BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID B. ELTON,
 
         
 
              Claimant,
 
         
 
         vs.                                   File No. 833981
 
         
 
         IOWA SECURITY & MEDICAL             A R B I T R A T I 0 N
 
         FACILITY,
 
                                               D E C I S I 0 N
 
              Employer,
 
                                                   F I L E D
 
         and
 
                                                  APR 17 1989
 
         STATE OF IOWA,
 
                                              INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         David B. Elton against defendant employer Iowa Security & Medical 
 
         Facility and insurance carrier State of Iowa to recover benefits 
 
         under the Iowa Workers' Compensation Act as the result of an 
 
         injury sustained on April 26, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Des Moines, Iowa, on March 29, 1989.  The matter was considered 
 
         fully submitted at the close of hearing.  The record consists of 
 
         joint exhibit A.  No testimony was taken.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report accepted and approved at 
 
         the hearing, the parties have stipulated:  To the existence of an 
 
         employer-employee relationship at the time of the alleged injury; 
 
         that claimant sustained an injury on April 26, 1985 arising out 
 
         of and in the course of that employment; that the injury caused 
 
         temporary and permanent disability; that claimant is entitled to 
 
         compensation for healing period or temporary total disability 
 
         benefits from August 16, 1986 through September 23, 1986, and has 
 
         been so compensated; that claimant is entitled to compensation 
 
         for permanent partial disability of 12.5 weeks based upon a five 
 
         percent loss of the use of the right arm; that claimant's 
 
         appropriate rate of weekly compensation is $201.04; that 
 
         affirmative defenses are waived; that all requested medical 
 
         benefits have been or will be paid by defendants.
 
         
 
              The parties presented no issues to be decided.  The 
 
         administrative file shows that the parties submitted a proposed 
 
         Agreement for Settlement on October 17, 1986 seeking approval of 
 
         a settlement based upon a five percent permanent partial 
 
         disability to the right arm as a result of an injury on April 26, 
 
         1984 (but, apparently intended to refer to the same injury as the 
 
         April 26, 1985 injury here subject to review).  Deputy Industrial 
 
         Commissioner Helenjean Walleser refused to approve the settlement 
 
         on the basis that claimant's injury was to his shoulder and that 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         compensation should be computed as an industrial disability to 
 
         the body as a whole.  By letter of December 19, 1988, defendants' 
 
         attorney requested that the cause be placed on the schedule for 
 
         hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties agreed that the point of the stipulation and 
 
         joint exhibit was to seek a decision in a contested case brought 
 
         to hearing identical to the result that was sought in the 
 
         proposed Agreement for Settlement rejected by Deputy Walleser.  
 
         Although the parties did not indicate there are issues remaining 
 
         for resolution, the undersigned concludes that a serious issue 
 
         exists as to whether he is bound by the parties' stipulation 
 
         under the facts of this case.  If he is not so bound, a further 
 
         issue is whether claimant has established entitlement to 
 
         permanent disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant injured his shoulder on April 26, 1985, when it was 
 
         necessary to forcibly restrain an inmate who was physically 
 
         disruptive.  Claimant apparently first saw William J. Robson, 
 
         M.D., who wrote a note on a prescription pad dated May 3, 1985 to 
 
         the effect that claimant should avoid any heavy activity with his 
 
         right shoulder and undertake light duty for ten days.  Dr. Robson 
 
         apparently reported in a surgeon's report of June 19, 1985, that 
 
         claimant had strained his right shoulder and suffered a mild 
 
         cervical strain.
 
         
 
              Dr. Robson referred claimant to Fred J. Pilcher, M.D.  Dr. 
 
         Pilcher first saw claimant on July 3, 1986, and wrote to Dr. 
 
         Robson on July 8.  Dr. Pilcher did not see rotator cuff or 
 
         acromio-clavicular separation on routine radiographs, but noted 
 
         that claimant had intermittent pain symptoms and was tender over 
 
         the right acromio-clavicular joint.  Range of motion of the 
 
         shoulder was complete.  Dr. Pilcher had an impression of first 
 
         degree acromio-clavicular separation which had become painful and 
 
         recommended physical therapy for one month.
 
         
 
              Dr. Pilcher wrote to the state of Iowa on August 13, 1986, 
 
         indicating that there was no degenerative change of the 
 
         acromio-clavicular joint, but due to continuing pain, a surgical 
 
         procedure would be undertaken.  Further, that it was a 
 
         work-related injury.
 
         
 
              Claimant did undergo surgery on August 15, 1986.  The 
 
         surgery was referred to by Dr. Pilcher in a January 4. 1988 
 
         letter to defendants' attorney as lateral clavicle resection and 
 
         coracoacromial ligament release.  Dr. Pilcher noted in that 
 
         letter that most, if not all, of the permanent impairment 
 
         claimant had was based on subjective complaints and that "I would 
 
         say in standard routine activities of daily living, he has no 
 
         actual functional deficit."  He did opine in that letter that 
 
         claimant's shoulder was not "at,100%."
 
         
 
              Dr. Pilcher wrote to claimant's attorney on September 23, 
 
         1987.  He indicated at that time that claimant had suffered a 
 
         permanent partial impairment of his right shoulder, but had full 
 
         range of motion.  He noted that claimant had a rather large 
 
         keloid over the acromio-clavicular joint, but that it was 
 
         nontender. Based "on his range of motion and primarily on his 
 
         subjective complaints and by the surgery that was performed," Dr. 
 
         Pilcher "suspected" that claimant had a five percent impairment 
 
         of the "upper extremity" equating to three percent of the body as 
 
         a whole.  Further, he opined that there was a causal connection 
 
         between the work injury and claimant's impairment.  In response 
 
         to Mr. Owens' question as to whether there were any restrictions 
 
         or limitations he would place on claimant as a result of the 
 
         injury, Dr. Pilcher answered "No."  He also believed there was no 
 
         further treatment necessary.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also seen by L. C. Strathman, M.D.  Dr. 
 
         Strathman's notes of December 6, 1985, indicated that claimant's 
 
         pain was pretty well localized to the acromio-clavicular joint 
 
         extending toward the midline involving the trapezius.  His 
 
         impression was of strain to the acromio-clavicular joint on the 
 
         right that seemed to be healed.  In further notes of June 19, 
 
         1986, Dr. Strathman indicated that he had no explanation for 
 
         claimant's continuing discomfort which appeared out of proportion 
 
         to the examination.  Shoulder motion was complete symmetrical, 
 
         without discomfort.
 
         
 
              Dr. Pilcher wrote to defendants' attorney on November 22, 
 
         1988.  In pertinent part, he reported:
 
         
 
              I have just read the November 17th letter, and chuckled.  It 
 
              boils down to no matter how hard you try, sometimes it's not 
 
              successful.
 
         
 
              I have said in many depositions and have argued over 
 
              disability ratings to the shoulder and whether or not it 
 
              pertains to the arm and just how much it affects the body. 
 
              In medical school, I learned that the shoulder is part of 
 
              the body and it is the joint that connects the arm to the 
 
              main torso.  Thus, you can see the confusion that exists 
 
              between the medical and legal communities.
 
         
 
              However, for the sake of simplicity--and hoping to settle 
 
              this issue--I would simply state that he had a five percent 
 
              permanent impairment to the upper extremity on the right.
 
         
 
              For the sake of argument, if anyone thinks that carrying 
 
              shoulder loss of motion to an extreme--that is, if it were 
 
              fused--does not affect the body as a whole, than [sic] I 
 
              could instruct them differently.
 
         
 
              I am sorry about your confusion.  I hope this settles the 
 
              problem.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The stipulations submitted by the parties at time of hearing 
 
         are in every important respect identical to the Agreement for 
 
         Settlement that was rejected by Deputy Walleser.  It is 
 
         apparently the intent of the parties to force this agency to 
 
         approve through a decision based upon stipulated facts what the 
 
         agency would not approve in a proposed agreement for settlement.
 
         
 
              The first issue is to determine whether the agency is 
 
         actually bound by the stipulation presented in the prehearing 
 
         report which was admitted into the record.  The undersigned 
 
         concludes that the agency may not be so bound.  In Stanton v. 
 
         Vitalis Truck Lines, Inc., I Iowa Industrial Commissioner 
 
         Decisions, 698 (App. Decn., 1985), the hearing deputy awarded 
 
         healing period benefits that were inconsistent with the 
 
         stipulation of the parties.  The industrial commissioner ruled 
 
         that, based upon medical evidence of recuperation "taken with the 
 
         fact that neither party was laboring under a mistake of law or 
 
         fact," the stipulated date for ending the healing period should 
 
         be applied.  Although the commissioner did accept.the 
 
         stipulation, this analysis makes it clear by implication that 
 
         stipulated facts need not: be accepted by the agency.  At least, 
 
         this is the case where the parties are not laboring under a 
 
         mistake of law or fact.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Agreement for Settlement was rejected because of Deputy 
 
         Walleser's view that a shoulder injury is to be compensated as an 
 
         industrial injury to the body as a whole, and not a scheduled 
 
         disability.  It was held in Alm v. Morris Barick Cattle Co., 240 
 
         Iowa 1174, 38 N.W.2d 161 (1949) that the statutory scheduling of 
 
         an arm injury does not apply to a shoulder injury, nor is such an 
 
         injury scheduled in any other subsection.  Although the statute 
 
         has been changed and renumbered during the intervening years, 
 
         such is still the case.  See also Lauhoff Grain Company v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986), holding that the statutory 
 
         definition of "leg" did not include the hip joint, that the 
 
         commissioner was not required to apply the leg schedule to a hip 
 
         impairment, and that if there was actual impairment of the hip, 
 
         rather than the leg, compensation should be based on an 
 
         industrial disability to the body as a whole.  The Lauhoff Grain 
 
         case also cited and quoted with apparent approval from Alm.
 
         
 
              In a letter to claimant's counsel of October 24, 1988, 
 
         Deputy Walleser initially rejected the proposed Agreement for 
 
         Settlement on the basis that "injury is to the shoulder, 
 
         compensation should be to the body as a whole."  Deputy Walleser 
 
         responded to a later letter on December 14, 1988 by asking that 
 
         both attorneys reconsider Lauhoff Grain, noting that our statute 
 
         does not speak of a "lower extremity" loss and submitting that 
 
         the statute also does not speak of a loss of use of an upper 
 
         extremity.  She reiterated her position that the injury was to 
 
         the shoulder and that compensation should be calculated on the 
 
         basis of a body as a whole injury. on the basis of this record, 
 
         the parties are clearly under no mistake as to law or fact.  
 
         Therefore, it is concluded that the stipulation as to permanent 
 
         partial disability to the right arm is not binding.
 
         
 
              Accordingly, it must be determined whether claimant's injury 
 
         was to a scheduled member or to the body as a whole.  Dr. 
 
         Pilcher's impression of July 3, 1986 was that of first degree 
 
         acromio-clavicular separation right shoulder.  Surgery involved a 
 
         coracoacromial ligament release and lateral clavicle resection. 
 
         The clavicle is clearly a part of the body and not of the arm. 
 
         Obviously, the surgical procedure intruded into the body as a 
 
         whole.  Of course, under Lauhoff Grain, disability to the body as 
 
         a whole should be based upon actual impairment rather than 
 
         surgical intrusion alone.  Dr. Pilcher's letter of November 22, 
 
         1988 is illuminating.  For the "sake of simplicity" and "hoping 
 
         to settle this issue" Dr. Pilcher "simply" stated that claimant 
 
         had a five percent impairment to the "upper extremity on the 
 
         right."  Of course, the "upper extremity" is not defined as a 
 
         scheduled member.  See Iowa Code section 85.34.  Under Iowa Code 
 
         section 85.34(2)(m), loss of the arm is spoken of as "between the 
 
         shoulder joint and the elbow joint."
 
         
 
              Dr. Pilcher chuckled after reading Ms. Moeller's November 
 
         17, 1988 letter.  As he points out, he learned in medical school 
 
         that the shoulder is part of the body and it is the joint that 
 
         connects the arm to the main torso.  Dr. Pilcher sees confusion 
 
         existing between the medical and legal communities, but at least 
 
         in this instance, the undersigned does not.  It appears that Dr. 
 
         Pilcher's impairment rating was issued in an attempt to settle 
 
         the issue, and not necessarily as a reflection of Dr. Pilcher's 
 
         own belief as to whether this impairment is one to the arm or to 
 
         the body as a whole.  On the basis of Alm v. Morris Barick Cattle 
 
         Co., supra, and on the medical records showing surgery intruding 
 
         into the body as a whole, it is held that claimant's injury was 
 
         not to the arm, but was to the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Has an industrial disability been sustained?  There is no 
 
         evidence whatsoever showing any loss of earning capacity or 
 
         actual earnings.  Claimant has no restrictions or limitations 
 
         that appear to limit his ability to engage in the same employment 
 
         as was the case prior to his injury.  It is apparent that 
 
         claimant has placed all of his eggs in one basket, assuming that 
 
         the stipulation as to impairment of the right arm would foreclose 
 
         this agency from reaching any other conclusion.  Claimant has 
 
         failed to meet his burden of proof in establishing compensable 
 
         industrial disability to the body as a whole.
 
         
 
              However, claimant did undergo a period of temporary total 
 
         disability while recuperating from surgery.  The parties' 
 
         stipulation as to the extent of temporary disability is accepted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant sustained a work injury on April 26, 1985, 
 
         while in the course of his employment with Iowa Security & 
 
         Medical Facility.
 
         
 
              2.  Claimant's injury was to the acromio-clavicular joint 
 
         and necessitated surgery that was invasive of the body as a 
 
         whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  Claimant recuperated from surgery.from August 16, 1986 
 
         through September 23, 1986.
 
         
 
              4.  Claimant's rate of compensation is $201.04 per week.
 
         
 
              5.  Claimant did not present evidence in support of 
 
         establishing industrial disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions are made:
 
         
 
              1.  This agency is not bound by a stipulation of the parties 
 
         as to whether a shoulder injury is to the arm, a scheduled 
 
         member, or to the body as a whole.
 
         
 
              2.  Claimant's injury was to the body as a whole.
 
              
 
              3.  Claimant has established entitlement to temporary total 
 
         disability from August 16, 1986 through September 23, 1986, when 
 
         he recuperated from surgery.
 
         
 
              4.  Claimant has been fully compensated for his temporary 
 
         total disability.
 
         
 
              5.  Claimant has failed to establish any industrial 
 
         disability, which is his burden of proof.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              As claimant has been fully compensated for his temporary 
 
         total disability and medical benefits, and as he has failed to 
 
         establish entitlement to permanent partial disability, he shall 
 
         take nothing from this proceeding.
 
         
 
              Each party shall be responsible for its own costs in 
 
         connection with this action.
 
         
 
              Signed and filed this 17th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines,.Iowa  50309
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1303, 1803.1, 2901
 
                                            Filed April 17, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID B. ELTON,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 833981
 
         
 
         IOWA SECURITY & MEDICAL                 A R B I T R A T I 0 N
 
         FACILITY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1303, 1803.1, 2901
 
         
 
              The parties were refused an agreement for settlement on the 
 
         basis that a shoulder injury is to the body as a whole.  At 
 
         hearing, the parties presented no additional evidence, but 
 
         stipulated that claimant's injury was to the arm.  Held, that 
 
         agency is not bound by parties' stipulation, that injury to 
 
         shoulder was to be compensated industrially, and that claimant 
 
         failed to prove industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK SNEED,
 
         
 
              Claimant,
 
                                           File Nos. 834008 & 834009
 
         
 
         vs.
 
                                             A R B I T R A T I O N
 
         
 
         JOHN DEERE DAVENPORT WORKS,            D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Frank Sneed, 
 
         claimant, against John Deere Davenport Works, employer 
 
         (hereinafter referred to as Deere), for workers' compensation 
 
         benefits as a result of alleged injuries on February 25, 1985 and 
 
         October 4, 1985.  Deere is self-insured for the purposes of the 
 
         Iowa Workers' Compensation Acts.  On May 5, 1988 a hearing was 
 
         held on claimant's petitions and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  John Green, M.D., and Ron Burke.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report the parties have 
 
         stipulated that claimant was employed by Deere at the time of the 
 
         alleged injuries.  It was further stipulated that claimant had no 
 
         lost time in excess of three days as a result of the alleged 
 
         injuries and is therefore not entitled to temporary total 
 
         disability or healing period benefits.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether the alleged injuries arose out of and in the 
 
         course of employment;
 
         
 
             II.  Whether there is a causal relationship between any of 
 
         the work injuries and the claimed disability;
 
         
 
            III.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.  The lack of notice defense under 
 
         Iowa Code section 85.23 was waived by defendant in the prehearing 
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   2
 
         
 
         
 
         report.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Deere for the last 
 
         five to six years and continues to work for Deere at the present 
 
         time.  At the time of the alleged injuries, claimant was an 
 
         industrial truck (forklift) operator.  In addition to driving 
 
         this truck, claimant was required in October of 1985 to pull 
 
         plywood sheets from a rack which weighed approximately 25 to 30 
 
         pounds each.  Claimant was bumped (removed) from his job by a 
 
         more senior individual in November, 1985, due to a plant wide 
 
         reduction in work force due to an economic downturn in Deere's 
 
         sales.  Claimant's current job is that of a washer in the M20 
 
         Department.  Claimant has been laid off and bumped several times 
 
         from jobs due to reductions in force during his employment at 
 
         Deere.  Claimant earns between $11 and $12 per hour at the 
 
         present time.
 
         
 
              The facts surrounding the alleged work injuries are not in 
 
         dispute.  Claimant testified that on February 25, 1985 he 
 
         suffered an onset of back pain and muscle spasms from tight 
 
         muscles from jarring while operating his forklift.  John Green, 
 
         M.D., the plant doctor, took claimant off this driving for 
 
         approximately three weeks.  Claimant further testified that on 
 
         October 4, 1985 he experienced a "tightening up" of his back and 
 
         the onset of low back pain.  Claimant at that time was seen by 
 
         Dr. Green and James Johnston, M.D., his family physician who 
 
         referred him to an orthopedic surgeon, Dr. Skogland (first name 
 
         unknown) whose diagnoses was "probable degenerative disc 
 
         disease."  Dr. Skogland then referred claimant to Dr. Verma 
 
         (first name unknown) for further evaluation and treatment.  
 
         Claimant claims to have suffered permanent disability from these 
 
         injuries.
 
         
 
            The record indicates that claimant has had a long history of 
 
         back problems.  Claimant was treated by Dr. Green in March, 1983 
 
         for acute low back pain.  According to Dr. Greens office notes 
 
         claimant said at that time that he had chronic low back pain 
 
         since 1979 from changing positions, prolonged standing, walking 
 
         or sitting.  Claimant also stated that he was receiving monthly 
 
         chiropractic treatments.  Dr. Green's assessment was that 
 
         claimant had acute exacerbation of chronic right lower back pain 
 
         with "no particular movement eliciting it."  At hearing claimant 
 
         denied this and stated that he only had shoulder pain since 1979.  
 
         Claimant was treated by Dr. Green over the next several weeks and 
 
         returned to regular work in April, 1983.
 
         
 
              Claimant was treated by his family physician, Dr. Johnston, 
 
         in June, 1983 for low back pain following a change in jobs from 
 
         forklift driving to lifting on the paint line.  Claimant said 
 
         that the pain began three months earlier when, due to his 
 
         divorce, he was compelled to move and to sleep in a different 
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   3
 
         
 
         
 
         bed.  Claimant explained that he had a waterbed before he moved.  
 
         Claimant was seen by Raymond Dasso, M.D., an orthopedic surgeon, 
 
         at this time who released claimant for regular work on June 23, 
 
         1983, but only on a trial basis stating that if claimant 
 
         experienced further pain he should receive immediate work 
 
         restrictions consisting of no lifting in excess of 40 pounds with 
 
         no excessive bending, stooping or twisting.  Dr. Dasso noted at 
 
         that time that claimant had a bulging disc at the L4-5 
 
         intervertebral level of the lower spine.
 
         
 
              In February, 1984 claimant was placed on light duty by a 
 
         chiropractor by the name of Dr. Birdsell (first name unknown) 
 
         following an onset of back pain while cleaning the company 
 
         cafeteria.  Dr. Birdsell's diagnoses at that time was herniated 
 
         disc.  This chiropractic care and work restrictions continued 
 
         into March and April, 1984.  On April 25, 1984 claimant was seen 
 
         by Brandt Turner, D.C., following an auto accident on April 24, 
 
         1984.  At that time claimant complained of neck pain and constant 
 
         low back pain.  Dr. Turner's diagnoses was cervical injury and 
 
         aggravation of the low back condition resulting in constant low 
 
         backaches on a daily basis.  According to Dr. Turner, claimant 
 
         fully recovered from this accident in July, 1984 with a "0 
 
         percent disability.
 
         
 
              In November, 1984 claimant reported to Dr. Green that he 
 
         still was being treated by Dr. Birdsell and that Dr. Birdsell 
 
         stated that he will always have back problems.  At that time Dr. 
 
         Green imposed permanent restrictions on claimant's work at Deere 
 
         consisting of no lifting over 30 pounds and no repetitive 
 
         bending, lifting, twisting or reaching.  In January, 1985 
 
         claimant complained to Dr. Green that many aspects of his job 
 
         exceeded these restrictions and the doctor indicated that he 
 
         would look into the matter.
 
         
 
              In January and February, 1985 claimant was off work for 
 
         approximately three weeks after slipping on ice at home and 
 
         received chiropractic care from Dr. Turner and a Dr. Johnston 
 
         (first names unknown).  On February 20, 1985, five days after the 
 
         first alleged injury in this case, claimant was released to 
 
         return to work by Dr. Johnston who recommended that claimant see 
 
         an orthopedic surgeon.  Dr. Green at that time recommended that 
 
         claimant see a psychiatrist.
 
         
 
              Following the February 25, 1985 injury at work, claimant 
 
         returned to Dr. Green in March, 1985 asking to see a psychiatrist 
 
         due to marital difficulties.  Claimant took leave from work at 
 
         this time for several days for what claimant termed marital 
 
         maladjustment problems.  Claimant then returned to Dr. Green 
 
         stating that he would like to try to return to forklift driving 
 
         and Dr. Green removed the restriction preventing him from 
 
         returning to the job but continued the permanent restrictions as 
 
         set forth above regarding lifting and repetitive lifting, 
 
         bending, stooping, twisting and reaching.
 
         
 
              Following the October, 1985 injury, claimant's job was 
 
         evaluated by Dr. Green and it was modified to fit within the 
 
         restrictions previously imposed.  Claimant then partially 
 
         completed a physical therapy program at Franciscan Hospital but 
 
         was compelled to end this treatment when he moved to a different 
 
         shift.  In November, 1987 claimant returned to Dr. Green with 
 
         complaints of acute pain after working on his car.  In March, 
 
         1988 claimant complained of pain in the left thigh and shoulder.
 
         
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   4
 
         
 
         
 
              In March, 1986 claimant was evaluated by Thomas Brozovich, 
 
         D.C.  From his examination of claimant and use of a new 
 
         computerized infrared thermography scan, Dr. Brozovich diagnosed 
 
         that claimant suffered from lumbar intervertebral disc syndrome 
 
         and stated that it was highly improbable that claimant will be 
 
         able to return to work at full capacity and recommended 
 
         rehabilitation training.  Dr. Brozovich opined that claimant 
 
         suffered from an eight percent permanent partial impairment to 
 
         the body as a whole as a result of his back condition.
 
         
 
              In December, 1986 claimant was evaluated by Dr. Dasso.  From 
 
         his examination and review of claimants records, Dr. Dasso opined 
 
         in a letter of December 22, 1986 that claimant's activity 
 
         restrictions should consist of no lifting over 20 pounds and no 
 
         excessive bending, stooping or twisting.  Dr. Dasso also 
 
         concluded as set forth in a letter dated January 7, 1987 that "as 
 
         a result of the second injury" claimant suffered a permanent 
 
         disability of about five percent to the whole man."  There is no 
 
         further explanation of what Dr. Dasso meant by the second injury 
 
         and no such history of a second injury was discussed in the 
 
         January or December report letters.
 
         
 
              Dr. Green takes issue with the views of Dr. Dasso and 
 
         especially the imposition of a more onerous activity restriction.  
 
         Dr. Green states that Dr. Dassos conclusions were "entirely 
 
         subjective."  Dr. Green believes that claimant suffered no 
 
         additional permanent impairment from either of the two alleged 
 
         work injuries in this case as his condition was the same before 
 
         and after each one of the incidents and that the incidents 
 
         themselves were insufficient to cause injury.
 
         
 
                           APPLICABLE LAW liND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              The evidence in this case sub judice is fairly clear and 
 
         uncontroverted that claimant suffered at least a work injury on 
 
         the two alleged injury dates which arose out of and in the course 
 
         of his employment at Deere.  Even a slight aggravation of a 
 
         preexisting condition is a work injury under Iowa law.
 
         
 
             II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   5
 
         
 
         
 
         transfer causes by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is.essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case at bar, claimant contends that he suffered 
 
         permanent impairment as a result of either or both of the work 
 
         injuries alleged in this case due to additional permanent 
 
         impairment.  Claimant primarily relies upon the views of Dr. 
 
         Dasso and the fact that the claimant's job was modified after the 
 
         October, 1985 injury.  First, the views of Dr. Dasso are very 
 
         unclear.  In his reports, Dr. Dasso did not set forth a complete 
 
         history of all of claimant's prior back problems and there is no 
 
         way of knowing whether Dr. Dasso knew of the entire history.  His 
 
         views as to what constituted the second injury is not explained.  
 
         His permanent activity restrictions were not much different than 
 
         those imposed by Dr. Green long before the first alleged injury 
 
         in this case.  With reference to the change of jobs subsequent to 
 
         the October, 1985 injury, the only modifications in the jobs were 
 
         to fit within the permanent restrictions previously imposed by 
 
         Dr. Green.  The job modification did not evidence a change in the 
 
         restrictions themselves.  Given claimant's history of back 
 
         problems, the question of permanency from any one incident of 
 
         back pain is largely a matter of expert medical opinion supported 
 
         by a clear history of a worsening of complaints after a 
 
         significant aggravation injury.  In this case, the expert 
 
         opinions are conflicting.  The symptoms experienced by claimant 
 
         before and after are very similar and the events such as riding 
 
         in a forklift truck and pulling a relatively light piece of 
 
         plywood are overall not much more significant than any other 
 
         incident of back pain in the past.  Therefore, the preponderance 
 
         of the evidence failed to show that either of the work injuries 
 
         was a cause of permanent impairment or a permanent worsening of 
 
         claimant's condition.  Claimant also failed to plead or prove up 
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   6
 
         
 
         
 
         a case that his back condition overall was the result of 
 
         cumulative traumas while at work.  Claimant's back condition also 
 
         apparently preceded his Deere employment.
 
         
 
              Claimant seeks payment under Iowa Code section 85.27 of the 
 
         medical bills from Dr. Brozovich and Dr. Dasso as set forth in 
 
         the prehearing report.  Claimant admitted that these bills were 
 
         for evaluation rather than treatment of the work injury.  Only 
 
         expenses for treatment of a work injury are recoverable under 
 
         Iowa Code section 85.27.
 
         
 
              The parties stipulated in the prehearing report that each 
 
         party will pay his own costs but this is not binding upon this 
 
         deputy as costs are assessed in the discussion of the deputy as 
 
         set forth in Division of Industrial Services Rule 343-4.33.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On February 25, 1985 and again on October 4, 1985, 
 
         claimant suffered injuries to the low back which arose out of and 
 
         in the course of his employment at Deere.  Both of these injuries 
 
         were aggravations of a prior existing condition consisting of 
 
         chronic low back pain as a part of a degenerative disc disease 
 
         process in the low back beginning in 1979.
 
         
 
              2.  It could not be found that the injury of February 25, 
 
         1985 or the injury of October 4, 1985 were a cause of permanent 
 
         impairment.  Claimant had permanent impairment prior to these 
 

 
         
 
         
 
         
 
         SNEED V. JOHN DEERE DAVENPORT WORKS
 
         PAGE   7
 
         
 
         
 
         injuries as evidenced by work restrictions imposed in November, 
 
         1984 by a company physician consisting of no lifting over 30 
 
         pounds and no repetitive bending, lifting, twisting or reaching.  
 
         Claimant's symptoms before and after the aggravation of injuries 
 
         were similar.  Claimant's current work restrictions are similar 
 
         to those imposed in November, 1984.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to permanent disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Claimants petition for benefits is denied.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 9th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108
 
                                               Filed September 9, 1988
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK SNEED,
 
         
 
              Claimant,
 
                                               File Nos. 834008 & 834009
 
         vs.
 
                                                 A R B I T R A T I O N
 
         JOHN DEERE DAVENPORT WORKS,
 
                                                    D E C I S I O N
 
              Employer,
 
              Seif-Insured,
 
              Defendant.
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show by sufficient medical evidence that 
 
         the work injuries were anything more than a temporary aggravation 
 
         of a preexisting condition involving chronic low back pain and 
 
         degenerative disc disease.
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DELORES ADAME,
 
        
 
            Claimant,
 
                                               File No. 834025
 
        vs.
 
        
 
        JOHN MORRELL & COMPANY,             A R B I T R A T I O N
 
        
 
            Employer,                         D E C I S I O N
 
        and
 
        
 
        NATIONAL UNION FIRE                        F I L E D
 
        INSURANCE COMPANY,
 
                                                  JUN 27 1989
 
            Insurance Carrier,
 
                                         IOWA INDUSTRIAL COMMISSIONER
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA
 
        
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by the claimant, 
 
             Delores Adame, against John Morrell & Company, employer, and 
 
             National Union Fire Insurance, insurance carrier, and Second 
 
             Injury Fund of Iowa, to recover benefits as a result of an 
 
             alleged cumulative injury that occurred on September 1, 1986. 
 
             This matter came on for hearing before the undersigned deputy 
 
             industrial commissioner in Sioux City, Iowa, on March 28, 1989. 
 
             The record consists of the testimony of the claimant, and 
 
             claimant's exhibits 1 through 50.
 
        
 
            Claimant moved at the beginning of the hearing to amend his 
 
        petition by inserting the date of June 15, 1985 in lieu of June 
 
        15, 1984 as the date of the first loss. The amendment was 
 
        granted over the objection of the second injury fund.
 
        
 
            At the start of the hearing, the parties notified the 
 
        undersigned that there had been a settlement between the claimant 
 
        and defendants John Morrell & Company and National Union Fire 
 
        Insurance. Claimant requested that the undersigned not look at 
 
        or become apprised of the contents of the settlement in arriving 
 
        at a decision herein. The undersigned ruled that he would state 
 
        in this decision whether he took official notice of the terms of 
 
        the settlement agreement between the claimant and the two 
 
        referred to defendants. Claimant, in its brief, filed after the 
 
        hearing, stated therein the controlling parts of the settlement 
 
        and therefore the issue is moot. The undersigned would have 
 
        taken official notice of said settlement anyway.
 
        
 
                                      ISSUES
 
             
 
             The issues for resolution are:
 
             
 
             1. Whether the claimant's injury arose out of and in the 
 

 
        
 
 
 
 
 
             course of her employment;
 
        
 
            2. Whether claimant's disability is causally connected to 
 
        her injury; and
 
        
 
            3. The nature and extent of claimant's disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that she began work when she left the 
 
             tenth grade in a variety of service industry jobs at minimum wage 
 
             until 1984, when she became employed in the meat packing 
 
             industry. Claimant stated that she began her employment with 
 
             defendant employer in September 1984 and has continued that 
 
             employment to this date. Claimant testified that she worked at 
 
             various jobs at defendant employer, beginning at the kill floor, 
 
             and that in the fall of 1984, she experienced some tingling in 
 
             her fingers and pain in her right wrist. Claimant testified that 
 
             around June 1985 her particular job was stripping tenders. 
 
             Claimant described this job as taking a tender, a small piece of 
 
             meat, and pulling the nerves off the piece of meat with the right 
 
             hand as the piece was being held by the left hand.
 
        
 
            Claimant contends that in June of 1985, she was having no 
 
        problems in her left hand even though Richard L. Budensiek, D.O., 
 
        in a report on May 16, of 1985 states: "pain both hands and 
 
        numbness." Claimant stated that Dr. Budensiek than sent her to 
 
        John J. Dougherty, M.D., who performed carpal tunnel surgery on 
 
        the right hand on June 17, 1985. Claimant testified that she 
 
        then returned to work in August or September 1985, restricted to 
 
        a left-handed job only and then gradually worked from light duty 
 
        with both hands to full work with no restrictions. Claimant 
 
        indicated that during her right hand recovery period, she would 
 
        have to excessively use her left hand. Claimant indicated that 
 
        fingers on her left hand started getting numb and pain was 
 
        shooting up left arm. Claimant testified that around March 1986, 
 
        K. M. Keane, M.D., performed surgery on her right finger and that 
 
        she continued to have some pain in her left hand. At this time 
 
        the claimant was destyling hams and was again using a whizzard 
 
        knife.
 
        
 
            Claimant described her job in September 1986 as being at the 
 
        end of a long line and flipping loins weighing 18 to 19 pounds 
 
        with the left hand and cutting them with the right hand. 
 
        Claimant indicated that she handled 960 to 980 loins per hour.
 
        
 
             Claimant testified N.R. Lentini, M.D., performed carpal 
 
             tunnel surgery on her left wrist in November 1986.
 
        
 
            Claimant testified she returned to work late in 1986 to 
 
        light duty and that her left hand still bothered her and her 
 
        right hand was not as bad. Claimant stated she continued working 
 
        until a strike in 1987 which lasted until March 1988.
 
        
 
            Claimant testified that due to the strike she went to work 
 
        for a telemarketing company. In approximately April 1988, 
 
        defendant employer recalled workers on a seniority basis even 
 
        though there was not a union contract. Claimant said that after 
 
        two days at work, she was unable to perform her job due to her 
 
        job restrictions; namely, no lifting over 10 pounds, no 
 
        repetitive work, and no straight or whizzard knife use. Claimant 
 
        stated that defendant employer indicated to her that they would 
 
        not have any work for her with her restrictions and she was told 
 
        they would call her. Claimant then returned to her telephone 
 
        service sales job.
 
        
 

 
        
 
 
 
 
 
            Claimant testified that she returned to Morrell in October 
 
        1988 and has worked to the present. Claimant indicated that the 
 
        reason she returned to Morrell was that the pay was more and she 
 
        could move up the pay scale. Claimant stated that she was paid 
 
        $6.18 per hour at the telephone service job, P.T.T., and 
 
        defendant employer paid a beginning wage of $7.90 plus other 
 
        medical benefits including optical and dental benefits. Claimant 
 
        contends that when she returned to the defendant employer she 
 
        started out at light duty, and then in November 1988 went back to 
 
        her own job that she had in the rib department. She also has 
 
        been used as a floater on different jobs, some that require 
 
        lifting 30 pounds. Claimant indicated that her left and right 
 
        hand have been bothering her, the left hand more than the right, 
 
        but that she has not sought medical help since October 1988. 
 
        Claimant contends that one of the reasons she has not sought 
 
        medical help is that if she is required to return to work on 
 
        light duty with medical restrictions, she will only be able to 
 
        work up to 36 hours per week and that she cannot live on that 
 
        amount. Claimant contends that working without her restrictions 
 
        enables her to work over forty hours per week and also obtain 
 
        overtime. Claimant indicated that she now works 45 to 50 hours 
 
        some weeks. Claimant stated that her present job is working 
 
        without restrictions. Claimant, in summary, stated her current 
 
        problems as follows: Right hand (June 1985 surgery)--claimant 
 
        can do almost any motion but cannot open jars, lift laundry 
 
        baskets, twisting doesn't bother as much as up and down motion, 
 
        which motion causes discomfort, uses an elastic splint at home 
 
        only, and no longer has numbness. As to her left hand on which 
 
        she had surgery in November 1986--pain emanates up to the elbow 
 
        and has tingling and numbness in her fingers. Claimant stated 
 
        she uses a metal splint on her left wrist at home only. Claimant 
 
        indicates in general that she cannot do: house chores, laundry, 
 
        raking, shoveling, and vacuuming bothers her thumb. Claimant 
 
        contends that the splints reduced her pain.
 
        
 
             Dr. Budensiek noted in his progress notes on May 17, 1985: 
 
             "Presents with chief complaint of pain, especially in the right 
 
             hand....Also has some tenderness over the extensor tendons of the 
 
             left hand." (Cl. Ex. 22)
 
        
 
            The Marian Health Center records indicate that on June 17, 
 
        1985, the claimant had an operation involving a release of the 
 
        transverse carpal ligament and partial synovectomy of the carpal 
 
        canal (right wrist.)
 
        
 
            On August 13, 1985, claimant was authorized by Dr. Dougherty 
 
        to return to work in a one-handed job. On November 18, 1985, Dr. 
 
        Dougherty opined: "It would be my opinion, she is probably 
 
        entitled to approximately 2% of her hand as far as disability." 
 
        (Claimant's Exhibit 8)
 
        
 
            Marian Health Center records indicate a surgery on February 
 
        18, 1986, involving the fourth finger of the right hand and 
 
        claimant was released to return to work on March 10, 1986.
 
        
 
            On November 6, 1986, the Marian Health Center records 
 
        indicate:
 
        
 
            PREOPERATIVE DIAGNOSIS: Left carpal tunnel syndrome.
 
        
 
            ....
 
        
 
             NAME OF OPERATION: Surgical release of carpal canal and 
 
                                 median nerve in the capal [sic] canal 
 
                                 with block anesthetic in the axilla.
 
             
 

 
        
 
 
 
 
 
        (Cl. Ex. 9)
 
        
 
             On December 8, 1986, Dr. Dougherty released the claimant "to 
 
             work at 'light duty' with the left arm on Monday 12-15-86." On 
 
             February 17, 1987, Dr. Dougherty released the patient to return 
 
             to regular duty but minimal lifting.
 
        
 
            Daniel M. Rhodes, M.D., of the Morningside Family Practice, 
 
        indicates in his notes of August 27, 1985:
 
        
 
            CC: Sore left wrist.
 
        
 
             S:  Had a carpal tunnel release by Dr. Dougherty a while 
 
                  back. Still having pain in the right wrist where the 
 
                  release took place. Went back to work a couple weeks 
 
                  ago using left hand only on a knife job. I believe 
 
                  it's stripping tenders. Has pain in that wrist and 
 
                  forearm at this time. Pain over the 4th metacarpal 
 
                  head. Pain awakens her at night.
 
             
 
             ....
 
             
 
             A. Myotenositis left arm possible clinical CTS left
 
             
 
        (Cl. Ex. 22)
 
        
 
             On March 9, 1987, William M. Krigsten, M.D., noted several 
 
             areas of limitations of this claimant, some of which are as 
 
             follows: (l) employee can lift up to 25 pounds frequently, (2) 
 
             employee cannot use left hand for repetitive movements of simple 
 
             grasping and fine manipulation, and (3) the employee is not able 
 
             to use the whizzard or straight knife with either the left or 
 
             right hand. On May 3, 1988, Dr. Krigsten noted: (l) employee 
 
             can lift up to 10 pounds occasionally and cannot use right or 
 
             left hand for repetitive movements of simple grasping or fine 
 
             manipulating, and (2) employee is not able to use whizzard or 
 
             straight knife with either left or right hand. "DIAGNOSIS: 
 
             Residuals both arms following surgery 1986 & 1985" (Cl. Ex. 46)
 
                  
 
             On May 25, 1988, Dr. Krigsten wrote:
 
                  
 
                  I saw this patient on 5-3-88 and following are my notes: 
 
                      Return to work 4-28-88; sawing "guts"; this was regular 
 
                      work; worked 2 days but found out this caused severe pain. 
 
                      Right arm shows severe pain over forearm and wrist; fingers 
 
                      hurt and there is evidence of Dequernans; left wrist and 
 
                      forearm painful; Phalen test still positive because of 
 
                      residuals of carpal tunnel syndrome. Patient willing to try 
 
                      light work.
 
                       
 
                  I examined the patient this date and following are my 
 
                      notes: Patient says employer would not give light work. The 
 
                      patient is discharged from medical care this date--5-25-88.
 
                  
 
                  In my opinion she has a permanent impairment of 5% of 
 
                      both the left and right arms.
 
                  
 
        (Cl. Ex. 49)
 
        
 
                                 LAW AND ANALYSIS
 
             
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that she received an injury on September 1, 1986 which 
 
             arose out of and in the course of her employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
        
 
 
 
 
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of September 1, 1986 is causally 
 
             related to the disability on which she now bases her claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            Before the second injury fund is triggered three 
 
        requirements must be met. First the employee must have lost or 
 
        lost the use of a hand, foot, leg or eye. Second, the employee 
 
        must sustain another loss or loss of use of another member or 
 
        organ through a compensable injury. Third, permanent disability 
 
        must exist as to both the initial injury and second injury. See 
 
        Allen v. The Second Injury Fund, State of Iowa, 34 Biennial Rep., 
 
        Iowa Indus. Comm'r 15 (1980); Ross v. Service master-Story Co., 
 
        Inc., 34 Biennial Rep. Iowa Industrial Comm'r 273 (1979).
 
        
 
            The fund is responsible for the difference between total 
 
        disability and disability for which the employer at the time of 
 
        the second injury is responsible. Section 85.64. Second Injury 
 
        Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second 
 
        Injury Fund v. John Deere Component Works, Iowa Supreme court 
 
        Case No. 88-399,filed February 22, 1989.
 
        
 
            The claimant began work in the meat packing industry in 
 
        early 1984 and seems to have found her place in this industry. 
 
        Prior to this, the claimant was in a less strenuous and lesser 
 
        paying job. It is obvious from the evidence that the higher wages 
 
        in the meat packing industry is a big incentive for this claimant 
 
        who appears to have become the main breadwinner at a young age 
 
        due to a divorce and having the main responsibility for three 
 
        young children. Claimant began work for this defendant employer 
 
        in September of 1984. Claimant described the various types of 
 
        jobs and their nature, all of which appeared to be strenuous, 
 
        involving repetitive motions of the body, particularly the arms, 
 
        wrists and hands, and the speed of production being a criteria.
 
        
 
             Claimant received her first injury, which resulted in a 
 
             carpal tunnel surgery of her right hand, in June of 1985. The 
 
             second injury fund contends that at the time of the injury 
 
             involving this 1985 surgery, the claimant, in fact, had injured 
 
             both left and right extremities and, therefore, there are not two 
 
             injuries but, in fact, one. There is a notation in the medical 
 
             records on May 17, 1985 in which the claimant was experiencing 
 
             pain in both hands. On August 27, 1985, the medical records 
 
             indicate more appreciable pain in the left extremity. Claimant 
 
             had her first carpal tunnel surgery on June 17, 1985 to the right 
 
             hand and wrist.
 

 
        
 
 
 
 
 
        
 
             The medical testimony indicates that when claimant went to 
 
             her family physician, Dr. Budensiek, who also practices with Dr. 
 
             Rhodes, she complained of pain in both hands and numbness on May 
 
             16, 1985, and this doctor also noted in notes of May 17, 1986 
 
             that the claimant had some tenderness over the extensor tendons 
 
             of the left hand. Dr. Rhodes noted on August 27, 1985, that the 
 
             claimant had a sore left wrist and also indicated myotenositis 
 
             left arm possible clinical CTS left.
 
        
 
             It is not unusual for carpal tunnel syndrome in both hands 
 
             and wrists to begin at or around the same time. The undersigned 
 
             deputy believes that the claimant's problems with her hands and 
 
             wrists were the result of a cumulative traumatic injury in June 
 
             of 1985 resulting from repetitive action arising out of 
 
             claimant's work. The fact that claimant had the actual surgery 
 
             to her left hand 17 months apart does not denote two separate 
 
             injuries. It is often wise to do one surgery at a time. This 
 
             enabled claimant to continue working with lesser time off. The 
 
             fact that the left hand and wrist became worse due to the heavier 
 
             burdens placed on them after claimant's right carpal tunnel 
 
             surgery does not create a new and separate injury but only 
 
             increases the effect of the 1985 injury to both hands and wrists.
 
             
 
             The claimant has failed to prove that there is a second 
 
             injury rather than one injury to both hands and wrists. 
 
             Claimant's alleged second injury of September 1, 1986 did not 
 
             arise out of and in the course of her employment on September 1, 
 
             1986 but in fact arose out of and in the course of her employment 
 
             on June 15, 1985. The undersigned deputy believes that the 
 
             position of the second injury fund is in fact supported by the 
 
             greater weight of evidence.
 
             
 
             With the above finding, all other issues are now moot, and 
 
             are therefore disposed of and need no further discussion.
 
                                                
 
                                 FINDINGS OF FACT
 
             
 
             WHEREFORE, it is found:
 
             
 
             1. Claimant failed to prove that she received a second 
 
             cumulative work-related injury on September 1, 1986.
 
        
 
            2. Claimant failed to prove that she received a second 
 
        injury on September 1, 1986 which resulted in a 5 percent 
 
        permanent impairment of her upper left extremity.
 
        
 
            3. Claimant incurred a single cumulative injury which 
 
        developed simultaneously on June 15, 1985, which resulted in a 5 
 
        percent permanent impairment to both her left and right arms.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             THEREFORE, it is concluded:
 
        
 
            Claimant developed her present left and right arm injury 
 
        simultaneously on June 15, 1985.
 
        
 
            Claimant is not entitled to any benefits from the second 
 
        injury fund.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That claimant take nothing as a result of this proceeding.
 

 
        
 
 
 
 
 
        
 
            That the costs of this action is charged fifty percent (50%) 
 
        each to the claimant and the Second Injury Fund of Iowa pursuant 
 
        to Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and filed this 27th day of June, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Harry H. Smith
 
        Attorney at Law
 
        P.O. Box 1194
 
        Sioux City, IA 51102
 
        
 
        Ms. Judith Ann Higgs
 
        Attorney at Law
 
        200 Home Federal Bldg
 
        P.O. Box 3086
 
        Sioux City, IA 51102
 
        
 
        Ms. Shirley Ann Steffe
 
        Assistant Attorney General
 
        Tort Claims Division
 
        Hoover Building
 
        Des Moines, IA 50319
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
        
 
                                       51100; 3200
 
                                       Filed June 27, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DELORES ADAME,
 
        
 
            Claimant,
 
                                                       File No. 834025
 
        vs 
 
        
 
        JOHN MORRELL & COMPANY,                        A R B I T R A T I 
 
        O N
 
        
 
            Employer,                                 D E C I S I O N
 
        and
 
        
 
        NATIONAL UNION FIRE
 
        INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA
 
        
 
            Defendants.
 
        
 
        
 
        51100
 
        
 
             Claimant failed to prove that second injury arose out of and 
 
             in the course of her employment at a time not simultaneous to 
 
             first injury.
 
        
 
        3200
 
        
 
             Found that claimant's two cumulative injuries, resulting in 
 
             separate carpal tunnel surgeries seventeen months apart to 
 
             claimant's left and right hand, were actually caused by a single 
 
             cumulative injury which developed simultaneously.
 
        
 
            Claimant settled with defendant employer prior to hearing. 
 
        Only defendant left was Second Injury Fund of Iowa. Found 
 
        claimant not entitled to any benefits from Second Injury Fund.
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LARRY FREDERICK,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 834026
 
            BROADLAWNS MEDICAL CENTER,:
 
		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
        		              :
 
            AETNA CASUALTY & SURETY CO.,:
 
                 		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 12, 1989, is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            The deputy's decision and this decision should not be read 
 
            to mean anything other than the claimant bears the burden of 
 
            proof of causal connection.  Claimant bears the burden of 
 
            proof of causal connection.
 
            Also, the final agency action in this case should be as 
 
            ordered below.  Any order by the deputy inconsistent with 
 
            the below should be disregarded.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay to claimant temporary total 
 
            disability benefits from October 27, 1986 through January 
 
            19, 1987, at the rate of one hundred seventy-five and 49/100 
 
            dollars ($175.49) per week.
 
            That defendants shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise the defendants shall 
 
            pay the provider directly.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action, 
 
            including the preparation of the hearing transcript, 
 
            pursuant to rule 343 IAC 4.33.
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to rule 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            343 IAC 3.1.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            West Bank Building, Ste. 212
 
            1601 22nd Street
 
            West Des Moines, Iowa 50265
 
            
 
            Ms. Lorraine J. May
 
            Mr. Glenn Goodwin
 
            Attorneys at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1407.30
 
                      Filed October 2, 1991
 
                      BYRON K. ORTON
 
                      LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LARRY FREDERICK, 	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
		                      :      File No. 834026
 
            BROADLAWNS MEDICAL CENTER,:
 
                      		      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            AETNA CASUALTY & SURETY CO.,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1402.30
 
            Claimant bears the burden of proof of causal connection 
 
            between an alleged injury and an alleged disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY FREDERICK,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No. 834026
 
         
 
         BROADLAWNS MEDICAL CENTER,            A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and                                           F I L E D
 
         
 
         AETNA CASUALTY & SURETY COMPANY,            OCT 12 1989
 
         
 
              Insurance  Carrier,           IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry 
 
         Frederick, claimant, against Broadlawns Medical Center, employer 
 
         (hereinafter referred to as Broadlawns), and Aetna Casualty & 
 
         Surety Company, insurance carrier, for workers' Compensation 
 
         benefits as a result of an alleged injury on September 30, 1986. 
 
         On April 25, 1989, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing.report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Written 
 
         exhibits were received during the hearing but no oral testimony. 
 
         The exhibits offered into the evidence are listed in the 
 
         prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On September 30, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Broadlawns.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits only from October 27, 1986 through 
 
         January 19, 1987 and defendants agree that he was not working at 
 
         this time.
 
              
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the leg.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of January 20, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Claimant's rate of weekly compensation shall be $175.49.
 
              
 
              6.  The medical providers would testify that the medical 
 
         bills submitted by claimant at hearing were fair and reasonable 
 
         and treatment for the knee condition which was allegedly work 
 
         related.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant did not testify personally but testified by 
 
         deposition.  Claimant testified that while he was at work in the 
 
         emergency department at Broadlawns Hospital he was involved in 
 
         assisting a patient who appeared to be falling.  Claimant twisted 
 
         his body and legs to support the patient.  Immediately after this 
 
         incident, claimant complained of low back pain and pain in the 
 
         left ankle.  Because of these complaints, claimant was evaluated 
 
         immediately at the emergency department.  The claimant was seen 
 
         by a nurse and physician in the emergency room and each recorded 
 
         the complaints reported by claimant.  Neither the physician nor 
 
         the nurse in the emergency room reported that claimant had 
 
         complained of right knee problems.
 
         
 
              Claimant testified he did complain of tightness or stiffness 
 
         in his right leg but apparently this was not reported by the 
 
         emergency room personnel.
 
         
 
              Claimant also filled out a hospital variance report on 
 
         September 30, 1986.  In this report, claimant described the 
 
         incident as twisting his back and legs and states:  "Soon after 
 
         this I started getting sore and at present I have a sore ankle, 
 
         right shoulder, scapular region..."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant was off work for two days because of the ankle 
 
         and low back pain.  Claimant testified that the low back and 
 
         ankle problems resolved themselves presenting no further 
 
         problems.  On October 2, 1986, the claimant was seen in the 
 
         hospital employee health department by the employee nurse and 
 
         physician.  In this report there is again a listing of claimant's 
 
         signs and symptoms and there is again no reference to any problem 
 
         with the right knee.  Claimant testified that he indicated this 
 
         to the doctor but the doctor apparently did not write this on any 
 
         of the forms.
 
         
 
              The claimant returned to work on October 3, 1986 and worked 
 
         full time as an emergency room technician through October 20, 
 
         1986.  Claimant's supervisor and a fellow employee testified by 
 
         deposition that claimant did not appear to have any problems with 
 
         his job after he returned to work and did not report any knee 
 
         problems to them.  Both of these persons testified that claimant 
 
         was not observed limping.
 
         
 
              Claimant first sought treatment for a knee problem on 
 
         October 21, 1986, at the Mercy Hilltop Clinic.  Claimant at that 
 
         time complained of swelling and pain in his right knee.  At that 
 
         time the physician at the clinic reported that claimant had 
 
         himself lanced a cyst on his knee and applied medication to the 
 
         knee.
 
         
 
              Claimant returned to the Hilltop Clinic the next day on 
 
         October 22, 1986.  According to the clinic physician, Ashwin 
 
         Joshi, M.D., the swelling in the right knee had doubled in the 
 
         previous 24 hours despite the fact that the claimant had been 
 
         told to stay off the knee.  Suspecting a knee ligament problem, 
 
         Dr. Joshi referred claimant to an orthopedic surgeon, Mark 
 
         Kirkland, M.D., for evaluation and treatment.  Dr. Kirkland, 
 
         after his examination of claimant, felt that claimant may have 
 
         had a torn meniscus, a chronic subluxing right patella or some 
 
         other pathology in the joint.  Dr. Kirkland then performed an 
 
         arthroscopy procedure on November 20, 1986.  At that time a 
 
         lateral retinacular release was performed by Dr. Kirkland.
 
         
 
              Dr. Kirkland followed claimant for some months after the 
 
         arthroscopy procedure.  On May 5, 1987, Dr. Kirkland reported 
 
         that claimant had suffered no permanent impairment from the knee 
 
         problem but stated that he would causally relate his arthroscopy 
 
         work and surgery to the September 30, 1986 injury according to 
 
         the history provided to him by claimant.
 
         
 
              Claimant was also referred by his attorney to Jerome 
 
         Bashara, M.D., another orthopedic surgeon, for independent 
 
         evaluation.  Dr. Bashara saw the claimant once, reviewed the 
 
         records and indicated that there was a five percent impairment to 
 
         the right knee.  Dr. Bashara also causally connected the injury 
 
         to the September 30, 1986 injury.  He also apparently incorrectly 
 
         reported that an elastic bandage was applied to claimant at the 
 
         time of the original injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability,,may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All- American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere.v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the fighting issue is the causal 
 
         connection of claimant's knee problem and treatment of the knee 
 
         problem to the work injury.  Both Drs. Kirkland and Bashara 
 
         opined that claimant's knee problems were related to the twisting 
 
         incident at work on September 30, 1986.  Defendants argue that 
 
         both of these opinions should be rejected because the doctors are 
 
         basing their opinions upon an incorrect history.  Defendants 
 
         point out that the medical reports immediately following the 
 
         incidence on September 30, 1986, failed to show that claimant had 
 
         complained of any knee problems.  However, it is unclear from the 
 
         reports submitted whether or not a complaint and immediate 
 
         treatment at,,the time,of injury of a knee problem as opposed to 
 
         a few weeks after the injury was crucial to the causal connection 
 
         opinions of Drs. Kirkland and Bashara.  Defendants had the 
 
         opportunity in the discovery process in this proceeding to answer 
 
         this question and chose not to do so.  Therefore, the opinions 
 
         will not be rejected and causal connection will be found.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, causal connection will be found only to temporary 
 
         total disability and to the medical expenses claimant incurred 
 
         with Dr. Kirkland.  Drs. Kirkland and Bashara disagree as to 
 
         whether claimant has permanent partial impairment.  The treating 
 
         physician's views therefore will be given the greater weight in 
 
         this decision as he was the most familiar clinically with 
 
         claimant's history.
 
         
 
               II.  Claimant is entitled to weekly benefits for temporary 
 
         total disability under Iowa Code section 85.33 from the date of 
 
         injury until he returns to work or until he is medically capable 
 
         of returning to substantially similar work to the work he was 
 
         performing at the time of injury, whichever occurs first.  The 
 
         records indicate that claimant returned to work on January 20, 
 
         1987.  This is the end of claimant's temporary total disability.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise, claimant is entitled only to an order directing the 
 
         responsible defendants to make such payments.  Krohn v. State, 
 
         420 N.W.2d 463 (Iowa 1988).  As the knee problem was found work 
 
         related, the treatment for the knee problem is likewise found 
 
         work related and the medical expenses will be awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The work injury of September 30, 1986, was a cause of a 
 
         period of total disability from work beginning on October 27, 
 
         1986 and ending on January 19, 1987, after which claimant 
 
         returned to work.  During this time, claimant received extensive 
 
         treatment of the work injury consisting of various treatment 
 
         modalities such as limitations on activity, medications for pain 
 
         and inflammation, physical therapy and surgery for a knee 
 
         condition which developed a few weeks after the injury.
 
         
 
              2.  Claimant has failed to show by the greater weight of 
 
         evidence that the work injury of September 30, 1986 or the 
 
         causally related knee,condition is a cause of permanent 
 
         impairment to the leg.
 
         
 
              3.  The medical expenses listed in the prehearing report 
 
         were incurred by claimant for reasonable and necessary treatment 
 
         for his work injury of September 30, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to temporary 
 
         total disability and medical benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant temporary total 
 
         disability benefits from October 27, 1986 through January 19, 
 
         1987, at the rate of one hundred seventy-five and 49/100 dollars 
 
         ($175.49) per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him.  Otherwise the defendants shall pay the 
 
         provider directly along with any lawful late penalty benefits 
 
         imposed upon the account by the provider.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 12th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         Suite 16
 
         974-73rd St
 
         Des Moines, IA  50312
 
         
 
         Ms. Lorraine May
 
         Mr. Glen Goodwin
 
         Attorneys at Law
 
         4th Floor Equitable Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                           
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108
 
                                            Filed October 12, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY FREDERICK,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 834026
 
         
 
         BROADLAWNS MEDICAL CENTER,          A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
          
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1108 - Nonprecedential - medical causation issue.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LARRY FREDERICK 	      :
 
 		                      :         File No. 834026
 
                 Claimant, 	      :
 
 	                              :    DENIAL OF MOTION TO ENLARGE
 
 		            vs.       :       OR AMEND FINDINGS AND
 
                 		      :            CONCLUSIONS
 
            BROADLAWNS MEDICAL CENTER,:
 
 		                      :
 
                 Employer,            :      DECISION  ON  REHEARING
 
                      		      :
 
       			    and       :
 
                      		      :
 
            AETNA CASUALTY & SURETY CO.,:
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            
 
            MOTION TO ENLARGE OR AMEND FINDINGS
 
            On October 10, 1991 the employer and insurance carrier filed 
 
            a motion to enlarge or amend findings and conclusions 
 
            (hereinafter referred to as "motion") and an application for 
 
            rehearing (hereinafter referred to as "application").  
 
            Claimant has filed a response and resistance to each.  The 
 
            application for rehearing was granted on October 30, 1991.
 
            The motion was filed pursuant to Iowa Rule of Civil 
 
            Procedure 179 and asks for a modification of the appeal 
 
            decision filed in this matter.  The relief sought is the 
 
            same as the relief sought in the application and can be 
 
            considered in the rehearing.  It should be noted that 
 
            decisions of this agency are governed by Iowa Code section 
 
            17A.16(1).  The Iowa Rules of Civil Procedure are adopted 
 
            under rule 343 IAC 4.35, but that rule specifically states 
 
            that where a conflict exists between a statute and the Iowa 
 
            Rules of Civil Procedure, the statute controls.  The motion 
 
            under Iowa R.Civ.P. 179 would not be appropriate to merely 
 
            change the format of the appeal decision.
 
            In addition, the decision of the deputy industrial 
 
            commissioner that the October 2, 1991 appeal decision adopts 
 
            by reference fully complies with the requirements of Iowa 
 
            Code section 17A.16(1).
 
            The motion is denied.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            DECISION ON REHEARING
 
            A review of the deputy's rulings is being made without 
 
            deciding whether the other issues also raised on appeal need 
 
            be addressed in an appeal decision.  There was no error in 
 
            allowing exhibits O, P, and Q into evidence.  The reasons 
 
            stated by the deputy can be found at pages 9-10 of the 
 
            hearing transcript.  Also, there was no error in failure to 
 
            default claimant or dismiss the action.  Iowa Code section 
 
            17A.12(3) clearly allows a presiding deputy to proceed with 
 
            a hearing and make a decision in the absence of a party.  
 
            (It should also be noted that the record reflects that 
 
            claimant's counsel was present at the hearing.)
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            West Bank Bldg., Ste 212
 
            1601 22nd St.
 
            West Des Moines, Iowa 50265
 
            
 
            Ms. Lorraine J. May
 
            Mr. Glenn Goodwin
 
            Attorneys at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309