BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS STRAUSS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 833243
 
            vs.                           :
 
                                          :
 
            BIL-MAR FOODS,                :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Douglas D. 
 
            Strauss, claimant, against Bil-Mar Foods, employer, and 
 
            Kemper Group, insurance carrier, defendants, for benefits as 
 
            a result of an alleged back injury from repeated bending 
 
            while on the job which allegedly occurred in May 1984.
 
            
 
                 A hearing was held in Storm Lake, Iowa, on January 6, 
 
            1989, and the case was fully submitted at that time.  
 
            Claimant was represented by Peter J. Leehey.  Defendants 
 
            were represented by Thomas M. Plaza.  The record consists of 
 
            the testimony of Douglas D. Strauss, claimant, Dale R. 
 
            Carver, Human Resources manager, and joint exhibits A 
 
            through Z, AA, BB and CC.  Claimant's counsel presented a 
 
            claimant's hearing brief and a statement of claimant's costs 
 
            at the time of the hearing.  The deputy ordered a transcript 
 
            of the hearing.  Both attorneys submitted outstanding 
 
            posthearing briefs.
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of hearing:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between the employer and claimant at the time of the alleged 
 
            injury;
 
            
 
                 2.  That the rate of compensation in the event of an 
 
            award of benefits is $155.59 per week; 
 

 
            Page   2
 
            
 
                
 
                 3.  That the provider of medical services and supplies 
 
            would testify that their charges were reasonable and 
 
            defendants are not offering contrary evidence;
 
            
 
                 4.  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;
 
            
 
                 5.  That in the event of an award of benefits, 
 
            defendants are entitled to a credit under Iowa Code section 
 
            85.38(2) for the previous payment of $645.44 for disability 
 
            income payments and $1,468.72 in medical expenses;
 
            
 
                 6.  That defendants assert no claim for credit for 
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing; and,
 
            
 
                 7.  That there are no bifurcated claims.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of his employment with employer;
 
            
 
                 2.  Whether the injury was the cause of temporary 
 
            disability during a period of recovery;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability benefits and, if so, the nature and extent of 
 
            benefits to which he is entitled;
 
            
 
                 4.  Whether the injury was because of permanent 
 
            disability;
 
            
 
                 5.  Whether claimant is entitled to permanent 
 
            disability benefits and, if so, the nature and extent of 
 
            benefits to which he is entitled;
 
            
 
                 6.  Whether claimant is entitled to medical expenses;
 
            
 
                 7.  Whether claimant gave timely notice pursuant to 
 
            Iowa Code section 85.23 was asserted as an affirmative 
 
            defense by defendants; and,
 
            
 
                 8.  Whether claimant commenced this action in a timely 
 
            manner pursuant to Iowa Code section 85.26 was asserted as 
 
            an affirmative defense by defendants. 
 

 
           Page   3
 
                 
 
                              PRELIMINARY MATTERS
 
            
 
                 Claimant objected to defendants' exhibit F, page iii, a 
 
            medical report of John J. Dougherty, M.D., dated December 
 
            13, 1988, and defendants' exhibit F, pages ggg and hhh, a 
 
            medical report of Joel T. Cotton, M.D., dated December 6, 
 
            1988.
 
            
 
                 Paragraph 6 of the hearing assignment order dated July 
 
            28, 1988 provides:
 
            
 
                 Witness and Exhibit Lists.  A list of all 
 
                 witnesses to be called at the hearing and a list 
 
                 of all proposed exhibits to be offered into the 
 
                 evidence at the hearing along with copies of all 
 
                 written exhibits not previously served shall be 
 
                 served upon opposing parties no later than fifteen 
 
                 (15) days prior to the date of hearing.
 
            
 
            Fifteen days prior to hearing would be December 22, 1988.  
 
            Claimant's counsel admitted that he received joint exhibit 
 
            F, page iii, on December 21, 1988, along with the witness 
 
            and exhibit lists and that exhibit F, pages ggg and hhh, 
 
            were served on him on December 15, 1988.  Wherefore, since 
 
            these exhibits were timely served, claimant's objection is 
 
            overruled and exhibit F, pages ggg, hhh and iii were 
 
            admitted into evidence.
 
            
 
            Defendants objected to claimant's exhibit 1, the deposition 
 
            of Jo Weeces, a vocational rehabilitation consultant, and 
 
            the four attached deposition exhibits.  Deposition exhibit 1 
 
            is a written report of Jo Weeces, M.Ed, counselor, dated 
 
            December 23, 1988.  The deposition was taken on December 30, 
 
            1988.  Defendants' objection was erroneously overruled at 
 
            the time of the hearing and the exhibit was admitted into 
 
            evidence under an erroneous interpretation of paragraph 7 of 
 
            the hearing assignment order which states:  "All evidentiary 
 
            depositions shall be taken by the date of the hearing." 
 
            (Hearing assignment order dated July 28, 1988)  That ruling 
 
            is now reversed.  Defendants' objection to claimant's 
 
            exhibit 1 is sustained.  Claimant's exhibit 1, the 
 
            deposition of Jo Weeces, vocational rehabilitation 
 
            counselor, along with the four deposition exhibits, is not 
 
            admitted into evidence.
 
            
 
            The written report of Counselor Weeces, dated December 23, 
 
            1988, and the deposition of this witness, dated December 30, 
 
            1988, were neither timely generated or served on defendants 
 
            pursuant to paragraph 6 of the hearing assignment order.  
 
            Claimant's witness and exhibit lists, which showed the 
 
            report and deposition of Jo Weeces, were not served on 
 
            defendants until December 23, 1988.  Therefore, claimant's 
 
            exhibit 1, the deposition of Jo Weeces and the four 
 
            deposition exhibits, were neither timely generated nor 
 
            served on defendants in compliance with paragraph 6 of the 
 
            hearing assignment order and are, therefore, excluded from 
 
            evidence.  (Transcript pages 17 to 31)  This deposition and 
 
            the four deposition exhibits, even though they remain in the 
 
            industrial commissioner's file, were not examined or 
 
            considered in the determination of the issues in this case.
 
            
 
            
 
            Page   4
 
            
 
                                                                          
 
            Defendants objected to claimant's exhibit 2, a medical 
 
            report, dated December 23, 1988, and received by 
 
            defendants' attorney on December 28, 1988.  Defendants' 
 
            objection to claimant's exhibit 2 was sustained and 
 
            claimant's exhibit 2 was not received into evidence 
 
            for the reason it was not timely served pursuant to 
 
            paragraph 6 of the hearing assignment order.  
 
            
 
            Claimant did not wish to make an offer of proof of the 
 
            exhibit and withdrew it at that time.  (Transcript pages 15 
 
            and 16) 
 
            
 
            Defendants' exhibit D, a video at defendant employer's plant was 
 
            shown at the hearing and the custody of this video was placed in 
 
            defendants until the expiration of all appellant periods on this 
 
            claim.
 
            
 
            Defendants' exhibit G, a video of the testimony of Arthur Ames, 
 
            was not received into evidence for the reason that the deposition 
 
            itself was admitted into evidence in written form as to exhibit 
 
            D.  
 
            
 
            The deputy agreed to watch the video at the hearing but 
 
            defendants elected not to show the video at that time.
 
            At the conclusion of the hearing claimant moved to amend the 
 
            date of injury on the original notice and petition to conform 
 
            to the proof to show an onset of symptoms in March of 1984 
 
            which finally caused claimant to terminate his employment 
 
            in March of 1985 (Tr., p. 135).  It is not necessary to amend 
 
            the petition to conform to the proof in workers' compensation 
 
            proceedings and claimant's motion is overruled.
 
            
 
            Technical forms of pleading have been abolished (Iowa Rule of 
 
            Civil Procedure 16).  Each averment of a pleading shall be 
 
            simple, concise and direct (Iowa R.Civ.P. 69b).  Iowa law does 
 
            not require the petition to identify a specific legal 
 
            theory.  A pleader is not required to allege a legal theory 
 
            or spell out elements of a cause of action as in common law 
 
            pleading. Haughland v. Schmidt, 349 N.W.2d 121, 123 (Iowa 1984).  
 
            
 
            A petition is sufficient if it apprises a defendant 
 
            of the incident giving rise to a claim and the general 
 
            nature of the action.  State Savings Bank of Hornich v. State 
 
            Bank of Onawa, 368 N.W.2d 161, 163 (Iowa 1985).  The rules of 
 
            civil procedure require only that fair notice of a claim be 
 
            given.  Schill v. Careage Corporation, 353 N.W.2d 416 (Iowa 
 
            1984).  The key to pleading in an administrative matter is 
 
            nothing more than or less than the opportunity to prepare and 
 
            defend.  Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 
 
            192 (Iowa 1968).
 
            
 
            
 
            Page 5
 
            
 
            An application for arbitration is not a formal pleading 
 
            subject to technical rules of pleading.  There is no requirement 
 
            for the same conformity of proof to pleading as in ordinary 
 
            actions.  Yeager v. Firestone Tire & Rubber Co., 253 Iowa 
 
            369, 373; 112 N.W.2d 299 (1961).  The same has been said of 
 
            workers' compensation review-reopening actions.  Coghlan v. 
 
            Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969).  
 
            An arbitration petition may state the claim in a general 
 
            manner.  Technical rules are not observed and defendant 
 
            need only be generally informed as to the basic material 
 
            facts upon which the employee relies as a basis for compensation.  
 
            Iowa Workers' Compensation Law and Practice, Lawyer and 
 
            Higgs, Section 21-5.
 
            
 
            The industrial commissioner and deputies are required to 
 
            make decisions based on the facts presented even if they 
 
            are different or contrary to the theory pled.  Johnson v. 
 
            George A. Hormel & Company (Appeal Dec. June 21, 1988); 
 
            McCoy v. Donaldson Company, Inc. (Appeal Dec. April 28, 
 
            1989). Shank v. Mercy Hospital Medical Center 
 
            (Appeal Dec. August 28, 1989).  Any variance between 
 
            pleading and proof is immaterial unless it misleads a 
 
            defendant to his prejudice.  Coughlan v. Quinn Wire and 
 
            Iron Works, 164 N.W.2d 848 (Iowa 1969); Yeager, 253 Iowa 
 
            369; 112 N.W.2d 999.
 
 
 
            There is no evidence that defendants have been misled to 
 
            their prejudice.  On the contrary, defendants knew the 
 
            issues and evidence extraordinarily well as evidenced by the 
 
            report of Dr. Cotton, defendants' evaluator, on December 6, 
 
            1988, just one month prior to the hearing.  Furthermore, 
 
            the petition specifically stated in item 10, How did 
 
            injury occur:  
 
            
 
            "Repeated bending while on the job at Bil-Mar Foods in Storm 
 
            Lake."  Therefore, a cumulative injury, as distinguished 
 
            from a noncumulative injury, was alleged in the first place.  
 
            Defendants are knowledgeable about cumulative injuries as 
 
            indicated by their defense of this case.
 
            
 
            
 
            Page 6
 
                                 FINDINGS OF FACT
 
            
 
                                     INJURY
 
            
 
            It is determined that claimant did sustain a cumulative injury 
 
            to his back which occurred on December 7, 1988, the first day 
 
            claimant was forced to lose work due to the injury.
 
            Claimant started to work for employer on October 15, 1982.  
 
            He worked as a leg dropper until approximately February or 
 
            March 1984.  Claimant described in words and physically 
 
            demonstrated that this job consisted of making a cut through 
 
            the leg with a knife in his right hand, then he would break the 
 
            leg out of the socket of the body of the turkey, and then 
 
            he cut the turkey along the back so that the thigh and drum 
 
            would hang down.  This operation was performed at 
 
            approximately shoulder height on birds which were hung upside 
 
            down and came toward him on a conveyor line.  (Tr., pp. 35-38)
 
            
 
            In February or early March 1984, claimant transferred to wing 
 
            deboning.  He also described in words and physically demonstrated 
 
            this process.  He would grab the wing with his left hand, then 
 
            make a cut with a knife in his right hand down 
 
            along the bone, and then with the left hand he would break the 
 
            wing out of the socket of the body of the turkey and cut it 
 
            off.  (Tr., p. 38)  Claimant further contended and demonstrated 
 
            that he performed this job in a slightly bent over 
 
            position and that the product was waist high or a little 
 
            below.  
 
            
 
            In addition, claimant contends that since he was neither 
 
            experienced or qualified to perform this job, it was necessary 
 
            for him to lean to the right in order to start his cut 
 
            and finish his operation before the turkey had advanced 
 
            beyond his position on the line.  In short, claimant contends 
 
            that he performed this job in a bent over position which 
 
            required him to lean and reach to the right and to the left as 
 
            the turkey proceeded along the conveyor line.  Claimant further 
 
            testified that after he performed wing deboning for approximately 
 
            one week to a week and a half, he developed a pain beneath his 
 
            left shoulder blade just left of the midline of his thoracic 
 
            spine (Tr., pp. 39-41).  
 
            
 
            Claimant reported the problem to his supervisor and the 
 
            plant nurse and he was sent to see Mark S. Schultz, D.O., 
 
            at the Family Health Center, who was the employer's physician 
 
            (Tr. pp. 42-44).
 
            
 
            Claimant had previously shown a reduced tolerance for 
 
            repetitive work.  On November 4, 1982, prior to this injury, 
 
            one of the physicians at the Family Health Clinic reported 
 
            that claimant had trouble gripping with his right hand and that 
 
            in the morning he can't close his hand.  The physician noted 
 
            that claimant drops legs at Bil-Mar.  This was diagnosed as 
 
            tendonitis right forearm and wrist, with possible early carpal 
 
            tunnel syndrome.  (Ex. F, p. r)  Again, on April 6, 1983, 
 
            the same physician noted that claimant developed a lump 
 
            over his left wrist and that the patient drops about 5000 legs 
 
            a day with his left wrist.  The physician surgically removed 
 
            a ganglion cyst from the left wrist.  The physician 
 
            noted "I told the patient I thought the cyst probably was 
 
            secondary to repetitive motion."  (Ex. F, p. r)
 
             
 
            
 
            Page 7
 
            
 
            The records of the Family Health Center show that claimant 
 
            was first seen by the same physician, reported to be a Dr.  
 
            Daniels, on March 27, 1984 for this injury.  The doctor 
 
            reported that claimant developed lower thoracic pain after 
 
            performing a different job for one and one-half weeks.  
 
            He noted that claimant had previously dropped legs for one 
 
            and one-half years.  Dr. Daniels diagnosed lower thoracic 
 
            back strain and recommended a different job if the back pain 
 
            persists in a week (Ex. F, p. s). Claimant then saw Dr. 
 
            Schultz at the Family Health Center on April 26, 1984, who noted 
 
            that the problem developed on a job in which he did a lot of 
 
            bending.  He noted claimant was switched back to his 
 
            previous job but was still having thoracic pain which gradually 
 
            gets worse while he is at work (Ex. F, p. s).  On June 27, 
 
            1984, Dr. Schultz reported that the pain was increasing and 
 
            recommended that he stop his job performed with his arms 
 
            above his mid-thoracic area.  On November 6, 1984, Dr. Schultz 
 
            reported that a job off the line which involved a lot of 
 
            bending, twisting and lifting had aggravated his back again 
 
            and involved his lower back as well (Ex. F, p. t).  
 
            
 
            Claimant continued to treat with Dr. Schultz in November 1984 
 
            for back pain which claimant contends was caused by work.  
 
            On December 1, 1984, Dr. Schultz referred claimant to William 
 
            Follows, M.D., an orthopedic surgeon.
 
            
 
            Dr. Follows saw claimant on December 4, 1984.  In his history, 
 
            Dr. Follows stated:  "He got into problems about February 
 
            of this year when they started him on a job which required 
 
            him bending over a little bit and although he has gotten 
 
            off that job since then he has continued to have problems."  
 
            (Ex. F, p. k)  Dr. Follows' orthopedic examination, 
 
            neurologic examination, and x-rays were negative.  He 
 
            diagnosed "muscle and ligament strains."  (Ex. F, p. k)  
 
            
 
            He prescribed medication, ultrasound, physical therapy 
 
            and exercises (Ex. F, p. k)  On July 10, 1986, Dr. Follows 
 
            gave a report which stated that claimant did show a 
 
            limitation of motion on December 4, 1984.  Further, he did 
 
            not feel that the injury represented a permanent injury or 
 
            disability at that time.  He only saw claimant on the one 
 
            occasion on December 4, 1986.
 
            
 
            Dr. Schultz reported on December 6, 1984 that claimant 
 
            reported a pain in his back from his job at Bil-Mar 
 
            which involves a lot of bending, twisting and lifting.  
 
            The doctor diagnosed paravertebral strain, thoracic 
 
            lumbar strain (Ex. F, p. n).
 
            
 
            Claimant received almost daily intensive physical therapy 
 
            at the Sports Rehab & Physical Therapy, Inc., from 
 
            December 4, 1984 through December 31, 1984 (Ex. F, pp. kkk, 
 
            lll, l, m, o, p and q).  Claimant also received seven 
 
            chiropractic adjustments at the the Walsh Chiropractic 
 
            Office in Storm Lake from February 1, 1985 to February 15, 
 
            1985 (Ex. F, p. z)
 
            
 
            Claimant was examined at the Mayo Clinic from February 22 
 
            to 25, 1985 by the Department of Nephrology, Department 
 
            of Orthopedics and Department of Medicine and Rehabilitation.  
 
            Steven M. Dittes, M.D., of the Mayo Clinic, reported on March 
 
         
 
            
 
            Page   8
 
            
 
            5, 1985, to Arthur Ames, M.D., claimant's personal physician, 
 
            that their physical examination, laboratory tests and x-rays 
 
            were generally normal.  Dr. Dittes concluded:
 
               
 
               In summary, we found Mr. Strauss to be a reasonably 
 
               healthy 21-year-old with musculoskeletal lower and 
 
               upper back pain.  There seemed to be no particular stress 
 
               and no evidence of depression present and his story seemed 
 
               quite straightforward.  An MMPI was performed and was 
 
               entirely unremarkable which further reached to the 
 
               conclusion that the patient is suffering from significant 
 
               musculoskeletal pain....The patient had recently found 
 
               that there was an opportunity for a less physically 
 
               exerting job and he was encouraged, if this was 
 
               reasonable, to attempt this.
 
            
 
            (Ex. F, p. aa)
 
            
 
            Dr. Schultz made a report on July 14, 1986 in which he 
 
            stated that he saw claimant on several occasions for muscle 
 
            and ligament strains.  He did not recall any specific injury 
 
            that initiated this, however, he did recall that claimant 
 
            had a lot of trouble working with his arms over his waist 
 
            and also trouble with prolonged standing.  He said he 
 
            last saw claimant on January 10, 1985 when his diagnosis was 
 
            chronic back pain, etiology uncertain.
 
            
 
            Thomas J. Kass, D.C., reported that he saw claimant as a 
 
            new patient on June 25, 1986 for chronic mid-thoracic pain 
 
            which radiated under the left scapula.  Claimant contends 
 
            the condition began while working for Bil-Mar Foods in Storm 
 
            Lake.  Dr. Kass diagnosed "This man appears to have suffered 
 
            an acute subluxation of the T6 with left intercostal neuritis 
 
            radiating under the left scapula (Ex. F, p. oo).  He treated 
 
            claimant on two occasions and claimant discontinued his 
 
            treatments because he felt that they were not helping him 
 
            (Ex. F, p. oo).
 
            
 
            The medical evidence shows that claimant first saw his own 
 
            personal physician, Arthur Ames, M.D., as early as May 17, 
 
            1984 for muscle and ligament problems.  He advised claimant 
 
            to stick with the company-authorized physicians because he 
 
            agreed with their treatment and they would be paid by the 
 
            employer whereas his charges would not be covered.  
 
            Claimant saw Dr. Ames again on February 18, 1985, March 4, 
 
            1985 and March 25, 1985.  He agreed with the Mayo Clinic 
 
            consultation concerning exercise, weight loss and to avoid 
 
            bending and lifting stress on his back.  Claimant did not 
 
            see Dr. Ames again until June 21, 1986 for back ache of 
 
            the upper back aggravated by movement which he continued to 
 
            diagnose as muscle or ligament strain.  On August 7, 1986, 
 
            Dr. Ames recorded in his notes:  "Probably sec to injury, 
 
            probably a muscle strain since this problem started while 
 
            he was working on a different job at BilMar Foods."  
 
            (Ex. F, p. ff)
 
            
 
            
 
            Page 9
 
            
 
            Dr. Ames reported on August 9, 1986:
 
               
 
               In considering his situation, it is important 
 
               to note that before the time he was working 
 
               at BilMar he never had any indication of back 
 
               problems so it would seem logical that he must 
 
               have somehow injured it while working at BilMar.  
 
               
 
               As far as the nature of the injury the x-rays, 
 
               as reported by the Mayo Clinic, have been 
 
               totally normal so it must have been a muscle 
 
               ligament injury that never healed properly.  
 
               
 
            Since it has been going on so long, I would expect it to be 
 
            permanent and I would expect him to have some permanent 
 
            disability from this since he does have a lot of discomfort 
 
            when he bends, lifts or works with his arms raised up in 
 
            the air. I hope this information helps.
 
            
 
            (Ex. F, p. hh)
 
            
 
            Claimant continued to see Dr. Ames through 1986 and 1987.  
 
            Dr. Ames referred claimant to the University of Iowa Hospitals 
 
            and Clinics on February 6, 1987 (Ex. F, p. qq).
 
            
 
            On February 20, 1987, a Dr. Farber (full name unknown), 
 
            examined claimant along with a Dr. Shaffer (full name 
 
            unknown).  He suspected a herniated nucleus pulposus of the 
 
            thoracic spine.  He ordered an MRI (Ex. F, p. zz).  The 
 
            University  x-ray on February 20, 1987 reported:  
 
            
 
            "AP and lateral views of the thoracic spine demonstrate 
 
            normal alignment.  The vertebral body heights and disc spaces 
 
            are within normal limits.  There is no evidence of 
 
            intraosseous abnormality." (Ex. F, pp. yy, h, zz and i)  
 
            Claimant returned to the University on March 12, 1987 
 
            for the MRI which came out as a negative examination.  
 
            
 
            The report stated:
 
            
 
            The cervical and thoracic spine were visualized to the level 
 
            of T11-T12 disc space.  The cervical as well as thoracic 
 
            cord is normal in appearance.  The spinal subarachnoid space 
 
            is of normal dimensions.  There is no evidence of herniated 
 
            disc in either the cervical or thoracic spine.  No mass 
 
            lesions evident.
 
            
 
            (Ex. F, p. c)
 
            
 
            Claimant was instructed on a TENS unit (Ex. F, pp. b and e).  
 
            He testified that he preferred not to use the TENS unit 
 
            because it only masked the pain and did not cure it.
 
            
 
            On July 17, 1987, Dr. Ames noted that the pain was aggravated 
 
            by any movement, particularly bending, lifting and raising 
 
            his arms over his head.  He stated claimant had a partial 
 
            permanent disability of his back of 20 percent (Ex. F, pp. 
 
            aaa and bbb).
 
            
 
            
 
            Page 10
 
            
 
            Dr. Ames gave a deposition on December 2, 1988 in which 
 
            he stated that he is a board certified family practice 
 
            physician and that he had been claimant's personal physician 
 
            since September 1973.  He examined his notes and stated that 
 
            claimant had never been treated at any time previously for 
 
            a back complaint (Ex. D, pp. 2-6).
 
            
 
            The doctor's notes at the Family Health Center show that 
 
            claimant was given a pre-employment physical examination 
 
            on October 12, 1982 and concluded: "Given unlimited hire 
 
            at Bil Mar." (Ex. F, p. r).
 
            
 
            Dr. Ames testified several times in his deposition that 
 
            claimant's employment was the cause of the back injury.  
 
            At the time of claimant's initial visit on May 17, 1984, 
 
            he thought that the problem was caused by his work and 
 
            that the Bil-Mar doctors thought the back problem was 
 
            caused by his work.  Dr. Ames said it sounded to him 
 
            like it was a work injury and that he should continue 
 
            with the Bil-Mar doctors because he knew them to be quite 
 
            good and that claimant would have insurance coverage for 
 
            them (Ex. D, pp. 7 and 8).  
 
            
 
            Dr. Ames stated that he agreed with the evaluation 
 
            made by Dr. Follows, the orthopedic surgeon, in Spencer, 
 
            Iowa, and the evaluation of the various medical specialists 
 
            at the Mayo Clinic (Ex. D, pp. 9-17).  
 
            
 
            He referred claimant to the University of Iowa and continued 
 
            to treat him through July 15, 1987, at which time he 
 
            prescribed an antidepressant because claimant became 
 
            discouraged because of his persistent continuing back pain 
 
            (Ex. D, pp. 18-23).
 
            
 
            Dr. Ames was asked for his opinion on causal connection 
 
            and he replied: "My opinion is that this back problem was 
 
            caused from his work at Bil-Mar." (Ex. D, p. 24)  
 
            He further testified "My opinion is that this -- since it's 
 
            -- since it's continued for such a long time, unchanged, 
 
            that it will be permanent." (Ex. D, p. 24).  Dr. Ames 
 
            stated that the permanent partial disability of 20 
 
            percent that he had previously mentioned in his reports 
 
            translated to a 4 percent impairment to the body as a 
 
            whole (Ex. D, p. 25).  Dr. Ames elaborated on his 
 
            opinion about causal connection on cross-examination in 
 
            these words:
 
             
 
            
 
            Page 11
 
            
 
            Simply the fact that, according to our record, he had 
 
            never had any back problems before, and according [to] 
 
            the record, from our office and from the Family Health 
 
            Center, he started having discomfort in this specific spot 
 
            while he was doing a specific job at Bil-Mar.  And the 
 
            findings of discomfort in that area aggravated by 
 
            movement had persisted very consistently since that.
 
               
 
               And I believe -- I believe him to be an honest and 
 
               reliable person.
 
            
 
            (Ex. D, p. 34)
 
            
 
            Dr. Ames reiterated his opinion by stating "...but the 
 
            situation remains that I believe him to be honest and 
 
            reliable, and he did develop this problem while 
 
            working on this job and has persisted." (Ex. D, p. 41)
 
            
 
            The final dialogue on causal connection between Dr. Ames 
 
            and defendant's counsel was as follows:
 
            
 
            Q.  Yeah.  How can we say it's anything but coincidental 
 
            knowing so little about what he was actually doing?
 
            
 
            A.  I apologize for not being better prepared on the 
 
            exact nature of that job, but I am presuming that the 
 
            job involved arm and shoulder work and back work that 
 
            could affect that area.  And I am presuming -- and maybe 
 
            we should bring this in here now -- that originally our 
 
            friends at Bil-Mar agreed that this was from work, did 
 
            they, or did they not?
 
            
 
            Q.  I don't know if that really matters for your medical 
 
            opinion.
 
          
 
            A.  Okay.  No problem.  No problem.  It doesn't at all.  
 
            Forget that.  Anyway, you've heard my opinion, and 
 
            you're entirely right.  It's based on the fact that he 
 
            was doing that job, and that's when things started.
 
            (Ex. D, pp. 41-42)
 
             
 
            
 
            Page 12
 
            
 
            Dr. Ames stated that his 4 percent permanent impairment 
 
            rating was not based on the AMA Guides but rather his 
 
            own personal judgment (Ex. D, pp. 42-43).
 
            
 
            Claimant was examined by John J. Dougherty, M.D., for 
 
            defendants on October 1, 1987.  Dr. Dougherty proceeded 
 
            on the history given by claimant that his back pain 
 
            occurred when he changed jobs from leg dropping to wing 
 
            deboning.  He said, 
 
            
 
            "It appears to be more of a chronic strain of the 
 
            dorsal spine." (Def. F, p. eee)  Dr. Dougherty did 
 
            not make a specific statement on causal connection.  
 
            He did, however, award a permanent impairment rating.  
 
            He stated:
 
            
 
            As far as permanent partial impairment, this is certainly 
 
            a difficult problem to assess because basically, I 
 
            don't think he has any permanent partial impairment 
 
            from a physical standpoint that is demonstrable.  The 
 
            functional disability he states is related to his 
 
            complaints.  I think in trying to determine the physical 
 
            disability as a result of his complaints referable to 
 
            pain when he does something is most difficult.  Based on 
 
            this, one might give him approximately 5% of the body, 
 
            but I would really think he's not entitled to anything more.
 
            
 
            (Ex. F, p. eee)
 
            
 
            Claimant was also examined by Joel T. Cotton, M.D., a 
 
            neurologist for defendants, on December 5, 1988.  Dr. 
 
            Cotton concluded:
 
               
 
               It is my opinion, based upon a reasonable degree of 
 
               medical certainty, that Mr. Strauss' neurological 
 
               examination is normal and he is without neurological 
 
               impairment.  Based on a reasonable degree of medical 
 
               certainly [sic], there is no persistent disability 
 
               in this individual from a neurological standpoint 
 
               and that he is at a state of maximal medical benefit.  
 
               In addition, based on a reasonable degree of medical 
 
               certainty, it is my opinion that there is no 
 
               limitation on this individual's ability to perform 
 
               all usual and customary activity.  Based on a 
 
               reasonable degree of medical certainty, the job 
 
               performed in the spring of 1984 did not produce any 
 
               permanent injury on the basis of the history obtained 
 
               from the patient, the medical records I reviewed, the 
 
               examination I performed on Mr. Strauss, and after 
 
               review of the video tape showing the four activities 
 
               performed at Bil Mar Foods by the patient possibly 
 
               during that injury. Ex. F, pp. ggg and hhh)
 
            
 
            
 
            Page 13
 
            
 
            Dr. Dougherty gave a final letter on December 13, 
 
            1988, which stated:
 
            
 
            Reviewing his record, it would certainly appear that 
 
            there is no reason to restrict his activity from an 
 
            objective standpoint.  We've gone over the findings 
 
            of the Mayo Clinic and Iowa City.  The only other thing 
 
            is, his history does suggest that he does have problems 
 
            with standing for long periods of time.  I think 
 
            from an objective standpoint, I couldn't see any 
 
            reason to restrict his activity.  From a subjective 
 
            standpoint, if he can't take it, then one might have 
 
            to consider that. (Ex. F, p. iii)
 
             
 
            Claimant clearly established by the testimony of Dr. 
 
            Ames, his personal physician, who saw him from May 17, 
 
            1984 right up to the time of hearing, that claimant's 
 
            employment was the cause of this injury.  Dr. Ames 
 
            unequivocally stated that the employment was the cause 
 
            of the injury.  The only contradictory evidence is Dr. 
 
            Cotton, who only saw claimant on one occasion for a 
 
            defense evaluation for purposes of litigation over four 
 
            and one-half years after the injury first manifested itself.  
 
            The opinion of Dr. Ames is preferred over the opinion of 
 
            Dr. Cotton.  Rockwell Graphic Systems, Inc. v. Prince, 
 
            366 N.W.2d 187, 192 (Iowa 1985).  The treating physician 
 
            had more opportunity to form his expert opinion than 
 
            the one time examiner of defendants.  Lemon v. Georgia 
 
            Pacific Corp., II Iowa Indus. Comm'r Rep. 204, 205 
 
            (Appeal Dec. 1981); Clement v. Southland Corporation, 
 
            I Iowa Indus. Comm'r Rep. 56, 58 (1981).  Dr. Ames' 
 
            primary responsibility was the recovery of the patient 
 
            whereas Dr. Cotton's primary responsibility was to 
 
            make a report for defendants.
 
            
 
            Dr. Schultz was also an employer-retained and authorized 
 
            physician who treated claimant from March 27, 1984 
 
            through January 10, 1985.  Even though Dr. Schultz finally 
 
            concluded that claimant had chronic back pain, 
 
            etiology unknown, his office notes clearly show that he 
 
            suspected claimant's job was the cause of his back 
 
            pain and that his primary treatment mode was to change 
 
            claimant's duties.
 
            
 
            Dr Follows, the orthopedic surgeon, proceeded on the 
 
            history of an employment-related injury, treated claimant 
 
            on the basis of that history, did not dispute that 
 
            this history for the complaints was incorrect, and did 
 
            not suggest any other cause for claimant's back complaints.
 
            
 
            The Mayo Clinic doctors also accepted claimant's history 
 
            of changing jobs as the cause for his complaints and 
 
            concurred that the primary treatment modality should be 
 
            a change of employment which was less strenuous.
 
            
 
            
 
            Page 14
 
            
 
            The pre-employment physical examination and Dr. Ames' 
 
            history for claimant going back to 1973 showed no 
 
            evidence of any prior back complaints whatsoever.
 
            
 
            From the foregoing evidence, it is determined that 
 
            claimant sustained an injury which arose out of and in 
 
            the course of his employment with the employer, the 
 
            first symptoms of which began to occur in March 1984.
 
            
 
            It is further determined that claimant has sustained a 
 
            cumulative injury.
 
            
 
            Claimant demonstrated and described in words the hand 
 
            and arm movements to perform leg dropping and wing deboning.  
 
            Claimant also performed thigh deboning and trim scaling.  
 
            These jobs also required repetitive movements of the 
 
            hands and arms, however, claimant did not perform these 
 
            jobs in a bent over position while leaning and reaching 
 
            from right to left with his hands and arms outstretched 
 
            in front of him, which was the case in wing deboning.
 
            
 
            Dale Carver, the human resources manager, testified that 
 
            the plant processed about 12 birds per minute and that 
 
            if 10,000 turkeys were processed, claimant would have 
 
            handled approximately one-third of them or 3,300 turkeys 
 
            in the leg dropping job (Ex. C, p. 6).  Dr. Daniels, 
 
            of the Family Health Center, indicated that claimant 
 
            drops about 5,000 legs a day (Ex. F, p. r).  
 
            
 
            The exact count was not given for wing deboning but 
 
            the witnesses seemed to proceed on the basis that it 
 
            would be similar to leg dropping.
 
            
 
            The video demonstrated that all four of these jobs were 
 
            repetitive hand and arm motion jobs.  The video did 
 
            not show the wing deboners bending forward or leaning from 
 
            right to left.  However, claimant explained that he was 
 
            not a qualified wing deboner and he needed to perform the 
 
            job in this manner in order to keep pace with the speed 
 
            of the line.  Other testimony showed that the wing deboning 
 
            line had been changed to a different room from when 
 
            claimant performed that job and Carver could not answer 
 
            specific questions about the manner in which it was 
 
            performed previously and currently.
 
            
 
            Defendants indicated that claimant was an avid golfer 
 
            and also may have lifted beer cases when he worked 
 
            in his parents' bar and grill.  However, there was no 
 
            evidence of any kind, medical or nonmedical, that 
 
            golfing caused or contributed to claimant's back 
 
            complaints.  Nor was there any evidence that working 
 
            for his parents was the cause of claimant's back complaints.  
 
            Claimant testified that he had not worked for his parents 
 
            since high school.  Even then, there was no evidence 
 
            that he lifted beer cases or that he injured his back 
 
            in the employment of his parents.
 
            
 
            
 
            Page 15
 
            
 
            Based upon the fact that claimant sustained a cumulative 
 
            injury, it is determined that the injury date is 
 
            December 7, 1984, when claimant, because of pain, was no 
 
            longer able to perform the job.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                      CAUSAL CONNECTION - TEMPORARY DISABILITY
 
            
 
            Claimant is entitled to temporary disability benefits 
 
            for three different periods of time for which he was 
 
            off work during a period of recovery.
 
            
 
            Claimant saw Dr. Follows on December 4, 1984 (Ex. F, p. k) 
 
            and began an intensive course of physical therapy 
 
            on that date (Ex. F, p. ll).  Claimant testified that he 
 
            first lost work on December 7, 1984 (Tr., p. 58).  
 
            
 
            In mid-December, Dr. Schultz commented that since he 
 
            had been seen by a specialist, this treatment should be 
 
            given a fair trial and claimant was continued off work 
 
            for another two weeks (Ex. F, p. u).  Dr. Schultz returned 
 
            claimant to work full-time on January  2, 1985 
 
            (Ex. F, p. v).  Claimant is entitled to 3.857 weeks of 
 
            healing period benefits for the period from December 7, 
 
            1984 through January 2, 1985.
 
            
 
            On February 18, 1985, Dr. Ames stated:  "Has been disabled 
 
            for any work starting 2-1-85." (Ex. F, p. ff)  On March 4, 
 
            1985, Dr. Ames said:  "I gave him a note that he is 
 
            OK for work but should avoid work that involves a lot of 
 
            stress on his back." (Ex. F, p. ff).  Therefore, claimant 
 
            is entitled to healing period benefits again from 
 
            February 1, 1985 through March 4, 1985, a period of 4.571 
 
            weeks.
 
            
 
            Dr. Ames took claimant off work again on September 19, 
 
            1986.  He stated: "He has musculoskeletal pain he had 
 
            too much pain to perform his current occupation and I 
 
            advised him to stop work foir [sic] the sign co.  He's 
 
            anxious to try work that avoids lifting much or working 
 
            with hands and arms above shoulder level." (Ex, F, p. qq)  
 
            
 
            
 
            Page 16
 
            
 
            On October 15, 1986, Dr. Ames said that claimant could 
 
            return to work in these words:  "He can try light work, 
 
            he can't do anything heavy that involves a lot of pulling 
 
            or pushing and can't work above his head.  I am going 
 
            to try and get IA City appointment for him." (Ex. F, p. qq)  
 
            
 
            Therefore, claimant is entitled to 3.857 weeks of healing 
 
            period benefits for the period from September 19, 1986 
 
            through October 15, 1986.
 
            
 
            These three periods of temporary disability for healing 
 
            period total 12.285 weeks.
 
            
 
            Dr. Ames said that claimant's disability was caused by 
 
            this injury.  Even though Dr. Schultz formerly stated 
 
            that the etiology was unknown, his notes disclose that he 
 
            suspected that claimant's work was the cause of his 
 
            disability because his primary method of treatment was 
 
            to have claimant try other jobs to alleviate claimant's 
 
            back complaints.  Furthermore, Dr. Dittes, of the 
 
            Mayo Clinic, endorsed a change of employment as a remedy 
 
            for claimant's condition which certainly indicates that 
 
            claimant's work was suspected to be the cause of his 
 
            injury and his disability.  Claimant had no prior history 
 
            of back complaints going back to 1973 and he was given 
 
            an "unlimited hire" endorsement at the time of his 
 
            pre-employment physical examination by Dr. Daniels.  
 
            There was no evidence that golf or lifting beer cases 
 
            had ever caused any injury or back complaints to 
 
            claimant of any kind at any time.
 
            
 
                        CAUSAL CONNECTION - PERMANENT DISABILITY
 
            
 
            For the reasons stated in the foregoing section, it is 
 
            determined that the injury was the cause of permanent 
 
            disability.
 
            
 
            It is further determined that claimant has sustained a 
 
            20 percent industrial disability to the body as a whole 
 
            and is entitled to 100 weeks of permanent partial disability 
 
            benefits.
 
            
 
            There is no objective evidence of a severe traumatic 
 
            bodily injury.  Claimant was examined by numerous physicians.  
 
            Dr. Follows is an orthopedic surgeon.  He was examined in 
 
            the internal medicine department, orthopedic department and 
 
            physical medicine department at the Mayo Clinic.  He was 
 
            examined by two orthopedic surgeons at the University of 
 
            Iowa Hospitals and Clinics.  His final diagnosis appears 
 
            to be chronic back pain by Dr. Schultz and muscular ligament 
 
            strain that never healed by Dr. Ames.  A MMPI and the 
 
            opinion of various doctors verified that there was no 
 
            psychological overlay, however, there is evidence that 
 
            claimant did suffer some depression after his pain persisted 
 
            for more than two years.  Dr. Ames and the Mayo Clinic 
 
            
 
            
 
            Page 17
 
            
 
            doctors believe that claimant truly suffered the pain.  
 
            Claimant contends that it has never improved since the 
 
            first symptoms appeared back in March 1984.  Dr. Ames said 
 
            it was a permanent injury.  
 
            
 
            Claimant contends that he cannot stand for long periods 
 
            of time and he cannot sit without back support for a 
 
            long period of time.  Claimant said he had trouble working 
 
            with his arms upraised or extended.  Dr. Ames restricted 
 
            claimant from heavy work, and work which involved bending, 
 
            lifting or working with his arms and hands extended.
 
            
 
            Claimant has cooperated with the treatment offered.  
 
            He was advised to lose weight.  Claimant testified 
 
            and the medical evidence corroborates that claimant did 
 
            lose weight.  Claimant contends that he lost 60 pounds, 
 
            reducing his weight from 210 to 150 pounds early in his 
 
            period of recovery (Tr., p. 50 and 74).  Claimant testified 
 
            that he was forced to terminate this employment by mutual 
 
            agreement with employer because he was unable to perform 
 
            the work (Tr., p. 75).
 
            
 
            Dr. Ames determined that claimant has sustained a 4 
 
            percent permanent functional impairment.  Dr. Dougherty 
 
            determined that claimant sustained a 5 percent functional 
 
            impairment based upon his physical complaints which Dr. 
 
            Dougherty did not dispute.  Also, Dr. Dougherty did not 
 
            see any need for restrictions from an objective standpoint 
 
            but he stated: "From a subjective standpoint, if he 
 
            can't take it, then one might have to consider that." 
 
            (Ex. f, p. ii)  Dr. Ames felt claimant should be 
 
            restricted from heavy lifting, bending and reaching, 
 
            and working with his arms extended as well as working in 
 
            a standing position for prolonged periods of time.  
 
            Thus, claimant is foreclosed from some of the easiest to 
 
            obtain and sometimes the best paying jobs in the 
 
            competitive labor market.  Michael v. Harrison County, 
 
            Thirty-fourth Biennial Rep., Iowa Ind. Comm'r 218, 
 
            220 (Appeal Decision January 30, 1979); Rohrberg v. 
 
            Griffin Pipe Products Company, I  Iowa Indus. Comm'r 
 
            Rep. 282 (1984).
 
            
 
            Claimant, born June 10, 1963, was 21 years old at the 
 
            time of the injury and 25 years at the time of the 
 
            hearing.  Because of his young age, claimant's industrial 
 
            disability is less serious than it would be for an older 
 
            worker who is injured at the peak of his earnings career.  
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Rep., 
 
            Iowa Ind. Comm'r 34 (Appeal Decision 1979); Walton v. 
 
            B & H Tank Corporation, II Iowa Ind. Comm'r Rep. 426 (1981); 
 
            McCoy v. Donaldson Company, Inc., File No. 782670 and 
 
            805200 (Appeal Decision April 28, 1989).
 
              
 
            
 
            Page 18
 
            
 
            The feasibility of retraining is one of the factors to 
 
            determine industrial disability.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Ind. Comm'r Rep. 74, 78 (1984).
 
            
 
            In this case claimant has sought retraining and completed 
 
            a two year course in electronics, achieved a 3.42 
 
            grade point average and obtained a degree (Tr., p. 64).  
 
            Claimant anticipated that he would obtain employment 
 
            at the same rate of pay that he was earning for this 
 
            employer (Tr., pp. 64-65).  However, since claimant had 
 
            not obtained employment at the time of the hearing, 
 
            the amount of money he might be able to earn in the future 
 
            is only speculative.  Stewart v. Crouse Cartage, File No. 
 
            738644 (Appeal Decision February 20, 1987); Umphress v. 
 
            Armstrong Rubber Company, File No. 723184 (Appeal 
 
            Decision August 27, 1987).
 
            
 
            Claimant's earnings were reduced while he attended 
 
            community college for two years from October 1986 to 
 
            October 1988.  Furthermore, even though he received grants 
 
            and public assistance, he also borrowed a substantial 
 
            amount of money in order to complete his education 
 
            (Tr., pp. 81-85).  His part-time employment as a security 
 
            guard at Iowa Methodist Hospital on weekends and his 
 
            later employment as a meter reader for a few months during 
 
            the summer were minimum wage jobs from which he earned 
 
            far less than the $6.25 per hour he was earning for 
 
            employer at the time of the injury.
 
            
 
            Claimant's past employments of grocery store clerk 
 
            and gas station attendant would appear to be two of the 
 
            jobs from which he is foreclosed from doing in the future 
 
            because of the recommended restrictions of Dr. Ames 
 
            against heavy lifting, bending and reaching, and working 
 
            with his hands and arms extended.
 
            
 
            Claimant has a high school education and in addition 
 
            has now obtained a community college education in electronics, 
 
            which is a field with a number of opportunities that 
 
            claimant was exploring at the time of the hearing.
 
            
 
            Wherefore, based upon the evidence presented, and all of 
 
            the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc. (Appeal Decision February 
 
            28, 1985), Christensen v. Hagen, Inc. (Appeal Decision 
 
            March 26, 1985), and applying agency expertise, rule 
 
            343 IAC 17A.14(5), it has been determined that 
 
            claimant has sustained a 20 percent industrial disability 
 
            to the body as a whole and is entitled to 100 weeks of 
 
            permanent partial disability benefits.
 
            
 
            
 
            Page 19                    
 
                                
 
                                MEDICAL BENEFITS
 
            
 
            Claimant contends that he was entitled to his unpaid 
 
            medical expenses of $1,940.56 (Tr., p. 72; Ex. F, pp. aa, 
 
            bb and cc).  This is the amount due after the employer 
 
            is allowed credit for all payments made by the employer 
 
            and the employer's insurance carrier.  The parties 
 
            stipulated that these charges are reasonable.  It is 
 
            determined that claimant is entitled to $1,940.56 
 
            in unpaid medical expenses.
 
            
 
                                       NOTICE
 
            
 
            Since the injury is determined to have occurred on 
 
            December 7, 1984, there is no question that employer and 
 
            insurance carrier had notice at that time.   Claimant 
 
            had undergone a great deal of medical treatment, including 
 
            a number of job changes to try to alleviate his job 
 
            injury complaints.  He took a leave of absence for medical 
 
            reasons in February 1985.  He and Carver agreed that 
 
            he should terminate his employment on March 4, 1985 
 
            because of his inability to perform the job due to his 
 
            back injury.
 
            
 
            Even back in March of 1984 claimant reported the injury 
 
            to his supervisor, Jay Ponsor, and the plant nurse, 
 
            Dotty Kraft, and cooperated extensively with Dale Carver 
 
            to try to find a job he could do within the employer's 
 
            plant that did not exacerbate his back injury.  
 
            Therefore, it is determined that defendants had 
 
            actual notice of the injury and did not sustain the 
 
            burden or proof by a preponderance of the evidence that 
 
            claimant failed to give notice pursuant to Iowa Code 
 
            section 85.23.
 
                
 
                             STATUTE OF LIMITATIONS
 
            
 
            It is determined that this action was timely filed 
 
            pursuant to Iowa Code section 85.26.  The injury occurred 
 
            on December 7,1984.  The petition was filed within two 
 
            years on November 3, 1986.
 
            
 
            
 
            Page 20
 
            
 
            Defendants were not misled about what injury they were 
 
            defending.  There has only been one injury to claimant's 
 
            thoracic spine on the left at the level of approximately 
 
            T7, which has been the primary subject of all of 
 
            claimant's medical treatment with all of the doctors even 
 
            though earlier he also manifested temporarily some 
 
            lower back complaints.
 
            
 
            Consequently, it is determined that this action was 
 
            timely filed pursuant to Iowa Code section 85.26.
 
            
 
                                  CONCLUSIONS OF LAW
 
            
 
            Wherefore, based upon the foregoing and following principles 
 
            of law, these conclusions of law are made:
 
            
 
            That claimant sustained a cumulative injury to his 
 
            thoracic spine on December 7, 1984, which arose out of 
 
            and in the course of his employment with employer.  
 
            McKeever, 379 N.W.2d 368; 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).
 
            
 
            It is determined that the injury was the cause of 
 
            temporary disability.  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).
 
            
 
            It is determined that claimant is entitled to three 
 
            periods of healing period benefits which were caused by 
 
            this injury:  
 
            
 
            From December 7, 1984 through January 2, 1985, a period 
 
            of 3.857 weeks; from February 1, 1985 through March 4, 
 
            1985, a period of 4.571 weeks; and from September 19, 
 
            1986 through October 15, 1986, a period of 3.857 weeks.  
 
            The total period of benefits add up 12.285 weeks.  
 
            Iowa Code section 85.34(1).
 
            
 
            It is determined that the injury was the cause of permanent 
 
            disability.  Bodish, 257 Iowa 516, 133 N.W.2d 867.   
 
            Lindahl, 236 Iowa 296, 18 N.W.2d 607.
 
            
 
            It is determined that claimant has sustained a 20 percent 
 
            industrial disability to the body as a whole and is 
 
            entitled to 100 weeks of permanent partial disability benefits.  
 
            Iowa Code section 85.34(2)(u).
 
            
 
            It is determined that claimant is entitled to $1,940.56 
 
            in medical benefits.  Iowa Code section 85.27.
 
             
 
            
 
            Page 21
 
            
 
            It is determined that defendants did not sustain the burden 
 
            of proof by a preponderance of the evidence that 
 
            claimant failed to give notice of this injury.  Iowa Code 
 
            section 85.23.
 
            
 
            It is determined that defendants did not sustain the burden 
 
            of proof by a preponderance of the evidence that claimant 
 
            failed to timely commence this action.  Iowa Code 
 
            section 85.26.
 
                                        ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants pay to claimant twelve point two 
 
            eight five (12.285) weeks of healing period benefits at 
 
            the rate of one hundred fifty-five and 59 dollars ($155.59) 
 
            per week in the total amount of one thousand nine hundred 
 
            and eleven and 42/100 dollars ($1,911.42) for the periods 
 
            previously specified in the findings of fact and 
 
            conclusions of law.
 
            
 
            That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            one hundred fifty-five and 59/100 dollars ($155.59) per 
 
            week in the total amount of fifteen thousand five hundred 
 
            fifty-nine dollars ($15,559.00) commencing on January 3, 
 
            1985, which is the end of the first healing period but 
 
            further interrupted by the other two periods of healing 
 
            determined above.
 
            
 
            That defendants are entitled to a credit in the amount 
 
            of $645.44 for income disability payments made to 
 
            claimant prior to hearing under an employee group health 
 
            plan.
 
            
 
            That these amounts are to be paid in a lump sum.
 
            
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
            That defendants are charged with the costs of this action, 
 
            including the cost of the transcript, pursuant to rule 
 
            343 IAC 4.33.  With respect to claimant's statement of 
 
            costs attached to the prehearing report, claimant is 
 
            not entitled to the court reporter expense for the 
 
            deposition of Jo Weeces in the amount of one hundred 
 
            twenty-eight dollars ($128.00).  However, claimant 
 
            is entitled to the other costs shown on claimant's 
 
            statement of costs which are as follows:
 
             
 
             
 
             Page 22    
 
                 
 
                 Court reporter charges for the deposition of:
 
                     Dr. Ames................................ $213.95
 
                     Dale Carver.............................  205.95
 
                     Claudia Harrington......................  170.65
 
                     Robert Flaherty.........................  130.46
 
            
 
                 Expert witness fee for Dr. Ames.. ..........  150.00
 
            
 
                      Total                                   $871.01
 
            
 
            That defendants pay to claimant or the provider of medical 
 
            supplies and services one thousand nine hundred forty and 
 
            56/100 dollars ($1,940.56).
 
            
 
            That defendants file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            Signed and filed this _____ day of January, 1991.
 
                                               
 
            
 
                                             ______________________________
 
                                                  WALTER R. McMANUS
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David A Opheim
 
            Mr Jerry C Estes
 
            Attorneys at Law
 
            400 Boston Center
 
            P O Box 1314
 
            Fort Dodge IA 50501
 
            
 
            Mr Peter J Leehey
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge IA 50501
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51101
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         J. L. VIVIANS,
 
         
 
              Claimant,
 
                                         File No.  833244
 
         VS.
 
                                          A R B I T R A T I 0 N
 
         JOHN DEERE WATERLOO
 
         TRACTOR WORKS,                     D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by J. L. Vivians 
 
         against John Deere Waterloo Tractor Works, his self-insured 
 
         employer.  The case was heard and fully submitted at Waterloo, 
 
         Iowa on February 13, 1989.  The record in the proceeding consists 
 
         of testimony from J. L. Vivians, Mardra Galloway, Fritz 
 
         Tegtmeier, Richard McKinney and Myrna Smith.  The record also 
 
         contains jointly offered exhibits A through N.
 
         
 
                                      ISSUES
 
         
 
              Claimant contends that he sustained an injury which arose 
 
         out of and in the course of his employment in a fall on August 
 
         27, 1985 or September 5, 1985.  He seeks compensation for healing 
 
         period and permanent disability based upon injury to his back.  
 
         The employer admits that claimant sprained his ankle on August 
 
         27, 1985, but denies the occurrence of any other injury.  The 
 
         employer further denies that the sprained ankle or the incident 
 
         which produced it caused any injury to any other part of 
 
         claimant's body.  The claimant seeks payment of medical expenses 
 
         under Iowa Code section 85.27.  The employer denies liability and 
 
         further states that the treatment claimant received was not 
 
         authorized.  It was stipulated that the employer is entitled to 
 
         credit under Iowa Code section 85.38(2) for disability income 
 
         payments in the amount of $12,071.60 paid from November 1, 1985 
 
         to August 15, 1986.  The employer also contends that claimant's 
 
         claim is barred by lack of notice pursuant to Iowa Code section 
 
         85.23.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case. of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS
 
         Page 2
 
         
 
         
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              J. L. Vivians is a 53-year-old man who has been employed by 
 
         the John Deere Waterloo Tractor Works since 1972.  Prior to that 
 
         time, he had worked at a metal shop for approximately 20 years, 
 
         pumped gas for approximately 6 years, worked as a truck driver 
 
         and farmed.  Claimant's education is limited to the ninth grade.  
 
         He has no further formal education or technical training and did 
 
         not serve in the military.
 
         
 
              Claimant had injured his back in the early 1970's and in 
 
         1974 underwent spinal surgery with a fusion performed by John R. 
 
         Walker, M.D.  Since that time, he has had incidents of back pain 
 
         and physical restrictions upon his activities.
 
         
 
              Vivians was working as a material handler on August 27, 
 
         1985.  He stated that his job involved loading carts and putting 
 
         things into a storage area.  Claimant stated that a crane set 
 
         pallets up against the wall where he stands, but that there is a 
 
         drop-off of approximately four feet deep if the crane is not in 
 
         position.  Claimant stated that on August 27, 1985, the crane was 
 
         malfunctioning and was not placing the pallets against the edge 
 
         where he stands leaving them four or five feet away from the 
 
         edge.  Claimant stated that he had to step over the gap, made a 
 
         misstep and fell, catching himself with an arm on a steel plate.  
 
         Claimant stated that his union steward, John Hoppers, helped him 
 
         climb up out of the area.  Claimant stated that another employee 
 
         also assisted in getting him out of the area and that his 
 
         supervisor was called.  Claimant stated that at the time of the 
 
         incident his supervisor was Fritz Tegtmeier.  Claimant stated 
 
         that he reported that he fell to Tegtmeier and that he thought 
 
         Tegtmeier drove a scooter which took him to the medical 
 
         department where he was seen by the nurse.  Claimant was unable 
 
         to recall telling Tegtmeier anything about whether his ankle, 
 
         back or other parts of.his body were injured.
 
         
 
              Claimant testified that at the time of the incident, he was 
 
         aware he had injured his neck, back, leg and arm.
 
         
 
              Claimant stated that he saw the nurse and told her what had 
 
         happened.  He stated that she wrapped his leg and ribs because 
 
         his leg and back hurt.  Claimant stated that he told the nurse he 
 
         had injured his leg and back.  Claimant stated that he also had 
 
         scrapes, including a skinned elbow and stomach which the nurse 
 
         observed.  He was given a cane.
 
         
 
              Vivians stated that the nurse gave a restricted duty slip to 
 
         his supervisor and that for the remainder of that day and the 
 
         following day, he just sat and did not do any actual work.  
 
         Claimant stated that he saw the nurse again and wanted to go to 
 
         the doctor, but that the nurse did not send him to the doctor 
 
         until about a week afterwards.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS
 
         Page 3
 
         
 
         
 
              Claimant stated that when he finally saw the doctor, he told 
 
         the doctor that his back and legs hurt and that he had a headache 
 
         and loss of sensation in his arm.  Claimant stated that the 
 
         doctor took x-rays and told him to go back to work.  Claimant 
 
         stated that he did return to work, but never returned to work as 
 
         a material handler.  He stated that he was on restrictions and 
 
         was assigned to a sit-down job where he sorted bolts and 
 
         performed similar activities.  Claimant repeatedly denied working 
 
         any overtime following the injury.  Claimant stated that he 
 
         returned to the company doctor, C. D. Bendixen, M.D., and 
 
         repeated his complaints concerning his hand, leg and back and was 
 
         told to see his family doctor.  Claimant stated that he then 
 
         consulted Raymond W. Carson, M.D., who prescribed physical 
 
         therapy and other conservative treatment which did not resolve 
 
         his symptoms.
 
         
 
              Dr. Carson's records show that claimant first sought 
 
         treatment on September 26, 1985 when he expressed complaints of 
 
         diarrhea and vomiting.  He also related that three weeks prior, 
 
         he had fallen at work and injured his left ankle, that the 
 
         doctors had examined the ankle and felt it was okay.  Claimant 
 
         also related that he has had pain in his left hip and down his 
 
         left leg and in his back.  A straight leg raising test was 
 
         positive.  Dr. Carson's notes indicate that claimant has had 
 
         those complaints since 1974 when the back surgery was performed.  
 
         Claimant was seen again by Dr. Carson on September 30, 1985 and 
 
         October 7, 1985.  On October 14, 1985, claimant indicated to Dr. 
 
         Carson that he had been unable to attend the recommended physical 
 
         therapy because he was working overtime.  On October 23, 1985, 
 
         claimant continued to have back problems and was referred to Dr. 
 
         Walker for consultation (exhibit B-1, page 11).
 
         
 
              Exhibit A-2, page 68, shows the employer's medical 
 
         department record concerning August 27, 1985.  The nurse's 
 
         observation of injury states: "Sprained left ankle, some swelling 
 
         lateral surf." At the employee description of how injured, the 
 
         following appears: "My feet [illegible] stepped in high rise to 
 
         get a tool box, stepped off platform between a pallet and the 
 
         platform, turned ankle."  The following page indicates that ice 
 
         was applied for 20 minutes and that an ace wrap was placed.  The 
 
         record also indicates that claimant was given a cane and 
 
         restricted for the remainder of the shift.  The record notes that 
 
         claimant's dressing was repeated on August 28.  The record notes 
 
         that when claimant came to work on the morning of the 28th, he 
 
         did not have the ace wrap on.  It also indicates that Dr. 
 
         Bendixen would examine claimant prior to the forthcoming long 
 
         weekend (exhibit A-2, pages 68 and 69).  Dr. Bendixen examined 
 
         claimant on August 28, 1985 and noted claimant to have 
 
         considerable swelling and tenderness over the left lateral 
 
         malleolus with more tenderness anterior to the malleolus.  An 
 
         ankle x-ray was negative for fracture.  Dr. Bendixen felt that 
 
         claimant had a sprain of the left ankle and placed him on a 
 
         restriction against prolonged standing or walking for the 
 
         remainder of the week.  Dr. Bendixen indicated that claimant 
 
         should be ready
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS 
 
         Page 4
 
         
 
         
 
         to return to work on September 3, 1985 (exhibit A-2, page 70).  
 
         The disposition record at the top of page 73 of exhibit A-2 
 
         indicates that Dr. Bendixen placed restrictions on claimant's 
 
         activities and authorized him to return to work on September 3, 
 
         1985.  The duty disposition record found at the bottom of page 73 
 
         of exhibit A-2 shows that claimant was released for regular work 
 
         on September 4, 1985.  Page 8 of exhibit A-1 indicates that on 
 
         September 4, 1985, claimant returned the cane and was authorized 
 
         to return to his regular job.  Page 8 of exhibit A-I indicates 
 
         that claimant was seen by the doctor on August 28, 1985, that he 
 
         had been given a cane on August 27, 1985, and that his dressing 
 
         had been checked or replaced daily, except for the Labor Day 
 
         weekend.
 
         
 
              The records show that claimant had sustained a similar 
 
         injury in 1981 (exhibit A-2, pages 52-56).  Exhibit A-2 page 74 
 
         confirms that claimant stepped into a gap at pick face #19, that 
 
         the high rise was not working properly, and that a repair order 
 
         had been issued.  It also confirms that tool boxes should be 
 
         stored in paint racks (a type of cage) rather than on pallets.  
 
         Claimant stated that the repairs were not made until after his 
 
         injury.
 
         
 
              Registered Nurse Myrna Smith, the plant nurse, stated that 
 
         she rendered first aid to claimant on August 27, 1985 and filled 
 
         out the report found at exhibit A, page 68, except for the first 
 
         line of the description of the accident.  Smith stated that 
 
         claimant complained of nothing other than his ankle and that she 
 
         did not dress any abdominal abrasions on that date or any 
 
         subsequent date.  She stated that the injury was not serious and 
 
         that if claimant had complained of his back, she would have put 
 
         it in the notes.  Smith stated that the type of incident which he 
 
         reported to her is not consistent with the type of incident shown 
 
         in Dr. Walker's reports.
 
         
 
              Fritz Tegtmeier, claimant's supervisor on August 27, 1985, 
 
         stated that the material handler works at normal floor level and 
 
         that the crane which positions pallets operates on a level 
 
         approximately three feet below the normal floor level.  Tegtmeier 
 
         stated that there is no more than two or three inches of 
 
         clearance between a paint rack and a superstructure when it is 
 
         positioned and that it is not possible for there to be a gap of 
 
         one foot or larger between the ledge and where the material 
 
         handler walks.  Tegtmeier stated that he first obtained knowledge 
 
         of claimant's sprained ankle when he saw claimant with a cane and 
 
         that he had not accompanied claimant to the medical department.  
 
         Tegtmeier stated that claimant might have had light duty work for 
 
         a couple days.  He could not state with certainty whether 
 
         claimant ever resumed regular duty.  Tegtmeier stated that he was 
 
         not aware of claimant sustaining any other injuries subsequent to 
 
         August 27, 1985.  Tegtmeier stated that there was no way a person 
 
         could have stepped far enough into the gap which sometimes was 
 
         present in order to scrape their thigh.  When shown the accident 
 
         report from 1981, Tegtmeier stated
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS 
 
         Page 5
 
         
 
         
 
         that it might have been a different high rise and that he was not 
 
         in that department in 1981.  Tegtmeier stated that a metal 
 
         kickplate was installed in order to reduce the gap which 
 
         sometimes occurred.
 
         
 
              Richard McKinney, the Deere & Company safety director in 
 
         August and September of 1985, stated that there was no possible 
 
         way claimant could have fallen into a 3-foot or 4-foot hole.  He 
 
         stated that installation of the metal kickplate is the corrective 
 
         action which was taken after claimant's injury.  Exhibit K, page 
 
         2 depicts the kickplate and K-3 purports to depict the size of 
 
         the gap without a kickplate.  Exhibit K, pages 4, 5 and 6 depict 
 
         that a beam runs in the gap approximately nine inches below the 
 
         floor level.
 
         
 
              Claimant was seen by John R. Walker, M.D., an orthopaedic 
 
         surgeon, on November 1, 1985.  Claimant expressed complaints 
 
         including constant aching in his low back, left leg, foot and toe 
 
         numbness, stiff neck, ache in the left forearm, and headaches.  
 
         The physical examination revealed marked restriction in all 
 
         ranges of motion of the cervical spine, normal grip in the upper 
 
         extremities, tenderness in the low lumbar region and marked 
 
         restriction of all back motions.  The Lasegue and straight leg 
 
         raising tests were positive.  Dr. Walker felt that claimant was 
 
         beginning to develop spinal stenosis and had suffered a recent 
 
         injury to the lumbar and cervical spine in the form of a sprain.  
 
         Claimant was taken off work and has not since returned to work at 
 
         John Deere.
 
         
 
              Over the following months, claimant was treated with therapy 
 
         and other conservative treatment.  His complaints worsened, 
 
         rather than resolved, with his period of absence from work.  
 
         He,was eventually referred to other specialists for testing and 
 
         consultation.
 
         
 
              Claimant was evaluated at the Mayo Clinic on May 12, 1986.  
 
         Jay Clarke Stevens, M.D., felt that claimant's symptoms were due 
 
         to a conversion reaction with left hemiparesis.  A physician from 
 
         the Department of Psychiatry did not feel that formal psychiatric 
 
         care would benefit claimant.  An aggressive physical 
 
         rehabilitation program was recommended (exhibit F).
 
         
 
              Claimant was evaluated by R. B. Raju, M.D., psychiatrist, on 
 
         June 27, 1986.  Dr. Raju stated that claimant did not demonstrate 
 
         evidence of clinically significant anxiety or depression.  He 
 
         stated that even though Mayo Clinic diagnosed a conversion 
 
         system, he was unable to elicit any psychological conflicts or 
 
         depressive equivalent.  He stated that in his judgment it is very 
 
         likely that claimant was malingering.  He referred claimant for 
 
         individual counseling (exhibit D).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was evaluated by A. Nakhasi, M.D., a 
 
         board-certified neurologist, on October 3, 1986.  Dr. Nakhasi 
 
         agreed that claimant had musculoskeletal neck pain and muscle 
 
         contraction neck aches.
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS 
 
         Page 6
 
         
 
         
 
         He felt that since the weakness in claimant's left arm and left 
 
         hand was variable and fluctuating, it was of functional etiology.  
 
         He did not recommend any further diagnostic testing (exhibit I).
 
         
 
              David F. Poe, M.D., an orthopaedic surgeon, examined 
 
         claimant on October 15, 1986.  Dr. Poe found claimant to have low 
 
         back and left lower extremity pain with weakness and neck and 
 
         left upper extremity pain with weakness.  He could demonstrate 
 
         the weakness on physical examination, but had no orthopaedic 
 
         explanation for it.  Dr. Poe recommended that claimant continue 
 
         treatment with Dr. Raju and that continued outpatient measures in 
 
         the nature of physical therapy for claimant's left upper and 
 
         lower extremities would be helpful.  He did not recommend that 
 
         any further diagnostic testing or orthopaedic surgery be 
 
         performed.  Dr. Poe again saw claimant on March 28, 1987.  At 
 
         that time, he felt that the prognosis of claimant ever returning 
 
         to gainful employment was poor regardless of whether any further 
 
         treatment was performed.  He felt that claimant was a poor 
 
         candidate for surgery or other conventional treatment (exhibit 
 
         G).
 
         
 
              Claimant was evaluated at the University of Iowa Hospitals 
 
         and Clinics on April 9, 1987.  Claimant was diagnosed as probably 
 
         suffering from chronic pain syndrome secondary to degenerative 
 
         arthritis in the lumbar and cervical spine and that he was status 
 
         post-fusion L5-Sl (exhibit E).
 
         
 
              Claimant underwent a symptom magnification evaluation on May 
 
         18, 1987 at Allen Memorial Hospital.  Several inconsistencies in 
 
         claimant's stated and demonstrated abilities were noted.  It was 
 
         concluded that there was a very strong probability of symptom 
 
         magnification (exhibit H).
 
         
 
              Dr. Walker was deposed on June 28, 1988.  During the 
 
         deposition, it is noted that on March 17, 1988, claimant 
 
         presented himself for treatment in a wheelchair and indicated 
 
         that he was getting worse (exhibit N, page 21).  Dr. Walker 
 
         expressed the opinion that claimant was totally impaired due to 
 
         the John Deere accident and that it is unlikely that claimant 
 
         could return to work no matter what type of treatment was 
 
         rendered (exhibit N, pages 25 and 29).  Dr. Walker stated that 
 
         claimant's condition was a result of his previous back problems 
 
         and surgery, the fall that he sustained at John Deere, and an 
 
         intervening incident when claimant struck by a cart at the Hy-Vee 
 
         grocery store. Dr. Walker stated that the commencement of 
 
         claimant's actual physical problems occurred with the fall at 
 
         John Deere (exhibit N, page 23).  Dr. Walker stated that claimant 
 
         also has a conversion reaction which is secondary to the long 
 
         delay in obtaining the treatment which Dr. Walker had recommended 
 
         (exhibit N, pages 27 and 39).  Dr. Walker stated that his 
 
         opinions were based on the history presented by claimant as is 
 
         fully set forth in a report dictated on October 17, 1986 and 
 
         found in the record at exhibit C-2, pages 64 and 65.  Dr. Walker 
 
         stated that in his opinion an ankle sprain would not cause the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         back
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS
 
         Page 7
 
         
 
         
 
         problems which claimant exhibited (exhibit  N,  pages  42-45).
 
         
 
              Claimant stated that at the present time he experiences pain 
 
         in his back, leg and arm for which he takes pain pills.  He 
 
         stated that at times his leg gives out without warning.  He 
 
         stated that his ability to engage in standing, sitting, bending 
 
         and lifting are impaired.
 
         
 
              Mardra Galloway, claimant's step-daughter, stated that 
 
         claimant's physical condition was satisfactory prior to August 
 
         27, 1985, on which day claimant came home from work wrapped up on 
 
         his leg and chest.  Galloway stated that claimant reported that 
 
         he had fallen and was sore.  She stated he moved slowly and 
 
         moaned.  Galloway stated that since August 27, 1985, claimant's 
 
         physical condition has weakened and that he no longer will stoop 
 
         over or bend.  She stated that he drops things and is unable to 
 
         lift as he did prior to the accident.
 
         
 
              Claimant stated that he had recently attempted to return to 
 
         work at John Deere and was sent by Dr. Bendixen back to Dr. Poe 
 
         and to Allen Memorial Hospital and Dr. Walker.  Claimant stated 
 
         that he is willing to try to return to work, but that he does not 
 
         feel he could perform his old job as a material handler.
 
         
 
              The records reflect that on August 3, 1988, claimant 
 
         reported to Dr. Bendixen that he felt better and that he would 
 
         like to return to work.  Claimant was referred to Dr. Poe who on 
 
         August 9, 1988, indicated that there was no reason why claimant 
 
         could not return to work.  The report indicates that claimant 
 
         expressed no pain and demonstrated that he was able to walk and 
 
         engage in activities (exhibit A-3, pages 136-138).
 
         
 
              Claimant was referred to Allen Human Services for a 
 
         three-week work hardening program.  Claimant attended once but 
 
         then asked to discontinue the program so that he could return to 
 
         work (exhibit A-3, page 139).
 
         
 
              Dr. Bendixen confirmed claimant's previous restrictions and 
 
         raised his lifting limit to 40 pounds (exhibit A-3, page 141).  
 
         Dr. Walker indicated that claimant could return to work without 
 
         restrictions (exhibit A-3, pages 142 and 144).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury 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
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS 
 
         Page 8
 
         
 
         
 
         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 "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury.  
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              Claimant has alleged alternative injury dates of August 27, 
 
         1985 or September 5, 1985.  The only record of injury, and the 
 
         only injury which claimant specifically acknowledged was the one 
 
         of August 27, 1985.  The employer has consistently disputed the 
 
         occurrence of any injury affecting claimant's back on August 27, 
 
         1985 or September 5, 1985.  The only work injury which they 
 
         concede is that claimant sprained his ankle on August 27, 1985 as 
 
         is reflected by the John Deere medical department records.  Those 
 
         records make no mention of any complaints or observable injury 
 
         affecting any part of claimant's body other than the left ankle.  
 
         The record in this case also shows a major dispute regarding the 
 
         size of the hole or gap into which claimant slipped or fell on 
 
         August 27, 1985, or on the alternate date of September 5, 1985.  
 
         The photographs indicate a gap of much less than the three or 
 
         four feet of which claimant testified.  The description of 
 
         claimant's work area and the crane mechanism as provided by 
 
         representatives of the employer Tegtmeier and McKinney are in 
 
         irreconcilable conflict with the testimony provided by claimant.  
 
         The photographs in exhibit K are in irreconcilable conflict with 
 
         claimant's testimony.  The incident which occurred in 1981 where 
 
         claimant stepped into the gap and scraped his thigh could have 
 
         occurred in a gap that was approximately six or eight inches 
 
         wide.  It does not demonstrate that the gap could have been as 
 
         large as three feet.  Despite the fact that claimant has the 
 
         burden of proof, he did not call either of the persons whom he 
 
         stated witnessed his fall.  It is therefore determined that 
 
         claimant has failed to prove that he sustained any injury other 
 
         than a sprain of his left ankle on August 27, 1985 or September 
 
         5, 1985.  The record fails to show that claimant missed any time 
 
         from work or that he is entitled to receive any other benefits 
 
         available under the Iowa workers' compensation laws as a result 
 
         of the sprained ankle.
 
         
 
              Claimant clearly does have problems with his back which 
 
         preexisted August 27, 1985.  It is certainly possible that even 
 
         an incident which could cause a sprained ankle could aggravate a 
 
         preexisting back condition.  Such an aggravation would, however, 
 
         normally be expected to resolve itself within a few weeks.  Such 
 
         is certainly not what occurred in this case.  Claimant's overall 
 
         credibility in this case is impaired by the indications of 
 
         malingering and symptoms magnification.  Although other 
 
         physicians did not characterize claimant as malingering, they did 
 
         note material discrepancies between his stated symptoms and the 
 
         findings made during the physical examinations and diagnostic 
 
         tests.  Claimant's own testimony contains conflicts
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS 
 
         Page 9
 
         
 
         
 
         regarding the amount of time delay between when he was injured 
 
         and was sent to Dr. Bendixen and regarding whether or not he 
 
         worked overtime subsequent to August 27, 1985.  There is a 
 
         further conflict in the record of this case since claimant 
 
         reported to Dr. Bendixen in August of 1988 that he was greatly 
 
         improved and ready to return to work while claimant had been in a 
 
         wheelchair as recently as March 21, 1988 when he visited Dr. 
 
         Walker.  When all the material facts of the case are considered, 
 
         it is determined that claimant's credibility is not sufficient to 
 
         overcome the conflicting evidence regarding the manner in which 
 
         he was injured on August 27, 1985, his lack of reporting any 
 
         injury other than to his ankle, and in general the validity of 
 
         his claim of injuring his back on August 27, 1985.
 
         
 
              Claimant has therefore failed to prove, by a preponderance 
 
         of the evidence, that he is entitled to recover any benefits 
 
         under the Iowa workers' compensation laws.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. J. L. Vivians injured his left ankle on August 27, 1985 
 
         when he stepped into a gap between his work place floor and a 
 
         crane and pallet upon which tool boxes were moved to the vicinity 
 
         at which he was working.
 
         
 
              2. The gap into which claimant stepped was no wider than one 
 
         foot and was subsequently repaired by placing a 6 1/2 inch wide 
 
         piece of metal. plate over the area where he had stepped and 
 
         fallen.
 
         
 
              3. Claimant failed to establish the credibility of his 
 
         testimony regarding the manner in which the incident occurred and 
 
         the resulting complaints and symptoms.
 
         
 
              4. Claimant failed to prove, by a preponderance of the 
 
         evidence, that he injured his back in any manner, either directly 
 
         or indirectly, as a result of the accident that occurred on 
 
         August 27, 1985 or any possible accident that may have occurred 
 
         on September 5, 1985.
 
         
 
              5. The only injury which J. L. Vivians sustained on August 
 
         27, 1985 was a sprained left ankle.
 
         
 
              6. The sprained left ankle did not cause claimant to miss 
 
         any time from work or to incur any medical.expenses.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant sustained an injury to his left ankle on August 
 
         27, 1985 which arose out of and in the course of his employment 
 
         with John Deere Waterloo Tractor Works.
 
         
 
         
 
         
 
         VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS
 
         Page 10
 
         
 
         
 
              3. Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained any injury, other than to his left 
 
         ankle, on August 27, 1985 or September 5, 1985.
 
         
 
              4. Claimant is not entitled to recover any benefits of any 
 
         nature under the Iowa workers' compensation laws as a result of 
 
         the sprained ankle that occurred on August 27, 1985.
 
         
 
              5. Claimant is not entitled to recover any benefits under 
 
         the Iowa workers' compensation laws for any other injury which is 
 
         alleged to have occurred on August 27, 1985 or September 5, 1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the 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. John S. Pieters
 
         Attorney at Law
 
         2315 Falls Avenue
 
         Suite 3
 
         Waterloo, Iowa 50701
 
         
 
         Mr. John W. Rathert 
 
         Attorney at Law 
 
         620 Lafayette Street 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         P.O. Box 178
 
         Waterloo, Iowa  50704
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.20, 1402.30
 
                                         Filed October 20, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         J. L. VIVIANS,
 
         
 
              Claimant,
 
         
 
                                         File No. 833244 
 
         VS.
 
         
 
                                         A R B I T R A T I 0 N 
 
         JOHN DEERE WATERLOO
 
         TRACTOR WORKS,                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1402.20, 1402.30
 
         
 
              Claimant, with a preexisting back problem, failed to prove, 
 
         by a preponderance of the evidence, that back complaints were 
 
         valid or that they arose out of an incident which was conceded by 
 
         the employer wherein claimant sprained his ankle.  The claim. was 
 
         denied.