1803; 2901; 2904
 
         BJO
 
         Filed March 5, 1991
 
         Clair R. Cramer
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CLAYTON BRAL,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 839759
 
         FARMLAND FOODS, INC.,         :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY CO.,  :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         2901
 
         Defendants objected to the testimony of claimant's expert, even 
 
         though the expert had been properly listed as a witness and the 
 
         expert's written report was properly listed as an exhibit and 
 
         admitted, because claimant had failed to amend an interrogatory 
 
         answer pertaining to experts to be used at the trial.  There was 
 
         no surprise or prejudice to defendants, only a technical 
 
         non-compliance with Iowa Rule of Civil Procedure 125(c).  There 
 
         was full compliance with this agency's rules on listing expert 
 
         witnesses.
 
         Held that the testimony of the witness should have been allowed 
 
         into the record.  It was pointed out that the hearing assignment 
 
         order was later revised to clarify that parties are to comply 
 
         both with our hearing assignment order and Iowa R.Civ.P. 125(c).  
 
         At the time of this case and a similar case, Nammany v. Stellco, 
 
         Appeal Decision, October 17, 1989, there was no clear direction 
 
         on the interaction between Iowa R.Civ.P. 125(c) and our hearing 
 
         assignment order.  Nammany and this case viewed as limited to 
 
         their facts [hearing held under the "old" hearing assignment 
 
         order].  Cases occurring after the revision of the hearing 
 
         assignment order may not rely on Nammany and this case as 
 
         precedent, but rather will be bound by the hearing assignment 
 
         order, which now clearly requires compliance with Iowa R.Civ.P. 
 
         125(c).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         2904
 
         Rejected claimant's argument that on appeal, defendants cannot 
 
         argue for a lowering of the deputy's award of industrial 
 
         disability if they did not cross-appeal.  An appeal is considered 
 
         de novo, and the commissioner may raise, maintain, or lower an 
 
         award.  Claimant raised the extent of his disability as an issue 
 
         on appeal in his appeal brief, and thus defendants were free to 
 
         urge a lowering of the deputy's award.  However, defendants were 
 
         not allowed to address the issue of when permanency began.  
 
         Claimant did not raise this issue on appeal, and defendants did 
 
         not cross-appeal to raise this issue.  Although the standard of 
 
         review is de novo, only those issues properly raised by an 
 
         appealing party will be considered on appeal.
 
         
 
         1803
 
         Claimant with back injury, ratings of 21 percent and 5 percent 
 
         permanent partial impairment of the body as a whole, work 
 
         restrictions, 33 years old, eighth grade education, work 
 
         experience limited to manual labor, loss of earnings, and an 
 
         inability to return to his old job or similar jobs, but with 
 
         skills in woodworking as demonstrated by a business claimant 
 
         started in his home, awarded 20 percent industrial disability.  
 
         Claimant's likelihood of making a profit from his woodworking 
 
         business was considered speculative and not relevant, but his 
 
         ability to offer woodworking as a skill to potential employers 
 
         was considered in determining industrial disability.  In 
 
         addition, claimant's willingness to start this business rather 
 
         than remain idle was considered an indication of good motivation.
 
         
 
 
        
 
 
 
 
 
        
 
                                       1803; 1402
 
                                       Filed March 20, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLAYTON BRAL,
 
        
 
             Claimant,
 
                                                File No. 839759
 
        
 
        FARMLAND FOODS, INC.,                A R B I T R A T I O N
 
        
 
            Employer,
 
        and
 
        
 
        AETNA CASUALTY & SURETY CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
        1803
 
        
 
             Claimant awarded 20% industrial disability because of a low 
 
             back injury.
 
        
 
        1402
 
        
 
             Claimant failed to prove that his gastrointestinal problems 
 
             were caused by his work injury.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAYTON BRAL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 839759
 
            vs.                           :
 
                                          :         O R D E R
 
            FARMLAND FOODS, INC.,         :
 
                                          :          N U N C  
 
                 Employer,                :
 
                                          :           P R O
 
            and                           :
 
                                          :          T U N C
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            An appeal decision was filed in this case on March 5, 1991.  
 
            The fourth unnumbered paragraph of the Order in the decision 
 
            states, in part: "Defendants shall not receive credit for 
 
            temporary total disability benefits previously paid except 
 
            as a credit for defendants' obligation to pay temporary 
 
            total disability benefits."  It has been brought to this 
 
            agency's attention that the benefits previously paid by 
 
            defendants were in the nature of temporary partial 
 
            disability benefits, rather than temporary total disability 
 
            benefits.  
 
            THEREFORE, it is ordered:
 
            The fourth unnumbered paragraph of the order in the appeal 
 
            decision filed March 5, 1991, is hereby amended to read:
 
            That defendants are to be given credit for benefits 
 
            previously paid.  Defendants shall not receive credit for 
 
            temporary partial disability benefits previously paid except 
 
            as a credit for defendants' obligation to pay temporary 
 
            partial disability benefits. 
 
            Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. J. Tilton
 
            Attorney at Law
 
            1312 First Ave. S
 
            Denison, Iowa 51442
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Bldg.
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAYTON BRAL,                 :
 
                                          :
 
                 Claimant,                :         File No. 839759
 
                                          :
 
            vs.                           :         D E C I S I O N
 
                                          :
 
            FARMLAND FOODS, INC.,         :        R E G A R D I N G
 
                                          :
 
                 Employer,                :          M E D I C A L
 
                                          :
 
            and                           :         B E N E F I T S
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding for medical benefits brought by 
 
            claimant, Clayton Bral, against his employer, Farmland 
 
            Foods, Inc., and its insurance carrier, Aetna, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on November 18, 1986.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner at Sioux City, Iowa, on November 7, 
 
            1991.  A first report of injury has been filed.
 
            
 
                 The record consists of claimant's exhibits A through O 
 
            and joint exhibits 1 through 16 as well as the testimony of 
 
            claimant and of Mary M. Daniel, R.N.
 
            
 
                                      issues
 
            
 
                 The sole issue is whether claimant is entitled to 
 
            payment of medical expenses as causally connected to the 
 
            work injury; as expenses defendants authorized; and, as 
 
            reasonable and necessary medical care.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 36-year-old gentleman who injured his 
 
            back on November 18, 1986, in the course of his employment 
 
            with defendant Farmland Foods, Inc.  Claimant's employment 
 
            with the employer terminated subsequent to his work injury.  
 
            Claimant is now self-employed making custom furniture.  He 
 
            makes cabinets, gun cabinets and plant stands.  He saws, 
 
            nails, stains and varnishes.  Claimant apparently receives 
 
            help with heavy lifting.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Subsequent to his November 18, 1986, injury, claimant 
 
            treated with chiropractic manipulation, physical therapy, 
 
            traction and ultrasound.  Claimant's primary treating 
 
            physicians have been Rose Mary Mason, M.D., and David Mark 
 
            Tan Creti, M.D.  He has received chiropractic care with 
 
            Denison Chiropractic Clinic.  Per Drs. Tan Creti and Mason, 
 
            claimant was hospitalized on August 30, 1989, and received 
 
            heat, physical therapy, traction and ultrasound in that 
 
            hospitalization.  Claimant also received muscle relaxers and 
 
            was administered antibiotics for treatment of influenza.  
 
            Medical records reflect that claimant had vomiting and the 
 
            flu at that time and that such increased his back pain.
 
            
 
                 Dr. Tan Creti prescribed and continued to recertify 
 
            physical therapy subsequent to that hospitalization through 
 
            September 1991.  Claimant, on Dr. Tan Creti's advice, 
 
            attempted to discontinue physical therapy in March 1991.  
 
            Physical therapy was reinstated approximately 12 days later 
 
            in that claimant per physical therapy progress notes had a 
 
            gradual increase in his discomfort in that time and was 
 
            having significant [omission] doing activities of daily 
 
            living and work.  A moderate amount of muscle tension was 
 
            noted on palpation.  Dr. Tan Creti has opined that physical 
 
            therapy is medically indicated and necessary treatment for 
 
            claimant's condition and that cessation of physical therapy 
 
            will cause deterioration of claimant's condition.
 
            
 
                 Lonnie R. Mercier, M.D., examined claimant on January 
 
            3, 1991.  Dr. Mercier is an orthopaedic surgeon and an 
 
            instructor in orthopaedics at Creighton University Medical 
 
            School.  He is the author of the textbook, Practical 
 
            Orthopedics, Revised Second Edition.  Dr. Mercier, in a 
 
            report of that date, related claimant's current condition to 
 
            his original November 18, 1986, injury.  Dr. Mercier has 
 
            opined that claimant's condition does not warrant further 
 
            physical therapy noting that claimant's physical therapy as 
 
            of that date had not actually improved claimant's condition.  
 
            Dr. Mercier has also opined that physical therapy and 
 
            chiropractic manipulation are treatments which tend to 
 
            overlap and are too similar for it to be appropriate to "pay 
 
            for" both treatments simultaneously.  Dr. Mercier has 
 
            indicated that physical therapy is generally prescribed to 
 
            provide relief of symptoms for two or three months after an 
 
            initial injury and that after such it is probably not 
 
            helping any.  Dr. Mercier opined that home therapy such as 
 
            hot baths or heat may be used instead of physical therapy.  
 
            Dr. Mercier did opine, however, that he would prescribe 
 
            physical therapy if an individual ran the risk of being 
 
            inactive or showed signs of being inactive, and physical 
 
            therapy would increase the patient's activity level.
 
            
 
                 Mary M. Daniel, R.N., certified occupational health 
 
            nurse who is safety supervisor at Farmland Foods, reported 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that physical therapy is most utilized for perhaps one or 
 
            two months in the acute phase of an injury.  On August 9, 
 
            1991, claimant was rehospitalized after having had gradual 
 
            onset of mid-back pain with right leg radiation.  Claimant 
 
            denied recent reinjury but did complain of sinus pain.  His 
 
            admission diagnosis was low back strain with possible 
 
            herniated disc and right sciatica as well as sinusitis.  
 
            Claimant's right leg radiation did not continue; while 
 
            hospitalized on August 14, 1991, claimant stretched and felt 
 
            a pop or sharp pain in his back, however.  He was 
 
            transferred by ambulance to Bergan Mercy Hospital on August 
 
            16, 1991, and referred to Patrick W. Bowman, M.D.  An MRI 
 
            was interpreted as revealing a slight bulging of the L5-S1 
 
            disc.  David E. Rosenberg, M.D., subsequently performed an 
 
            epidural block.  Dr. Bowman has opined that he could not say 
 
            with any degree of certainty that any treatment he performed 
 
            related to claimant's November 18, 1986, work injury.
 
            
 
                 Dr. Tan Creti has opined that claimant's treatment, 
 
            including that related to the August 1991 hospitalization, 
 
            related back to the original work injury.  He has 
 
            characterized the August 1989 hospitalization and subsequent 
 
            treatment as an aggravation or flare-up of a preexisting 
 
            condition and the direct result of the November 1986 injury.  
 
            Dr. Tan Creti did not recall claimant having had problems 
 
            with bronchitis or vomiting prior to the November 1986 
 
            injury.  Farmland nursing notes indicate that claimant was 
 
            treated in 1979 apparently with an admission on account of 
 
            influenza and received out-patient treatment for bronchitis 
 
            in 1982.  Dr. Tan Creti has further indicated that, without 
 
            the November 1986 injury and subsequent back condition, 
 
            claimant would not have been hospitalized for the degree of 
 
            illness he had from stomach flu in 1989 or from coughing in 
 
            1991.  Dr. Tan Creti has indicated that any sudden jerking 
 
            or movement, particularly vomiting or coughing with a 
 
            jarring motion may light up a back condition.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Our only concern is whether claimant is entitled to 
 
            payment of submitted medical costs.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Defendants argue that the medical charges which 
 
            claimant has submitted are not causally related to the 
 
            November 1986 work injury, were not authorized by 
 
            defendants, and were not reasonable and necessary care.  We 
 
            shall address the issues produced relative to each set of 
 
            medical charges.
 
            
 
                 We first consider the medical payment issue relative to 
 
            claimant's 1989 hospitalization.
 
            
 
                 Claimant was hospitalized in September 1989 after an 
 
            attach of stomach flu which apparently then caused severe 
 
            back pain.  Dr. Tan Creti and Dr. Mason are apparently 
 
            claimant's authorized physicians.  Claimant's admission was 
 
            at their direction.  Dr. Tan Creti has related the need for 
 
            the admission stating that claimant's vomiting produced the 
 
            type of jarring movement which exacerbated his previous back 
 
            condition.  Defendants rely on the fact that claimant had 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            had episodes of gastric problems prior to November 1986 to 
 
            indicate a lack of causal relationship.  The record does not 
 
            reflect that claimant ever required hospitalization for 
 
            exacerbation of a back condition on account of such problems 
 
            prior to November 1986.  That fact supports Dr. Tan Creti's 
 
            opinion that a relationship existed between the need for 
 
            hospitalization on account of the gastroenteritis 
 
            exacerbating claimant's back condition and the November 1986 
 
            injury.  Likewise, treatment rendered appears to have been 
 
            reasonable and necessary treatment relative to an 
 
            exacerbation of muscular back pain.
 
            
 
                 Claimant is entitled to payment of his expenses with 
 
            Walters Pharmacy, Inc., related to treatment of his back 
 
            condition at the time of his discharge in 1989 in the amount 
 
            of $25.30.  He is not entitled to payment of those costs 
 
            relative to treatment of his influenza.  Likewise, claimant 
 
            is entitled to payment of his costs with Robert J. Hacker, 
 
            M.D., following the 1989 hospitalization.
 
            
 
                 A similar view must be taken relative to claimant's 
 
            August 1991 hospitalization and subsequent referral and 
 
            treatment.  Claimant was apparently admitted after an attack 
 
            of bronchitis which apparently produced coughing.  Dr. Tan 
 
            Creti has also indicated that coughing would be the type of 
 
            jarring movement which could exacerbate a preexisting back 
 
            condition.  Both Dr. Tan Creti and Dr. Mason relate back to 
 
            the original back injury in discussing the 1991 
 
            hospitalization.  While Dr. Bowman, who subsequently saw 
 
            claimant, does not make that connection, greater weight is 
 
            given to the opinions of Dr. Mason and Dr. Tan Creti as they 
 
            have been claimant's authorized and primary treating 
 
            physicians from his 1986 injury onward.  Likewise, 
 
            claimant's hospital treatment in 1991, his referrals, his 
 
            subsequent hospitalization at Bergan Mercy Hospital, 
 
            associated diagnostic studies and his epidural block all 
 
            were reasonable and necessary treatment related to the 
 
            exacerbation of his original back condition arising from his 
 
            injury in November 1986.
 
            
 
                 Charges related to claimant's 1991 hospitalizations and 
 
            related treatment include the charge with Denison Medical 
 
            Clinic, P.C., William W. Klumper, M.D., Crawford County 
 
            Clinic, P.C., Bergan Mercy Hospital, Radiology Consultants, 
 
            P.C., Michael S. Pettis, M.D., Pain Clinic, Dr. Bowman's 
 
            charges, as well as a portion of the charges with Crawford 
 
            County Memorial Hospital.  Those charges also include costs 
 
            of physical therapy received from February 26, 1991, through 
 
            September 20, 1991.  The appropriateness of payment of those 
 
            costs will now be discussed.
 
            
 
                 Defendants apparently have paid claimant's therapy 
 
            expenses from September 1989 through February 1991.  
 
            Apparently, after Dr. Mercier's examination of claimant on 
 
            January 3, 1991, defendants advised claimant that they would 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            no longer pay for physical therapy per Dr. Mercier's opinion 
 
            that physical therapy was not warranted.  The record 
 
            reflects that claimant did attempt to maintain without 
 
            physical therapy and Dr. Tan Creti worked with claimant 
 
            relative to that attempt.  After a relatively short period, 
 
            that is, approximately 12 days, physical therapy was 
 
            renewed.  The record does not reflect that claimant 
 
            attempted any home modalities of self-help during that 
 
            period.  Perhaps had he done so, the need for physical 
 
            therapy would not have been present.  However, Dr. Tan Creti 
 
            remained claimant's authorized treating physician as of that 
 
            point.  His judgment that for this particular patient, 
 
            physical therapy was warranted will not be second guessed.  
 
            We again note that the employer's right to select the 
 
            provider of medical treatment does not include the right to 
 
            determine how the worker should be treated or other matters 
 
            of professional medical judgment.  If the employer is 
 
            dissatisfied with treatment from Dr. Tan Creti, the 
 
            employer, of course, retains the right to consider providing 
 
            claimant with a different authorized physician.  Claimant is 
 
            entitled to payment of physical therapy expenses incurred 
 
            from February 1991 through September 1991.
 
            
 
                 We reach the question of claimant's entitlement to 
 
            payment of his chiropractic expenses.
 
            
 
                 Claimant argues that payment is appropriate in that the 
 
            chiropractic expenses represent merely a continuation of 
 
            chiropractic care received up to the time of the arbitration 
 
            hearing.  Claimant was awarded payment of chiropractic 
 
            expenses to that date.  Claimant apparently feels that that 
 
            award precludes a different finding as to subsequent 
 
            chiropractic care.  We disagree.  Nothing in the record 
 
            indicates that claimant's chiropractic care was authorized.  
 
            While Drs. Tan Creti and Mason apparently were aware that it 
 
            was ongoing and acquiesced in the continuing chiropractic 
 
            care, nothing in the record reflects that they directed 
 
            claimant to chiropractic care.  Dr. Mercier has indicated 
 
            that chiropractic care is too similar to physical therapy 
 
            for the expense of both to be warranted simultaneously.  
 
            Hence, it cannot be said that the care was reasonable and 
 
            necessary care from which defendants benefits through an 
 
            increase in claimant's overall well-being.  For that reason, 
 
            payment for claimant's chiropractic charges with Denison 
 
            Chiropractic Clinic is precluded.
 
            
 
                 Claimant also has requested payment for mileage 
 
            incurred for medical treatment.  Items 2 through 8 on 
 
            claimant's exhibit M reflect mileage incurred for treatment 
 
            for which defendants have been found liable.  Item 1 on 
 
            exhibit M, costs incurred for treatment at Denison 
 
            Chiropractic Clinic, does not represent treatment for care 
 
            for which defendants are liable.  Therefore, it is found 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that claimant is entitled to payment of medical mileage to 
 
            the providers in the amounts that will be set forth in the 
 
            Order below.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant medical expenses as follows:
 
            
 
                 Walters Pharmacy, Inc.                   $    25.30
 
                 Midwest Neurosurgery, P.C.                    33.00
 
                 Crawford County Memorial Hospital          7,035.20
 
                 Denison Medical Clinic, P.C.                 100.00
 
                 William W. Klumper, M.D.                      12.86
 
                 Crawford County Clinic, P.C.                 216.00
 
                 Bergan Mercy Hospital                      1,743.90
 
                 Radiology Consultants, P.C.                  150.00
 
                 Michael S. Pettis, M.D.                      325.00
 
                 Pain Clinic                                  272.00
 
                 Patrick W. Bowman, M.D., of Drs. Gross,
 
                    Iwersen, Kratochvil & Klein, P.C.         227.00
 
                 Total                                    $10,140.26
 
            
 
                 Defendants pay claimant mileage expenses as follows:
 
            
 
                 Crawford County Memorial Hospital         $   86.03
 
                 Crawford County Clinic, P.C.                  12.60
 
                 Bishop Clarkson Hospital                      33.60
 
                 Midwest Neurological, P.C.                   100.80
 
                 Lonnie Mercier, M.D.                          33.60
 
                 Bergan Mercy Hospital                         67.20
 
                 Patrick W. Bowman, M.D.                       33.60
 
                 Total                                     $  367.43
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as ordered by 
 
            the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. J. Tilton
 
            Attorney at Law
 
            1312 First Avenue South
 
            Denison, Iowa  51442
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2500; 2503
 
                                               Filed February 7, 1992
 
                                               HELENJEAN M. WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAYTON BRAL,                 :
 
                                          :
 
                 Claimant,                :         File No. 839759
 
                                          :
 
            vs.                           :         D E C I S I O N
 
                                          :
 
            FARMLAND FOODS, INC.,         :        R E G A R D I N G
 
                                          :
 
                 Employer,                :          M E D I C A L
 
                                          :
 
            and                           :         B E N E F I T S
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2500; 2503
 
            Claimant entitled to payment of costs related to two 
 
            hospital admissions.  One admission occurred after vomiting 
 
            with influenza exacerbated work-related back condition.  The 
 
            second occurred after coughing with sinusitis exacerbated 
 
            claimant's work-related back condition.
 
            Claimant entitled to payment of physical therapy costs where 
 
            authorized physician had prescribed the care.
 
            Claimant not entitled to chiropractic care which was not 
 
            authorized and which examining physician opined was too 
 
            similar to physical therapy to warrant concurrent treatment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD GWINN,
 
         
 
              Claimant,
 
                                                      FILE NO. 839795
 
         vs.
 
                                                    A R B I T R A T I 0 N
 
         CRST,
 
                                                       D E C I S I 0 N
 
              Employer,
 
         
 
         and                                              F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,                   JUN 30 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Gerald Gwinn, 
 
         claimant, against CRST, Inc., employer (hereinafter referred to 
 
         as CRST), and Liberty Mutual Insurance Company, insurance 
 
         carrier, for workers' compensation benefits as a result of an 
 
         alleged injury in September, 1985.  On April 20, 1988, 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.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Sheryl Gwinn and Leonard Weaver, III.  
 
         Exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  According to the prehearing report, the 
 
         parties stipulated to the following matters:
 
         
 
              1.  I September, 1985, an employer-employee relationship 
 
         existed between CRST and claimant.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from November 2, 1985 through March 17, 
 
         1986 and the defendants agree that claimant was not working 
 
         during this period of time.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in the proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
                                                
 
                                                         
 
         in the course of employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury 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.
 
         
 
                            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 started working for CRST as a 
 
         truck driver in September, 1985.  He stated that although he 
 
         lives in Chariton, Iowa, he was dispatched from Cedar Rapids, 
 
         Iowa. he stated that his duties consisted of over-the-road 
 
         interstate truck driving of a semi tractor trailer truck.  After 
 
         recovery from the alleged work injury in this case, claimant 
 
         purchased his own truck and now is self employed under an 
 
         owner/operator lease arrangement.  Claimant testified that while 
 
         working for CRST he was "greedy" and "run harder than most" due 
 
         to the fact that he was paid by the mile and not by the hour.  
 
         Claimant stated that he probably worked harder than he should.  
 
         In one month during his CRST employment, claimant said that he 
 
         logged over 14,000 miles.
 
         
 
              Claimant claims that he suffered a work injury in September, 
 
         1985, in the form of a kidney infection.  He also claims that 
 
         this infection led to gallbladder problems which eventually 
 
         resulted in removal of his gallbladder and disability from work 
 
         for several months in late 1985 and early 1986.  Claimant 
 
         attributes these problems to a change by CRST in September, 1985, 
 
         from a smooth to a rough riding truck.  While on a long run in 
 
         this rough riding truck, claimant said that he told his 
 
         dispatcher that he developed a kidney infection but could not be 
 
         relieved.  Claimant said that he began to pass blood on the 
 
         return trip.  Claimant said that he sought treatment upon his 
 
         return from Loren C. Hermann, D.O., whose records indicate that 
 
         he treated claimant for acute cystitis and pyelitis.  Claimant 
 
         was off work for a week and then returned to his normal truck 
 
         driving duties after being "talked into returning" by his 
 
         superiors at CRST.  Claimant said that after one week the 
 
         infection returned and he began to develop pain under the right 
 
         rib cage.  On November 2, 1985, this pain became so severe while 
 
                                                
 
                                                         
 
         on a road trip that claimant was compelled to terminated his 
 
         driving.  Claimant then called his wife, who is an LPN.  Claimant 
 
         testified that his wife told him that he might have a gallbladder 
 
         problem.  Claimant's wife then drove to Indiana to transport 
 
         claimant back to his residence in Chariton, Iowa.  Claimant 
 
         returned to Dr. Hermann at that time who again treated claimant 
 
         for complaints "similar" to the complaints he had in September, 
 
         1985.  According to Dr. Hermann these problems resolved but his 
 
         upper right quadrian pain persisted along with intolerance to 
 
         greasy food.  Claimant was then referred by Dr. Hermann to James 
 
         Gould, M.D., a gastroenterologist, whose testing indicated an 
 
         abnormal functioning of the gallbladder.  After further 
 
         conservative care failed to alleviate the problem, claimant's 
 
         gallbladder was removed by William Wellington, M.D., in December, 
 
         1985.  After recovery, claimant was released to return to work on 
 
         March 16, 1986, but did not return to CRST.  As stated above, he 
 
         then began his owner/operator business.
 
         
 
              Four physicians have rendered causal connection opinions in 
 
         this case.  Dr. Hermann stated in a report dated January 23, 1986 
 
         as follows:
 
         
 
              It is my opinion that his initial condition of acute 
 
              cystitis and pyelitis was due to his employment driving 
 
              duties.  I feel that this condition may have resulted in a 
 
              systemic infection which in turn contributed to his gall 
 
              bladder condition.  His history is negative for any prior 
 
              treatment for any of these conditions. he continues to be 
 
              totally disabled at this time.
 
         
 
              Dr. Gould states in his consultation report of December, 
 
         1985 as follows:  "I have no evidence that the patient's work had 
 
         anything to do with his problem."
 
         
 
              A specialist in urology and urological surgery (at least 
 
         according to his letterhead) Hugh C. Dick, M.D., stated in his 
 
         May 26, 1987, report as follows:
 
         
 
              It is my opinion that his occupation did not cause these 
 
              illnesses.  Patients in all walks of life occasionally 
 
              develop urinary infections.  This problem is a bacterial one 
 
              and is not mechanically induced.  I must also note that 
 
              occasionally patient's who already have prostatic or urinary 
 
              infection will have their symptoms aggravated by mechanical 
 
              factors such as he experienced in his job.
 
         
 
              In Summary:
 
         
 
                   1)  The occupation did not cause the bacterial 
 
                       infection.
 
                   2)  There is no relationship between the gallbladder 
 
                       disease and the urinary infection.
 
                   3)  After adequately clearing the infection with 
 
                       appropriate antibiotics, this fellow should have 
 
                       been able to return to work.  I would expect that 
 
                                                
 
                                                         
 
                                     it should not have taken longer than 1-2 weeks of 
 
                       therapy.
 
         
 
              Finally, Donald W. Blair, M.D., (specialty, if any, unknown) 
 
         made the following statement in a report dated April 8, 1987:
 
         
 
              It would not appear to this reviewer that the complaints of 
 
              cystitis, pyelitis as well as his gall bladder symptoms 
 
              would be related to his truck driving activities.  These 
 
              would appear to be more of his own personal medical problems 
 
              and I would feel that any medical compensation should be 
 
              covered by his private medical insurance.  There is no 
 
              report from a urologist which has been submitted which would 
 
              attribute the bladder or kidney situation to his truck 
 
              driving activities.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         he was testifying in a candid and truthful manner.
 
         
 
                         APPLICABLE LAW AND 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 or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              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 tact.  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 sub judice, claimant has not shown by a 
 
         preponderance of the evidence a work injury.  The case cited by 
 
         claimant, Lanford v. Kellar Excavating and Grading Company, 191 
 
         N.W.2d 667 (Iowa 1971) is not applicable to the facts of this 
 
         case.  Unlike Lanford, the medical expert opinions in this case 
 
         concerning the causal connection between claimant's kidney 
 
         infection/gallbladder problems and his duties of driving a rough 
 
         riding truck at CRST are conflicting.  The two specialists, Dr. 
 
         Gould and Dr. Dick do not agree with Dr. Hermann whose specialty, 
 
         if any, is unknown.  Although Dr. Dick opines that the kidney 
 
         infection could be aggravated by claimant's truck driving, he 
 
         denies any causal link between the gallbladder problems and 
 
         urinary tract infection.  It was the gallbladder problem in this 
 
         case, not the urinary tract infection, which precipitated the 
 
         absence from work for the periods of time requested by claimant 
 
         in the prehearing report.  Although claimant and his wife 
 
         appeared credible in their testimony in questions of causal 
 
                                                
 
                                                         
 
         connection, this agency must rely heavily upon the medical 
 
         experts.  The greater weight of the evidence presented simply 
 
         does not support claimant's position.
 
         
 
              As claimant has failed to demonstrate a work related injury, 
 
         the remaining issues of entitlement to disability and medical 
 
         benefits are moot.  Claimant and his wife, however, appeared 
 
         sincere in their claim, and will be awarded the costs of this 
 
         action.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant and his wife were credible witnesses.
 
         
 
              2.  Claimant was in the employ of CRST from September 
 
         through November, 1985.
 
         
 
              3.  In September, 1985, claimant suffered a urinary tract 
 
         infection while performing his truck driving duties for CRST 
 
         which requires medical treatment and absence from work for a 
 
         period of one week.
 
         
 
              4.  In November, 1985, claimant suffered a severe recurrence 
 
         of urinary tract infection and gall bladder problems involving 
 
         treatment and absence from work during the latter part of 1985 
 
         and the early part of 1986.
 
         
 
              5.  No causal link could be found between claimant's urinary 
 
         tract infection or gallbladder problems and his work at CRST.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish entitlement to disability 
 
         or medical benefits.
 
         
 
                                   ORDER
 
         
 
               1.  Claimant's petition for benefits is denied.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 30th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P  WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
                                                
 
                                                         
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         Suite 500, The Saddlery Bldg.
 
         309 Court Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108
 
                                                 Filed June 30, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD GWINN,
 
         
 
              Claimant,
 
                                                      FILE NO. 839795
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         CRST,
 
                                                       D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal link between his urinary 
 
         tract infections and gallbladder problems with his duties at work 
 
         as a truck driver.  All benefits were denied.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         JERRY ANDERSEN,     :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 839832
 
         A. C. DELLOVADE,    :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         KEMPER GROUP,  :
 
                   :
 
              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 May 
 
         21, 1990 is affirmed and is adopted as the final agency action in 
 
         this case.
 
         Defendants shall pay the costs of the arbitration proceeding and 
 
         claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1990.
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 29, 1990
 
            DRR
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JERRY ANDERSEN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 839832
 
            A. C. DELLOVADE,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 21, 
 
            1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY ANDERSEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 839832
 
            A. C. DELLOVADE,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed March 29, 1988.  Claimant received an injury 
 
            arising out of and in the course of his employment on 
 
            November 14, 1986, when he slipped on an icy patch and fell.  
 
            He now seeks benefits under the Iowa Workers' Compensation 
 
            Act from defendant employer A. C. Dellovade and defendant 
 
            insurance carrier The Kemper Group.
 
            
 
                 Hearing on the petition for arbitration was had in 
 
            Council Bluffs, Iowa, on June 27, 1989.  The record consists 
 
            of claimant's exhibits 1 through 5, joint exhibits 1 through 
 
            24 (both inclusive), and the testimony of claimant, Walter 
 
            Boehnke and Sandra Andersen.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with A. C. Dellovade 
 
            on November 14, 1986; that the injury caused temporary and 
 
            permanent disability; that affirmative defenses are not 
 
            applicable or waived; that defendants are entitled to credit 
 
            for benefits paid prior to hearing. 
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused permanent disability to the body as a 
 
            whole as opposed to the right knee; the extent of claimant's 
 
            entitlement to healing period benefits and permanent 
 
            disability benefits, along with the commencement date 
 
            thereof; the appropriate rate of compensation (although it 
 
            is stipulated that claimant was married and entitled to six 
 
            exemptions; the extent of claimant's entitlement to medical 
 
            benefits; taxation of costs.
 
            
 
                 The fighting issue in this case is whether claimant's 
 
            injury is limited to the right knee, or whether he has 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            sustained permanent impairment to the cervical and lumbar 
 
            spine and right hip.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 The work injury happened when claimant stepped off a 
 
            curb following an ice storm in November, 1986 while carrying 
 
            4 x 4 sheeting.  Claimant was employed as an ironworker.  He 
 
            remembers stepping off the curb when his feet shot straight 
 
            into the air and he fell straight down on his back and 
 
            buttocks.  Claimant's neck and shoulder twisted.  He 
 
            testified that neck pain was quite immediate and his neck 
 
            was stiff the following day.  Claimant alleged he still 
 
            feels discomfort in the neck and that every time he turns, 
 
            something "clicks."  Claimant further stated that he began 
 
            to experience low back discomfort soon afterward.  Claimant 
 
            did not immediately have pain in the right hip.  Claimant 
 
            stated his back pain was located on the left side of his 
 
            lower back and radiated into the left leg, but is mostly 
 
            resolved at this time.
 
            
 
                 Claimant was seen the same day at the emergency room of 
 
            Jennie Edmundson Hospital by an orthopaedic surgeon with 
 
            whom claimant had formerly treated, Ronald K. Miller, M.D.  
 
            Nurse's notes reflect that claimant presented complaining of 
 
            pain without radiating tingling or numbness across the lower 
 
            back.  Left thigh and buttock felt tight.  Dr. Miller's 
 
            notes reflect radiation of pain into the left buttock and 
 
            left-sided muscle pain in the neck:  "Hears a crack when he 
 
            turns it."  Cervical and lumbar spine films read by 
 
            radiologist D. Janda, M.D., showed no specific evidence of 
 
            recent trauma, but mild degenerative changes of both the 
 
            cervical and lumbar spine.  Later, claimant's knee became 
 
            swollen and it was recognized that he had sustained an 
 
            injury to that joint.  Claimant underwent knee surgery on 
 
            January 15, 1987 and again on November 27, 1987.
 
            
 
                 Dr. Miller rated claimant as having a 12-15 percent 
 
            impairment of the leg on August 8, 1988, but had given 
 
            claimant a 15 percent rating the year before prior to the 
 
            second surgery.  Oscar M. Jardon, M.D., and Lowell F. A. 
 
            Peterson, M.D., each rated claimant as having sustained a 15 
 
            percent impairment of the leg by reason of the knee injury.
 
            
 
                 Claimant had earlier injured his back in an unrelated 
 
            work injury in 1981.  The industrial commissioner approved a 
 
            full commutation on June 30, 1982 in which claimant entered 
 
            into an agreement based on a 10 percent disability to the 
 
            body as a whole.  No physician has opined that any permanent 
 
            disability to claimant's lower back or neck resulted from 
 
            the subject work injury.  Claimant was evaluated on July 30, 
 
            1987 by Patrick W. Bowman, M.D.  On August 5 of that year, 
 
            Dr. Bowman wrote that based on a 10 percent preexisting 
 
            impairment of the back, he felt there was no change from a 
 
            permanency standpoint.  He noted that claimant's image of 
 
            his disability was somewhat out of proportion to clinical 
 
            findings.  Dr. Bowman found cervical x-rays essentially 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            within normal limits and lumbar spine films to show minimal 
 
            facet changes.  His impression was of chronic spinal strain.
 
            
 
                 Claimant testified that pain to his hip and groin 
 
            developed perhaps two weeks after the injury and that he 
 
            complained of this pain to Dr. Miller and Maurice Margules, 
 
            M.D., whom he was also seeing.  He indicated that he 
 
            complained to physical therapists following his January 1987 
 
            surgery.  The earliest medical notation of complaints near 
 
            the hip joint are of June 23, 1987, involving the trochanter 
 
            (exhibit A-30).  Dr. Bowman's letter of July 30 makes 
 
            reference to complaints of pain radiating into the right 
 
            hip.  In any event, Dr. Miller eventually referred claimant 
 
            to Dr. Jardon for consultation on hip complaints, Dr. Jardon 
 
            first seeing claimant on September 20, 1988.
 
            
 
                 Dr. Jardon found that claimant has an impairment of the 
 
            hip to the extent of 30 percent of the leg based on 
 
            degenerative disease of the right hip, more specifically, 
 
            osteoarthritis.  Dr. Jardon is a board-certified orthopaedic 
 
            surgeon and has consistently maintained that the work injury 
 
            either caused the underlying osteoarthritis itself, or 
 
            transformed an asymptomatic condition into a symptomatic 
 
            one.  Defendants' brief points to Dr. Jardon's letter of 
 
            October 18, 1988, when he states, "In truth, I don't know 
 
            whether this hip problem is related to the fall or not."  
 
            They take the position that Dr. Jardon has therefore changed 
 
            his mind.  However, the same letter in the very next 
 
            sentence states that the hip problem could have antedated 
 
            the fall or have been aggravated by the fall.  No such 
 
            claimed inconsistency exists.  Dr. Jardon noted in his 
 
            deposition of June 5, 1989 that claimant's painful 
 
            degenerative arthritis of the hip was not present prior to 
 
            the work injury and was either caused by the accident or 
 
            aggravated because of a change in claimant's gait engendered 
 
            by his knee injury.  Limping, he believes, can either 
 
            accelerate degenerative changes from an injury to the hip 
 
            from the fall or aggravate preexisting and asymptomatic 
 
            degenerative arthritis.
 
            
 
                 Dr. Jardon was of the view that a single injury can 
 
            cause osteoarthritis.  In fact, the injury need not even be 
 
            severe.  Claimant had mild arthritis, so Dr. Jardon believed 
 
            it had not existed for five or more years and that he could 
 
            not say with absolute certainty whether it preexisted the 
 
            injury.
 
            
 
                 Dr. Jardon was unclear in his testimony as to when 
 
            claimant first complained of hip pain.  Claimant did not 
 
            show up complaining of hip pain, but of knee pain.  He did 
 
            not at that time have particularly grave complaints.  Dr. 
 
            Jardon found that pain from osteoarthritis of the hip was 
 
            referred over the obturator nerve to the medial aspect of 
 
            the knee and to the buttock with some groin pain (all of 
 
            which claimant has complained).  Based on this subjective 
 
            impression, Dr. Jardon had x-ray films made and objectively 
 
            found evidence of osteoarthritis.  This diagnosis had not 
 
            previously been reached by any physician.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 A bone scan of both hips was performed by D. Fertel, 
 
            M.D., on August 5, 1987.  No definite abnormalities were 
 
            seen in either hip region.  Magnetic resonance imaging of 
 
            the right hip had been done by C. Morris, M.D., on August 
 
            10, 1987 and July 6, 1988.  Studies were normal, although 
 
            Dr. Morris found slight angulation in 1987 changing the 
 
            position of the right as opposed to the left hip, giving 
 
            some apparent asymmetry.  It is interesting to speculate on 
 
            the possible relationship of this angulation to the knee 
 
            injury and to the development of osteoarthritis.  However, 
 
            no physician has discussed this issue and such speculation 
 
            on the writer's part would be improper.
 
            
 
                 Claimant indicates that he had no pain in the right hip 
 
            prior to the work injury.  However, claimant lacked 
 
            credibility as a witness.  He was frequently evasive and 
 
            unresponsive in his testimony and his general demeanor was 
 
            unconvincing.  Claimant submitted two letters to the 
 
            industrial commissioner in support of the commutation of his 
 
            earlier back injury.  In both, he stated that Dr. Margules 
 
            advised him that he could not return to his employment as an 
 
            ironworker.  In fact, claimant did subsequently return to 
 
            that employment and when repeatedly questioned in his 
 
            deposition taken June 5, 1989, falsely testified that he had 
 
            never before had to consider getting out of ironwork and had 
 
            never been medically advised to leave that occupation.  
 
            Claimant has clearly failed to report income on tax returns.  
 
            In his deposition, he testified (at page 27) that hip pain 
 
            began at most two weeks after the work injury and that pain 
 
            had remained relatively constant since, although fluctuating 
 
            in terms of good days and bad days.  Yet, no medical records 
 
            reflect such early complaints.
 
            
 
                 Dr. Miller does not agree with Dr. Jardon with respect 
 
            to the causal relationship between the work injury and 
 
            claimant's hip osteoarthritis.  On May 11, 1988, he wrote 
 
            that the hip problem was probably coincidental and not 
 
            related to the work injury.  The osteoarthritis could relate 
 
            to some earlier incident since claimant was rather young to 
 
            be developing degenerative changes or could be strictly an 
 
            incidental finding with no particular relation to any 
 
            previous trauma, merely a serendipitous pathological change.
 
            
 
                 Claimant was seen by Dr. Peterson of the Mayo Clinic in 
 
            Rochester, Minnesota, on December 13, 1988.  Dr. Peterson is 
 
            an orthopaedic surgeon.  He believed that claimant's 
 
            degenerative arthritis of the hips (he uses the plural) had 
 
            been present right along and had really not been 
 
            significantly aggravated.  Therefore, he refused to rate 
 
            disability arising from hip arthritis.
 
            
 
                 William R. Palmer, M.D., is a rheumatologist.  He saw 
 
            claimant on a number of occasions apparently beginning in 
 
            August, 1987, but first made note of hip complaints on 
 
            January 4, 1988, noting difficulty flexing the hip.  On 
 
            January 6, 1988, Dr. Palmer wrote Dr. Miller that claimant's 
 
            osteoarthritis was probably on the basis of chronic wear and 
 
            tear and likely was not exacerbated significantly by the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            fall.  On October 31, 1988, he wrote claimant's attorney 
 
            that although opinions differ widely, it is likely that 
 
            single injuries probably do not cause osteoarthritis unless 
 
            the injury is severe enough to disorganize the joint surface 
 
            or its major stabilizing components, and that to his 
 
            knowledge, claimant did not sustain such an injury to his 
 
            hip in the fall.  He felt it almost certain that claimant 
 
            had some preexisting osteoarthritis, but that it was 
 
            possible that symptoms of the preexisting condition were 
 
            "brought out" as the result of his altered walking status as 
 
            a result of the knee injury.  He pointed out that a 
 
            "possible argument could be made" that the hip was 
 
            aggravated by the injury, although to what degree was purely 
 
            speculative.  He further stated that it "does make sense" 
 
            that altered mechanics about the knee could translate into 
 
            altered use of the hip and therefore result in additional 
 
            discomfort.
 
            
 
                 M. Paul Strottmann, M.D., board certified in 
 
            rheumatology, did not examine claimant, but reviewed 
 
            extensive medical records.  He found the first record of 
 
            right hip pain was on August 28, 1987 and found that the 
 
            record established developing degenerative disc disease of 
 
            the right hip.
 
            
 
                 Dr. Strottmann, associate professor of the University 
 
            of Iowa Hospitals and Clinics, Department of Internal 
 
            Medicine, felt that for a single injury to result in 
 
            degenerative disc disease of the hip requires a serious 
 
            injury with fracture of the joint surface or major 
 
            disorganization of the joint, and that such an injury would 
 
            result in immediate symptoms of pain and loss of function.  
 
            A fall to the buttocks in a sitting position does not place 
 
            severe stress on the hip joint.  Dr. Strottmann opined that 
 
            there is no relationship between the work injury and the 
 
            subsequent development of degenerative joint disease.  He 
 
            further opined that chronic knee pain and resultant 
 
            alteration of gait is insufficient to cause degenerative 
 
            disease of the hip, noting the "legion of persons" who 
 
            sustain injury or disease causing alteration of gait without 
 
            subsequent development of degenerative disease of the hip.
 
            
 
                 Obviously, there exists a conflict in medical opinion 
 
            that requires resolution.  Dr. Jardon is of the view that 
 
            the work injury either directly caused claimant's 
 
            osteoarthritic hip condition or that altered gait as a 
 
            result of the knee injury aggravated a preexisting 
 
            condition.  Of course, Dr. Jardon based his opinions in part 
 
            on claimant's history of when hip problems began, and also 
 
            upon his somewhat fuzzy understanding of what the history 
 
            was.  Claimant testified in his deposition that hip pain 
 
            began one to two weeks after the fall and has remained 
 
            relatively constant since then.  If that testimony is 
 
            accurate, it seems incredible that osteoarthritis could have 
 
            been brought out by altered gait because the lapse of time 
 
            is so short.  No physician has suggested that two weeks of 
 
            limping can cause osteoarthritis.  Therefore, if that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            testimony is accurate, the only possible mechanism tying the 
 
            work injury to claimant's hip is that of traumatic changes 
 
            brought about directly by the fall.  In believing this to be 
 
            a possibility, Dr. Jardon stands alone.
 
            
 
                 Dr. Palmer was of the view that single injuries 
 
            probably do not cause osteoarthritis unless severe enough to 
 
            disorganize the joint surface or major stabilizing 
 
            components and believed that claimant did not sustain such 
 
            an injury (although he believed it "possible" that the 
 
            "altered-gait" theory made sense).  Dr. Miller, the treating 
 
            physician, believed the hip problem to be purely 
 
            coincidental and not related to the work injury.  Dr. 
 
            Peterson felt that preexisting degenerative arthritis of the 
 
            hips had not been significantly aggravated.  Dr. Strottmann 
 
            believed, as did Dr. Palmer, that a single injury would not 
 
            result in degenerative joint disease of the hip unless it 
 
            involved fracture of the joint surface or major 
 
            disorganization of the joint, which was not the case with 
 
            respect to claimant.
 
            
 
                 The greater weight of medical evidence is that 
 
            claimant's fall is not causally related to his subsequent 
 
            degenerative hip disease.
 
            
 
                 Dr. Miller was of the view that claimant "plateaued" 
 
            with respect to his knee injury as of June 6, 1988.  He 
 
            later wrote the same thing with respect to the date November 
 
            29, 1988.  Dr. Jardon was of the view that claimant had 
 
            completed his healing period when first seen on September 
 
            20, 1988.
 
            
 
                 Claimant testified that he was hired from a union hall 
 
            on the basis of a 40-hour week, although he actually worked 
 
            much less during his short tenure because of bad weather.  
 
            In a recorded statement with Bob Flaherty taken November 24, 
 
            1986, claimant conceded that there was no particular 
 
            agreement as to the number of hours claimant would work each 
 
            week.  It is held that no such agreement has been 
 
            established.  Claimant started on October 29, 1986, and 
 
            therefore worked only some 17 days, or parts of three pay 
 
            periods.  Claimant worked 24 hours in the first, 28 hours in 
 
            the second, and 24 hours in the third week, earning $13.95 
 
            per hour, and gross totals of $334,80, $390.60, and $334.80.  
 
            Claimant worked the last three days of his first pay period 
 
            and was injured on the final day of his third pay period.
 
            
 
                 Claimant's exhibits 1 through 5 are medical bills 
 
            totalling $3,328.00.  Exhibit 1 includes charges of 
 
            $1,393.00 from Jennie Edmundson Hospital for the December 9 
 
            through December 12, 1986 hospitalization.  By dint of 
 
            proximity in time, this appears related to the work injury.  
 
            Exhibit 2 includes billings from Dr. Palmer totalling 
 
            $435.00 over various dates.  Exhibit 3 is a billing from 
 
            Diagnostic & Internal Medicine Associates dated August 4, 
 
            1987, and totalling $35.00.  It is unclear what relationship 
 
            this bill has to the present controversy.  Exhibit 4 and its 
 
            subpart, 4a, reflect billings from Dr. Margules totalling 
 
            $860.00 from November 25, 1986 through July 13, 1988.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Exhibit 5 is a $23.00 charge from Dr. Jardon dated May 16, 
 
            1989.
 
            
 
                                conclusions of law
 
            
 
                 The parties agree that claimant sustained an injury 
 
            arising out of and in the course of his employment.  The 
 
            disagreement is as to whether that injury includes 
 
            disability to the hip, and through the hip, whether 
 
            disability extends to the body as a whole so as to be 
 
            evaluated industrially.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            14, 1986 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As discussed above, the weight of the medical evidence 
 
            in this case is that claimant's degenerative hip disease is 
 
            not causally related to the work injury.  There is no expert 
 
            evidence causally relating permanent cervical or lumbar 
 
            spine impairment to that injury.  It is therefore concluded 
 
            that claimant's permanent impairment is limited to the right 
 
            leg, a scheduled member under Iowa Code section 85.34(2)(o).  
 
            There is a basic agreement among Drs. Miller, Peterson and 
 
            Jardon that claimant sustained a 15 percent impairment to 
 
            his leg with respect to the knee injury.  Fifteen percent of 
 
            the 220 weeks provided by schedule is 33 weeks.  As claimant 
 
            has not established that his work injury extends into the 
 
            body as a whole, he shall be allowed 33 weeks of permanent 
 
            partial disability.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 The treating physician, Dr. Miller, has opined that 
 
            claimant "plateaued" on June 6, 1988, which implies that 
 
            significant improvement from the injury is not medically 
 
            anticipated.  This constitutes the best evidence of the 
 
            extent of healing period.  Therefore, claimant shall be 
 
            awarded such benefits from November 14, 1986 through June 6, 
 
            1988, a total of 81 weeks, 4 days.  Payment of permanent 
 
            partial disability shall commence on June 7, 1988.
 
            
 
                 Claimant was paid on an hourly basis, but worked fewer 
 
            than 13 calendar weeks immediately preceding the injury.  
 
            Therefore, his rate should be calculated under Iowa Code 
 
            section 85.36(7).  However, the record does not show what 
 
            claimant would have earned had he been employed the full 13 
 
            calendar weeks immediately preceding the injury or what work 
 
            was available to other employees in a similar occupation.  
 
            Therefore, claimant's rate shall be determined by dividing 
 
            by two his earnings in the two full weeks ending in his 
 
            injury (claimant was employed only three days of his first 
 
            week, although he actually worked each of those days).  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Barker v. City Wide Cartage, I Iowa Industrial Commissioner 
 
            Report 12 (App. decn. 1980).  Claimant earned $725.40 during 
 
            those two weeks, or an average of $362.70 per week.  This is 
 
            held to be his gross average weekly wage for purposes of 
 
            calculating rate.  The "Guide to Iowa Workers' Compensation 
 
            Claim Handling" published by this office and effective July 
 
            1, 1986, shows that an individual who is married, entitled 
 
            to six exemptions, and who has gross weekly wages of $363.00 
 
            is entitled to a benefit rate of $239.82.
 
            
 
                 Medical bills from Jennie Edmundson Hospital 
 
            ($1,393.00), Internal Medicine Associates ($435.00), and 
 
            Bluffs Neurological Associates ($860.00) appear to relate to 
 
            treatment for claimant's knee and back.  Although claimant 
 
            has failed to establish permanent spinal impairment, he 
 
            immediately reported back pain and was appropriately treated 
 
            for the same.  Those particular expenses shall be allowed.  
 
            Other submitted medical expenses have not been shown to bear 
 
            a causal relationship to the work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant eight-one point 
 
            five seven one (81.571) weeks of healing period benefits at 
 
            the rate of two hundred thirty-nine and 82/100 dollars 
 
            ($239.82) per week commencing on the date of injury and 
 
            totalling nineteen thousand five hundred sixty-two and 
 
            35/100 dollars ($19,562.35).
 
            
 
                 Defendants shall pay claimant thirty-three (33) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred thirty-nine and 82/100 dollars ($239.82) per week 
 
            commencing June 7, 1988 and totalling seven thousand nine 
 
            hundred fourteen and 06/100 dollars ($7,914.06).
 
            
 
                 Defendants shall pay medical expenses to Jennie 
 
            Edmundson Hospital totalling one thousand three hundred 
 
            ninety-three and 00/100 dollars ($1,393.00), Internal 
 
            Medicine Associates totalling four hundred thirty-five and 
 
            00/100 dollars ($435.00), and Bluffs Neurological Associates 
 
            totalling eight hundred sixty and 00/100 dollars ($860.00).
 
            
 
                 As all weekly benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.  Interest does not 
 
            accrue on medical expenses.
 
            
 
                 Defendants shall have credit for all payments 
 
            voluntarily made to claimant prior to the filing of this 
 
            decision.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20
 
                                               Filed May 21, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY ANDERSEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 839832
 
            A. C. DELLOVADE,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Claimant failed to prove knee injury extended into the body 
 
            as a whole.  No causal relationship found as to hip 
 
            arthritis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY GREGG HAMMAN,
 
          
 
               Claimant,
 
          
 
          VS.                                         File No. 839889
 
          
 
          TERMINAL GRAIN CO.,                      A R B I T R A T I O N
 
          
 
               Employer,                                D E C I S I O N
 
         
 
          and
 
         
 
          GRAIN DEALERS MUTUAL INS. CO.
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Larry Gregg 
 
         Hamman, claimant, against Terminal Grain Company, employer, and 
 
         Grain Dealers Mutual Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury which 
 
         occurred on.November 17, 1986.  A hearing was held in Sioux City, 
 
         Iowa, on December 21, 1989, and the case was fully submitted at 
 
         the close of the hearing.  Claimant was represented by Dennis 
 
         McElwain.  Defendants were represented by Paul W. Deck, Jr.  The 
 
         record consists of the testimony of Larry G. Hamman, claimant; 
 
         John Dobler, licensed physical therapist; joint exhibits 1 
 
         through 20 and defendants' exhibits A through E. The deputy 
 
         ordered a transcript of the hearing.  Neither attorney submitted 
 
         a posthearing brief by the extended brief filing deadline.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of.the.injury.
 
         
 
              That claimant sustained an injury on November 17, 1986, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         permanent disability to the left arm.
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That claimant is entitled to and was paid temporary 
 
         disability benefits from November 18, 1986 to December 1, 1986 
 
         and that temporary disability benefits are not a disputed matter 
 
         in this case at this time.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such.benefits are awarded, is December 1, 
 
         1986.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $210.77 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants paid claimant 1.857 weeks of temporary 
 
         disability benefits at the rate $210.77 per week prior to 
 
         hearing, but did not pay any permanent disability benefits to 
 
         claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the issues of whether claimant is entitled to medical 
 
         benefits under either Iowa Code sections 85.27 or 85.39, as shown 
 
         on the hearing assignment order, were withdrawn by claimant at 
 
         the time of the hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability to 
 
         the neck.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits for either the left arm or the neck.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born November 24, 1958, was 28 years old at the 
 
         time of the injury and 31 years old at the time of the hearing.  
 
         He stated that he was seeking benefits for injuries to his left 
 
         arm, his neck and for headaches (transcript pages 22 & 23).
 
         
 
              In 1979, while working for the Department of Transportation, 
 
         he injured his low back while lifting a bag of dry cement.  He
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 3
 
         
 
         
 
         was hospitalized for four days, received traction, returned to 
 
         work and has had no further problems with his low back since that 
 
         time (tr. pp. 28, 69 & 70).  In January of 1986, while working 
 
         for N and W Farm Service, claimant struck a parked vehicle while 
 
         driving with his windows fogged over and injured his back again.  
 
         He received two or three treatments from G.C. Rosenburger, D.C., 
 
         who manipulated his whole back at that time (tr. pp. 30-33 & 
 
         70-72).  Claimant denied that he had ever sustained any injuries 
 
         to his neck or suffered from prolonged headaches prior to June of 
 
         1986 (tr. pp. 32 & 33).
 
         
 
              Claimant applied for employment with employer in June of 
 
         1986 (tr. p. 33; exhibit 20).  His primary job, at least 50 
 
         percent of the time, was operating a front-end loader.  The 
 
         balance of the time was spent unloading railcars, painting or 
 
         roofing (tr. pp. 34 & 35).  Claimant worked for employer from 
 
         June of 1986 until June of 1988 (tr. p. 74).
 
         
 
              On November 17, 1986, claimant was descending a ladder when 
 
         his hands slipped and he fell approximately 12 to 15 feet and 
 
         landed on the blacktop below on his head and left arm.  He 
 
         received a severe laceration near his left eye and fractured the 
 
         radial head of his left elbow (tr. pp. 36-40, 78 & 79).  Employer 
 
         took claimant to see D.M. Youngblade, M.D., who cast his left 
 
         elbow, took 19 stitches in his head and kept him off work for 
 
         approximately two weeks.  During that period, claimant said his 
 
         primary complaints were his head, headaches and his left arm (tr. 
 
         pp. 40, 41 & 78-81).  Claimant was not sure about when or how 
 
         often he complained to Dr. Youngblade about headaches or his neck 
 
         (tr. pp. 81-83).  Claimant testified that he did complain about 
 
         headaches, but does not recall whether he complained about his 
 
         neck because he was more concerned with his arm (tr. pp. 44 & 
 
         45).
 
         
 
              Dr. Youngblade saw claimant on November 17, 1986 for a 
 
         fracture of the left radial head.  X-rays of the cervical spine 
 
         showed that the bones and disc spaces were normal.  X-rays of the 
 
         facial bones showed that the orbits appear to be intact.  A 
 
         jagged laceration above the left eye was sutured with 15 silk 
 
         sutures.  On November 19, 1986, Dr. Youngblade appears to record 
 
         neck and shoulders and headaches.  On November 24, 1986, he 
 
         recorded headaches again.  On December 15, 1986, the cast was 
 
         removed.  On December 30, 1986, the doctor stated that claimant 
 
         had not gotten the arm out straight yet and recommended physical 
 
         therapy.  Dr. Youngblade noted 18 whirlpool treatments from 
 
         January 5, 1987 through February 18, 1987.  Dr. Youngblade 
 
         completed a medical report on January 23, 1987 on which he noted 
 
         a bruise of the left shoulder, no evidence of skull injury, and 
 
         tight cervical spine.  He also noted that claimant continued to 
 
         have contraction of the left elbow, a problem fully extending the 
 
         elbow, and that claimant was receiving therapy to fully extend
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 4
 
         
 
         
 
         the elbow (ex. 14).  Dr. Youngblade's last entry, dated on August 
 
         4, 1987, notes that claimant's arm is still not right.  He notes 
 
         a 35 percent disability.  He adds that three specialists all want 
 
         to do surgery (ex. 15, pp. 1-3).
 
         
 
              Claimant saw Dr. Rosenburger for this injury on December 26, 
 
         1986.  Dr. Rosenburger recorded disuse atrophy and immobility of 
 
         the left elbow after casting of a fracture which occurred on 
 
         November 17, 1986.
 
         
 
              Claimant was referred to D.K. Nelson, M.D., an orthopedic 
 
         surgeon by Dr. Youngblade on January 30, 1987.  Dr. Nelson noted 
 
         that claimant had a 35 degree flexion contracture and a further 
 
         flexion limitation to 110 degrees (ex. 7, p. 26).  On February 
 
         25, 1987, Dr. Nelson believed that there was probably not an 
 
         internal derangement or boney block, but rather this was a 
 
         capsular tightness that should resolve (ex. 7, p. 23).  On May 
 
         27, 1987, claimant exhibited a 44 degree flexion contracture and 
 
         a further flexion limitation to 115 degrees.  No loose body could 
 
         be seen.  Dr. Nelson assessed a 35 percent permanent physical 
 
         impairment to the whole arm.   On March 27, 1987 and May 29, 
 
         1987, Dr. Nelson continued to consider a surgical option.  On 
 
         June 26, 1987, the doctor noted that claimant went to Omaha for a 
 
         second opinion (ex. 7, pp. 23 & 24).  At this point, defendants 
 
         sent claimant to see Joseph E. Gross, M.D., an orthopedic surgeon 
 
         in Omaha.
 
         
 
              Dr. Gross saw claimant on June 29, 1987.  Dr. Gross noted a 
 
         45 degree loss of extension and a 10 percent loss of flexion (ex. 
 
         A, p. 1).  Dr. Gross found some deformity and some avascular 
 
         necrosis with a nondisplaced osteochondral fracture.  He added, 
 
         however, that this, does not necessarily mean that claimant has 
 
         to have an operation (ex. 8, p. 27).  On July 15, 1987, Dr. Gross 
 
         reported to the insurance carrier that claimant had a good deal 
 
         of loss of motion and he obviously will have a significant 
 
         disability in this extremity (ex. 9, p. 28).  On August 11, 1987, 
 
         Dr. Gross asked that claimant be evaluated by Jack A. McCarthy, 
 
         M.D., in his office (ex. A., p. 2).
 
         
 
              Dr. McCarthy found claimant had between 50 and 100 degrees 
 
         of flexion in his left elbow, mild pain with impingement of the 
 
         radial head.  X-rays demonstrated peripheral osteophyte 
 
         formation.  Dr. McCarthy recommended physical therapy and gradual 
 
         splinting and dynamic splinting before surgery was recommended.  
 
         On November 23, 1987, the range of motion was improved and Dr. 
 
         McCarthy recommended against surgery.  On March 7, 1988, he found 
 
         that claimant had approximately 30 degrees to 130 degrees of 
 
         flexion with restriction at both extremes after both static and 
 
         dynamic splinting (ex. A, pp. 2 & 3).  On November 15, 1989, Dr. 
 
         McCarthy wrote to the insurance carrier that he did not know why
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 5
 
         
 
         
 
         the elbow contracture would be causing claimant additional 
 
         problems with his neck, shoulder and back (ex. B).
 
         
 
              On December 1, 1987, Dr. Gross wrote to the insurance 
 
         carrier that claimant's range of motion was markedly improved 
 
         because of splinting and vigorous physical therapy.  He added 
 
         that it appears that the situation will not come to a surgical 
 
         intervention at this time.  Dr. Gross also added that claimant 
 
         persisted in having some mild aching over his shoulder, but that 
 
         it should not necessitate surgery now or in the future (ex. 12, 
 
         p. 32).  On April 20, 1988, Dr. Gross stated that the left elbow 
 
         flexion and extension was reduced to a 50 degree loss of range of 
 
         motion.  And that this corresponded to a 13 percent impairment to 
 
         the left upper extremity.  He added that there is a small risk 
 
         that his degenerative symptoms will increase secondary to his 
 
         radial head fracture and that he may come to radial head excision 
 
         in the future (ex. 13, p. 33).
 
         
 
              Claimant was next seen by B.E. Krysztofiak, M.D., on May 23, 
 
         1988 for paresthesia in both hands, right greater than the left 
 
         since January 1988.  Dr. Krysztofiak found that claimant had a 40 
 
         degree limitation of extension in the left elbow, but no 
 
         limitation of flexion in the left elbow.  An EMG performed. by 
 
         this doctor disclosed that claimant had marked carpal tunnel 
 
         syndrome, but the nerve conduction studies of the left arm were 
 
         within normal limits (exs. 5 & 6; ex. D).
 
         
 
              Claimant testified that the physical therapy and the splint 
 
         therapy was.very painful.  It increased the range of motion at 
 
         that time, but after a while the arm went back to where it was 
 
         and he did not get that much more motion out of it (tr. pp. 
 
         48-53).  Claimant indicated that even though the treatment 
 
         focused on his left arm, he continued to have headaches and neck 
 
         aches.  He described an ache and a constant pain across his 
 
         shoulders.  The headaches are right above his forehead (tr. pp. 
 
         55 & 56).  Claimant testified that he told Dr. Gross about his 
 
         neck complaints, but Dr. Gross stated that he was only requested 
 
         to treat the arm (tr. p. 91).
 
         
 
              Claimant acknowledged that in his current job he lifts bags 
 
         that weigh as much as 100 pounds, but it hurts his left hand and 
 
         arm (tr. p. 60).  The left elbow also impairs his ability to lift 
 
         and change tires in his present employment (tr. p..61).  Claimant 
 
         admitted that his head and neck complaints do not impair his 
 
         ability to perform his present employment (tr. p. 61).  Claimant 
 
         demonstrated that he cannot fully extend his left arm and he 
 
         cannot bring his hand up to his shoulder as far as he can with 
 
         the right hand (tr. p. 62).  Claimant stated a second time that 
 
         his head and neck complaints did not interfere with his ability 
 
         to perform his current job (tr. p. 65).  Claimant testified that 
 
         he did relate to Dr. Rosenburger that he was
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 6
 
         
 
         
 
         having neck pain even though Dr. Rosenburger's report does not 
 
         reflect it (tr. p. 99; ex. 17).  Claimant further stated that his 
 
         purpose in going to see Dr. Rosenburger was for his neck pain 
 
         (tr. pp. 100 & 101).
 
         
 
              Claimant acknowledged that when they were stretching his 
 
         arm, by physical therapy, that they reduced the flexion 
 
         contraction from 52 percent to 18 percent, but that when the 
 
         physical therapy terminated his arm resumed the same loss of 
 
         motion (tr. pp. 104 & 105).
 
         
 
              John Dobler, a licensed physical therapist for 14 years, who 
 
         is self-employed as Midwest Rehabilitation, and who is licensed 
 
         in both Nebraska and Oklahoma, testified that claimant's elbow 
 
         injury healed and left the soft tissues in a shortened state so 
 
         that he did not have full motion (tr. pp. 106-116).  He explained 
 
         the splinting process and the tendon stretching process (tr. pp. 
 
         120-123).   When he last saw claimant, the loss had increased to 
 
         a 30 to 35 degree loss by March of 1988 (tr. pp. 123-125).  
 
         Dobler granted that this type of therapy progresses and relapses 
 
         (tr. pp. 128 & 129).  Dobler further acknowledged that the 
 
         smallest degree that he recorded was for passive motion rather 
 
         than active motion (tr. pp. 129 & 130).  Dobler conceded that he 
 
         did not know what claimant's current loss was without a current 
 
         examination (tr. pp. 131 & 132).
 
         
 
              Claimant saw Horst G. Blume, M.D., a neurosurgeon, on 
 
         December 28, 1988 for cervical spine pain extending from the 
 
         upper to the lower cervical spine. claimant also complained of 
 
         occipital headaches and left elbow pain.  Dr. Blume said that 
 
         these injuries were the result of the accident that happened on 
 
         November 17, 1986 (ex. 4, p. 11).  Dr. Blume diagnosed thoracic 
 
         outlet syndrome, discussed the resection of the scalenus muscle 
 
         on the right side only, but not at the present time (exs. 3; 4, 
 
         pp. 12 & 13).  Dr. Blume did not award any impairment ratings for 
 
         any of claimant's complaints.
 
         
 
              Claimant was examined by Pat Luse, D.C., on October 10, 1989 
 
         for limited elbow movement and numbness, headaches, neck pain and 
 
         elbow noise.  Dr. Luse examined the medical records of the other 
 
         doctors and performed his own examination and took his own 
 
         x-rays.  Dr. Luse diagnosed:
 
         
 
              1. Persistent flexion contracture on left elbow status
 
              post fracture of the radius.
 
              
 
              2. Early degenerative changes of the left elbow joint.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              3. Chronic cervical strain/sprain with myositis and
 
               cephalgia.
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 7
 
         
 
         
 
              Dr. Luse found that claimant's condition was consistent with 
 
         the injury and type of accident that occurred on November 17, 
 
         1986.  Dr. Luse stated, "Therefore, it is my professional opinion 
 
         that the patient did receive an injury to the cervical spine and 
 
         left elbow as a result of the accident on 11-17-86." (ex. 1, p. 
 
         3).  Dr. Luse assessed that claimant received a 26 percent 
 
         impairment to the upper extremity using the AMA Guides to the 
 
         Evaluation of Permanent Impairment, third edition.  It cannot be 
 
         determined whether Dr. Luse intended to award an impairment 
 
         rating for claimant's neck or not.  Dr. Luse's report is not 
 
         clear (ex. 1, p. 3).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 17, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury on November 17, 1986 was the 
 
         cause of an injury to claimant's neck, and which also caused 
 
         headaches, which arose out of and in the course of employment 
 
         with employer.  The first treating physician, Dr. Youngblade,
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 8
 
         
 
         
 
         noted neck, shoulder and headaches on the second office visit on 
 
         November 19, 1986.  Headaches were also mentioned again for the 
 
         office visit of November 24, 1986.  Even though Dr. Rosenburger 
 
         did not put headaches on his surgeon's report, claimant testified 
 
         that the purpose in seeing Dr. Rosenburger was for neck pain.  
 
         Even though Dr. Nelson did not mention neck pain or headaches in 
 
         his material, nevertheless, Dr. Gross did find mild aching over 
 
         the shoulder which created a future risk of surgery (ex. 12, p. 
 
         32).  It is also true that Dr. McCarthy's treatment centered on 
 
         the left elbow and he does not mention neck pain, shoulder pain 
 
         or headaches.  Dr. Krysztofiak does record neck pain and upper 
 
         back pain (ex. 5, p. 20).  Dr. Blume found that the cervical 
 
         spine complaints were caused by the injury of November 17, 1986, 
 
         but he did not find any permanent impairment or disability (ex. 
 
         4, pp. 11-13; ex. 5).  It is not clear whether Dr. Luse found 
 
         that the injury was the cause of a permanent impairment to 
 
         claimant's cervical spine (ex. 1, p. 3).  However, claimant 
 
         himself testified that the neck pain and headaches did not cause 
 
         him to be disabled from performing his duties at his present job.  
 
         Consequently, even though the injury of November 17, 1986, was 
 
         the cause of neck pain, shoulder pain and headaches, it is 
 
         determined that this injury was not the cause of permanent 
 
         impairment or disability to these body parts.  Accordingly then, 
 
         claimant is not entitled to permanent disability benefits on 
 
         account of his shoulder pain, neck pain and headaches.
 
         
 
              Claimant is entitled to permanent disability for his left 
 
         arm caused by the injury of November 17, 1986.  Dr. Nelson 
 
         awarded a 35 percent permanent functional impairment of the left 
 
         arm (ex. 7, p. 23).  Dr. Nelson seemed to think surgery would be 
 
         required, but it was not.  It would appear that Dr. Youngblade 
 
         did not make a separate impairment rating of his own, but rather 
 
         recorded Dr. Nelson's rating by his office note dated August 4, 
 
         1987 (ex. 15, p. 37).  Dr. Gross awarded a 13 percent impairment 
 
         rating for the left upper extremity for an overall loss of 50 
 
         percent of motion on April 20, 1988 (ex. 13, p. 33).  Dr. Gross's 
 
         rating was based on measurements that were too low because 
 
         claimant's arm did not retain this increased range of motion.  
 
         Dr. Luse determined that claimant had sustained a 26 percent 
 
         impairment of the upper extremity (ex. 1, p. 3).  Dr. Luse's 
 
         rating is probably the most accurate of the three ratings.
 
         
 
              Claimant testified to his inability to perform his current 
 
         job without pain.  The pain is activity related.  The pain is 
 
         associated with lifting and claimant's current job as a service 
 
         station attendant and tire repairman requires a considerable 
 
         amount of lifting.  Dr. Krysztofiak found that the nerve 
 
         conduction studies of the left arm were within normal limits. 
 
         claimant testified that even though it causes him a great deal of 
 
         pain he can lift 100 pounds (tr. p. 60).  Claimant demonstrated 
 
         in the court room that he cannot fully extend his left arm and
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 9
 
         
 
         
 
         that he cannot fully flex the left arm so that his left hand 
 
         touches the left shoulder as he can do with the right arm and 
 
         hand.
 
         
 
              Wherefore based upon the foregoing evidence and in 
 
         particular, claimant's demonstration of the limitation to his 
 
         left arm, coupled with the expert medical testimony and the 
 
         impairment ratings of the doctors, it is determined that claimant 
 
         has sustained a 25 percent impairment to the left arm.  Claimant 
 
         is entitled to 62.5 weeks of permanent partial disability 
 
         benefits (.25 impairment x 250 weeks = 62.5 weeks).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury on November 17, 1986, 
 
         which arose out of and in the course of employment which injured 
 
         his left arm, left shoulder, neck and caused headaches.
 
         
 
              That claimant's neck, shoulder and headaches were recorded 
 
         early in his treatment with Dr. Youngblade and later Dr. Gross.
 
         
 
              That his course of treatment, however, was centered on his 
 
         left arm and elbow and he received little or no treatment from 
 
         any of the doctors for his shoulder, neck and headaches.
 
         
 
              That not even Dr. Blume or Dr. Luse treated his shoulder, 
 
         neck or headaches, but only evaluated these conditions for the 
 
         purposes of litigation.
 
         
 
              That none of the medical doctors awarded an impairment 
 
         rating for claimant's shoulder, neck or headaches.
 
         
 
              That it cannot be certain whether Dr. Luse awarded any 
 
         impairment rating for the shoulder, neck or headaches.
 
         
 
              That claimant did receive a permanent physical impairment 
 
         rating for his left arm in the amount of 35 percent from Dr. 
 
         Nelson, 13 percent from Dr. Gross and 26 percent from Dr. Luse
 
         
 
              That claimant has a seriously disabled left shoulder from 
 
         loss of motion and pain.
 
         
 
              That claimant sustained a 25 percent permanent physical 
 
         impairment to his left arm.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 10
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of November 17, 
 
         1986, was the cause of permanent impairment to his neck, left 
 
         shoulder or caused his headaches.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a 25 percent 
 
         permanent partial impairment to his left arm.
 
         
 
              That claimant is entitled to 62.5 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant sixty-two point five (62.5) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred ten and 77/100 dollars ($210.77) per week in the total 
 
         amount of thirteen thousand one hundred seventy-three and 13/100 
 
         dollars ($13,173.13) commencing on December 1, 1986 as stipulated 
 
         to by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 30th day of April; 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMAN VS. TERMINAL GRAIN CO.
 
         Page 11
 
         
 
         
 
         Copies to:.
 
         
 
         Mr. Harry Smith 
 
         Mr. Dennis McElwain 
 
         Attorneys at Law 
 
         632-640 Badgerow Bldg.
 
         PO Box 1194
 
         Sioux City, IA  51102
 
         
 
         Mr. Paul Deck, Jr.
 
         Attorney at Law
 
         635 Frances Bldg.
 
         Sioux City, IA 51101
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51401; 51402.40; 51803 
 
                                         Filed April 30, 1990 
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          LARRY GREGG HAMMAN,
 
         
 
               Claimant,
 
         
 
          VS.
 
         
 
          TERMINAL GRAIN CO.,                         File No. 839889
 
         
 
             Employer                              A R B I T R A T I O N
 
         
 
          and                                           D E C I S I O N
 
         
 
          GRAIN DELAERS MUTUAL INS. CO.
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         51401; 51402.40; 51803
 
         
 
              Claimant proved that the fall injury was the cause of 
 
         permanent disability to his left arm.  He did not prove that the 
 
         injury was the cause of permanent disability to his neck and 
 
         shoulder or that it caused him to have headaches.
 
         
 
         51803
 
         
 
              Claimant had impairment ratings of 13 percent, 26 percent 
 
         and 35 percent of the left arm as well as continued pain and 
 
         flexion contraction of the arm.  Claimant awarded 25 percent 
 
         permanent disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY GREGG HAMMAN
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         TERMINAL GRAIN CO.,
 
                                         :            File No. 839889
 
              Employer,
 
                                         :       N U N C  P R O  T U N C
 
          and
 
         
 
          GRAIN DEALERS MUTUAL INS. CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              That so much of the seventh finding of fact that reads:
 
         
 
              "That claimant has a seriously disabled left shoulder from 
 
         loss of motion and pain."
 
         
 
         is changed to read:
 
         
 
              "That claimant has a seriously disabled left arm from loss 
 
         of motion and pain."
 
         
 
              Signed and filed this 10th day of May, 1990.
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith 
 
         Mr. Dennis McElwain 
 
         Attorneys at Law 
 
         632-640 Badgerow Bldg.
 
         PO Box 1194
 
         Sioux City, IA 51102
 
         
 
         Mr  Paul Deck, Jr.
 
         Attorney at Law
 
         635 Frances Bldg.
 
         Sioux City, IA 51101