         
 
                                   ANALYSIS
 
         
 
              Of first concern is whether or not claimant has sustained 
 
         any permanent disability as a result of the July 30, 1986 work 
 
         injury. A disability may be either temporary or permanent.  The 
 
         parties have stipulated the injury is the cause of temporary 
 
         disability and the extent of claimant's entitlement to temporary 
 
         total disability/healing period benefits to be from July 30 
 
         through September 1, 1986.  Generally, a claim of permanent 
 
         disability invokes an initial determination of whether the work 
 
         injury was a cause of a permanent physical impairment or 
 
         permanent limitation in work activity.  Such a determination lies 
 
         essentially within the realm of expert testimony.
 
         
 
              The record establishes claimant was either treated or 
 
         evaluated by four different doctors.  Dr. Hamsa concluded he was 
 
         unable to assign any percentage rating as to loss of functional 
 
         use and imposed no specific work restrictions stating only that 
 
         lifting 25 to 40 pounds would be within limit.  Claimant has, 
 
         however, exceeded this "limit" in his work installing 
 
         agricultural drainage tiles.  This restriction is, therefore, of 
 
         doubtful validity.  Dr. Crabb, while indicating claimant 
 
         "probably" is not going to effect a complete recovery also does 
 
         not present any permanent impairment rating.  Dr. Crabb opines 
 
         such a rating should be given one year post injury; however, 
 
         claimant did not return to see him at that time.  Dr. Wirtz found 
 
         no condition, orthopedic or other, that would limit claimant from 
 
         employment or restrict his activities.  Dr. Blume concluded 
 
         claimant has a permanent partial disability of 8% as a whole."  
 
         It is troubling that Dr. Blume refers to "disability"--which is 
 
         for the trier of fact to determine--rather than 
 
         "impairment"--which is the domain of the witness.  Dr. Blume 
 
         appears to invade the province of the industrial commissioner by 
 
                                                
 
                                                         
 
         rating claimant's disability rather than evaluating only his 
 
         functional impairment.  Wright v. Walter Kidde Company, 33 
 
         Biennial Report of the Industrial Commissioner, 237 (Appeal 
 
         Decision 1977).  Further, Dr. Blume fails to make note that 
 
         claimant has worked subsequent to his injury, using his shoulder 
 
         to lift objects weighing in excess of 75 pounds.  For these 
 
         reasons, the conclusion of Dr. Blume is given less weight than 
 
         those of the other physicians who saw and/or treated claimant.  
 
         Therefore, there is no evidence in the record which establishes 
 
         claimant has any permanent impairment as a result of the July 30, 
 
         1986 injury.  Further, the only restrictions imposed by any 
 
         physician has been nullified by claimant's subsequent work. 
 
         Accordingly, while the undersigned may not doubt claimant at 
 
         times suffers discomfort in the affected area, claimant has 
 
         failed to meet his burden that the work injury is the cause of a 
 
         permanent disability.
 
         
 
              Claimant requests reimbursement for the costs of Dr. Blume's 
 
         June 17, 1987 evaluation.  In Pirozek v. Swift Independent 
 
         Packing (Appeal Decision, February 18, 1987), the industrial 
 
         commissioner held that the allowance of a reasonable fee on 
 
         claimant's application for reimbursement for an independent 
 
         medical examination was correct even though the application was 
 
         not made prior to the examination so long as the condition 
 
         precedent of any evaluation made by an employer-retained 
 
         physician was present. Claimant's application in the case sub 
 
         judice falls within the commissioner's decision and he is 
 
         therefore entitled to reimbursement in the amount of $261.00 (Cl. 
 
         Ex. 13) for Dr. Blume's evaluation conducted pursuant to Iowa 
 
         Code section 85.39.
 
         
 
              Under Iowa Code section 85.27, the employer is required to 
 
         allow reasonably necessary transportation expenses incurred for 
 
         medical services for all compensable injuries.  The employer has 
 
         accepted liability for claimant's work injury, stipulating to the 
 
         compensability thereof.  Claimant's transportation expenses were 
 
         reasonably necessary for medical services and he is, therefore, 
 
         entitled to mileage expenses in the amount of $282.24 (1,344 
 
         miles times $.21 per mile).  (Cl. Ex. 14)
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment while bagging rounds on July 30, 1986.
 
         
 
              2.  Claimant returned to work when released and was able to 
 
         perform the tasks assigned to him until he was discharged in 
 
         October 1986 for an insufficient probationary period.
 
         
 
              3.  Claimant has no permanent impairment rating as a result 
 
         of his injury on July 30, 1986.
 
         
 
                                                
 
                                                         
 
              4.  The lifting restriction of 25 to 40 pounds imposed by 
 
         one doctor was nullified by claimant's subsequent employment 
 
         installing agricultural drainage tiles in which he was able to 
 
         lift in excess of 75 pounds.
 
         
 
              5.  Claimant was seen for evaluation by Dr. Horst Blume on 
 
         or about June 17, 1987 at a cost of $261.00.
 
         
 
              6.  Claimant's evaluation by Dr. Blume was after an 
 
         evaluation was made by an employer-retained physician.
 
         
 
              7.  Claimant traveled a total of 1,344 miles for treatment 
 
         of his injury.
 
         
 
              8.  Claimant's transportation expenses were reasonably 
 
         necessary.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the principles of law previously 
 
         stated, the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish the work injury of July 
 
         30, 1986 is the cause of any permanent disability.
 
         
 
              2.  Claimant has established his entitlement to 
 
         reimbursement for the independent medical examination conducted 
 
         by Dr. Horst Blume.
 
         
 
              3.  Claimant has established his entitlement to 
 
         transportation expenses for 1,344 miles traveled.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay to claimant two hundred sixty-one 
 
         dollars ($261.00) as reimbursement for the independent medical 
 
         evaluation conducted by Dr. Blume.
 
         
 
              Defendants shall pay to claimant two hundred eighty-two and 
 
         24/100 dollars ($282.24) for reasonably necessary transportation 
 
         expenses.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 17th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                                
 
                                                         
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         632-640 Badgerow Bldg
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Paul W. Deck, Jr.
 
         Attorney at Law
 
         635 Frances Building
 
         Sioux City, Iowa  51101
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 2502
 
                                                 Filed 2-17-88
 
                                                 Deborah A. Dubik
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES RAY COLEMAN,
 
         
 
              Claimant,
 
                                                   File No. 829225
 
         vs.
 
         
 
         DUBUQUE PACKING COMPANY,               A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              Claimant failed to sustain his burden of establishing his 
 
         work injury was the cause of any permanent disability.  The 
 
         record is void of evidence of any permanent impairment and the 
 
         lifting restriction (25 to 40 pounds) was nullified by subsequent 
 
         employment where claimant was able to lift in excess of 75 
 
         pounds.
 
         
 
         2502
 
         
 
              Although claimant did not make application for an 85.39 
 
         examination before it was done, condition precedent of an 
 
         evaluation by an employer-retained physician was present.  
 
         Claimant entitled to reimbursement pursuant to Pirozek v. Swift 
 
         Independent Packing (Appeal Decision, February 18, 1987).
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            TIMOTHY INGERSOLL,	      :
 
		                      :
 
                 Claimant,	      :	
 
		                      :
 
		            vs.       :
 
                		      :      File No. 829275
 
            TAMA MEAT PACKING CORPORATION,:
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                     		      :
 
                 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 June 25, 1990 is affirmed and adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis.
 
            Defendants assert on appeal that claimant experienced a 
 
            change in condition in December of 1987 which was new and 
 
            intervening.  Upon reviewing the record, it is determined 
 
            that defendants did not raise this issue at the hearing.  
 
            Therefore, it will not be considered.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            TIMOTHY INGERSOLL,	      :
 
 		                      :
 
                 Claimant, 	      :
 
 		                      :
 
 		            vs.       :
 
                 		      :       File No. 829275
 
            TAMA MEAT PACKING 	      :
 
		CORPORATION,	      :
 
		                      :         A P P E A L
 
                 Employer, 	      :
 
		                      :       D E C I S I O N
 
            		and           :
 
                      		      :
 
            AMERICAN MOTORISTS INSURANCE,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed June 25, 1990, 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY INGERSOLL,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 829275
 
         
 
         TAMA MEAT PACKING CORPORATION,             A R B I T R A T I O N
 
         
 
              Employer,                                  D E C I S I O N
 
         
 
         and
 
         
 
         AMERICAN MOTORISTS INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon claimant's petition 
 
         filed July 8, 1988.  Claimant sustained a repetitive notion 
 
         injury arising out of and in the course of his employment 
 
         stipulated to be June 1, 1986.  He now seeks benefits under the 
 
         Iowa Workers' Compensation Act from defendant employer Tama Meat 
 
         Packing Corporation and defendant insurance carrier American 
 
         Motorists Insurance Company.
 
         
 
              Hearing on the arbitration petition was had in Des Moines, 
 
         Iowa, on July 24, 1989.  The record consists of claimant's 
 
         testimony, joint exhibits 1 and 2, and defendants' exhibits A, B 
 
         and C (parts 2, 3, 4, 8 and 9).
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated: that claimant sustained an injury arising out of and 
 
         in the course of his employment with Tama Meat Packing 
 
         Corporation on June 1, 1986; that if claimant is entitled to 
 
         compensation for healing period or temporary total disability, 
 
         the extent of his entitlement is from September 15, 1986 through 
 
         December 15, 1986 and from January 4, 1988 through January 25, 
 
         1988 (a total of 16 weeks, 2 days); that if permanent disability 
 
         benefits are awarded, the commencement date is August 30, 1988; 
 
         that the appropriate benefit rate is $184.68 per week; that 
 
         medical
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         Association Guides to the Evaluation of Permanent Impairment in 
 
         assigning this impairment rating.  Claimant continues to complain 
 
         of hand and forearm pain and locking of the fingers, although he 
 
         has not seen Dr. Eversmann since his disability evaluation in 
 
         1988.
 
         
 
              Dr. Eversmann set forth his findings in greater detail in a 
 
         letter dated July 7, 1989.  This letter in part responded to the 
 
         report of Thomas W. Bower, L.P.T., and Scott B. Neff, D.O., 
 
         discussed below.  Dr. Eversmann noted that the evaluation 
 
         included multiple determinations of strength on several days, 
 
         multiple evaluations with the Jamar dynamometer for power grip, 
 
         multiple evaluations with a work simulator to evaluate maximum 
 
         voluntary effort, determination of work themes with the West Tool 
 
         Sort (for determining symptom magnificiation, of which none was 
 
         found), sensory examination with two point discrimination 
 
         testing, vibratory sensation testing, Moberg identification test, 
 
         timed Moberg pickup test and range of motion examinations.  Dr. 
 
         Eversmann found claimant to have lost approximately 50 percent of 
 
         strength in the right hand and approximately 40 percent of 
 
         strength in the left hand.  He also noted that men and women who 
 
         work in the meat packing and meat cutting industries generally 
 
         have strengths in excess of the norms for men and women of the 
 
         same age, which would further magnify claimant's loss of strength 
 
         since he would be expected to have had greater than normal 
 
         strength prior to the work injury.  Dr. Eversmann noted that 
 
         measurements of strength reduction were consistent with 
 
         claimant's treatment and surgery, as he had undergone not only 
 
         carpal tunnel releases, but had undergone a series of trigger 
 
         finger releases which further weaken the flexor mechanism and 
 
         grip of an individual so that the degree of weakness to be 
 
         expected would be more than with a carpal tunnel release alone.
 
         
 
              Dr. Eversmann further noted that claimant's hands were 
 
         neurologically not functioning entirely normally, although 
 
         conduction latency and sensory latency were at the upper limits 
 
         of normal.  Claimant continued to have some loss of vibration 
 
         sensation.  Dr. Eversmann further suggested that these findings 
 
         should be sufficient data for Dr. Neff and Mr. Bower to change 
 
         their evaluation figures of one percent to each hand as per their 
 
         report to the effect that neurological problems would increase 
 
         their rating if found to exist.  Dr. Eversmann specified that he 
 
         believed claimant's impairment to be related to the work injury.
 
         
 
              Claimant was seen for evaluation by Scott B. Neff, D.O., on 
 
         March 15, 1989.  Dr. Neff's associate, a physical therapist by 
 
         the name of Thomas W. Bower, wrote on March 15,
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION 
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         1989 (the letter was countersigned by Dr. Neff, who was 
 
         presumably in agreement) that claimant had undergone bilateral 
 
         carpal tunnel decompression and bilateral trigger finger releases 
 
         in August, 1986 (as has been seen, this is an error) and that 
 
         claimant continued to complain of a trigger or locking sensation 
 
         in the left hand predominantly over the middle, ring and little 
 
         fingers and on the right over the middle and ring fingers with 
 
         occasional pain into the forearms.  Claimant was found to 
 
         demonstrate normal range of motion, but grip strengths that were 
 
         "somewhat low compared to what we typically see, but again there 
 
         are no standards that I know of available to measure that by."  
 
         Claimant was found to have a one percent impairment to each hand 
 
         based on triggering.  However, Mr. Bower wrote that if an updated 
 
         EMG study were to be abnormal, the rating would be inaccurate and 
 
         should be increased.  He suggested that further EMG studies be 
 
         done and the results forwarded, but this suggestion was not 
 
         followed up.
 
         
 
              Claimant was seen in the office of Mr. Bower and Dr. Neff 
 
         for only about ten minutes, and was examined by Dr. Neff for only 
 
         perhaps 2-5 minutes.
 
         
 
              Dr. Eversmann's opinion as to claimant's impairment is much 
 
         more persuasive than that of Mr. Bower and Dr. Neff.  Dr. 
 
         Eversmann was the treating physician and performed three separate 
 
         surgical procedures on claimant's hands and wrists.  He had the 
 
         opportunity of seeing claimant over an extended time.  When he 
 
         performed an impairment evaluation, it was done in great depth 
 
         over several days and utilized numerous tests.  On the other 
 
         hand, Dr. Neff and Mr. Bower saw claimant for only a few minutes 
 
         for evaluation and did not take into account his loss of 
 
         strength.  Although claimant's neurological functioning was 
 
         within normal limits, Dr. Eversmann pointed out that it is just 
 
         barely within normal limits and suggested that Dr. Neff might 
 
         reconsider his impairment evaluation on that basis.
 
         
 
              It is held that claimant has sustained a work-related 
 
         impairment of 10 percent of each upper extremity.  The American 
 
         Medical Association Guides to the Evaluation of Permanent 
 
         Impairment show that a 10 percent impairment of the upper 
 
         extremity corresponds to an 11 percent impairment of the hand.  
 
         As has been seen, Dr. Eversmann employed the AMA guides in his 
 
         impairment evaluation.
 
         
 
              Defendants have never paid voluntary compensation benefits 
 
         based on permanent disability.
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION
 
         Page 5
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
         
 
              The parties have stipulated that claimant sustained an 
 
         injury arising out of and in the course of his employment on June 
 
         1, 1986.  However, they dispute whether that injury caused either 
 
         temporary or permanent disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 1, 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).
 
         
 
              After claimant's carpal tunnel syndrome and bilateral 
 
         trigger fingers were diagnosed, he underwent surgery.  Dr. 
 
         Mallory and Dr. Eversmann have specifically opined that 
 
         claimant's disability is causally related to the stipulated work 
 
         injury.  No contrary medical evidence exists in this record, nor 
 
         is there any indication that claimant's surgery (and resulting 
 
         healing period) and permanent impairment could possibly have been 
 
         caused by any intervening factor.  The evidence is overwhelming 
 
         that the work injury caused permanent and temporary disability.  
 
         Defendants' disputation of the causation issue does not appear to 
 
         be in good faith.
 
         
 
              The parties stipulated to entitlement to healing period 
 
         benefits from September 15 through December 15, 1986 and from 
 
         January 4 through January 25, 1988.  However, it appears that 
 
         claimant returned to work on January 25, and would not be 
 
         entitled to healing period benefits for that
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION
 
         Page 6
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         day.  Therefore, healing period benefits of 16 weeks, 1 day shall 
 
         be awarded.
 
         
 
              Claimant did not return to work between his first two 
 
         surgical procedures.  In cases of cumulative injury, the injury 
 
         date is when.claimant is no longer able to work due to pain or 
 
         physical inability.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).  As there was no gap in time between 
 
         surgical procedures, claimant has sustained a single injury, 
 
         although it is bilateral in nature.
 
         
 
              The wrist is considered part of the hand for purposes of 
 
         determining whether claimant's injury is to his hand or to his 
 
         arm.  Elam v. Midland Mfg., II Iowa Industrial Commissioner 
 
         Report 141 (1981).  Although claimant continues to complain of 
 
         pain in his forearm, this agency has held that lingering pain in 
 
         the forearm following a carpal tunnel release does not extend the 
 
         injury from the hand into the arm absent evidence of disability 
 
         or impairment to the forearm.  Streeter v. Iowa Meat Processing 
 
         Co., file numbers 730461 and 809945 (App. Decn., March 31, 1989).  
 
         The record in this case does not indicate that claimant's 
 
         disability extends into the forearm as opposed to the hand.  It 
 
         is held that claimant has sustained an impairment of 11 percent 
 
         of each hand.
 
         
 
              Benefits for permanent partial disability of two scheduled 
 
         members caused by a single accident is a scheduled benefit under 
 
         Iowa Code section 85.34(2)(s) and is payable on the basis of 500 
 
         weeks; however, the degree of disability must be computed on a 
 
         functional impairment basis and not an industrial disability 
 
         basis.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983).  As has been seen, the American Medical Association Guides 
 
         to the Evaluation of Permanent Impairment show that an 11 percent 
 
         impairment of the hand is equivalent to a 10 percent impairment 
 
         of the arm.  A 10 percent impairment of the arm is equivalent to 
 
         a 6 percent impairment of the whole person.  The combined values 
 
         chart published in the AMA guides shows that two separate 6 
 
         percent body as a whole impairments are equivalent to a 12 
 
         percent impairment of the whole person.  Therefore, claimant 
 
         shall be awarded 12 percent of 500 weeks, or 60 weeks of 
 
         permanent partial disability benefits.  The commencement date is 
 
         held to be January 25, 1988, following claimant's healing period, 
 
         notwithstanding the stipulation of the parties.
 
         
 
              Claimant also seeks penalty benefits under Iowa Code section 
 
         86.13, unnumbered paragraph 4.  The statute provides for a 
 
         penalty of up to 50 percent of benefits that were delayed or 
 
         denied without reasonable or probable cause or
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION 
 
         Page 7
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         excuse.  This is an appropriate case for the imposition of 
 
         penalty benefits.  Defendants have stipulated to a work injury.  
 
         That work injury obviously required surgery, which just as 
 
         clearly resulted in a healing period.  Defendants' denial that a 
 
         causal nexus existed between the work injury and the healing 
 
         period was in bad faith... All of the medical evidence supports 
 
         the existence of a causal nexus.  Similarly, all of the medical 
 
         evidence shows that claimant sustained some permanent disability, 
 
         although physicians have disputed the degree of disability.  Yet, 
 
         defendants voluntarily paid less than claimant's entitlement to 
 
         healing period benefits and have paid nothing whatsoever with 
 
         respect to permanent disability.  Defendants have set forth no 
 
         evidence in support of any reasonable cause or excuse for their 
 
         failure to recognize liability in this case.  It is held that 
 
         defendants' failure to pay claimant's full entitlement to healing 
 
         period benefits or any permanent disability benefits whatsoever 
 
         (even the evaluating physician chosen by defendants opined that 
 
         claimant had a one percent impairment of each hand) is clearly 
 
         unreasonable.  Claimant shall be awarded a full 50 percent 
 
         penalty of the unreasonably withheld healing period benefits and 
 
         a 25 percent penalty as to permanent partial disability benefits.  
 
         A full penalty is not awarded with respect to permanent 
 
         disability benefits because there is a substantial dispute in the 
 
         record between physicians as to the extent of claimant's 
 
         permanent impairment.  However, some penalty is appropriate 
 
         because there is no dispute whatsoever between those physicians 
 
         that claimant sustained at least some permanent impairment.
 
         
 
              Pursuant to the parties' stipulation, defendants paid 13 
 
         weeks, 6 days of healing period benefits voluntarily.  Claimant 
 
         is entitled to 16 weeks, 1 day of healing period benefits.  The 
 
         difference is 2 weeks, 2 days.  Therefore, penalty benefits of 1 
 
         week, 1 day shall be awarded with respect to unreasonably 
 
         withheld healing period benefits along with 15 weeks with respect 
 
         to unreasonably withheld permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant healing period benefits 
 
         at the weekly rate of one hundred eighty-four and 68/100 dollars 
 
         ($184.68) from September 15 through December 15, 1986 and from 
 
         January 4 through January 24, 1988, a total of sixteen (16) 
 
         weeks, one (1) day.
 
         
 
         
 
         
 
         INGERSOLL v. TAMA MEAT PACKING CORPORATION
 
         Page 8
 
         
 
         
 
              Defendants shall pay unto claimant permanent partial 
 
         disability benefits of sixty (60) weeks at the weekly rate of one 
 
         hundred eighty-four and 68/100 dollars ($184.68) commencing on 
 
         January 25, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay unto claimant penalty benefits under 
 
         Iowa Code section 86.13 of sixteen (16) weeks, one (1) day at the 
 
         weekly rate of one hundred eighty-four and 68/100 dollars 
 
         ($184.68).
 
         
 
              Defendants shall be entitled to credit for all benefits paid 
 
         voluntarily prior to hearing.
 
         
 
              As all benefits have accrued, they shall be paid in a lump 
 
         sum with interest pursuant to Iowa Code section 85.30.  However, 
 
         interest on penalty benefits shall accrue only from the filing 
 
         date of this decision.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 25th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Joseph A. Happe
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803, 4000.2
 
                                         Filed June 25, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY INGERSOLL,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 829275
 
         
 
         TAMA MEAT PACKING CORPORATION,            A R B I T R A T I O N
 
         :
 
              Employer,                               D E C I S I O N
 
         
 
          and
 
         
 
          AMERICAN MOTORISTS INSURANCE,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Benefits under Iowa Code section 85.34(2)(s) were allowed 
 
         under Simbro for bilateral carpal tunnel and trigger finger 
 
         releases.
 
         
 
         4000.2
 
         
 
              Claimant was awarded 50% of unpaid healing period and 25% of 
 
         permanent partial benefits for unreasonable delay in commencement 
 
         of benefits.  Insurer paid only part of healing period and no 
 
         permanency, and was found in bad faith.  Causation was clear in 
 
         case of bilateral carpal tunnel and bilateral multiple trigger 
 
         fingers.  Even defendants' doctor found some, even if very little 
 
         impairment.  Defendants did not offer evidence in support of 
 
         reasonable cause or excuse for failure to recognize liability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD METZ,
 
         
 
               Claimant,
 
         
 
         VS.
 
                                               File No.  829339
 
         ACE ELECTRONICS,.INC.,
 
         
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                               D E C I S I 0 N
 
         and
 
         
 
         IOWA MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gerald Metz, 
 
         claimant, against Ace Electronics, Inc., employer, and Iowa 
 
         Mutual Insurance Company, insurance carrier, defendants, for 
 
         benefits as the result of an alleged injury on June 26, 1986.  A 
 
         hearing was held in Cedar Rapids, Iowa, on May 24, 1989, and the 
 
         case was fully submitted at the close of the hearing.  Claimant 
 
         was represented by Thomas J. Currie.  Defendants were represented 
 
         by Thomas R. Read.  The record consists of the testimony of 
 
         Gerald Metz, claimant; Dale Welsh, employer; joint exhibits a 
 
         through i; claimant's exhibits 1 and 2 and defendants exhibits A 
 
         through C.  The deputy ordered a transcript of the hearing and 
 
         both attorneys submitted excellent briefs.
 
         
 
                                   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 the extent of entitlement to weekly compensation for 
 
         temporary disability benefits, in the event defendants are liable 
 
         for the injury, is stipulated to be from July 15, 1986 to  August 
 
         21, 1986.
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is August 22, 
 
         1986.
 
         
 
              That the fees charged for medical services or supplies 
 
         rendered are fair and reasonable.
 
         
 
              That the expenses were incurred for reasonable and necessary 
 
         medical treatment.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         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 
 
         proceedings.
 
         
 
              That defendants make no claim for benefits paid prior to 
 
         hearing under an employee non-occupational group health plan.
 
         
 
              That defendants make no claim for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That if the rate calculation should include claimant's 
 
         income from a second part-time employer, then the rate of 
 
         compensation, in the event of an award, is $143.74 per week.  if 
 
         the rate calculation is to exclude the income from the second 
 
         job, then the proper rate of compensation is $116.20.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on June 26, 1986 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits to which he is entitled.
 
         
 
              Whether the rate calculation is to include claimant's income 
 
         from a second employer.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 3
 
         
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born October 19, 1931, was 54 years old at the 
 
         time of the alleged injury and 57 years old at the time of the 
 
         hearing.  Claimant completed the tenth grade, but did not obtain 
 
         a GED.  He did attend Coyne Electrical School in Chicago for 
 
         approximately one and one-half years and learned basic 
 
         electronics and television repair.  He is currently employed as a 
 
         television technician.  Claimant also attended Kirkwood and took 
 
         four or five courses on basic electronics and major appliances. 
 
         Past employments include working on the family farm with his 
 
         father and brother and driving a truck in the army in the 
 
         engineer branch.  He was honorably discharged from the army.  
 
         After completing electronics school, claimant became employed as 
 
         a television technician for another employer making service 
 
         calls, repairing TV's, putting up antennas and performing basic 
 
         electric work.  Claimant started to work for employer in 
 
         approximately 1980, performing both bench work in the shop and 
 
         making service calls outside of the shop.  Claimant also had a 
 
         second part-time job for about an hour and one-half in the 
 
         evening, five times a week, for a janitorial service picking up 
 
         trash, sweeping, washing and rinsing floors for the past several 
 
         years.  The heaviest lifting requirement on the second job was 
 
         approximately 20 pounds.
 
         
 
              The television technician job required lifting both portable 
 
         and console television sets.  The portable units weighed 
 
         approximately 35 to 45 pounds.  The consoles weighed 
 
         approximately 90 pounds.  Usually he would seek help for lifting 
 
         the consoles.  The sales room was on the ground level floor and 
 
         the repair shop was in the basement.  Television sets were 
 
         required to be moved in and out of the basement every day.  If he 
 
         needed help carrying a console, he usually called upon Dale 
 
         Welsh, the employer, or John Menage, a coemployee.  Claimant 
 
         testified that he performs the same duties today except that he 
 
         doesn't lift anything heavy anymore.
 
         
 
              Claimant stated that on one occasion back in 1979 or 1980, 
 
         he had some low back pain which was caused by hemorrhoids, but 
 
         which gave him no problem after the hemorrhoid surgery 
 
         (transcript pages 41-43; exhibit c, p. 1). He also admitted to an 
 
         automobile accident in the army when he fractured his ribs.  
 
         These healed completely.  His back was not affected by that 
 
         accident.  Claimant did admit to hearing problems and that he 
 
         wore a hearing aid.
 
         
 
              Claimant testified that on June 25, 1986, he carried several 
 
         television sets up and down from the basement to the first floor. 
 
         He recalled one Zenith model where he was assisted by Welsh in
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 4
 
         
 
         
 
         the early part of the afternoon, it was a Zenith that weighed 
 
         about 90 pounds.  He is usually assisted by John, who pushes up 
 
         on the TV set as claimant backs up the steps.  On this day when 
 
         he worked with Dale, he had to pull up on the TV set as he backed 
 
         up the steps.  Because of working with a different person, his 
 
         back and right leg felt more tired (tr. pp. 46 & 47).  He worked 
 
         his normal day from 9:00 a.m. to 5:00  p.m.  That night he 
 
         performed his job for the janitorial service and his back was, "A 
 
         little tireder maybe and the back was a little bit pained but it 
 
         wasn't too bad." (tr. p. 48).
 
         
 
              The following morning, his right leg started drawing up and 
 
         he could hardly walk.  It felt like it had a big cramp in it.  
 
         Nevertheless, he went to work at 9:00 a.m.  He had an appointment 
 
         to deliver a 90 pound RCA television set that morning.  John 
 
         helped him load it on the truck.  Claimant testified, "I had John 
 
         help me then and he was loading it up, and I got that I couldn't 
 
         even hardly get it loaded.  So I told John to finish it, deliver 
 
         it." (tr. p. 50).  John delivered this television set.
 
         
 
              Claimant's primary complaint was not in his back, but was 
 
         rather in his right leg.  Claimant identified invoice number 
 
         11242 as the service ticket for the television set he was 
 
         supposed to deliver on the morning of June 26, 1986 (ex. 1, p. 
 
         2).  Claimant testified that he did not perform his janitorial 
 
         job the evening of June 26, 1986 because his right leg was 
 
         bothering him (tr. p. 52).  On June 28, 1986, claimant chose to 
 
         see Scott G. Hoover, D.C.   He had never seen a chiropractor 
 
         before.  The pain was in his right leg.  He didn't think he was 
 
         having any problem with his back.  He saw Dr. Hoover three or 
 
         four times.  Dr. Hoover put him in a lot of machines and pulled 
 
         his legs around, but he continued to get worse until he could 
 
         hardly walk anymore (tr. pp. 54-56).
 
         
 
              Claimant then determined to see Thomas J. Schueller, M.D., 
 
         his family doctor.  Dr. Schueller ordered a CAT scan and referred 
 
         claimant to see L.C. Strathman, M.D., an orthopedic surgeon.  Dr. 
 
         Strathman told claimant he needed an operation.  The operation 
 
         was performed by Dr. Strathman at Mercy Hospital where claimant 
 
         was hospitalized for one week.  After the surgery, he could walk 
 
         again (tr. pp. 58 & 59).
 
         
 
              Claimant did not report the injury to Dale Welsh until Welsh 
 
         came up to see him in the hospital after the surgery (tr.  
 
         p..61). The following colloquy transpired between claimant and 
 
         his counsel:
 
         
 
              Q. (by Mr. Currie - continuing)  And can you tell us
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              .why you didn't tell your employer that you felt you
 
               hurt yourself at work until your were in the hospital?
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page  5
 
         
 
         
 
              A. I didn't think it was -- had anything to tie in
 
              with it, the time we went up the stairs together.
 
         
 
              Q. Why didn't you think about it until you were in the
 
              hospital?
 
         
 
              A. Just didn't have time to think about it, I guess.
 
              It  never dawned on me until I was up there doing
 
              nothing, I guess.
 
         
 
         (tr. pp. 61 & 62).
 
         
 
              Claimant said he was off work approximately eight weeks, but 
 
         did return to the same job with the restriction that he was 
 
         supposed to watch what he lifted.  He still carries small TV sets 
 
         up and down the stairs.  He still carries the larger 90 pound 
 
         units with help.  Claimant said he could perform the job if he 
 
         watched what he lifted.  If he doesn't watch what he lifts, he 
 
         gets a sore back by evening.  He still has a dull pain about once 
 
         a week (tr. p. 64).
 
         
 
              Claimant explained that he believed he injured his back on 
 
         June 25, 1986, but that June 26, 1986 was the first day that he 
 
         was affected by it (tr. p. 70).
 
         
 
              On cross-examination claimant testified that he felt a 
 
         little pull in his back carrying the TV up the steps on June 25, 
 
         1986 (tr. p. 70).  He denied that he tripped, but related that he 
 
         felt some discomfort (tr. p. 71).  The following dialogue then 
 
         transpired:
 
         
 
              Q. Well, tell us what you felt.
 
         
 
              A. I just felt like it was -- like it gave a little
 
              pull and it -- You had to give it a little pull and it
 
              -- I kind of felt the back pop a little bit.  I didn't
 
              pay too much attention to it.  It's done it before and
 
              it always felt good the next day.
 
         
 
              Q. So you felt your back pop
 
         
 
              A. Yes.
 
         
 
              Q.  -- on June 25th?
 
         
 
              A. It pops quite often.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q. And you felt this pop while you were carrying the
 
              TV up the stairs?
 
         
 
              A. Uh-huh, yes.
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 6
 
         
 
         
 
              Q. Did you notice any leg pain at that time?
 
         
 
              A. Maybe a little, but nothing to really -- just that
 
              kind of got worse as it -- Not a whole lot of pain;
 
              some.
 
         
 
         (tr. p. 71)
 
         
 
              Claimant denied that he had any other real sharp back pains 
 
         on June 25, 1986, but said that he had a tired feeling like you 
 
         would have after working all day.  He said that he had some dull 
 
         pains (tr. p. 72).
 
         
 
              Claimant gave a recorded telephone interview to an insurance 
 
         representative on August 5, 1986 (ex. B, p. 1).  At that time, he 
 
         said the injury occurred on June 26, 1986 (ex. B, p. 2).  He said 
 
         he injured his back while carrying a TV up the stairs with John 
 
         (ex. B, p. 1).
 
         
 
              In a deposition which claimant gave on August 11, 1987, 
 
         claimant stated that he was unsure of the date of injury.  His 
 
         first awareness of it was on June 26, 1986 when he was unable to 
 
         deliver the TV set (ex. C, p. 21-25).  This dialogue occurred 
 
         between counsel and claimant:
 
         
 
              Q. Why don't you tell me what happened.
 
         
 
              A. We just automatically take a TV upstairs and one
 
              gets on one end and one on the other end, and we go
 
              upstairs like you carry anything upstairs.
 
         
 
              Q. Did you hurt your back?
 
         
 
              A. Well, when I was backing up the stairs, I twist it
 
              or anything like that.  It's hard telling how you pull
 
              your back out.  My foot slipped and pulled out.
 
         
 
         (ex. C, p. 21).
 
         
 
              Claimant later testified in this deposition that he believed 
 
         he initially injured his back on June 25, 1986.  They carried two 
 
         TV sets up and down the stairs that day his leg was bothering him 
 
         a little bit before he went home that night.  The next morning he 
 
         couldn't get his leg straightened out (ex. C, pp. 34-37).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q. Why don't you tell me about it?
 
         
 
              A. After we got done carrying them up, I had a dull
 
              .pain, it's like you do when you're tired at night,
 
               you're just tired, and it bothered me a little bit.
 
         
 
         
 
         
 
         METZ VS.ACE ELECTRONICS, INC.
 
         Page 7
 
         
 
         
 
              ***
 
         
 
              Q. Do you have a specific recollection of your legs or
 
              back bothering you at any time on June 25, 1986?
 
         
 
              A. No.
 
         
 
         (ex. C, p. 37)
 
         
 
              Claimant later stated that his pain had a gradual onset (ex. 
 
         C, p. 39).  Claimant could not explain why he did not report the 
 
         injury to Dale Welsh sooner than when he was visited in the 
 
         hospital by Welsh after the surgery (ex. C, pp. 40 & 41).
 
         
 
              Claimant was shown a form entitled "Application for 
 
         Treatment" from Dr. Hoover's records.  Claimant acknowledged that 
 
         it was signed by him and completed by his wife.  He admitted that 
 
         they had checked that payment will be made by health insurance 
 
         rather than by workers' compensation insurance.  He likewise 
 
         acknowledged that the question, "How did this condition develop? 
 
         (What caused it?  How did it start?)", shows a handwritten answer 
 
         of "Don't know."  Claimant could not explain why the question, 
 
         "When was the very first time you were aware of this  problem?", 
 
         was answered, "June 22, 1986", but immediately beside it there is 
 
         the date, "June 25, 1986", in a different handwriting.  Claimant 
 
         granted that behind the statement, "Any accidents, falls, etc., 
 
         that might have caused your problem.", is handwritten the word, 
 
         "No".
 
         
 
              Claimant had no explanation of why the report did not 
 
         reflect an on-the-job incident where he was lifting or carrying a 
 
         TV and thought that he heard a pop in his back.  Claimant agreed 
 
         that there is a whole one-half page section of the report under 
 
         the caption, "If yours is an accidental injury, please complete 
 
         the following questions.", but there are absolutely no entries or 
 
         writing in this section (joint ex. a, pp. 2 & 3; tr. pp. 75-78).
 
         
 
              Dr. Hoover completed a surgeon's first report on August 11, 
 
         1986.  Under the entry, "Injured's Account of Accident", is typed 
 
         in the following response, "The patient was unaware of what he 
 
         did to bring on his condition." (ex. a, p. 1)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The surgeon's first report signed by Dr. Schueller on 
 
         September 8, 1986, shows that he first saw claimant on July 7, 
 
         1986.  Under the entry, "Injured's Account of Accident", is the 
 
         typed entry, "(W]e had no history of injury in our file on July 
 
         7, after receiving paperwork from Iowa Mut., pt. was asked for 
 
         history of injury; he stated that on June 26 he was carrying a 
 
         customers television set up stairs and started developing pains." 
 
         (jt. ex. c, p. 1).  The CT scan ordered by Dr. Schueller 
 
         reported, "The findings suggest a herniated disc fragment at the
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 8
 
         
 
         
 
         L4-5 disc on the right." (jt. ex. c, p. 4). The office note of 
 
         Dr. Schueller for July 7, 1986, shows that claimant complained of 
 
         right leg pain; has been seeing chiro; pain right low back and 
 
         positive right straight leg raising tests.  Dr. Schueller's 
 
         impression was herniated intervertebral disc.
 
         
 
              The surgeon's first report completed by Dr. Strathman on 
 
         September 11, 1986 under the entry, "Injured's Account of 
 
         Accident", has typed in, "Pt states that the has right  leg  
 
         pain.  Symptoms began about 3 weeks prior to lst appt.  No 
 
         particular injury involved."  In response to the question, "Are 
 
         symptoms from which injured is suffering wholly due to this 
 
         accident?", is written in the following remarks, "No definite 
 
         accident related." (ex. d, p. 1).  Claimant acknowledged that Dr. 
 
         Strathman's office note for July 14, 1986, states, "He thinks he 
 
         just wakened with it." (ex. d, p. 2).  Claimant further agreed 
 
         that he did not relate any popping in his back on June 25, 1986 
 
         according to any of Dr. Strathman's records (tr. pp. 79 & 80).
 
         
 
              The records of Mercy Hospital show that claimant was 
 
         admitted on July 15, 1986 and discharged on July 22, 1986.  His 
 
         principle diagnosis was herniated intervertebral disc, L4, 5 
 
         right and that the principle procedure performed was a lumbar 
 
         laminectomy on July 16, 1986 and a large herniated 4-5 disc was 
 
         removed on the right (jt. ex. b, pp. 1-6; ex. d, pp. 4-7).  Dr. 
 
         Strathman released claimant to return to work on August  22,  
 
         1986 with the remark that claimant may lift up to 25 pounds (ex. 
 
         d, p. 2).  On June 24, 1987, Dr. Strathman wrote to claimant's 
 
         attorney, "Mr. Metz carries a ten percent permanent impairment of 
 
         the body as a whole on the basis of the herniated 4-5 disk on the 
 
         right." (ex. d, p. 3).
 
         
 
              Dr. Strathman gave a deposition on May 15, 1989 (cl. ex. 2). 
 
         His curriculum vitae shows that he is a board certified 
 
         orthopedic surgeon, since January of 1968 (cl. ex. 2, deposition 
 
         ex. 1).  Dr. Strathman testified that claimant was complaining of 
 
         right leg pain of about three weeks duration.  "He thinks he just 
 
         wakened with it." (cl. ex. 2, p. 4).  He verified that the CT 
 
         scan suggested a herniated disc that would probably require a 
 
         laminectomy and removal of the herniated disc.  Claimant was 
 
         admitted to the hospital, the surgery was performed on July 16, 
 
         1986 and claimant had follow-up appointments on July 30, 1986  
 
         and August 21, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The doctor confirmed that claimant needs to be careful about 
 
         his activities, particularly in terms of heavy lifting and 
 
         repeated stooping and lifting.  He testified that claimant has a 
 
         permanent impairment of 10 percent of the body as a whole (cl. 
 
         ex. 2, pp. 5-8).  Dr. Strathman's exact words were as follows, 
 
         "He does carry permanent impairment on the basis of the
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 9
 
         
 
         
 
         degenerated herniated disc for which the laminectomy was done." 
 
         (cl. ex. 2, p. 8).
 
         
 
              When asked about causal connection, Dr.  Strathman  said, 
 
         "There is not a specific history given at that time of an 
 
         incident that I can relate as to the causal factor.  I  would 
 
         further state that this gentleman is fifty-four years of age and 
 
         that it is not unlikely that he had some degeneration of lumbar 
 
         discs that could have been aggravated by physical work requiring 
 
         stooping, bending and lifting."  Dr. Strathman was asked a 
 
         hypothetical question.  If claimant had related a history of 
 
         carrying television sets up and down the stairs while working for 
 
         employer would that be significant in assessing causation?  Dr. 
 
         Strathman answered that it's within the realm of possibility, but 
 
         he was not given a history of a specific causal incident (cl. ex. 
 
         2, p. 11). The doctor was asked if it was probable based on that 
 
         history and the doctor again stated that it was only possible 
 
         (cl. ex. 2, pp. 11 & 12). The doctor explained that he defined 
 
         heavy lifting as 50 pounds regularly and occasionally lifting 
 
         somewhat higher than that, but not on a regular basis.  Dr. 
 
         Strathman was asked this question:
 
         
 
              Q. When you say "could have" are you speaking in terms
 
              of possibility as opposed as probabilities?
 
         
 
                 Mr. Read:  Objected to as being asked and answered
 
              about three times.
 
         
 
              A. Well, I would answer it this way, that it's
 
              certainly possible; and if the history can be validated
 
              that would bring it into the realm of probability, then
 
              I could accept that.  But as the history is at this
 
              time, I would have to say that it is possible.
 
         
 
         (cl. ex. 2, p. 15)
 
         
 
              Dale Welsh testified that he is the owner of Ace Electronics 
 
         along with his wife.  They have been in the business of sales and 
 
         service of electronic equipment such as televisions, VCR's and 
 
         other electronic equipment since 1953.  The company employs three 
 
         people: himself, his wife, and claimant.  In 1986, they also 
 
         employed John Menage.  Welsh testified that he first learned that 
 
         claimant was asserting a work injury when he went to visit him in 
 
         the hospital about two days after his operation.  Claimant did 
 
         not explain how the injury occurred he simply asked for workers' 
 
         compensation forms.  Welsh stated that claimant did not report an 
 
         injury on June 25 or June 26, 1986.  Metz first learned of the 
 
         details of the injury when he read claimant's deposition which 
 
         was not given until August 11, 1987.  Prior to that time claimant 
 
         had never related an incident at work where he thought he had 
 
         hurt his back (tr. pp. 92 & 93).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 10
 
         
 
         
 
              Welsh further testified that after the CT scan and before 
 
         claimant entered the hospital, when it appeared the injury might 
 
         be serious, he asked claimant if it might be job related and 
 
         whether he should notify the insurance company.  Welsh  stated 
 
         claimant said, "No, it isn't job related."  Welsh  alleged that 
 
         claimant said he didn't know when it happened or where it 
 
         happened.  He said this conversation took place at the store and 
 
         John Menage was present at that time.  Claimant's counsel pointed 
 
         out that this statement did not appear in answers to any of the 
 
         questions in the interrogatories, but  defendants' counsel 
 
         pointed out that the interrogatories indicated that Mr. Welsh had 
 
         knowledge of claimant's work history, observations of his 
 
         physical condition and statements made by claimant before and 
 
         after June 26, 1986 (tr. pp. 99 & 100)
 
         
 
                           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 June 26, 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 25 or June 26, 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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 11
 
         
 
         
 
         part, by the trier of fact. Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on  
 
         June 25, 1986 or June 26, 1986 which arose out of and in the 
 
         course  of employment with employer. Claimant was questioned 
 
         extensively at the hearing on direct examination and 
 
         cross-examination to describe the events that transpired at the 
 
         time of the injury. Claimant was also questioned extensively in 
 
         his deposition on August 11, 1987 and more briefly in a very poor 
 
         telephone statement taken by the insurance representative on 
 
         August 5, 1986.  Claimant's various accounts of an injury are 
 
         very nonspecific.  His different attempts to describe an injury 
 
         are extremely vague.  Claimant gives various descriptions of how 
 
         an injury occurred and these descriptions actually contradict 
 
         each other.  On direct examination he stated his back simply felt 
 
         tired, like after a long day's work, because he was used to 
 
         carrying the television sets with Menage rather than Welsh, but 
 
         he was able to perform his part-time job later that night for the 
 
         janitorial service (tr. pp. 46-48).  On cross-examination 
 
         claimant testified that he felt like it give a little pull and  
 
         he felt his back pop a little bit, but he added that it popped 
 
         quite often.  He said that he did have some dull pains at the end 
 
         of the day on June 25, 1986 (tr. pp. 71 & 72).
 
         
 
              The question and answer technique on the telephone statement 
 
         by the insurance representative is so poor it is hard to 
 
         determine specifically what it stands for.  It does appear that 
 
         claimant alleged the injury occurred on June 26, 1986.  It can be 
 
         stated that when claimant had an opportunity to describe the 
 
         incident he did not give a description of an injury in that 
 
         statement (ex. B, p. 1).
 
         
 
              In the deposition given on August 11, 1987 claimant 
 
         indicated, "My foot slipped and pulled out." (ex. C, p. 21).
 
         
 
              Claimant had no reasonable explanation for why he did not 
 
         report a work injury to Dr. Hoover, Dr. Schueller or Dr. 
 
         Strathman.  The application for treatment completed by claimant's 
 
         wife and signed by claimant provided numerous opportunities to 
 
         describe a work injury but did not do so.  Dr. Hoover said, "The 
 
         patient was unaware of what he did to bring on his condition." 
 
         (ex. a, p. 1). Claimant then saw Dr. Schueller on July 7, 1986 
 
         amd Dr. Schueller reported, "[W]e had no history of an injury in 
 
         our file on July 7..."  Dr. Strathman stated that claimant 
 
         reported that he awakened at night at home with right leg pain.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 12
 
         
 
         
 
         Claimant never did describe any kind of an incident at work 
 
         lifting and carrying TV's or otherwise that would cause or 
 
         precipitate his back injury or that would aggravate a preexisting 
 
         condition (ex. c, p. 3; ex. d, p. 2; ex. 2, pp. 8-15).  Dr. 
 
         Strathman would not testify that carrying television sets at work 
 
         probably caused this injury.  He would only say it was possible 
 
         or it could be.  Dr. Strathman finally said it is possible and if 
 
         the history can be validated that would bring it into the realm 
 
         of probability.  However, a proper history was never validated.
 
         
 
              Claimant did not report an injury at work on June 25, 1986 
 
         or June 26, 1986.  He did not report an injury until after his 
 
         surgery on July 16, 1986.  Claimant's accounts of how the injury 
 
         occurred are nonspecific, vague and contradictory.  Therefore, 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on either June 25, 
 
         1986 or June 26, 1986 that arose out of and in the course of 
 
         employment with employer.  Nor did he establish that any  
 
         activity at work was the cause of the pain in his right leg or in 
 
         his back.  Since claimant has not proven an injury arising out of 
 
         and in the course of employment with employer then all other 
 
         issues in the case are now moot.  As dicta it might be stated 
 
         that there is no evidence that claimant's work is the cause of 
 
         his impairment or the need to be careful lifting.  The issues of 
 
         entitlement to temporary disability, permanent disability, 
 
         medical benefits and the proper rate of compensation need not be 
 
         decided.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant did not sustain an injury arising out of and 
 
         in the course of employment with employer on either June 25, 1986 
 
         or June 26, 1986.
 
         
 
              That claimant did not describe a work injury on the numerous 
 
         opportunities that he was given to do so.
 
         
 
              That the attempted descriptions which claimant gave were 
 
         nonspecific, vague and even contradictory.
 
         
 
              That claimant saw three doctors, Dr. Hoover, Dr. Schueller 
 
         and Dr. Strathman and did not report a work-related injury.
 
         
 
              That the first time claimant reported a work-related injury 
 
         was after his surgery when employer visited him in the hospital.  
 
         That claimant did not describe an injury at that time, but only 
 
         asked for workers' compensation forms.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         METZ VS. ACE ELECTRONICS, INC.
 
         Page 13
 
         
 
         
 
              That Dr. Strathman, the treating orthopedic surgeon, could 
 
         not testify that claimant probably received a work-related injury 
 
         because claimant did not relate a specific event at the time the 
 
         pain in his back and leg occurred.
 
         
 
              That claimant did not subsequently validate an injury by his 
 
         testimony or any other evidence.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on June 
 
         25, 1986 or June 26, 1986 which arose out of and in the course of 
 
         employment with employer.
 
         
 
              That the issues of causal connection, entitlement and rate 
 
         are therefore, moot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendants to claimant.
 
         
 
              That the costs of this action, including the costs of the 
 
         transcript are charged to claimant pursuant Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 9th day of March, 1990.
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas Currie
 
         Attorney at Law
 
         3401 Williams Blvd
 
         PO Box 998
 
         Cedar Rapids, IA  52406-0998
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 IE Tower
 
         Cedar Rapids, IA  52401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.50; 51401; 51402.20;.
 
                                       51402.30; 51402.60; 52907
 
                                       Filed March 9, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD METZ,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                               File No.  829339
 
         ACE ELECTRONICS, INC.,
 
         
 
                                            A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                            D E C I S I 0 N
 
         and
 
         
 
         IOWA MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60;
 
         52907
 
         
 
              Claimant, a television repairman, did not prove an injury 
 
         arising out of and in the course of employment with employer. His 
 
         various descriptions of how the injury occurred were nonspecific, 
 
         vague and contradictory.  He did not report a work-related injury 
 
         to any one of his three doctors.  His answers on a medical 
 
         questionnaire for one of the doctors indicated he had no idea of 
 
         how he developed right leg and back pain.  He did not report the 
 
         injury until after the surgery.  The workers' compensation claim 
 
         appears to be an afterthought after the surgery for his ruptured 
 
         intervertebral disc surgery.  Claimant charged with costs, 
 
         including the cost of the transcript.  causal connection, 
 
         entitlement and rate were rendered moot by the finding of no 
 
         injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HELEN A. JOHNSON,
 
         
 
              Claimant,
 
                                                    File No. 829758
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         COMPREHENSIVE SYSTEMS, INC.,
 
                                                     D E C I S I 0 N
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       OCT 20 1989
 
         CIGNA PROPERTY & CASUALTY CO.,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Helen A. 
 
         Johnson against Comprehensive Systems, Inc., and Cigna Property & 
 
         Casualty Company to recover benefits under the Iowa Workers' 
 
         Compensation Act for an alleged injury of July 23, 1986.  This 
 
         matter was scheduled to come on for hearing at 10:00 a.m. at the 
 
         Black Hawk County Courthouse in Waterloo, Iowa.
 
         
 
              The undersigned was present.  Neither claimant nor defendant 
 
         appeared.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in her original notice and petition.  At the 
 
         time of hearing, neither an agreement for settlement nor a 
 
         request for continuance was on file.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she sustained an injury which arose out of and in 
 
         the course of her employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury which arose out of and in 
 
         the course of her employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
                                                
 
                                                         
 
              Since claimant introduced no evidence, she failed to meet 
 
         the burden of proof.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Neither claimant nor defendant appeared at the scheduled 
 
         time and place of hearing.
 
         
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3.  At the time of the hearing, neither an agreement for 
 
         settlement nor a request for continuance was on file with the 
 
         industrial commissioner.
 
         
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              1.  Claimant has failed to meet her burden of proof that she 
 
         sustained an injury which arose out of and in the course of her 
 
         employment.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that costs are assessed to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 20th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette Street
 
         P.O. Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
                                                
 
                                                         
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 51400, 51402
 
                                                 Filed October 20, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HELEN A. JOHNSON,
 
         
 
              Claimant,
 
                                                    File No. 829758
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         COMPREHENSIVE SYSTEMS, INC.,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA PROPERTY & CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51400, 51402
 
         
 
              Neither claimant nor counsel appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet her burden of 
 
         proof.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETTY J. DRILLON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 829796
 
            GOOD SAMARITAN NURSING HOME,  :
 
                                          :      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 Betty J. 
 
            Drillon against her former employer, Good Samaritan Nursing 
 
            Home, and its insurance carrier, Liberty Mutual Insurance 
 
            Company.  Claimant seeks additional compensation for 
 
            permanent disability resulting from an injury that occurred 
 
            on August 11, 1986 and also expenses of medical treatment.
 
            
 
                 The primary issues to be determined are whether the 
 
            injury of August 11, 1986 is a proximate cause of claimant's 
 
            present condition and of the expenses she seeks to recovery; 
 
            whether the expenses were incurred for reasonable treatment; 
 
            and, determination of the extent of permanent disability 
 
            which resulted from the injury.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on May 1, 1990.  The evidence consists of joint 
 
            exhibits 1 through 14, claimant's exhibits 15 through 19 and 
 
            testimony from Betty J. Drillon, Rebecca Drillon, Edward 
 
            Drillon and Linda Korman.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Betty J. Drillon is a 34-year-old married woman who 
 
            lives at Luray, Missouri.  She is a 1973 high school 
 
            graduate.  She has completed a short course which qualified 
 
            her to be a nurse's aide in approximately 1980.  In early 
 
            1990, she completed a real estate sales course, but failed 
 
            the licensing test.
 
            
 
                 Claimant's work history prior to beginning at Good 
 
            Samaritan Nursing Home included three and one-half years 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            operating a sewing machine in a factory and three years 
 
            operating machines in a plastic parts factory.
 
            
 
                 Claimant worked part-time at Good Samaritan Nursing 
 
            Home earning approximately $4.35 per hour.
 
            
 
                 According to claimant, her daughter and husband, she 
 
            was a very active person with no physical problems or 
 
            complaints prior to August 11, 1986.  No evidence to the 
 
            contrary appears in the record.  On August 11, 1986, she 
 
            injured her back while handling a patient at the Good 
 
            Samaritan Nursing Home.  Since that time, she has missed 
 
            work, been given light-duty work and followed a course of 
 
            medical treatment.
 
            
 
                 In 1986, orthopaedic surgeon Donald D. Berg, M.D., 
 
            reported that a CT scan was normal, but that he had some 
 
            concern about her recovery due to abnormal neurologic 
 
            findings (exhibit 9-S).  In February, 1987, claimant began 
 
            treating with orthopaedic surgeon Garth Samuel Russell, M.D. 
 
            (exhibit 9-T).  Conservative treatment did not resolve 
 
            claimant's symptoms.  In April and May, 1987, magnetic 
 
            resonance imaging and a CT scan revealed a bulging disc at 
 
            the L4-5 level of her spine (exhibit 14, page 6).  Further 
 
            conservative treatment was employed without resolving her 
 
            symptoms.  A repeat CT scan and myelogram conducted in 
 
            April, 1988 showed a bulging annulus at the L4-5 level 
 
            (exhibit 9-B; exhibit 9-D; exhibit 9-F).  On August 4, 1988, 
 
            Dr. Russell performed a partial laminectomy to relieve 
 
            pressure on her nerve by removing bone.  He did not excise 
 
            the intervertebral disc (exhibit 14, pages 7, 8 and 11).  
 
            Dr. Russell released claimant to return to work effective 
 
            February 1, 1989 (exhibit 14, page 8).  He felt that she 
 
            needed no further surgery or treatment.
 
            
 
                 Dr. Russell stated that a causal connection exists 
 
            between the August 11, 1986 injury and claimant's current 
 
            back condition.  He rated her as having a 20 percent 
 
            permanent impairment under the American Academy of 
 
            Orthopaedic Surgery Guidelines, a standard which often 
 
            provides a higher rating than the AMA guides (exhibit 14, 
 
            pages 8, 9, 12 and 13).  Dr. Russell recommended that 
 
            claimant obtain lighter work.  He advised that she not 
 
            perform nursing home work which would require her to handle 
 
            patients (exhibit 14, pages 9 and 10; exhibit 9-N).
 
            
 
                 Claimant did not return to work on or after February 1, 
 
            1989.  She has sought employment at the plastics plant, as a 
 
            spot welder, at a few other businesses and through Job 
 
            Service (exhibit 11, pages 13, 14 and 24).  No jobs have 
 
            been offered to her.  Claimant has not sought any work at 
 
            the Good Samaritan Nursing Home since February 1, 1989.
 
            
 
                 Claimant does little around her home.  Most of the 
 
            household work is done by her children, her husband and her 
 
            mother.  Claimant's activities are now greatly restricted 
 
            from what they had been prior to her injury.  Prior to the 
 
            injury, claimant performed most of the household chores.
 
            
 
                 Claimant stated that she now could not lift weights 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ranging from 25-50 pounds at all and that she would be 
 
            unable to lift even 5-10 pounds frequently.  She stated that 
 
            she was unable to perform frequent bending or stooping.  She 
 
            related that sitting for more than approximately five 
 
            minutes causes pain in her back and that she is likewise 
 
            unable to stand for more than approximately one hour.  
 
            During the hearing, she alternated between sitting and 
 
            standing at intervals of only a few minutes.  She complained 
 
            of numbness in her right leg and in the two large toes of 
 
            her right foot.  She stated that her low back hurts 
 
            constantly.  She related that her most comfortable position 
 
            is lying flat.  Claimant stated that she knows of no job 
 
            which she could perform in which to earn a living.
 
            
 
                 Claimant was evaluated by neurosurgeon David J. 
 
            Boarini, M.D., on September 14, 1989.  Dr. Boarini felt that 
 
            claimant has a functional overlay condition which affected 
 
            the results of the tests he performed during his examination 
 
            (exhibit 9, pages 9, 18 and 19).  He found no neurological 
 
            abnormalities and expressed the opinion that she needs no 
 
            further treatment or surgery.  He did indicate that physical 
 
            therapy or a back strengthening program could be beneficial 
 
            to her (exhibit 9, pages 9-12).
 
            
 
                 Dr. Boarini rated claimant as having an 8-9 percent 
 
            permanent impairment under the AMA guides.  He felt that 
 
            claimant's functional overlay did not result from the injury 
 
            which is the subject of this case or from any trauma 
 
            (exhibit 9, pages 20-22).
 
            
 
                 Dr. Boarini recommended that claimant follow 
 
            restrictions of not lifting more than 50 pounds or 
 
            performing repetitive bending.  He stated that she should 
 
            not perform repetitive bending or stooping when handling as 
 
            much as 20 pounds (exhibit 9, pages 22 and 23).  Dr. Boarini 
 
            agreed that claimant should find a type of work other than 
 
            nurse's aide (exhibit 9, page 24).
 
            
 
                 Claimant incurred the following expenses:
 
            
 
                 Anesthesiologists, Inc.                  $  508.32
 
                 Columbia Orthopaedic Group                2,392.00
 
                 Columbia Radiology, Ltd.                    918.00
 
                 Boyce and Bynum                              66.00
 
                 Total                                    $3,884.32
 
            
 
                 All the foregoing expenses are found to have been 
 
            incurred in providing reasonable treatment for the back 
 
            condition which resulted from the August 11, 1986 injury.  
 
            The dates of service show that most of the expenses were 
 
            incurred while claimant was hospitalized for the August 4, 
 
            1988 surgery.  The charge of $125.00 for a report from Dr. 
 
            Russell appears to have been requested by and sent to the 
 
            insurance carrier.  Therefore, it is the insurance carrier's 
 
            responsibility even if it is not considered to be treatment.  
 
            Records and reports from a treating physician can be 
 
            considered to be part of the treatment.
 
            
 
                 The assessment of this case made by Dr. Russell is 
 
            found to be correct where it differs from that of Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Boarini.  Dr. Russell is more familiar with this case and 
 
            also with the claimant's personality.  Further, there is not 
 
            a great deal of difference between their assessments.  Both 
 
            have recommended that claimant avoid work as a nurse's aide, 
 
            particularly work which would require her to handle 
 
            patients.  Dr. Russell did not recommend any particular 
 
            weight restriction, only that claimant find lighter work.  
 
            Dr. Boarini's recommendation on weight was that she not lift 
 
            more than 50 pounds and that she avoid repetitive bending 
 
            and stooping.  The assessments are not inconsistent.  
 
            Claimant's self-imposed limitations greatly exceed the 
 
            restrictions and recommendations contained in the medical 
 
            evidence.  Her symptoms and complaints are out of proportion 
 
            to the objective medical findings.
 
            
 
                 The work search which claimant has performed has been 
 
            minimal.  At the time of hearing, she had been released to 
 
            return to work for approximately 15 months, yet she listed 
 
            less than 15 employment applications.  She did not apply for 
 
            work at Good Samaritan Nursing Home despite the fact that 
 
            she had previously been given light-duty work.  Dr. 
 
            Boarini's assessment that claimant has a functional overlay 
 
            is accepted as being correct, but his opinion that it did 
 
            not result from the injury is contrary to logic and is 
 
            rejected.  There is no evidence in the record to suggest 
 
            that claimant had a functional overlay prior to this injury.  
 
            All the record is to the contrary.  She was consistently 
 
            described as an active person without any physical 
 
            afflictions.
 
            
 
                 Claimant sustained an injury to her back which was 
 
            sufficiently serious to warrant surgery.  She has permanent 
 
            impairment resulting from that injury.  Claimant's education 
 
            is limited to high school.  Her work history involves 
 
            extended standing or extended sitting in factories.  It 
 
            involves handling patients.  In view of claimant's back 
 
            condition, it is not unusual that extended standing or 
 
            extended sitting might aggravate her symptoms.  Claimant's 
 
            stated limitation of five minutes for sitting is, however, 
 
            quite unusual.  Claimant resides in a rural area where 
 
            employment opportunities are less available than in a more 
 
            urban area.  Her reduced capacity for physical activities 
 
            has a significant impact upon her earning capacity.  When 
 
            all material factors are considered, it is determined that 
 
            Betty J. Drillon sustained a 35 percent reduction in her 
 
            earning capacity as a result of the August 11, 1986 injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 11, 
 
            1986 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Russell attributed claimant's condition and 
 
            disability to the August 11, 1986 injury.  There is no 
 
            expert medical evidence in the record to the contrary.  All 
 
            lay evidence is consistent with the existence of a causal 
 
            connection.  The August 11, 1986 injury is therefore 
 
            determined to be a proximate cause of claimant's current 
 
            disability connected with her back condition.
 
            
 
                 The medical expenses contained in exhibits 15 through 
 
            19 were proximately caused by treatment for that back 
 
            condition.  The amount of the charges has been stipulated to 
 
            be reasonable and the treatment appears to have been 
 
            reasonable.  Defendants are therefore responsible for 
 
            payment of those expenses in the total amount of $3,884.32 
 
            under the provisions of Iowa Code section 85.27.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 It is determined that claimant's industrial disability 
 
            is 35 percent which entitles her to receive 175 weeks of 
 
            compensation for permanent partial disability under the 
 
            provisions of Iowa Code section 85.34(2)(u).  Since she has 
 
            previously been paid 46 weeks, the remaining balance is 129 
 
            weeks.
 
            
 
                                      order
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Betty J. 
 
            Drillon one hundred twenty-nine (129) weeks of compensation 
 
            for permanent partial disability at the stipulated rate of 
 
            seventy-one and 49/100 dollars ($71.49) per week payable 
 
            commencing December 21, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all past due amounts be paid 
 
            in a lump sum together with interest at the rate of ten 
 
            percent (10%) per annum computed from the date each payment 
 
            came due until the date of actual payment pursuant to the 
 
            provisions of Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the following 
 
            medical expenses:
 
            
 
                 Anesthesiologists, Inc.                  $  508.32
 
                 Columbia Orthopaedic Group                2,392.00
 
                 Columbia Radiology, Ltd.                    918.00
 
                 Boyce and Bynum                              66.00
 
                 Total                                    $3,884.32
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED 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 ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 West Second Street
 
            P.O. Box 716
 
            Ottumwa, Iowa  52501
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803, 5-2500
 
                                               Filed August 21, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETTY J. DRILLON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 829796
 
            GOOD SAMARITAN NURSING HOME,  :
 
                                          :      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.              :
 
            ____________________________________________________________
 
            
 
            5-1803, 5-2500
 
            Claimant awarded 35% permanent partial disability and 
 
            payment of medical expenses.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         DANIEL D. ANDERSON,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No.  829836
 
         CITY OF MASON CITY,           :
 
                                       :            A P P E A L     
 
              Employer,                :
 
                                       :          D E C I S I O N
 
         and                           :
 
                                       :
 
         USF & G COMPANY,              :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA    :
 
                                       :
 
              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.
 
         
 
                                 findings of fact
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed July 1, 1991 are adopted as set forth below.  
 
         Segments indicated by asterisks (****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
                 It is determined that claimant did not sustain an 
 
              injury on June 30, 1986, which arose out of and in the 
 
              course of employment with employer.
 
         
 
                 Claimant, born October 2, 1931, was 54 years old at 
 
              the time of the alleged injury ****.  He attended 
 
              school through the eighth grade.  He was 16 years old 
 
              at that time.  He started to work at age 13 in a 
 
              machine shop.  He served in the army as a foot soldier, 
 
              truck driver and mechanic for four years.  He started 
 
              to work for employer on April 18, 1955, and was 
 
              employed there for 31 years until the date of the 
 
              alleged injury on June 30, 1986.  All of his past 
 
              employments and this employment included heavy lifting 
 
              of 100 pounds or more.  At the time of this alleged 
 
              injury, claimant was a mechanic who repaired heavy 
 
              equipment for employer such as: trucks, garbage trucks, 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              garbage boxes, police cars, fire trucks, crawlers and 
 
              graders.
 
         
 
                 Claimant began having trouble with his right knee in 
 
              the 1950's.  After several episodes of his knee 
 
              catching and popping in and out four or five times a 
 
              day, the medial meniscus was removed on July 26, 1961 
 
              (exhibit 1, pages 160-170).  Claimant continued to have 
 
              difficulty with the right knee (ex. 1, p. 52) and 
 
              another arthrotomy was performed on August 9, 1966, to 
 
              remove residual medial cartilage (ex. 1, pp. 48-53).  
 
              On December 5, 1980, claimant received a total right 
 
              knee arthroplasty for degenerative arthritis of the 
 
              right knee (ex. 1, pp. 42-44).  The surgical report 
 
              disclosed a markedly degenerated joint with the absence 
 
              of nearly all articular cartilage in the medical 
 
              compartment and the anterior cruciate was severely 
 
              deteriorated (ex. 1, p. 127).  On December 15, 1980, 
 
              just prior to that surgery, his physician reported that 
 
              this is a 49-year-old laborer had developed arthritis 
 
              in both knees.  He once weighed 340 pounds, but this 
 
              had been reduced to 208 pounds at the time of the 
 
              surgery due to a gastric bypass operation performed in 
 
              1977 (ex. 1, p. 124).
 
         
 
                 At the time of the hearing claimant testified that 
 
              he was five feet six inches tall and weighed 
 
              approximately 252 pounds at the time of the alleged 
 
              injury on June 30, 1986 and at the time of the hearing 
 
              on February 19, 1990 (transcript p. 84).  At the time 
 
              of the total right knee arthroplasty, the treating 
 
              physician reported through his physician's assistant 
 
              that the left knee also had moderate medial 
 
              pseudolaxity.  He found medial compartment narrowing on 
 
              the left knee at that time (ex. 1, p. 126).  Darrell E. 
 
              Fisher, M.D., who performed the right total knee 
 
              replacement, recorded in his notes on November 24, 
 
              1980, that claimant had degenerative crepitation in his 
 
              left knee, but that it was more severe in his right 
 
              knee (tr. p. 137; ex. 1, p. 44).  The events which led 
 
              to the December 5, 1980, total right knee replacement 
 
              were described by Dr. Fisher through his physician's 
 
              assistant as follows:  
 
         
 
                     This 49 year old male [sic] has had a long 
 
                   standing [sic] history of right knee problems 
 
                   starting back in the 1950s [sic] when he 
 
                   twisted his knee and had a surgical removal 
 
                   of a cartilage.  Then again in the 1960s 
 
                   [sic] he had a twisting injury to his knee 
 
                   and had the knee reoperated on and evidently 
 
                   considerable fragments of the articular 
 
                   cartilage were removed at that point.  He did 
 
                   fairly well until a week ago when he was 
 
                   walking out the front door on level ground at 
 
                   his house and his knee gave out, after which 
 
          
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                   he had severe pain.
 
         
 
              (joint exhibit 1, page 125).
 
         
 
                 Claimant testified that on June 30, 1986, "I come 
 
              from the storeroom, which is the supply room for the 
 
              water department, or the whole city, I come across 
 
              there, went to open the shop door, when I stepped in 
 
              and when my leg twisted and popped, and that's when I 
 
              tore up my knee." (tr. p. 53).  Claimant testified that 
 
              the floor is rough where this occurred, but he did not 
 
              testify that the rough floor was a cause of his knee 
 
              twisting or popping or how it caused it (tr. p. 57).  
 
              He also testified that there is mud and water in this 
 
              area, but he did not testify that mud or water were the 
 
              cause of his twisting his left knee at the time of this 
 
              alleged injury or how they caused it (tr. p. 57).  
 
              Claimant denied that he had any previous problem with 
 
              his left knee or that he had received any medical 
 
              treatment for his left knee prior to June 30, 1986 (tr. 
 
              p. 58).  Claimant testified that he reported the injury 
 
              to the supervisor who is his brother, Kenny Anderson.  
 
              Claimant was able to work the rest of the day and 
 
              reported to work the following day on July 1, 1986, at 
 
              which time his brother-supervisor told him to see a 
 
              doctor.  Claimant saw Timothy C. Mead, M.D., on July 2, 
 
              1986 (tr. pp. 59 & 60).  
 
         
 
                 The supervisor's investigation report, which was 
 
              stipulated to be the report of Kenny Anderson, 
 
              claimant's brother and supervisor, described what took 
 
              place in answer to the question, "What happened?", with 
 
              these words, "Dan was walking in the garage on cement 
 
              floor and his left knee went out."  The next section of 
 
              the report instructs the supervisor to get all the 
 
              facts by studying the job and situation involved and 
 
              answer the question, "Why did it happen?"  Mr. Anderson 
 
              wrote, "No apparent reason."  The next section of the 
 
              report instructs the supervisor to determine what items 
 
              of equipment, material or people require additional 
 
              attention and asks this question, "What should be 
 
              done?"  The supervisor responded, "N/A."  The next 
 
              section of the report says take or recommend action, 
 
              depending upon your authority and asks the question, 
 
              "What you done thus far?" and the supervisor replied, 
 
              "N/A."  The next section of the report states that the 
 
              objective is to eliminate job hindrances and asks the 
 
              question, "How will this improve operations?" and the 
 
              supervisor wrote in, "N/A."  (ex. 1, p. 212; tr. p. 
 
              135).
 
         
 
                 Claimant testified that when he went to the doctor 
 
              he had to go to city hall to make out an accident 
 
              report.  He went over to the mayor's office and he 
 
              personally gave the information to the mayor's 
 
              secretary (tr. pp. 178 & 179).  The first report of 
 
              injury filed by employer on July 3, 1986, described the 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              injury as follows, "walking on cement shop floor and 
 
              tore left knee cartilege [sic]."  The next question 
 
              asks, "How did the accident or injury occur?"  The 
 
              answer on the first report states, "no apparent 
 
              reason."  Another question asks, "Name the object or 
 
              substance which directly injured the employee."  This 
 
              question is answered, "N/A."  (ex. 1, p. 213).
 
         
 
                 In his deposition, given on December 18, 1987, Dr. 
 
              Mead testified that claimant had rather diffuse 
 
              arthritis which involved the whole area of his left 
 
              knee of moderately severe extent and that the arthritis 
 
              had been there for some time prior to this incident 
 
              (ex. 5, p. 5).  Dr. Mead agreed that Dr. Fisher noted 
 
              degenerative crepitation in the left knee on November 
 
              24, 1980, and that Dr. Fisher's physician's assistant 
 
              recorded pseudolaxity which was the wearing out of the 
 
              inner side of the left knee (ex. 5, pp. 8 & 9).  
 
         
 
                 On July 9, 1986, Dr. Mead performed an arthroscopy 
 
              on the left knee and found a torn meniscus and 
 
              degenerative arthritis (ex. 1, p. 9; ex. 5, p. 11).  
 
              Claimant failed to improve after the arthroscopy and 
 
              Dr. Mead said he felt that something more needed to be 
 
              done.  Dr. mead reported, "He has one total knee and is 
 
              really anxious to have the other one done." (ex. 1, p. 
 
              11).  Dr. Mead further testified, "Mr. Anderson was 
 
              having enough discomfort and problems with his knee 
 
              that he was anxious to have something done.  He had 
 
              total knee arthroplasty on the right with fairly good 
 
              result and wished to have that done on the other side." 
 
              (ex. 5, pp. 13 & 14).  A total left knee arthroplasty 
 
              was performed on December 31, 1986 (ex. 5, p. 14).  Dr. 
 
              Mead further testified that the cause of the left total 
 
              knee replacement was a preexisting arthritis in the 
 
              left knee (ex. 5, p. 16).  Dr. Mead agreed that he 
 
              found no evidence in the medical records of problems 
 
              with his left knee after the total right knee 
 
              arthroplasty in 1980 and furthermore, claimant told him 
 
              that he had not had any problems prior to when the knee 
 
              gave way on June 30, 1986 (ex. 5, pp. 20 & 21).  
 
              However, the arthritis was there and the twisting 
 
              incident flared it up (ex. 5, pp. 25 & 26).
 
         
 
                 Dr. Mead gave a second deposition on November 21, 
 
              1988, at which time he stated that claimant had morbid 
 
              obesity.  He explained that morbid obesity means that 
 
              you have a condition of obesity that adversely affects 
 
              your health and has been causing problems.  The doctor 
 
              stated that the morbid obesity had been affecting his 
 
              left knee joint at the time of the alleged injury on 
 
              June 30, 1986.  He said that his left knee joint had a 
 
              large amount of arthritis in it at that time (ex. 6, p. 
 
              17).  
 
         
 
                 Dr. Mead further clarified that at claimant's 
 
              approximate age something relatively minor could cause 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              his knee to give out because of the previous wear and 
 
              tear (ex. 6, pp. 19 & 20).  He further indicated that 
 
              the instable situation in claimant's left knee itself 
 
              could both possibly and probably cause it to buckle and 
 
              to give away (ex. 6, p. 20).  Dr. Mead was asked:
 
         
 
                   Q.  If he had not had the meniscus tear, do 
 
                   you have an opinion as to whether, through 
 
                   his normal work of hard labor, we would have 
 
                   eventually had to have a knee replacement, 
 
                   Doctor?
 
         
 
                   A.  I feel he had severe enough arthritis 
 
                   that somewhere down the road he would have 
 
                   had to consider a replacement.
 
         
 
              (exhibit 6, page 24)
 
         
 
                 Dr. Mead testified that both obesity and genetics 
 
              were factors that could bring about claimant's 
 
              condition, accelerate it and make it more symptomatic 
 
              (ex. 6, pp. 26-28).  There was evidence that claimant 
 
              had a sister and a brother with arthritic knee 
 
              problems, but he had other siblings where there was no 
 
              evidence of arthritic knee problems.  The brother and 
 
              the sister who had the arthritic knees did need total 
 
              knee arthroplasties.
 
         
 
                 On cross-examination of claimant, it was shown that 
 
              in a pretrial deposition, claimant testified that he 
 
              fell to the ground when his left knee gave out (tr. pp. 
 
              176 & 177) which is in conflict with the supervisor's 
 
              investigation report, the first report of injury, what 
 
              he told Dr. Mead and what he testified to at the 
 
              hearing (tr. pp. 174-181).  When claimant was pressed 
 
              as to whether he actually fell down or not, his answer 
 
              was ambiguous.  He stated, "I don't remember.  But I 
 
              don't think I went all the way.  I can't remember for 
 
              sure." (tr. p. 162).  Claimant couldn't remember if he 
 
              actually slipped first or if his knee gave out and then 
 
              he fell (tr. pp. 170 & 173).  He told A.J. Wolbrink, 
 
              M.D., a consulting orthopedic surgeon, that his leg 
 
              stopped, but he didn't (ex. 1, p. 10).
 
         
 
                 ****
 
         
 
                 **** [P]rior to the total right knee replacement in 
 
              1980, claimant had several incidents where his knee 
 
              simply twisted or gave out.  As it happened, the last 
 
              such incident in 1980 occurred at his home.  Claimant 
 
              denies any medical treatment or any left knee 
 
              complaints prior to the incident of June 30, 1986.  
 
              Nevertheless, in 1980, Dr. Fisher recorded degenerative 
 
              crepitation in the left knee.  His physician's 
 
              assistant recorded pseudolaxity in the left knee.  Dr. 
 
              Mead found what he described as, "moderately severe" 
 
              and on another occasion, "a large amount of arthritis 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              in the left knee."  Claimant had morbid obesity.  
 
              Claimant had some genetic factors that tended to 
 
              predispose his arthritis in both knees.  Dr. Mead 
 
              testified that claimant's arthritic condition possibly 
 
              and probably created an unstable condition which could 
 
              cause the knee to buckle and give way (ex. 6, p. 20).
 
         
 
                 ****
 
         
 
                 Claimant did not establish that anything connected 
 
              with his employment caused the knee to give way or 
 
              twist.  Claimant described the surface as rough where 
 
              he fell.  He told Dr. Mead the surface was irregular at 
 
              that point.  He said this area was always muddy.  
 
              Nevertheless, claimant did not testify that the 
 
              roughness, irregularity or mud were in any way 
 
              connected with the particular giving way or twisting 
 
              that occurred at the time of the incident on June 30, 
 
              1986.  Nor did he explain how the roughness, 
 
              irregularity or mud contributed to his twist or giving 
 
              away.  Moreover, claimant could not accurately describe 
 
              exactly what happened.  In his deposition he said he 
 
              fell down.  In the supervisor's report, the first 
 
              report of injury, the report to Dr. Mead and his 
 
              testimony at hearing there is no evidence that he fell 
 
              down. 
 
         
 
                 If in fact the floor had been dangerously rough, 
 
              dangerously irregular or dangerously muddy, claimant's 
 
              brother, who was his supervisor, would have included 
 
              this in his supervisor's investigation report in 
 
              response to the questions, "What should be done?; What 
 
              have you done thus far?; How will this improve 
 
              operations?"  The supervisor's report said there was no 
 
              apparent reason for the fall.
 
         
 
                 ****
 
         
 
                 The weight of the evidence in this case establishes 
 
              that claimant's giving way or twisting of the knee was 
 
              caused by his severe preexisting arthritis in both 
 
              knees (which he also has in other parts of his body) 
 
              coupled with morbid obesity and some genetic factors.  
 
              There was no evidence that employment placed him in a 
 
              position which aggravated the effects of his fall or 
 
              precipitated the effects of his condition by strain or 
 
              trauma.  Claimant testified he was simply walking and 
 
              his knee gave out or twisted.  Although he suggested 
 
              the area was muddy, rough and irregular, he did not say 
 
              or explain how any one of these conditions contributed 
 
              to or caused his left knee injury.  Wherefore, it is 
 
              determined ****, that claimant did not sustain an 
 
              injury which arose out of and in the course of 
 
              employment with employer on June 30, 1986, when his 
 
              knee gave out or twisted on that date.
 
         
 
                                conclusions of law
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The dispositive issue in this matter is whether claimant 
 
         suffered an injury on June 30, 1986 that arose out of and in the 
 
         course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 30, 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 (l963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 19vidence that the event of June 30, 1986 was a lighting up of 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         claimant's condition.  Claimant has not proved that he suffered 
 
         an injury that arose out of his employment.  To the contrary, the 
 
         conclusion in this case is that the twisting of claimant's knee 
 
         and the damage to his knee was the result of his arthritic 
 
         condition.  Claimant's employment was not a substantial 
 
         contribution to the harm caused by the arthritis.
 
         
 
              Claimant has not proved that he sustained a compensable 
 
         injury on June 30, 1986.  Because he has not proved a compensable 
 
         injury, claimant is not entitled to second injury fund benefits 
 
         pursuant to Iowa Code section 85.64.
 
         
 
              One last matter should be noted.  Claimant apparently 
 
         alleges in his appeal brief it is error to rely upon the first 
 
         report of injury.  The first report of injury is exhibit 3, p. 
 
         213.  That exhibit is a joint exhibit.  It is inappropriate for a 
 
         party to allege that it is error to consider that party's exhibit 
 
         (in this case a joint exhibit).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That neither defendant employer nor defendant Second Injury 
 
         Fund of Iowa owes any compensation for weekly benefits or medical 
 
         payments arising out of the alleged injury on June 30, 1986.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to rule 343 IAC 4.33, including the cost of the 
 
         transcript of the hearing.
 
         
 
              That defendants file any claim activity reports which might 
 
         be requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing Dutton 
 
         Attorney at Law
 
         1200 35th St. STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Richard Winga
 
         Attorney at Law
 
         300 American Federal Bldg.
 
         PO Box 1657
 
         Mason City, Iowa  50401
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General 
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.30 - 5-3200
 
                                          Filed December 23, 1991
 
                                          BYRON K. ORTON
 
                                          WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL D. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            CITY OF MASON CITY,           :
 
                                          :         File No. 829836
 
                 Employer,                :
 
                                          :           A P P E A L
 
            and                           :
 
                                          :          D E C I S I O N
 
            USF & G COMPANY,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1402.30
 
            Claimant either twisted his left knee or his knee gave out 
 
            while walking on a level surface at work resulting in a 
 
            total left knee replacement.  It was determined that 
 
            claimant sustained an idiopathic injury entirely due to a 
 
            condition of severe degenerative arthritis, morbid obesity 
 
            and genetic factors.  These conditions were personal to the 
 
            employee.  The employment was not a substantial contribution 
 
            to the harm caused by the non-work factors.  Claimant failed 
 
            to prove that the injury arose out of his employment.
 
            
 
            5-3200
 
            Claimant failed to prove a second injury, therefore, no 
 
            recovery against the second injury fund.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.30 - 5-3200
 
                                          Filed December 23, 1991
 
                                          BYRON K. ORTON
 
                                          WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL D. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            CITY OF MASON CITY,           :
 
                                          :         File No. 829836
 
                 Employer,                :
 
                                          :           A P P E A L
 
            and                           :
 
                                          :          D E C I S I O N
 
            USF & G COMPANY,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1402.30
 
            Claimant either twisted his left knee or his knee gave out 
 
            while walking on a level surface at work resulting in a 
 
            total left knee replacement.  It was determined that 
 
            claimant sustained an idiopathic injury entirely due to a 
 
            condition of severe degenerative arthritis, morbid obesity 
 
            and genetic factors.  These conditions were personal to the 
 
            employee.  The employment was not a substantial contribution 
 
            to the harm caused by the non-work factors.  Claimant failed 
 
            to prove that the injury arose out of his employment.
 
            
 
            5-3200
 
            Claimant failed to prove a second injury, therefore, no 
 
            recovery against the second injury fund.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DANIEL D. ANDERSON,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  829836
 
         CITY OF MASON CITY,           :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         USF & G COMPANY,              :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA    :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Daniel D. 
 
         Anderson, claimant, against City of Mason City, employer, and USF 
 
         & G Company, insurance carrier, and the Second Injury Fund of 
 
         Iowa, defendants, for benefits as the result of an alleged injury 
 
         which occurred on June 30, 1986.  A hearing was held in Mason 
 
         City, Iowa, on February 19, 1990, and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by Channing L. Dutton.  Defendant employer was represented by 
 
         Richard R. Winga.  Defendant Second Injury Fund of Iowa was 
 
         represented by Robert D. Wilson.  The record consists of the 
 
         testimony of Daniel D. Anderson, claimant; Gerald E. Wymore, 
 
         streets superintendent; Richard T. Terry, a private investigator; 
 
         joint exhibits 1 through 6 and fund exhibits 1 through 4.  Fund 
 
         exhibit 5 was not admitted into evidence, but was accepted as an 
 
         offer of proof.  By mutual agreement of all parties, the 
 
         following exhibits were withdrawn from the joint exhibits:  joint 
 
         exhibit 1, page 153; joint exhibit 3, pages 225 and 226; and all 
 
         of joint exhibit 4, which is pages 229 through 236.  Claimant's 
 
         attorney submitted a claimant's summary of medical evidence in 
 
         the form of a brief at the time of the hearing.  Claimant's 
 
         attorney and defendant employer's attorney both submitted 
 
         excellent posthearing briefs.  The attorney for the second injury 
 
         fund did not submit a posthearing brief.  The deputy ordered a 
 
         transcript of the hearing.  
 
         
 
                                preliminary matter
 
         
 
              Paragraph four of the original notice and petition alleges 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         an injury date of June 30, 1986.  Paragraph one of defendants' 
 
         answer admits the allegation contained in paragraph four of the 
 
         petition.  Claimant contends that this constitutes an admission 
 
         of an injury arising out of and in the course of employment with 
 
         employer.  Claimant's contention is not correct.  
 
         
 
              Paragraph three of the answer denies that an injury occurred 
 
         as claimant described in paragraph ten of the petition.  
 
         Furthermore, paragraph four of the answer specifically states 
 
         that, "an additional issue is whether or not an injury occurred 
 
         on June 30, 1986, which arose out of Claimant's employment with 
 
         Defendant City of Mason City."  Therefore, it is determined that 
 
         defendant employer did not admit an injury arising out of and in 
 
         the course of employment with employer by admitting that the 
 
         alleged injury date in the petition was June 30, 1986.  
 
         (claimant's posthearing brief, page 8; transcript page 18).
 
         
 
                                      issues
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on June 30, 1986, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury is the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
              Whether the second injury fund is liable for any benefits, 
 
         and if so, the extent of benefits to which claimant is entitled 
 
         from the Second Injury Fund of Iowa.
 
         
 
                                 findings of fact
 
         
 
                                      injury
 
         
 
              It is determined that claimant did not sustain an injury on 
 
         June 30, 1986, which arose out of and in the course of employment 
 
         with employer.
 
         
 
              Claimant, born October 2, 1931, was 54 years old at the time 
 
         of the alleged injury, 58 years old at the time of the hearing, 
 
         and is 59 years old at the time of this decision.  He attended 
 
         school through the eighth grade.  He was 16 years old at that 
 
         time.  He started to work at age 13 in a machine shop.  He served 
 
         in the army as a foot soldier, truck driver and mechanic for four 
 
         years.  He started to work for employer on April 18, 1855, and 
 
         was employed there for 31 years until the date of the alleged 
 
         injury on June 30, 1986.  All of his past employments and this 
 
         employment included heavy lifting of 100 pounds or more.  At the 
 
         time of this alleged injury, claimant was a mechanic who repaired 
 
         heavy equipment for employer such as: trucks, garbage trucks, 
 
         garbage boxes, police cars, fire trucks, crawlers and graders.
 
         
 
              Claimant began having trouble with his right knee in the 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         1950's.  After several episodes of his knee catching and popping 
 
         in and out four or five times a day, the medial meniscus was 
 
         removed on July 26, 1961 (exhibit 1, pages 160-170).  Claimant 
 
         continued to have difficulty with the right knee (ex. 1, p. 52) 
 
         and another arthrotomy was performed on August 9, 1966, to remove 
 
         residual medial cartilage (ex. 1, pp. 48-53).  On December 5, 
 
         1980, claimant received a total right knee arthroplasty for 
 
         degenerative arthritis of the right knee (ex. 1, pp. 42-44).  The 
 
         surgical report disclosed a markedly degenerated joint with the 
 
         absence of nearly all articular cartilage in the medical 
 
         compartment and the anterior cruciate was severely deteriorated 
 
         (ex. 1, p. 127).  On December 15, 1980, just prior to that 
 
         surgery, his physician reported that this is a 49-year-old 
 
         laborer had developed arthritis in both knees.  He once weighed 
 
         340 pounds, but this had been reduced to 208 pounds at the time 
 
         of the surgery due to a gastric bypass operation performed in 
 
         1977 (ex. 1, p. 124).
 
         
 
              At the time of the hearing claimant testified that he was 
 
         five feet six inches tall and weighed approximately 252 pounds at 
 
         the time of the alleged injury on June 30, 1986 and at the time 
 
         of the hearing on February 19, 1990 (transcript p. 84).  At the 
 
         time of the total right knee arthroplasty, the treating physician 
 
         reported through his physician's assistant that the left knee 
 
         also had moderate medial pseudolaxity.  He found medial 
 
         compartment narrowing on the left knee at that time (ex. 1, p. 
 
         126).  Darrell E. Fisher, M.D., who performed the right total 
 
         knee replacement, recorded in his notes on November 24, 1980, 
 
         that claimant had degenerative crepitation in his left knee, but 
 
         that it was more severe in his right knee (tr. p. 137; ex. 1, p. 
 
         44).  The events which led to the December 5, 1980, total right 
 
         knee replacement were described by Dr. Fisher through his 
 
         physician's assistant as follows:  
 
         
 
                 This 49 year old male [sic] has had a long standing 
 
              [sic] history of right knee problems starting back in 
 
              the 1950s [sic] when he twisted his knee and had a 
 
              surgical removal of a cartilage.  Then again in the 
 
              1960s [sic] he had a twisting injury to his knee and 
 
              had the knee reoperated on and evidently considerable 
 
              fragments of the articular cartilage were removed at 
 
              that point.  He did fairly well until a week ago when 
 
              he was walking out the front door on level ground at 
 
              his house and his knee gave out, after which he had 
 
              severe pain.
 
         
 
         (joint exhibit 1, page 125).
 
         
 
              Claimant testified that on June 30, 1986, "I come from the 
 
         storeroom, which is the supply room for the water department, or 
 
         the whole city, I come across there, went to open the shop door, 
 
         when I stepped in and when my leg twisted and popped, and that's 
 
         when I tore up my knee." (tr. p. 53).  Claimant testified that 
 
         the floor is rough where this occurred, but he did not testify 
 
         that the rough floor was a cause of his knee twisting or popping 
 
         or how it caused it (tr. p. 57).  He also testified that there is 
 
         mud and water in this area, but he did not testify that mud or 
 
         water were the cause of his twisting his left knee at the time of 
 
         this alleged injury or how they caused it (tr. p. 57).  Claimant 
 
         denied that he had any previous problem with his left knee or 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         that he had received any medical treatment for his left knee 
 
         prior to June 30, 1986 (tr. p. 58).  Claimant testified that he 
 
         reported the injury to the supervisor who is his brother, Kenny 
 
         Anderson.  Claimant was able to work the rest of the day and 
 
         reported to work the following day on July 1, 1986, at which time 
 
         his brother-supervisor told him to see a doctor.  Claimant saw 
 
         Timothy C. Mead, M.D., on July 2, 1986 (tr. pp. 59 & 60).  
 
         
 
              The supervisor's investigation report, which was stipulated 
 
         to be the report of Kenny Anderson, claimant's brother and 
 
         supervisor, described what took place in answer to the question, 
 
         "What happened?", with these words, "Dan was walking in the 
 
         garage on cement floor and his left knee went out."  The next 
 
         section of the report instructs the supervisor to get all the 
 
         facts by studying the job and situation involved and answer the 
 
         question, "Why did it happen?"  Mr. Anderson wrote, "No apparent 
 
         reason."  The next section of the report instructs the supervisor 
 
         to determine what items of equipment, material or people require 
 
         additional attention and asks this question, "What should be 
 
         done?"  The supervisor responded, "N/A."  The next section of the 
 
         report says take or recommend action, depending upon your 
 
         authority and asks the question, "What you done thus far?" and 
 
         the supervisor replied, "N/A."  The next section of the report 
 
         states that the objective is to eliminate job hindrances and asks 
 
         the question, "How will this improve operations?" and the 
 
         supervisor wrote in, "N/A."  (ex. 1, p. 212; tr. p. 135).
 
         
 
              Claimant testified that when he went to the doctor he had to 
 
         go to city hall to make out an accident report.  He went over to 
 
         the mayor's office and he personally gave the information to the 
 
         mayor's secretary (tr. pp. 178 & 179).  The first report of 
 
         injury filed by employer on July 3, 1986, described the injury as 
 
         follows, "walking on cement shop floor and tore left knee 
 
         cartilege [sic]."  The next question asks, "How did the accident 
 
         or injury occur?"  The answer on the first report states, "no 
 
         apparent reason."  Another question asks, "Name the object or 
 
         substance which directly injured the employee."  This question is 
 
         answered, "N/A."  (ex. 1, p. 213).
 
         
 
              In his deposition, given on December 18, 1987, Dr. Mead 
 
         testified that claimant had rather diffuse arthritis which 
 
         involved the whole area of his left knee of moderately severe 
 
         extent and that the arthritis had been there for some time prior 
 
         to this incident (ex. 5, p. 5).  Dr. Mead agreed that Dr. Fisher 
 
         noted degenerative crepitation in the left knee on November 24, 
 
         1980, and that Dr. Fisher's physician's assistant recorded 
 
         pseudolaxity which was the wearing out of the inner side of the 
 
         left knee (ex. 5, pp. 8 & 9).  
 
         
 
              On July 9, 1986, Dr. Mead performed an arthroscopy on the 
 
         left knee and found a torn meniscus and degenerative arthritis 
 
         (ex. 1, p. 9; ex. 5, p. 11).  Claimant failed to improve after 
 
         the arthroscopy and Dr. Mead said he felt that something more 
 
         needed to be done.  Dr. mead reported, "He has one total knee and 
 
         is really anxious to have the other one done." (ex. 1, p. 11).  
 
         Dr. Mead further testified, "Mr. Anderson was having enough 
 
         discomfort and problems with his knee that he was anxious to have 
 
         something done.  He had total knee arthroplasty on the right with 
 
         fairly good result and wished to have that done on the other 
 
         side." (ex. 5, pp. 13 & 14).  A total left knee arthroplasty was 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         performed on December 31, 1986 (ex. 5, p. 14).  Dr. Mead further 
 
         testified that the cause of the left total knee replacement was a 
 
         preexisting arthritis in the left knee (ex. 5, p. 16).  Dr. Mead 
 
         agreed that he found no evidence in the medical records of 
 
         problems with his left knee after the total right knee 
 
         arthroplasty in 1980 and furthermore, claimant told him that he 
 
         had not had any problems prior to when the knee gave way on June 
 
         30, 1986 (ex. 5, pp. 20 & 21).  However, the arthritis was there 
 
         and the twisting incident flared it up (ex. 5, pp. 25 & 26).
 
         
 
              Dr. Mead gave a second deposition on November 21, 1988, at 
 
         which time he stated that claimant had morbid obesity.  He 
 
         explained that morbid obesity means that you have a condition of 
 
         obesity that adversely affects your health and has been causing 
 
         problems.  The doctor stated that the morbid obesity had been 
 
         affecting his left knee joint at the time of the alleged injury 
 
         on June 30, 1986.  He said that his left knee joint had a large 
 
         amount of arthritis in it at that time (ex. 6, p. 17).  
 
         
 
              Dr. Mead further clarified that at claimant's approximate 
 
         age something relatively minor could cause his knee to give out 
 
         because of the previous wear and tear (ex. 6, pp. 19 & 20).  He 
 
         further indicated that the instable situation in claimant's left 
 
         knee itself could both possibly and probably cause it to buckle 
 
         and to give away (ex. 6, p. 20).  Dr. Mead was asked:
 
         
 
              Q.  If he had not had the meniscus tear, do you have an 
 
              opinion as to whether, through his normal work of hard 
 
              labor, we would have eventually had to have a knee 
 
              replacement, Doctor?
 
         
 
              A.  I feel he had severe enough arthritis that 
 
              somewhere down the road he would have had to consider a 
 
              replacement.
 
         
 
         (exhibit 6, page 24)
 
         
 
              Dr. Mead testified that both obesity and genetics were 
 
         factors that could bring about claimant's condition, accelerate 
 
         it and make it more symptomatic (ex. 6, pp. 26-28).  There was 
 
         evidence that claimant had a sister and a brother with arthritic 
 
         knee problems, but he had other siblings where there was no 
 
         evidence of arthritic knee problems.  The brother and the sister 
 
         who had the arthritic knees did need total knee arthroplasties.
 
         
 
              On cross-examination of claimant, it was shown that in a 
 
         pretrial deposition, claimant testified that he fell to the 
 
         ground when his left knee gave out (tr. pp. 176 & 177) which is 
 
         in conflict with the supervisor's investigation report, the first 
 
         report of injury, what he told Dr. Mead and what he testified to 
 
         at the hearing (tr. pp. 174-181).  When claimant was pressed as 
 
         to whether he actually fell down or not, his answer was 
 
         ambiguous.  He stated, "I don't remember.  But I don't think I 
 
         went all the way.  I can't remember for sure." (tr. p. 162).  
 
         Claimant couldn't remember if he actually is ansat surface was irregular at that point.  He said this area was 
 
         always muddy.  Nevertheless, claimant did not testify that the 
 
         roughness, irregularity or mud were in any way connected with the 
 
         particular giving way or twisting that occurred at the time of 
 
         the incident on June 30, 1986.  Nor did he explain how the 
 
         roughness, irregularity or mud contributed to his twist or giving 
 
         away.  Moreover, claimant could not accurately describe exactly 
 
         what happened.  In his deposition he said he fell down.  In the 
 
         supervisor's report, the first report of injury, the report to 
 
         Dr. Mead and his testimony at hearing there is no evidence that 
 
         he fell down. 
 
         
 
              If in fact the floor had been dangerously rough, dangerously 
 
         irregular or dangerously muddy, claimant's brother, who was his 
 
         supervisor, would have included this in his supervisor's 
 
         investigation report in response to the questions, "What should 
 
         be done?; What have you done thus far?; How will this improve 
 
         operations?"  The supervisor's report said there was no apparent 
 
         reason for the fall.
 
         
 
              This case cannot be likened to Owens v. River Hills Care 
 
         Center, Vol. 1, number 3, State of Iowa Industrial Commissioner 
 
         Decisions 648 650 (1985); also decided by Deputy Industrial 
 
         Commissioner Trier, for the reason that claimant in this case did 
 
         not show, as Owens did, that the stress to claimant's knees at 
 
         the time of the injury was greater than claimant would have been 
 
         exposed to in normal nonemployment life or normal nonemployment 
 
         activities of an average person.  Claimant's injury in this case 
 
         was an injury resulting from a risk personal to the employee as 
 
         defined by Larson as:
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
   
 
              That claimant did not sustain an injury which arose out of 
 
         and in the course of employment with employer.  Iowa Code section 
 
         85.3(1); 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).
 
         
 
              Claimant did prove that the incident arose in the course of 
 
         his employment, but claimant failed to sustain the burden of 
 
         proof by a preponderance of the evidence that the alleged injury 
 
         arose out of his employment.  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); Sister Mary 
 
         Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) 
 
         and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a second injury 
 
         on June 30, 1986, to one of the specified parts of the body which 
 
         would entitle him to second injury fund benefits under the 
 
         provisions of Iowa Code section 85.64.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              That neither defendant employer nor defendant Second Injury 
 
         Fund of Iowa owes any compensation for weekly benefits or medical 
 
         payments arising out of the alleged injury on June 30, 1986.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to rule 343 IAC 4.33, including the cost of the 
 
         transcript of the hearing.  Iowa Code section 86.19(1).
 
         
 
              That defendants file any claim activity reports which might 
 
         be requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of July, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Channing Dutton 
 
         Attorney at Law
 
         1200 35th St. STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Richard Winga
 
         Attorney at Law
 
         300 American Federal Bldg.
 
         PO Box 1657
 
         Mason City, Iowa  50401
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General 
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1106 1108.50 1401 1402.20 
 
                                          1402.30 53200
 
                      Filed July 1, 1991
 
                      Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL D. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  829836
 
            CITY OF MASON CITY,           :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            USF & G COMPANY,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA    :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1106 1108.50 1401 1402.20 1402.30
 
            
 
            Claimant either twisted his left knee or his knee gave out 
 
            while walking on a level surface at work resulting in a 
 
            total left knee replacement.  It was determined that 
 
            claimant sustained an idiopathic injury entirely due to a 
 
            condition of severe degenerative arthritis, morbid obesity 
 
            and genetic factors.  These conditions were personal to the 
 
            employee.  The employment did nothing to contribute to the 
 
            injury.  The injury occurred in the course of employment 
 
            because it occurred at work.  Claimant failed to prove that 
 
            the injury arose out of his employment.  No recovery.  Costs 
 
            taxed to claimant.
 
            
 
            53200
 
            Claimant failed to prove a second injury, therefore, no 
 
            recovery against the second injury fund.