BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD K. MATHIS,
 
         
 
              Claimant,                             File No. 840015
 
         
 
         vs.                                          A P P E A L
 
         
 
         IOWA DEPT. OF TRANSPORTATION,              D E C I S I O N
 
         
 
              Employer,                                F I L E D
 
         
 
         and                                          DEC 28 1989
 
         
 
         STATE OF IOWA,                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         claimant benefits and the ruling on the motion requesting 
 
         permission to submit additional evidence.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 12.  Both 
 
         parties filed briefs on appeal.  Claimant filed a reply brief.
 
         
 
                                 ISSUES
 
         
 
              The issues on appeal are:
 
         
 
              1.  Whether the deputy commissioner erred in denying 
 
         claimant's motion to submit additional evidence.
 
         
 
              2.  Whether the deputy commissioner erred in finding that 
 
         claimant failed to meet his burden of proof as to permanent 
 
         partial disability and odd-lot.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed December 15, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         totally reiterated herein.
 
         
 
              Claimant failed to show for the hearing scheduled November 
 
         14, 1988 at 4:00 p.m. in Council Bluffs.  Counsel for claimant 
 
         was present.  The hearing was conducted as if claimant was 
 
         present. Claimant then had three days to submit a brief showing 
 
         of good cause to support their motion for permission to submit 
 
         additional evidence.  In an affidavit filed November 17, 1988, 
 
                                                
 
                                                         
 
         claimant stated that his brother-in-law died on November 2, 1988.  
 
         Claimant stated that he was involved with the funeral and forgot 
 
         about himself.
 
         
 
              Claimant's request for permission to submit additional 
 
         evidence was denied on November 30, 1988.
 
         
 
              The parties stipulated claimant's injury on November 26, 
 
         1986 arose out of and in the course of employment with defendant, 
 
         there is a causal connection between claimant's back injury, and 
 
         the disability which he is basing his claim.
 
         
 
                               APPLICABLE LAW
 
         
 
              Division of Industrial Services Rule 343-4.31 states:  "No 
 
         evidence shall be taken after the hearing."
 
         
 
              Division of Industrial Services Rule 343-4.28 states in 
 
         pertinent part:
 
         
 
                   The commissioner shall decide an appeal upon the record 
 
              submitted to the deputy industrial commissioner unless the 
 
              commissioner is satisfied that there exists additional 
 
              material evidence, newly discovered, which could not with 
 
              reasonable diligence be discovered and produced at the 
 
              hearing.
 
         
 
              Division of Industrial Services Rule 343-4.23 states in 
 
         pertinent part:
 
         
 
              Continuances of hearings in contested cases shall be granted 
 
              only by the industrial commissioner or the commissioner's 
 
              designee.  Requests for continuance shall state in detail 
 
              the reasons for the request and whether the opposing party 
 
              accedes to the request.  The industrial commissioner or the 
 
              commissioner's designee shall enter an order granting or 
 
              denying the request.
 
         
 
              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); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
                                                
 
                                                         
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
         
 
              A worker is totally disabled if the only services the worker 
 
         can perform are so limited in quality, dependability, or 
 
         quantity, that a reasonable, stable market for them does not 
 
         exist.  When a combination of industrial disability factors 
 
         precludes a worker from obtaining regular employment to earn a 
 
         living, a worker with only a partial functional disability has a 
 
         total industrial disability.  Guyton v. Irving Jensen Company, 
 
         373 N.W.2d 101 (Iowa 1985).
 
         
 
                                  ANALYSIS
 
         
 
              Division of Industrial Services Rule 343-4.23 requires that 
 
         a request for continuance shall state, in detail, the reasons for 
 
         such a request, attorneys for claimant failed to state any reason 
 
         to justify a continuance.  Claimant's attorney stated that he had 
 
         "no idea why he [claimant] is not here."  A continuance is only 
 
         appropriate where good cause is shown or in emergencies. 
 
         Certainly, the death of a close relative could be a good reason 
 
         to support a motion for continuance.  However, the deputy needed 
 
         some reason to grant a continuance and none was given at the time 
 
         of the hearing.  A request for a continuance is a prospective 
 
         rather than a retrospective event.  A deputy cannot grant a 
 
         continuance of a hearing after the fact.  Therefore, the request 
 
         for continuance was properly denied.
 
         
 
              It would be inappropriate for the deputy to take additional 
 
         evidence after the hearing.  Division of Industrial Services Rule 
 
         343-4.31 clearly states that no evidence shall be taken after the 
 
         hearing.  Since the hearing was completed on November 14, 1988, 
 
         the deputy lacked the authority to take additional evidence after 
 
         that date.
 
         
 
              Finally, on appeal, Division of Industrial Services Rule 
 
         343-4.28 limits the ability of the industrial commissioner to 
 
         admit additional evidence.  The rule provides that only newly 
 
         discovered evidence shall be admitted upon a showing that it 
 
         could not be discovered and produced at the hearing.  Claimant's 
 
         testimony is not newly discovered evidence.  While the industrial 
 
         commissioner empathizes with claimant and his family during their 
 
         time of loss, the commissioner lacks the authority to admit 
 
         additional evidence unless it satisfies rule 4.28.
 
         
 
              The underlying problem appears to be a lack of communication 
 
         between claimant and his attorney.  The statutes and rules 
 
         regarding a hearing are to aid both parties in preparation and 
 
                                                
 
                                                         
 
         presentation of their case.  The statutes and rules do not 
 
         differentiate between claimant and defendants, both have rights 
 
         that are protected by the law and are entitled to their day in 
 
         court.  To grant claimant's request for a continuance would not 
 
         only unduly prejudice the defendants it would also establish an 
 
         unworkable precedent for future hearings.  The statute limits the 
 
         commissioner's ability to help the claimant in this situation.
 
         
 
              Claimant failed to prove permanent partial disability and 
 
         odd-lot.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant had an injury that arose out of and in the 
 
         course of his employment with defendant employer on November 26, 
 
         1986.
 
         
 
              2.  Claimant fell on his back out of a truck on November 26, 
 
         1986.
 
         
 
              3.  Claimant has not worked for the.defendant employer since 
 
         the injury on November 26, 1986.
 
         
 
              4.  As a result of his injury, claimant has some permanent 
 
         impairment.
 
                             
 
                                                         
 
         
 
              5.  There is no evidence that claimant is not employable.
 
         
 
              6.  There is no evidence as to claimant's education.
 
         
 
              7.  There is no evidence as to claimant's prior work 
 
         experience.
 
         
 
              8.  There is no evidence as to claimant's attempts to find 
 
         employment following his injury.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to meet his burden in proving he is 
 
         permanently partially disabled.
 
         
 
              Claimant has failed to meet his burden in proving he is an 
 
         odd-lot employee.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall receive no further benefits as a result 
 
         of this proceeding
 
         
 
              That claimant shall pay the costs of this action including 
 
         the cost of transcription of the arbitration hearing.
 
         
 
              Signed and filed this 28th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at Law
 
         P.O. Box 659
 
         Sidney, Iowa  51652
 
         
 
         Ms. Vicki R. Danley
 
         Attorney at Law
 
         P.O. Box 488
 
         Sidney, Iowa  51652
 
         
 
         Mr. Robert P. Ewald
 
         Assistant Attorney General,
 
                                                
 
                                                         
 
         Department of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa  50010
 
 
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803 - 2906 - 4100
 
                                            Filed December 28, 1989
 
                                            David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD K. MATHIS,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 840015
 
         
 
         IOWA DEPT. OF TRANSPORTATION,                    A P P E A L
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2906
 
         
 
              A continuance can only be granted prospectively upon a 
 
         showing of good cause or an emergency.  A deputy is unable to 
 
         take additional evidence after the hearing.  Finally, the 
 
         industrial commissioner can only admit additional evidence that 
 
         is newly discovered and could not be discovered at the time of 
 
         the hearing.
 
         
 
         1803 - 4100
 
         
 
              Claimant failed to meet his burden in proving he is 
 
         permanently partially disabled and an odd-lot employee.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DONALD K. MATHIS,
 
         
 
              Claimant,                           File No. 840015
 
         vs.
 
                                               A R B I T R A T I O N
 
         IOWA DEPT. OF TRANSPORTATION,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Donald K. Mathis, against Iowa Department of Transportation, 
 
         employer, and State of Iowa, insurance carrier, to recover 
 
         benefits as the result of an injury sustained on November 26, 
 
         1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Council Bluffs, Iowa, on 
 
         November 14, 1988.
 
         
 
              Claimant failed to show for the hearing and the deputy 
 
         allowed claimant's attorney to file within three days a showing 
 
         of good cause of claimant's absence as to whether to allow 
 
         claimant's testimony by deposition after the closing of all other 
 
         evidence herein.  The ruling as to whether to allow this 
 
         additional testimony would be made by another deputy specifically 
 
         designated for matters of this nature.  Claimant filed his motion 
 
         requesting to submit additional testimony along with claimant's 
 
         affidavit.  Said motion was denied by Deputy Industrial 
 
         Commissioner Helenjean Walleser and claimant's post-hearing 
 
         personal testimony was not allowed.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         Lloyd Akers and joint exhibits 1 through 12.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         claimant's injury arose out of and in the course of employment, 
 
         there is a causal connection between claimant's injury and the 
 
         disability upon which he is basing his claim, claimant's injury 
 
         occurred on November 26, 1986, claimant's healing period is from 
 
         November 27, 1986 to May 13, 1987, and if permanent disability is 
 
         found claimant's injury is to the body as a whole and should be 
 
         rated industrially.
 
         
 
              The issues remaining for resolution are:
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   2
 
         
 
         
 
         
 
              1.  Whether there is permanent partial disability; and,
 
         
 
              2.  Whether the odd-lot doctrine is applicable.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              There is no testimony by claimant.  On January 7, 1987, 
 
         William Smith, M.D., examined claimant and found that as a result 
 
         of falling out of a truck onto his back, claimant had a lumbar 
 
         contusion.  Dr. Smith indicated no further treatment was needed.  
 
         Later, Dr. Smith, in a report dated November 9, 1988, wrote:
 
         
 
                 Please find enclosed a copy of my office notes from 
 
              October 26, 1988.
 
         
 
                 Since that time I have had an opportunity to review 
 
              x-rays done in Doctor Rodabaugh's office or at the 
 
              Grape Community Hospital in Hamburg, Iowa from November 
 
              26, 1988.  The compression fracture that I noted on his 
 
              x-ray the last time I saw Mr. Mathis in the office was 
 
              indeed present at that time, November 26, 1988 and had 
 
              degenerative change, anterior spurring around it.  This 
 
              would indicate to me that this fracture was a 
 
              pre-existing condition prior to his fall.  I think you 
 
              are aware that he has had other plain films and CAT 
 
              scans to evaluate his lumbar spine.
 
         
 
                 Mr. Mathis is troubled with a fairly steady and 
 
              continuous [sic] backache with limitation of motion.  
 
              He does not have leg pain.  He is unable to do his 
 
              previous type of work which required some lifting.  I 
 
              would rate him as having a ten per cent permanent 
 
              partial disability of the body as a whole as a result 
 
              of his arthritis in his spine.  I feel that the fall he 
 
              sustained on November 26, 1986 aggravated the 
 
              pre-existing condition of osteoarthritis in his spine 
 
              and of the ten per cent permanent partial disability of 
 
              the body as a whole, and that the fall was the 
 
              proximate cause of five per cent of this disability.
 
         
 
         (Joint Exhibit 4)
 
         
 
              Another doctor whose name is not legible on the report 
 
         signed by said doctor on January 13, 1987 found lumbosacral 
 
         strain and indicated further treatment was needed and did not 
 
         know whether the patient on that date would be able to resume 
 
         work, including light work.
 
         
 
              John A. Haggstrom, M.D., of the Magnetic Imaging Centre, in 
 
         a report dated April 7, 1987, reported as follows:
 
         
 
              1.  Mild to moderate (grade III to IV) herniation of 
 
              the L3-4 disc.
 
         
 
              2.  Degenerative disc disease at L4-5 with a mild 
 
              (grade III) protrusion of the disc and annulus along 
 
              with posterior spurring.
 
         
 
              3.  Mild (grade III) protrusion of the lumbosacral disc 
 
              with degenerative change.
 
         
 
              4.  Old superior plate compression deformity of T12.
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   3
 
         
 
         
 
         
 
                 ....
 
         
 
                 There is a superior plate compression deformity of 
 
              T12 which is old.  There is noted to be signal loss in 
 
              the T12-Ll, Ll-2, and L2-3 discs that is probably not 
 
              unusual for the patient's age of 61 years.
 
         
 
                 There is irregular loss in signal intensity in the 
 
              L3-4 disc with a central disc protrusion which is mild 
 
              to moderate.  This impinges upon the thecal sac of the 
 
              canal.
 
         
 
                 The L4-5 disc is narrowed with almost complete loss 
 
              of signal in the disc.  There is a mild diffuse 
 
              protrusion of this disc.  Posterior spurring is noted 
 
              at this level.
 
         
 
                 The lumbosacral disc is narrowed with a mild left 
 
              paracentral protrusion of the disc.  This shows minimal 
 
              impingement upon the lower aspect of the thecal sac.
 
         
 
         (Joint Exhibit 10)
 
         
 
              Kenneth D. Rodabaugh, M.D., in a medical report of June 18, 
 
         1987, indicated claimant complaint's on claimant's May 13, 1987 
 
         exam continued to be:
 
         
 
              low back pain radiating into both hips especially [sic] 
 
              on the right and, although improved, cannot maintain 
 
              any physical exertion (lifting, walking, riding) for 
 
              more than 30 - 45 minutes before pain recurrs [sic] 
 
              requiring rest and heat for 1 - 2 hours to relieve.  He 
 
              cannot bend at the waist and has some pain and 
 
              difficulty arising from sitting to standing position at 
 
              most times.  He is felt to have degenerative disk 
 
              disease Lumbar Spine with chronic ligamentous strain 
 
              subsequent to and markedly exacerbated (rendered 
 
              symptomatic) from his previous fall sufficiently stable 
 
              and severe as to preclude his return to work probably 
 
              permanently but of insufficient degree and/or clarity 
 
              to render surgical intervention either desirable or 
 
              advisable.  Therefore, his disability is felt to be of 
 
              a severity and permanency to preclude gainful 
 
              employment now or in the foreseeable future consistent 
 
              with his training and/or experience.
 
         
 
         (Jt. Ex. 4)
 
         
 
              Lloyd Akers, who was claimant's supervisor, indicated that 
 
         the claimant has not worked for defendant employer since his 
 
         injury and the reason he gave was because of the back injury one 
 
         and one-half to two years ago.  Mr. Akers has no plans of 
 
         claimant returning to work but understood that claimant retired 
 
         or took disability.  Claimant was an Equipment I Operator 
 
         requiring snow shoveling, loading and unloading posts, snow 
 
         fences, rolling snow fences, installing long snow blades on 
 
         equipment, lifting and a lot of normal labor, oftentimes 
 
         involving two men pulling, pushing and lifting.  He never knew 
 
         claimant to have had a back injury or similar problems prior to 
 
         this November 26, 1986 injury.  As claimant's supervisor, Akers 
 
         was in contact with claimant every morning assigning jobs.  
 
         Claimant had stayed at the Equipment Operator I job level all of 
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   4
 
         
 
         
 
         this time even though Akers had started as an Equipment Operator 
 
         I and then moved up to III and then the supervisor position.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), a worker becomes an odd-lot employee when an 
 
         injury makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.  Id., citing 
 
         Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 
 
         N.W.2d 433, 436 (1950).
 
         
 
              The claimant was not present to testify.  There is no 
 
         evidence from claimant, himself, as to his age, education, mental 
 
         capacity, training, and the types of work that claimant has 
 
         sought since November 26, 1986.  There has been no evidence that 
 
         claimant is not employable in the competitive labor market.  The 
 
         undersigned had not seen claimant firsthand to observe his 
 
         demeanor.  Claimant's failure to testify leaves this record void 
 
         of the evidence needed for the claimant to make a prima facie 
 
         case of the odd-lot doctrine application.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W.2d 
 
         299; Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz, 257 
 
         Iowa 508, 133 N.W.2d 704; Almquist, 218 Iowa 724, 254 N.W. 35.
 
         
 
              Dr. Smith opined that the claimant's fall sustained on 
 
         November 26, 1986 aggravated the preexisting condition of 
 
         osteoarthritis in claimant's spine and gave a 10 percent 
 
         permanent partial disability of the body as a whole and felt that 
 
         the fall was the proximate cause of 5 percent of this 
 
         disability.
 
         
 
              Dr. Smith is competent to determine the percent of 
 
         impairment but not disability.  The percent of disability is for 
 
         the determination of this deputy based on all the evidence.  
 
         Impairment is only one of the factors in a determination of 
 
         industrial disability.
 
         
 
              Dr. Rodabaugh's report of June 18, 1987 does not reveal that 
 
         the complaints of claimant are objectively supported by the 
 
         doctor's examination or personal observance.  His report can be 
 
         read as a recitation of claimant's comments, not the doctor's 
 
         findings.
 
         
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   5
 
         
 
         
 
              It is not within the expertise of Dr. Rodabaugh to conclude 
 
         that claimant's condition precludes gainful employment now or in 
 
         the foreseeable future consistent with claimant's training or 
 
         experience, because he is not an expert in employment.  
 
         Furthermore, the record does not reflect that Dr. Rodabaugh had a 
 
         complete history of claimant's training or experience.
 
         
 
              Claimant did not testify.  The record is totally lacking of 
 
         this evidence.
 
         
 
             The claimant was not present at the hearing so the 
 
         undersigned knows nothing of this claimant from the record to be 
 
         able to make the necessary factual determinations of claimant's 
 
         post-injury physical condition, ability to work, to be gainfully 
 
         employed, his training, his motivation, what work he has sought 
 
         since November 26, 1986 or activities in which claimant has been 
 
         involved or has performed since the November 26, 1986 injury.
 
         
 
              It is obvious from Mr. Akers' testimony that claimant has 
 
         not been promoted or elevated from the position claimant began 
 
         prior to 1978.  The record suggests that this is due to the 
 
         capabilities and nature of the claimant, which without his 
 
         personal testimony and appearance leads to no other conclusion.
 
         
 
              It is obvious claimant is limited in his income earning 
 
         capacity, but without further evidence on claimant's education, 
 
         work experience, training, mental capacity, post-injury job 
 
         search since date of injury for the deputy to analyze, one can 
 
         only speculate as to claimant's loss of earning capacity.  It 
 
         must be remembered that it is claimant's burden in proving his 
 
         industrial disability.
 
         
 
              Akers testified he understood claimant retired or took 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              1.  Claimant had an injury at work on November 26, 1986 when 
 
         claimant fell on his back out of a truck.
 
         
 
              2.  Claimant has not worked for defendant employer since the 
 
         injury of November 26, 1986.
 
         
 
              3.  As a result of his injury, claimant has some permanent 
 
         impairment.
 
         
 
              4.  There is no evidence that claimant is not employable.
 
         
 
              5.  There is no evidence as to claimant's education.
 
         
 
              6.  There is no evidence as to claimant's prior work 
 
         experience.
 
         
 
              7.  There is no evidence as to claimant's attempts to find 
 
         employment following his injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has failed to meet his burden in proving he is an 
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   6
 
         
 
         
 
         odd-lot employee.
 
         
 
              Claimant has failed to prove what his industrial disability 
 
         is as a result of his November 26, 1986 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall receive no further benefits as a result of 
 
         this proceeding.
 
         
 
              Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 15th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          BERNARD J. OMALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 

 
         
 
         
 
         
 
         MATHIS V. IOWA DEPT. OF TRANSPORTATION
 
         PAGE   7
 
         
 
         
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at Law
 
         P O Box 659
 
         Sidney, IA 51652
 
         
 
         Mr. Robert P. Ewald
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover Building
 
         Des Moines, IA 53019
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1401; 1402; 1803
 
                                                 Filed December 15, 1988
 
                                                 Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD K. MATHIS,
 
         
 
              Claimant,                             File No. 840015
 
         vs.
 
                                                A R B I T R A T I O N
 
         IOWA DEPT. OF TRANSPORTATION,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1401; 1402; 1803
 
         
 
              Claimant failed to prove entitlement to industrial 
 
         disability where he did not show for his hearing but the hearing 
 
         proceeded without him.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILBUR G. HUNTINGTON,
 
         
 
              Claimant,                            File No. 840030
 
         
 
         vs.                                    A R B I T R A T I O N
 
                                                 
 
         ALUMINUM COMPANY OF AMERICA               D E C I S I O N
 
           DAVENPORT WORKS,
 
                                                     F I L E D
 
              Employer,
 
              Self-Insured,                          DEC 29 1989
 
              Defendant.
 
                                                INDUSTRIAL SERVICES
 
                                         
 
                                         
 
                               STATEMENT OF THE CASE
 
               
 
              This is a proceeding in arbitration brought by Wilbur G. 
 
         Huntington, claimant, against Aluminum Company of America-Davenport 
 
         Works, employer, hereinafter referred to as Alcoa, a self insured 
 
         defendant, for workers' compensation benefits as a result of an 
 
         alleged injury on November 14, 1986.  On June 13, 1989 a hearing 
 
         was held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into evidence are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the.following matters:
 
         
 
              1.  On November 14, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Alcoa.
 
         
 
              2.  Claimant is not seeking healing period benefits beyond 
 
         that which is already been paid by Alcoa in this proceeding.
 
         
 
              3.  The work injury of November 14, 1986 is a cause of 
 
         permanent disability.
 
         
 
              4.  Permanent disability  benefits awarded herein shall begin 
 
         on August 1, 1988.
 
          
 
              5.  Claimant's rate of weekly compensation shall be $328.40.
 
         
 
              6.  All requested medical benefits have and will be paid by 
 
         the defendants.
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent to claimant's entitlement to weekly 
 
         benefits for permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                             STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred in this statement, all of the evidence received at the 
 
         hearing was reviewed and considered in arriving at this decision. 
 
         Any conclusions about the evidence received contained in the 
 
         following statements should be viewed as preliminary findings of 
 
         fact.
 
         
 
              Claimant testified that he was injured when he was helping 
 
         on a machine in the Davenport Alcoa factory.  Claimant 
 
         accidentally caught his right hand in the machine smashing his 
 
         thumb and the tips of three fingers.  Claimant was immediately 
 
         taken to a local hospital and later referred for specialized care 
 
         at the University Iowa Hospitals and Clinics.  Claimant was 
 
         discharged from the University Hospitals a week later and was 
 
         eventually seen by an orthopaedic surgeon in the Davenport area, 
 
         Richard R. Ripperger, M.D.  Dr. Ripperger diagnosed a crush 
 
         injury to the right thumb and open fracture of metacarpal and 
 
         proximal phalanx and open injury to the metacarpalphalangeal 
 
         joint with questionable viability of the thumb itself.  Following 
 
         surgery, these two thumb joints were eventually fused at 20 
 
         degrees of fluction.  On January 23, 1989, Dr. Ripperger rated 
 
         claimant's permanent impairment consisting of 26 percent of the 
 
         right hand.  Later following some correspondence with the defense 
 
         counsel, Dr. Ripperger stated that he had made an error in his 
 
         first rating and that the rating was actually 18 percent of the 
 
         hand.  Dr. Ripperger did not explain where the original mistake 
 
         was nor did Dr. Ripperger make any reference to use of the rating 
 
         guide to arrive at his numerical ratings.  Dr. Ripperger's notes 
 
         in his rating opinions indicate that he measured losses to range 
 
         of motion of the thumb and fingers; pinch strength; and, grip 
 
         strength.  He made no mention of any measurement or attempt to 
 
         rate loss of sensation in claimant's fingers.
 
         
 
              On February 16, 1989, claimant was rated by F. Dale Wilson, 
 
         M.D.  Dr. Wilson found a 43 percent permanent partial impairment 
 
         to claimant's right hand which equated to a 39 percent permanent 
 
         partial impairment to the arm or a 23 percent permanent partial 
 
         impairment to the whole person.  This rating was the result of 
 
         impairment found in claimant's thumb and three fingers of the 
 
         right hand due to loss of range and motion, deformity, pain, 
 
         weakness and nerve sensation loss.  Again, Dr. Wilson did not 
 
         indicate whether or not he used a rating guide to arrive at his 
 
         figures.
 
         
 
              On March 20, 1989, claimant was further evaluated by Harold 
 
         Jerslid, M.D.  Dr. Jerslid stated that after referring to an 
 
         impairment evaluation guide, claimant has a 23 percent permanent 
 
         partial impairment to right hand or 21 percent to the arm due to 
 
         the hand problems caused by the thumb joint fusions.  He also 
 
         indicated there was a ten percent permanent partial impairment to 
 
         the arm for the loss of sensation in the thumb and fingers.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified at hearing he had pain in his thumb and 
 
         three fingers radiating into the palm of his hand and that his 
 
         hand and fingers are sensitive to changes in temperature.  He 
 
         states that he has difficulty holding onto hand tools due to loss 
 
         of motion and strength.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is not found to be necessary in 
 
         this decision.
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  Permanent partial disabilities are 
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa .1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). 
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34 (2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              The major dispute in this case is whether the disability is 
 
         to the thumb, the fingers, the hand, the arm, or to the body as a 
 
         whole.  We have physician ratings for all of these portions of 
 
         the body.  However, the issue is clear under Iowa law.  It is the 
 
         anatomical location of impairment of the permanent injury not the 
 
         location of impairment or disability caused by the injury which 
 
         determines which among the various schedules available under Iowa 
 
         Code section 85.34 (2) should be used.  Lauhoff Grain Co.v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber 
 
         Co., 233 Iowa 758, 10 N.W.2d 569 (Iowa 1943).  In Lauhoff Grain 
 
         Co., the Supreme Court even resorted to the use of a well known 
 
         medical treatise, Grays Anatomy, to arrive at the location of the 
 
         injury. In that case they found that the injury involved the hip 
 
         joint and both bones and tissues comprising the hip joint.  The 
 
         Court concluded that such injuries extend beyond the schedule for 
 
         the appendage operated by the hip joint namely the leg.  Benefits 
 
         were then awarded as a percentage to body as a whole.  Similarly 
 
         in Pooley Lumber the court held that an injury to the shoulder is 
 
         an injury to the body as a whole and not to the arm.
 
         
 
              In the case at bar, the injury is found not to be limited to 
 
         the thumb or fingers because the metacarpophalangeal joint of the 
 
         right thumb is involved.  This joint involves the head of the 
 
         metacarpal bone and the base of the proximal phalanx bone of the 
 
         thumb.  This joint is now fused and certainly involves injury to 
 
         the end of the metacarpal bone.  The metacarpal bone is a bone of 
 
         the hand not a bone of the thumb.  The case of Coppen v. Lunda 
 
         Construction Co., 3 Industrial Commissioner's Reports 160 (Appeal 
 
         Decision 1982) cited by defendant in its brief can be 
 
         distinguished as no joint between the hand bone and the finger 
 
         bone or thumb was involved in the frost bite injuries involved in 
 
         that case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              With reference to the extent of disability, we have three 
 
         ratings.  There was considerable difference in approach in each 
 
         of these ratings by the various doctors which has greatly 
 
         confused the issue.  This may be in large part due to the fact 
 
         that two of the physicians may have not used a impairment rating 
 
         guide.  Only one physicians stated that he actually used an 
 
         impairment rating guide, Dr. Jerslid.  Therefore, his rating is 
 
         considered the most creditable and will be used for awarding 
 
         benefits in this decision.  However, Dr. Jerslid's rating must be 
 
         transposed to a rating of only the hand to award disability.  In 
 
         addition to the 23 percent permanent partial impairment to the 
 
         hand, Dr. Jerslid gave an additional ten percent to the arm for 
 
         the loss of sensation to the thumb and fingers.  Under the most 
 
         current AMA Guide for rating impairment, 3rd Addition, a ten 
 
         percent rating to the arm equates to an eleven percent rating of 
 
         the hand. Therefore, using the combined values chart in these AMA 
 
         Guide, an eleven percent impairment and a 23 impairment rating to 
 
         the hand equates to a combined impairment rating of 31 percent to 
 
         the hand.
 
         
 
              Therefore, it is found as a matter of fact that the work 
 
         injury is the cause of a 31 percent loss of the use of the right 
 
         hand.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 58.9 week of permanent partial disability 
 
         benefits under, Iowa Code section 85.34(2)(1) which is 31 percent 
 
         of 190 weeks, the maximum allowable number of weeks for an injury 
 
         to the hand in that subsection.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1  On November 14, 1986, claimant suffered an injury to the 
 
         right thumb and the right index, ring and long fingers from being 
 
         crushed in a machine while working for Alcoa.
 
         
 
              2.  The work injury of November 14, 1986 is a cause of a 31 
 
         percent permanent partial impairment of the hand.  The 
 
         metacarpophalangeal and interphalangeal joint of the thumb is 
 
         fused at 20 degrees of flexion.  Claimant has a loss of grip and 
 
         pinch strength.  Claimant also has a loss of sensation to the 
 
         right thumb and the right long, index, and ring fingers. 
 
         Claimant's hand is sensitive to cold.  Claimant is right handed.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 58.9 weeks 
 
         of permanent partial disability benefits as a result of his work 
 
         injury of November 14, 1986.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay the claimant fifty eight point nine 
 
         (58.9) weeks of permanent partial disability benefits at the rate 
 
         of three hundred twenty eight and 40/100 dollars ($328.40) per 
 
         week from August 1, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for twenty nine 
 
         point five weeks (29.55) of permanent partial disability benefits 
 
         previously paid according to prehearing report.
 
         
 
              3.  Defendant shall pay interest on the weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Francis Vanhooreweghe
 
         Attorney at Law
 
         1718 8th Avenue
 
         P.O. Box 399
 
         Moline, Illinois  61265
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed December 29, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILBUR G. HUNTINGTON,
 
         
 
              Claimant,                          File No. 840030
 
         
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         ALUMINUM COMPANY OF AMERICA
 
           DAVENPORT WORKS,
 
                                                D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803 - Extent of permanent partial disability benefits for a 
 
         scheduled member injury.
 
         
 
              It was held that an injury to the thumb and fingers is not 
 
         limited to the schedules for the thumb and fingers due to 
 
         involvement of the metacarpophalangeal joint between the 
 
         metacarpal bone of the hand and the proximal metacarpophalangeal 
 
         bone of the thumb.  Cited was Lauhoff Grain v. McIntosh and 
 
         Dailey V. Pooley Lumber Co. line of cases for the proposition 
 
         that involvement of the joint between two bones involves injury 
 
         to both bones and disability benefits is not limited to the 
 
         schedule for the appendage operated by the joint.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         TRINO NUNO,
 
         
 
               Claimant,
 
         
 
         VS.                                          File No. 840109
 
         
 
         JOHN MORRELL & CO.                         A R B I T R A T I O N
 
         
 
               Employer,                                D E C I S I O N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE 
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Trino Nuno, against his employer, John Morrell & Company, and its 
 
         insurance carrier, National Union Fire Insurance.Company, to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury sustained on December 17, 1986.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Sioux City, Iowa, on September 29, 1989.  A first 
 
         report of injury was filed on February 26, 1987.  In the 
 
         prehearing report filed at time of hearing, the parties 
 
         stipulated that claimant has been paid weekly benefits in a total 
 
         dollar amount of $876.04.  The parties did not stipulate the 
 
         healing period or temporary total disability period which that 
 
         amount reflected.  There are no filings in this agency's file 
 
         which reflect those time periods.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of Donna Henry, R.N., and Ronald Kreegar and 
 
         of joint exhibits 1 through.,49 as well as the agency file as a 
 
         whole.  Rita Frost interpreted for claimant at hearing.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 2
 
         
 
         
 
         stipulated that claimant did receive an injury which arose out of 
 
         and in the course of his employment on December 17, 1987.  The 
 
         parties further stipulated that claimant was off work from 
 
         December 18, 1986 through January 10, 1987 subsequent to that 
 
         injury and that claimant's rate of weekly compensation in the 
 
         event of an award is $243.56.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The issues remaining to be decided are:
 
         
 
              1. Whether a causal relationship exists between the injury 
 
         and the claimed disability;
 
         
 
              2. Whether claimant is entitled to weekly compensation 
 
         benefits and the nature and extent of any benefit entitlement; 
 
         and,
 
         
 
              3. Whether claimant is entitled to alternate medical care 
 
         pursuant to section 85.27.  Defendants object to such care as not 
 
         authorized and as not causally related to the injury.  Defendants 
 
         do not agree that costs for such care were fair and reasonable.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 31-year-old native of Mexico.  He has been in 
 
         this country for 15 years and speaks what he characterized as 
 
         street English.  Claimant's education consists of six years of 
 
         school in Mexico.  Claimant testified that he can read easy 
 
         English words, but cannot write English.  Subsequent to coming to 
 
         the United States, claimant worked as a dishwasher, on bread 
 
         bakery cleanup, and at various meat packing plants where he 
 
         generally pulled guts or boned plates.  Claimant earned from 
 
         $5.15 to $7.20 per hour in the meat packing industry.  He began 
 
         work with Iowa Meats, the predecessor company of John Morrell, in 
 
         1986.  Claimant denied he had had health problems or more than 
 
         minor work injuries which did not involve his back prior to 
 
         December 17, 1986.  He agreed he had seen Dr. Jennings in May, 
 
         1986 for back problems and had also seen a chiropractic physician 
 
         for back problems prior to December 17, 1986, however.
 
         
 
              Claimant reported that he felt a sharp shooting pain in his 
 
         left low back on December 17, 1986 while  moving  boxes piled at 
 
         about shoulder level on a conveyor belt.  Claimant was 
 
         subsequently seen by Milton D. Grossman, M.D., Joe.M. Krigsten, 
 
         M.D., A. Kleider, M.D., and Joseph R. Cass, M.D. Claimant was 
 
         examined and evaluated by Patrick Luse, D.C., on June 7, 1989 and 
 
         by Joel T. Cotton, M.D., on August  25, 1989.
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & Co.
 
         Page 3
 
         
 
         
 
              Claimant returned to work on January 10, 1987.  He reported 
 
         that his back continued to bother him; and that he was placed on 
 
         light duty; that he subsequently returned to full duty; and that 
 
         later Dr. Cass took him off work again.  The plant was on strike 
 
         in 1987.  Claimant traveled to Mexico and California during the 
 
         strike to stay with relatives.  He reported back pain throughout 
 
         that time.  He returned to Sioux City.  While the John Morrell 
 
         strike continued, he worked for about six months at DuPacCo, a 
 
         meat packing company in Denison, Iowa.  Claimant denied that he 
 
         had left DuPacCo to avoid paying child support, asserting that he 
 
         left on account of his back pain.  Claimant stated that his back 
 
         hurt while he was working at DuPacCo, but that he had had no 
 
         accidents, either there or otherwise during the strike.  When the 
 
         strike ended, claimant returned to John Morrell.  He initially 
 
         pulled chitterlings.  He stated that involved side-to-side back 
 
         movement and produced much pain.  Claimant is now on light duty 
 
         trimming ribs or cutting down ribs. He expressed his belief that 
 
         he cannot continue to work because the apron he must wear "puts 
 
         on a lot of pressure" [on his back].  Claimant stated that his 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         back hurts from standing or sitting too long and that his leg 
 
         gets numb in the morning.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant sought treatment from Dr. Luse after his June 1989 
 
         examination.  Claimant reported that Dr. Luse's chiropractic care 
 
         has not decreased his pain, but that he has been told that the 
 
         pain would decrease if he continued treatment.  Claimant agreed 
 
         that he had gone for approximately two years with no medical 
 
         care, reportedly because the physician had "deceived" claimant by 
 
         stating only surgery would improve his condition.
 
         
 
              Claimant described his history with Dr. Cotton as taking 
 
         approximately eight minutes and the Cotton examination as taking 
 
         from 5-6 minutes.
 
         
 
              Claimant agreed he had been scheduled for independent 
 
         medical examination with Dr. Dougherty on two occasions.  
 
         Claimant testified that on each occasional his attorneys advised 
 
         him that the medical examination had been cancelled.  At 
 
         defendants' request, notice is taken of claimant's affidavit 
 
         reporting claimant's response to application for sanctions, 
 
         motion to dismiss and motion. in limine filed August 1, 1989.  In 
 
         that affidavit,.claimant stated that he was not advised of Dr. 
 
         Dougherty's examination apparently scheduled for July 25, 1989.
 
         
 
              Donna Henry, R.N., reported that she has been a company 
 
         nurse at John Morrell since August 30, 1987.  Ms. Henry reviewed 
 
         claimant's John Morrell nursing notes.  She noted
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 4
 
         
 
         
 
         that there were no back complaints recorded in the nursing notes, 
 
         apparently from claimant's January 10, 1987 work return, until 
 
         July 5, 1989.  She indicated that claimant has not had a problem 
 
         communicating with her in English.
 
         
 
              Ronald Kreegar was claimant's supervisor in 1986.  Mr. 
 
         Kreegar could not recall claimant telling him of back problems, 
 
         but stated that claimant could very well have done so.  Kreegar 
 
         described claimant's English as sufficient for understanding such 
 
         that claimant did not need an interpreter, provided things were 
 
         occasionally repeated.  Kreegar reported that claimant is working 
 
         full-time, approximately 8 to 9 1/2 hours per day, and has done 
 
         such since his work return.  Claimant pulled lard, separated 
 
         guts, and graded ribs.  In grading ribs, 4-7 workers process 
 
         approximately 1,500 ribs weighing 3-5 pounds each hour.  The 
 
         individual rib is taken off the belt, appropriate cuts are made 
 
         in the rib, and the rib is placed in a box to a weight of 30 
 
         pounds.  At 30 pounds, the box is shoved onto a conveyor belt.  
 
         Twenty to twenty-five boxes are done per hour.  In pulling lard, 
 
         the worker stands on a stand, reaches into the animal's carcass, 
 
         and pulls lard up and out of the diaphragm.  In trimming jowls, 
 
         individual jowls weighing from three quarters to one and one-half 
 
         pounds are trimmed and put in a box.  The individual stands 
 
         throughout the day but is not required to lift.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Michael Jennings, M.D., saw claimant on March 18, 1986.  He 
 
         reported that claimant had lifted 30-40 pound boxes at work and 
 
         had had pain between the shoulder blades with recent low back 
 
         pain.  Dr. Jennings kept claimant at work, but imposed a 20-pound 
 
         lifting restriction.
 
         
 
              Daniel Rhodes, M.D., saw claimant for follow-up of mild back 
 
         strain with current apparently lumbosacral or L-5 strain on March 
 
         26, 1986.
 
         
 
              Milton Grossman, M.D., saw claimant:on December 19, 1986 
 
         with complaints of low back pain increasing in severity.  
 
         Claimant apparently received treatment on May 19 and May 20, 1986 
 
         and then was released without further care.
 
         
 
              J. M. Krigsten, M.D., in an undated note, advised that 
 
         claimant should stop chiropractic therapy.as such may aggravate 
 
         his condition.
 
         
 
              Mark Hagen, D.C., on December 17, 1986, advised that 
 
         claimant was being treated for a low back condition.
 
         
 
              Dr. Grossman saw claimant on December 17, 1986 for lumbar 
 
         pain.  Claimant was then unable to do straight leg
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 5
 
         
 
         
 
         raising. X-rays were taken of the lumbar spine; claimant was 
 
         taken off work indefinitely.
 
         
 
              Dr. Krigsten saw claimant on December 18, 1986.  Dr. 
 
         Krigsten then stated that claimant had had no single injury.  He 
 
         diagnosed his condition as back pain with bilateral sciatica 
 
         including almost complete loss of back flexion and straight leg 
 
         raising on the left and partial loss of straight leg raising on 
 
         the right.  Reflexes and sensation were described as adequate.  
 
         Claimant was kept off work with medication prescribed.  The 
 
         diagnosis was of a probable ruptured lumbar disc.  On January 2, 
 
         1987, Dr. Krigsten reported that an electromylogram ordered for 
 
         December 31, 1986 had been interpreted as normal.  Claimant's 
 
         x-rays of December 17 1986 showed good alignment of the lumbar 
 
         spine and no evidence of recent disease or injury abnormality of 
 
         the bones of the lumbar spine.
 
         
 
              A. Kleider, M.D., a neurosurgeon, saw claimant for back pain 
 
         on January 6, 1987.  He reported that claimant had a pins and 
 
         needles feeling on the sole of the foot and problems in the 
 
         anterolateral aspect of the thigh.  Dr. Kleider's history stated 
 
         that the " . . . problem began in April and has gradually 
 
         worsened."   Straight leg raising was reported as impossible 
 
         likely due to claimant's inability to relax.  Claimant was 
 
         described as moving  awkwardly and as much more relaxed when 
 
         dressed and ready to leave.  Deep tendon reflexes were all active 
 
         and symmetrical.  There was no sensory.deficit.  On January 8, 
 
         1987, Dr. Krigsten reported that all physical findings including 
 
         x-rays were subjective and that claimant was able to return to 
 
         work.  Dr. Krigsten also reported that claimant had worked 
 
         approximately one-half hour before stating he could not stand the 
 
         pain he was experiencing in his cervical spine, thoracic spine 
 
         and lumbar spine.  Dr. Krigsten reported that claimant's back 
 
         motions were at 50+ percent and that claimant had no passive 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         muscle spasm, even though he had tenderness throughout the spine.  
 
         Dr. Krigsten reported no limitation of straight leg raising, 
 
         negative hip rotation and normal neurological and circulatory 
 
         exam.  His diagnosis was of conversion hysteria.  Dr. Krigsten 
 
         stated that claimant "closely resembles" the description in 
 
         medical literature of a malingerer.  No work restrictions were 
 
         imposed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On January 13, 1987, Dr. Kleider reported that claimant 
 
         could straight leg raise bilaterally to 90 degrees and was able 
 
         to reverse his lumbar lordosis.  On January 21, 1987, Dr. Kleider 
 
         reported that claimant complained of more severe pain and that 
 
         claimant stated claimant was unable to work.
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 6
 
         
 
         
 
              Joseph R. Cass, M.D., saw claimant on January 28, 1987.  Dr. 
 
         Cass indicated that claimant's x-rays revealed spondylolysis at 
 
         L5 without slip.  His impression was of an acute mechanical 
 
         episode superimposed on the long-standing spondylolysis.  He 
 
         recommended physical therapy and prescribed a back brace.  He 
 
         advised that claimant avoid work involving bending or stair 
 
         climbing as those apparently aggravated his pain.  Forward 
 
         flexion was described as painful at 30 degrees, left extension 
 
         and left lateral bending at 25 percent of normal, bilateral 
 
         straight leg raising was negative, and hip range of motion was 
 
         not painful, except in the low back.  The neurovascular exam was 
 
         reported as normal.  Dr. Cass advised a light-duty work return 
 
         without lifting.
 
         
 
              On March 20, 1987, Dr. Cass opined that claimant had 
 
         suffered an acute episode of chronic mechanical low back pain 
 
         secondary to his job at John Morrell which has aggravated his 
 
         preexisting condition of long-standing spondylolysis at L5-Sl.  
 
         He reported that claimant was last seen on March 16, 1987 with 
 
         stable low back and upper thoracic pain.  The doctor did not 
 
         recommend surgery, but did recommend a back strengthening 
 
         program.
 
         
 
              Patrick Luse, D.C., examined claimant on June 7, 1989 and 
 
         assigned a permanent partial impairment rating on June 29, 1989.  
 
         Dr. Luse reported that spondylolysis or grade I spondylolysthesis 
 
         accompanied by a medically documented injury and.a minimum of six 
 
         months documented pain and recurrent muscle spasm would result in 
 
         a eight percent whole person impairment.  He further stated that 
 
         residuals of decreased range of motion, nerve root impairment and 
 
         muscle spasm would result in a five percent whole person 
 
         impairment and that the combined value of eight percent and five 
 
         percent equals 13 percent of the whole person.  Dr.  Luse 
 
         indicated that his opinion was based on the Third Edition of the 
 
         AMA Guides to the Evaluation of Permanent Impairment.  Dr. Luse 
 
         opined that claimant had traumatized a preexisting asymptomatic 
 
         spondylolysis with his December 17, 1986 work injury.  He 
 
         reported that claimant can expect acute episodes in the future 
 
         that will affect his ability to work and which may require 
 
         further treatment.
 
         
 
              In his July 25, 1989 deposition, Dr. Luse reported that 
 
         examination of claimant had revealed.normal, active and equal 
 
         reflexes, except for the right patellar and right Achilles reflex 
 
         which were decreased.  He reported that Pinwheel test revealed 
 
         decreased sensation on the L5-Sl nerve roots and decreased lumbar 
 
         range of motion.  Dr. Luse stated that, although such is fairly 
 
         rare, spondylolysthesis can be traumatically induced and that it 
 
         is possible for
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 7
 
         
 
         
 
         trauma to worsen spondylolysthesis.  Dr. Luse opined that 
 
         claimant's December 17, 1986 work injury traumatized preexisting 
 
         asymptomatic spondylolysthesis.  He reported that in his 
 
         permanent partial impairment rating, the residuals were rated in 
 
         addition to the condition (of spondylolysthesis itself].  Dr. 
 
         Luse further stated that asymptomatic spondylolysthesis is 
 
         unratable under the guides as the guides require a documented 
 
         injury and persistent pain despite treatment as well as muscle 
 
         spasm before the condition is ratable.  For that reason, he 
 
         stated that apportionment between the condition pre-injury and 
 
         post-injury was not possible where the condition was asymptomatic 
 
         pre-injury.
 
         
 
              Dr. Luse stated that claimant gave no history of back injury 
 
         prior to working for John Morrell and that he did not recall 
 
         claimant's medical records containing information relative to any 
 
         back treatment in May 1986 or that claimant had had significant 
 
         pain or symptoms prior to the December 17, 1986 work injury.  Dr. 
 
         Luse further stated, however, that he did not know if one injury 
 
         produced claimant's condition.  He reported that:
 
         
 
               . . It might have been a-- and more than likely
 
              was, a repetitive motion injury to his low back.
 
              That [the injury date of December 17, 1986] was
 
              just kind of the date, . . . he and the company
 
              assigned to the injury.  It -- it may well have
 
              been that activity in the weeks or months before
 
              had led up to that time.
 
         
 
              Dr. Luse stated that claimant had described his work when 
 
         injured as involving lifting and twisting and that those two 
 
         things were most likely to injury a "spondylo."
 
         
 
              Dr. Luse was not aware of claimant's work activities or any 
 
         medical treatment in 1988 or 1989.  Dr. Luse stated that some of 
 
         claimant's findings may be more recent findings not present in 
 
         earlier stages of injury.  He reported that claimant had more leg 
 
         problems and therefore was likely to have changes in reflexes or 
 
         in skin sensations.
 
         
 
              Joel T. Cotton, M.D. a neurologist, examined claimant on 
 
         August 25, 1989 and issued a medical report on August 28, 1989.  
 
         Dr. Cotton reported that claimant gave a history of a single 
 
         incident on December 17, 1986 where after lifting and twisting 
 
         for some time, claimant developed pain in the back and legs which 
 
         pain has persisted.  He reported that claimant denied back 
 
         problems pre-December, 1986 and denied subsequent injuries or 
 
         episodes at work that aggravated his pain or his leg numbness.  
 
         Dr. Cotton reported that
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 8
 
         
 
         
 
         claimant's neurological exam was normal, but that a significant 
 
         discrepancy existed between claimant's straight leg raising test 
 
         in the seated and supine positions.  In the seated position, 
 
         straight leg raising was 90 degrees bilaterally, and in the 
 
         supine position straight leg raising was 45 degrees on the right 
 
         and 30 degrees on the left.  Dr. Cotton reported that claimant 
 
         had  diffuse decrease in perception to pin prick and light touch 
 
         in the left lower extremity including the foot, the leg, and the 
 
         thigh both anteriorly and posteriorly.  He described the 
 
         discrepancy in straight leg raising and the sensory abnormality 
 
         in the left lower extremity as not in keeping with known 
 
         anatomical or physiological mechanisms and reported that for that 
 
         reason claimant had no neurological impairment.
 
         
 
              Dr. Cotton stated the following as regards x-ray findings:
 
         
 
              Two x-rays of the patient's lumbar and lower
 
              thoracic spine were reviewed, dated June 7, 1989
 
              (Exhibit 4 and Exhibit 5).  They were in addition
 
              reviewed by a board certified independent
 
              radiologist.  These show a grade I (less than 25%)
 
              spondylolithesis [sic] at the level of L5-Sl.
 
              According to independent medical reports from Dr.
 
              Carlson dated January 28, 1987, and Dr. Joseph
 
              Cass dated March 20, 1987, this patient has a
 
              longstanding spondylolysis at the level of L5-Sl.
 
              On neither of these occasions was any
 
              spondylolithesis [sic] described on review of x-
 
              rays on either of these occasions.  More
 
              specifically, Dr. Carlson's report dated January
 
              28, 1987, revealed spondylolysis at L5 "without
 
              slip".  This indicates that the spondylolisthesis
 
              [sic] or "slip" did not occur at the time of the
 
              December, 1986 accident when the patient was x-
 
              rayed and evaluated following that injury.
 
         
 
              Dr. Cotton assigned claimant a permanent partial impairment 
 
         rating of four percent of the whole person as a result of his 
 
         grade I spondylolysthesis.  He reported that under the AMA Guides 
 
         to the Evaluation of Permanent Impairment, Third Edition, a 
 
         rating of 0-8 percent was appropriate for slippage from 0-50 
 
         percent and that claimant had a 25 percent grade I 
 
         spondylolysthesis which equalled half the maximum value of 8 
 
         percent, or 4 percent.  Dr. Cotton indicated that pain, decreased 
 
         range of motion, and muscle spasm were included in the 4 percent 
 
         rating as explained in the guides and that therefore any 
 
         additional impairment was on account of nerve root injury.  Dr. 
 
         Cotton opined that no nerve root injury was present.  Dr. Cotton
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 9
 
         
 
         
 
         stated that he could not opine with any degree of medical 
 
         certainty that the spondylolysthesis resulted from the December, 
 
         1986 injury.  He described the spondylolysis as long-standing and 
 
         clearly preexisting December, 1986.  He felt spondylolysis was 
 
         generally a congenital problem not induced by trauma.
 
         
 
              In his deposition taken September 12, 1989, Dr. Cotton 
 
         indicated that spondylolysis would be a problem present since 
 
         birth whereas spondylolysthesis is a problem that may take place 
 
         later in life.  Dr. Cotton indicated that for spondylolysthesis 
 
         to be ratable under the Third Edition of the AMA guides, both 
 
         discomfort and slippage must be present.
 
         
 
              At his deposition, Dr. Cotton agreed that his findings 
 
         relative to claimant's right lower extremity were not consistent 
 
         with Dr. Luse's findings in that Dr. Cotton found no loss of 
 
         sensation in the right lower extremity, but did find complaints 
 
         of numbness in the entire left leg.  Dr. Cotton reported that he 
 
         reviewed the medical reports of other physicians and that only 
 
         Dr. Luse had found abnormalities of the right lower extremities.  
 
         Dr. Cotton indicated that claimant's subjective complaints to Dr. 
 
         Luse were not in keeping with those claimant made to Dr. Cotton 
 
         in that what Dr. Luse had found one month prior to Dr. Cotton's 
 
         examination was "entirely and completely" different from the 
 
         findings of Dr. Cotton's exam.  Dr. Cotton indicated that the 
 
         taking of history and examination of an average patient requires 
 
         from 20-40 minutes with the actual exam requiring a minimum of 
 
         10-15 minutes and the actual history requiring a minimum of 10-15 
 
         minutes.
 
         
 
              Claimant's statements for costs of treatment with Dr. Luse 
 
         were reviewed.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The threshold issue is whether a causal relationship exists 
 
         between claimant's injury and his claimed disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 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.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
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 10
 
         
 
         
 
         domain of expert testimony.  Bradshaw v. Iowa Methodist Hospital, 
 
         251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.. 
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961);  100  C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).  Similarly, 
 
         the work incident or activity need not be the sole proximate 
 
         cause if the injury is directly traceable to it.  Holmes v. Bruce 
 
         Motor Freight Co., 215 N.W.2d 296, 297 (Iowa 1974).
 
         
 
              Much has been made of the nature of claimant's back 
 
         condition.  Initially, claimant's complaints are quite 
 
         subjective, are diffuse throughout his::cervical, thoracic and 
 
         lumbar spine at various times, and differ substantially from 
 
         physician to physician even when the examinations are chronically 
 
         reasonably proximate to one another.  Such lends support to Dr. 
 
         Krigsten's January 8, 1987 opinion that claimant's condition was 
 
         one of conversion hysteria.  Claimant, however, apparently does 
 
         have at least one long-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & Co.
 
         Page 11
 
         
 
         
 
         standing.objective back condition which preexisted January 16, 
 
         1986, namely spondylolysis at L5-Sl.  Dr. Cass on March 30, 1987 
 
         opined that claimant had suffered an acute episode of chronic 
 
         mechanical low back pain secondary to his job at John Morrell 
 
         which had aggravated that preexisting spondylolysis.  Dr. Luse 
 
         also opined that claimant had traumatized the previously 
 
         asymptomatic preexisting spondylolysis in the December 17, 1986 
 
         work injury.  Dr. Luse reported that that traumatization created 
 
         an expectation of acute episodes in the future which would affect 
 
         claimant's ability to work and perhaps require further treatment.  
 
         Dr. Luse's opinion in 1989 would normally lend support to 
 
         claimant's contention that he continues to suffer on account of 
 
         the December 17, 1986 work incident.
 
         
 
              Unfortunately, other evidence presented makes that 
 
         contention less credible.  X-rays of June 7, 1989 apparently 
 
         revealed spondylolysthesis at L5-Sl.  Earlier x-rays of January 
 
         28, 1987 revealed spondylolysis at L5 "without  slip" indicating 
 
         that the spondylolysthesis or slip did not occur at the time of 
 
         claimant's December 17, 1986 work injury.  The appearance of the 
 
         spondylolysthesis subsequent to January 28, 1987 indicates a 
 
         substantial change in claimant's back subsequent to his last 
 
         treatment with Dr. Cass regarding his December 17, 1986 work 
 
         incident, that treatment having been given on March 16, 1987.  It 
 
         raises questions as to whether claimant's current conditions and 
 
         the assigned permanent partial impairment ratings of Drs. Luse 
 
         and Cotton can clearly be traced to the December 17, 1986 injury.  
 
         The problem is compounded by claimant's failure to seek medical 
 
         care between March 16, 1987 and June, 1989.  Claimant in that 
 
         time did a variety of things other than work for John Morrell.  
 
         He traveled; he worked for another meat packer; and we assume 
 
         that he did normal household duties and life activities.  Any of 
 
         the above might have included incidents which could have produced 
 
         the spondylolysthesis not present in January 1987 but present in 
 
         June 1989.  Given such, it is impossible to trace claimant's 
 
         current back discomfort to the December 17, 1987 John Morrell 
 
         injury.  It is also impossible to trace any current need for 
 
         additional medical treatment or any current effect on claimant's 
 
         ability to work directly to the December 17, 1986 work injury.  
 
         Both those needs would appear to be more proximately related to 
 
         claimant's more recently developed spondylolysthesis which 
 
         development cannot be traced to his work with John Morrell.  
 
         Hence, it cannot be said that claimant has established any 
 
         permanent partial disability that is traceable to his December 
 
         17, 1986 work incident with John Morrell.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         NUNO v. JOHN MORRELL & Co.
 
         Page 12
 
         
 
         
 
         Dr. Cass' opinion testimony supports claimant's contention that 
 
         he suffered temporary total disability as a result of the 
 
         December 17, 1986 work injury, however.  Dr. Cass apparently 
 
         treated claimant for acute episode of chronic mechanical low back 
 
         pain from January 28, 1987 through March 16, 1987.  Claimant had 
 
         earlier been off work for the December 17, 1986 work incident 
 
         from December 18, 1986 through January 10, 1987.  Claimant 
 
         clearly is entitled to temporary total disability benefits 
 
         through that period.  Additionally, claimant testified that Dr. 
 
         Cass later took him off work on account of his work injury.  
 
         Apparently, claimant's testimony relates to the time between 
 
         January 28, 1987 and March 16, 1987.  Claimant's testimony in 
 
         this regard is neither substantiated nor controverted.  It does 
 
         differ from the stipulation of the parties, however.  This agency 
 
         is not bound by a stipulation of the parties if that stipulation 
 
         is factually erroneous.  If Dr. Cass actually took claimant off 
 
         work at any time from January 28, 1987 through his termination of 
 
         treatment with claimant on March 16, 1987, claimant would be 
 
         entitled to temporary total disability benefits for any time lost 
 
         from work at Dr. Cass, direction.
 
         
 
              As claimant has not established a permanent partial 
 
         disability related to his December 17, 1986 work injury, we need 
 
         not address the issue of industrial disability entitlement.  We 
 
         do address the issue of whether claimant is entitled to alternate 
 
         medical care pursuant to section 85.27.  Claimant apparently is 
 
         seeking payment of care from Dr. Luse rendered from June 7, 1989 
 
         onward and seeking an order requiring defendants to pay for 
 
         additional care with Dr. Luse.  Defendants object to such care as 
 
         not authorized and as not causally related to the injury.  Where 
 
         defendants have accepted an injury as compensable, they have a 
 
         right to choose the medical care for such injury.  An exception 
 
         to this general principle occurs where defendants have abandoned 
 
         claimant in that they have failed to provide claimant with 
 
         appropriate medical care despite claimant's communicating to them 
 
         the need for such care.  See Holbert v. Thompson Engineering 
 
         Co., 32nd Biennial Report, Iowa Industrial Commissioner 78, 80 
 
         (App. Decn. 1975).  Nothing suggests that that was the case in 
 
         this claim.  The evidence does not demonstrate that claimant 
 
         attempted to communicate with defendants regarding a need for 
 
         further medical care.  Indeed, claimant did not even visit, the 
 
         employer's nursing station from January 10, 1987 through July 5, 
 
         1987.  While claimant is not a native of the United States, his 
 
         language skills and his understanding of the requirements of the 
 
         American work setting are sufficient that minimum effort 
 
         reasonably could have been expected of him.  Hence, defendants, 
 
         objection to prior care with Dr. Luse as
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 13
 
         
 
         
 
         unauthorized is well founded.  Additionally, claimant has not 
 
         established the requisite causal connection between any current 
 
         need for care and the December 17, 1986 work incident.  As 
 
         discussed above, claimant now has a spondylolysthbsis which was 
 
         not present in January 1987.  The current existence of that 
 
         condition strongly suggests an intervening cause to claimant's 
 
         current back complaints.  Likewise, the subjectivity and varying 
 
         nature of claimant's complaints also mitigates against any 
 
         finding that those are related to the December 17, 1986 work 
 
         injury.  Therefore, claimant's request for alternate care, either 
 
         by way of payment of prior care with Dr. Luse or by way of an 
 
         order for future care with Dr. Luse fails on causation grounds.  
 
         Furthermore, the record does not suggest that care with Dr. Luse 
 
         would necessarily be beneficial to claimant.  Claimant had 
 
         earlier been advised to discontinue chiropractic care.  Claimant 
 
         himself has indicated that he does not feel that care with Dr. 
 
         Luse has been beneficial.  Those facts also mitigate against any 
 
         ordering of alternate care by way of chiropractic care with Dr. 
 
         Luse.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury arising out of and in the 
 
         course of his employment on December 17, 1986 while working for 
 
         the employer John Morrell & Company.
 
         
 
              Claimant's December 17, 1986 injury consisted of an acute 
 
         mechanical episode of chronic low back pain which aggravated a 
 
         preexisting condition of long-standing spondylolysis at L5-Sl.
 
         
 
              Subsequent to that work injury, claimant saw a variety of 
 
         physicians and had a variety of subjective back complaints 
 
         throughout the cervical, thoracic and lumbar spine.
 
         
 
              Claimant's complaints often varied vastly with different 
 
         physicians over a brief period of time.
 
         
 
              Objective findings were minimal.
 
         
 
              Claimant did not seek medical care from March 16, 1987 
 
         through June 7, 1989.
 
         
 
              From March 16, 1987 through June 7, 1989, claimant did a 
 
         variety of things other than work at John Morrell, including 
 
         travel, working for another meat packing company, and normal life 
 
         activities.
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & Co.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 14
 
         
 
         
 
              X-rays of January 28, 1987 revealed long-standing 
 
         spondyloiysis at L5-Sl without slip.
 
         
 
              X-rays of June 7, 1989 revealed spondylolysthesis at L5-Sl.
 
         
 
              Claimant's spondylolysthesis at L5-Sl developed subsequent 
 
         to January 28, 1987 and does not relate back to his December 17, 
 
         1986 work injury.
 
         
 
              Claimant's current back complaints may relate to his current 
 
         back condition of spondylolysthesis and not to his work injury 
 
         and his then existing condition of spondylolysis at L5-Sl.
 
         
 
              Claimant did not attempt to inform his employer of a need 
 
         for medical care from March 16, 1987 through June 7, 1989.
 
         
 
              Claimant's current need for medical care may relate to his 
 
         currently existing spondylolysthesis at L5-Sl and not to his 
 
         December 17, 1986 work injury.
 
         
 
              Chiropractic care with Dr. Luse has not improved claimant's 
 
         back condition.
 
         
 
              Claimant in the past was advised to discontinue chiropractic 
 
         care as harmful to his back condition.
 
         
 
              Claimant was off work from December 18, 1986 through January 
 
         10, 1987 on account of his work injury.
 
         
 
              Dr. Cass may have taken claimant off work at times from 
 
         January 28, 1987 through March 16, 1987 on account of his work 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established that his injury of December 12, 
 
         1986 is the cause of permanent partial disability.
 
         
 
              Claimant has established that.his injury of December 17, 
 
         1986 is the cause of temporary total disability from December 18, 
 
         1986 through January 10, 1987 and from January 28, 1987 through 
 
         March 16, 1987 during those times when claimant.was actually off 
 
         work at Dr. Cass' instruction.
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 15
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is entitled to temporary total disability benefits 
 
         from December 18, 1986 through January 10, 1987 and from January 
 
         28, 1987 through March 16, 1987 during that time in which 
 
         claimant was actually off work at Dr. Cass' instruction.
 
         
 
              Defendants receive credit for benefits previously paid.
 
         
 
              Claimant is not entitled to payment of costs already 
 
         incurred with Dr. Luse.
 
         
 
              Claimant is not entitled to payment of costs for any future 
 
         care incurred with Dr. Luse.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant temporary total disability benefits 
 
         at the rate of two hundred forty-three and 56/100 dollars 
 
         ($243.56) per week from December 18, 1986  through January 10, 
 
         1987 and from January 28, 1987 through March 16, 1987 during that 
 
         period in the latter time frame where claimant was actually off 
 
         work at Dr. Cass' direction.
 
         
 
              Defendants receive credit for temporary total disability 
 
         benefits previously paid claimant.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Claimant and defendants pay costs equally pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants file a final payment report when this award is 
 
         paid pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 13th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         NUNO v. JOHN MORRELL & CO.
 
         Page 16
 
         
 
         
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108, 5-1803, 2500
 
                                         2700
 
                                         Filed April 13, 1990
 
                                         HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TRINO NUNO,
 
         
 
               Claimant,
 
         
 
         VS.                                          File No. 840109
 
         
 
         JOHN MORRELL & CO.,                          A R B I T RA T I O N
 
         
 
               Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         5-1108, 5-1803
 
         
 
              Claimant not entitled to permanent partial disability where 
 
         medical  evidence established that claimant developed 
 
         spondylolysthesis at L5-Sl subsequent to injury and where 
 
         claimant had gone over two years without  medical treatment 
 
         subsequent to the injury and prior to discovery of the 
 
         spondylolysthesis.
 
         
 
         2500, 2700
 
         
 
              Claimant found not entitled to payment of costs of 
 
         chiropractic care where defendants had not abandoned claimant 
 
         after assuming liability for his injury; where claimant had not 
 
         sought authorization prior to obtaining the care; where causal 
 
         relationship between the desire for chiropractic care and the 
 
         work injury was not shown; and, where the record indicated that 
 
         chiropractic care was not in claimant's best medical interest.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DIANNE MOSLEY,
 
         
 
              Claimant,
 
                                                File No. 840117
 
         vs.
 
                                             A R B I T R A T I O N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Dianne Mosley,,claimant, 
 
         against John Deere Component Works, self-insured employer, 
 
         defendant, for benefits under the Iowa Workers' Compensation Act.  
 
         The case was heard by former Deputy Industrial Commissioner Garry 
 
         D. Woodward.  On July 13, 1988 the case was transferred to the 
 
         undersigned by David E. Linquist, Industrial Commissioner.
 
         
 
              The record consists of the testimony of:  Dianne Mosley, 
 
         claimant, Teresa Keys Hall, former employee of defendant, Thomas 
 
         H. Clark, general supervisor of defendant, Joe DeMartino, 
 
         supervisor of skilled trade of defendant, Ronald Coussens, former 
 
         supervisor of claimant Pat Kramer, industrial nurse at 
 
         defendant's cite in Waterloo, and Mark R. Suiter, former physical 
 
         therapist of defendant.
 
         
 
              The record also consists of the following exhibits: 
 
         Claimant's exhibits 1-A, l-E, 1-C, 1-D and claimant's exhibits 2, 
 
         3, 4, 5, 6, and 7.  The record also consists of employer's 
 
         exhibits:  Al, A2, B1-Bl3, Cl-C3, D26, D27, El-El4, Fl-F6, Gl-G7, 
 
         H-4, H-6, H-7, H-8, H-9 and I and J.
 
         
 
              At the hearing on this case, defendant did renew its motion 
 
         for sanctions against claimant.  Defendant contends they are 
 
         entitled to expenses including attorney's fees pursuant to the 
 
         ruling on motion to compel which was filed by Larry Walshire, 
 
         Deputy Industrial Commissioner.  Claimant denies the ruling 
 
         entitles defendant to such expenses.  Claimant also filed a 
 
         motion for sanctions against defendant.  Former Deputy Industrial 
 
         Commissioner, Garry D. Woodward, overruled both motions for 
 
         sanctions, costs and expenses.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties are:
 
         
 
              1.  Whether claimant suffered an injury arising out of and 
 
         in the course of her employment; and,
 
         
 

 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   2
 
         
 
         
 
              2.  Whether claimant's alleged injury resulted in any 
 
         permanent partial disability.
 
         
 
                                EVIDENCE PRESENTED
 
         
 
              Claimant, was an executive secretary at John Deere Component 
 
         Works in Waterloo, Iowa.  Her employee performance appraisal at 
 
         defendants indicated she was an effective employee who 
 
         consistently met commitments.
 
         
 
              The claimant testified that around December 17, 1985, she 
 
         injured her left knee.  According to her direct testimony she 
 
         reported:
 
         
 
              A.  I stepped off the step outside our office and 
 
              twisted it.
 
         
 
              Q.  What was the date?
 
         
 
              A.  Around about December 15th.
 
         
 
              Q.  19 what?
 
         
 
              A.  '85.
 
         
 
              Q.  Do you remember the approximate time?
 
         
 
              A.  It was in the afternoon.
 
         
 
              Q.  Okay.  And you said you stepped off of a step.  Was 
 
              this right there on the Employer's premises?
 
         
 
              A.  Yes, it is.
 
         
 
              Q.  Okay.  At the time that you stepped off the step, 
 
              what exactly did you feel in your knee?
 
         
 
              A.  I felt a twisting sensation and my knee kind of 
 
              give out.
 
         
 
              Q.  What did you do at that point?
 
         
 
              A.  Kind of limped around because I thought I had a 
 
              charley horse.
 
         
 
              Q.  Was it something that prohibited you from walking 
 
              or were you able to walk and finish out the rest of the 
 
              day?
 
         
 
              A.  I was able to walk and finish out the rest of the 
 
              day.
 
         
 
         (Transcript page 17, line 11 - page 18, line 9)
 
         
 
              Several months after the date of the alleged injury, 
 
         claimant sought medical treatment for her knee.  Surgery was 
 
         performed on April 15, 1986.  As of May 27, 1986, claimant was 
 
         released to return to her regular work duties by David F. Poe, 
 
         M.D., P.C.
 
         
 
         
 

 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   3
 
                                  
 
                                  
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on December 17, 1985, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 17, 1985 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.w.2d 867 (1965). 
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
         
 
                                     ANALYSIS
 
         
 
              On review of the evidence, the question whether the injury 
 
         arose out of and in the course of claimant's employment must be 
 
         answered in the negative.  Claimant has not proven her case by a 
 
         preponderance of the evidence.  Claimant, therefore, will take 
 

 
         
 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   4
 
         
 
         
 
         nothing from this proceeding.
 
         
 
              There is no evidence to indicate there were any eyewitnesses 
 
         to the alleged injury on the 15th or the 17th of December.  
 
         Moreover, the testimony is overwhelming that claimant did not 
 
         report the alleged injury after its alleged occurrence.
 
         
 
              Testimony reveals that supervisors did not learn of 
 
         claimant's knee injury until they had witnessed claimant walking 
 
         on crutches nearly three months after the incident allegedly took 
 
         place.
 
         
 
              Claimant maintained under cross-examination that on March 
 
         11, 1986 she encountered Tom Clark and Joe DeMartino.  Claimant 
 
         stated both individuals witnessed her limping and she related to 
 
         them, "...I hurt my knee hen, at Deere's." (Tr., p. 33, lines 
 
         11-12)
 
         
 
              Tom Clark, supervisor of salaried employees, testified he 
 
         had never been advised by claimant that she had injured her knee 
 
         at work.  He further reported that if a work related injury had 
 
         been reported to him, he would have had to follow certain safety 
 
         rules.
 
         
 
              Joe DeMartino, supervisor of skilled trades and hourly 
 
         employees, testified as a witness for the employer.  He related 
 
         that the claimant had never reported to him any work related 
 
         injury allegedly occurring on the 15th or 17th of December, 1985.  
 
         Mr. DeMartino indicated the first time he had discovered that 
 
         claimant had an injury was when he observed the claimant using 
 
         crutches.
 
         
 
              Ronald Coussens, supervisor for claimant, testified claimant 
 
         did not report her injury in mid-December of 1985.  Mr. Coussens 
 
         affirmed he would be the proper individual to whom the claimant 
 
         would report such an injury.  Mr. Coussens did relate that 
 
         claimant had discussed a knee injury with him on March 11, 1986, 
 
         but was not informed that the injury was work related.  
 
         Additionally, Mr. Coussens testified that if claimant had 
 
         informed him of the work related injury, he would have been 
 
         required to compile a written record.  No such report was 
 
         written.
 
         
 
              Claimant also testified she reported the fall at John Deere 
 
         to Teresa Keys Hall, a co-employee.  Ms. Hall, who testified for 
 
         the employer, denied claimant had ever discussed a December 15 or 
 
         17 work injury with her.  Ms. Hall did recall claimant had 
 
         indicated prior to December of 1985 that claimant had purchased 
 
         an exercise device.  Ms. Hall revealed that in March of 1986 she 
 
         first learned about claimant's knee injury.
 
         
 
              The medical records do not corroborate claimant's position 
 
         that her injury arose out of and in the course of her employment. 
 
         The medical records at employee's place of business do not 
 
         reveal there was a work related injury which caused claimant's 
 
         knee injury.  Rather, medical records indicated the injury was an 
 
         "outside one."
 
         
 
              Pat Kramer, industrial nurse for John Deere, testified she 
 
         reviewed the medical department activity logs and affirmed that 
 
         the first date reflected in the records where the claimant had 
 
         voiced knee complaints was on March 11, 1986 at 10:40 a.m.  Ms. 
 
         Kramer reported she had personally seen the claimant and although 
 

 
         
 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   5
 
         
 
         
 
         she had no present memory at the time of the hearing, explained 
 
         she marked the medical log as dealing with an outside rather than 
 
         a work related injury.  Ms. Kramer also indicated she provided 
 
         claimant with Extra-Strength Tylenol and Motrin for knee pain.  
 
         According to the medical log, a notation for march 25, 1986, was 
 
         recorded that the injury was an "out side injury."
 
         
 
              Mark Suiter, former physical therapist with John Deere, was 
 
         called by the employer to testify.  He remembered one occasion 
 
         when he had seen the claimant for her knee but made no written 
 
         recording of the visit.  He related if a visit was non-work 
 
         related no paper work, other than the medical log, would be 
 
         generated. if the injury was an in-plant injury, the patient 
 
         would be referred to the company physician.
 
         
 
              Mr. Suiter stated that because he had not completed 
 
         additional paper work, he could only surmise the injury was in 
 
         outside injury.  Mr. Suiter reported that at the time of 
 
         claimant's visit, he applied ice to the claimant's knee because 
 
         of swelling but that did not indicate the injury was work 
 
         related.
 
         
 
              There is additional medical evidence which indicates the 
 
         injury was not the result of a work related injury.  In a medical 
 
         record notation for March 11, 1986, Russell Adams, M.D., writes: 
 
          "Has noted increasing L knee pain in the past 2 months, worse 
 
         since aerobic exercise."
 
         
 
              During her deposition claimant indicated she had seen Dr. 
 
         Adams on that date.  Later, at the hearing, claimant denied 
 
         seeing Dr. Adams on March 11, 1986.  The claimant also denied 
 
         talking with Dr. Adams on that date over the telephone.  She 
 
         reported she was assessed a $23 charge even though she did not 
 
         keep her appointment.
 
         
 
              The claimant, at the hearing, reported she had told Dr. Poe 
 
         she had twisted her knee.  Nevertheless, Dr. Poe in his letter of 
 
         March 11, 1986, to Dr. Adams, writes:
 
         
 
              Thank you for referring Dianne Mosley.  This young lady 
 
              has lateral joint pain in the left knee and inability 
 
              to bear weight over the past several days.  This began 
 
              last December and it has been gradually worse.  She is 
 
              unable to walk.  She has tried anti-inflammatories and 
 
              heat without much change. She denies any torsion 
 
              injury and her health is otherwise quite excellent 
 
              except for moderate overweight.
 
             (Emphasis added)
 
         
 
              Under cross-examination claimant admitted she could not 
 
         remember whether she had told Dr. Poe how she had injured her 
 
         knee.
 
         
 
              The progress notes for the Rehabilitation Services at Allen 
 
         Memorial Hospital for March 17, 1986 indicate the following:
 
         
 
              My knee started hurting about 2 months ago for no 
 
              apparent reason - Has grown worst [sic] & I went to Dr. 
 
              last Tuesday...
 
         
 
              There are inconsistencies throughout claimant's testimony.  
 
         During this proceeding, claimant declared she experienced 
 
         continual discomfort from the date of her injury up until the 
 

 
         
 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   6
 
         
 
         
 
         date she first saw Dr. Poe.  Despite her discomfort, claimant did 
 
         not seek medical attention until nearly three months after the 
 
         alleged injury.  Despite her complaints of continual discomfort, 
 
         the claimant was able to participate in an exercise program on 
 
         three occasions for an hour on each occasion.  During these 
 
         exercise sessions, claimant engaged in stretching and walking in 
 
         place.
 
         
 
              Claimant also submitted certain medical bills under her 
 
         health insurance rather than under any workers compensation claim 
 
         forms.  The health insurance forms expressly stated there was no 
 
         injury at work.  These forms were completed as late as May or 
 
         June of 1986. her action was inconsistent with her testimony that 
 
         she notified her superiors and other personnel at least by March 
 
         11, 1986 that the injury was work related.  Claimant is less than 
 
         candid and is not credible.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant is not credible.
 
         
 
              2.  Claimant did not sustain a knee injury on December 17, 
 
         1985 which arose out of and in the course of her employment.
 
         
 
                               
 

 
         
 
         
 
         
 
         MOSLEY V. JOHN DEERE COMPONENT WORKS
 
         PAGE   7
 
         
 
                               
 
                               CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to establish her knee injury arose out 
 
         of and in the course of her employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              Costs of this action are assessed against claimant.  Pursuant 
 
         to the Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 20th day of September, 1988.
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         Vision Park
 
         8230 Hickman Rd., Suite G
 
         Des Moines, Iowa 50322
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette St.
 
         P.O. Box 178
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30
 
                                               Filed September 20, 1988
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANNE MOSLEY,
 
         
 
              Claimant,
 
                                                  File No. 840117
 
         vs.
 
                                               A R B I T R A T I O N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Claimant failed to establish that he sustained an injury 
 
         which arose out of and in the course of her employment.  Claimant 
 
         found not credible.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BLAINE KIRBY,                                File No. 840146
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         J. I. CASE COMPANY,                             F I L E D
 
         
 
              Employer,                                 FEB 16 1989
 
              Self-Insured,
 
              Defendant.                            INDUSTRIAL SERVICES
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Blaine Kirby against self-insured defendant employer J. I. Case 
 
         Company to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury allegedly sustained on November 3, 
 
         1986 (the date being disputed by defendant).  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         in Davenport, Iowa, on November 29, 1988, and was considered 
 
         fully submitted on that date.  Claimant appeared by his attorney, 
 
         Thomas Preacher.  Defendant appeared by attorney Larry Shepler.
 
         
 
              The evidence in this case consists of joint exhibits 1 
 
         through 26 and the testimony of claimant and Rebecca Kirby.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report approved by the deputy at 
 
         the time of hearing, the following issues remain for 
 
         determination:  Whether claimant sustained an injury on November 
 
         3, 1986, or any other date, arising out of and in the course of 
 
         his stipulated employment with defendant; whether the alleged 
 
         injury caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary total or 
 
         healing period disability benefits; whether claimant is entitled 
 
         to weekly compensation for permanent disability and the 
 
         commencement date thereof, although it was stipulated that, if 
 
         the injury be found to be a cause of permanent disability, the 
 
         disability is a scheduled member disability to the right and left 
 
         arms; rate of compensation.
 
         
 
              The parties stipulated to:  The existence of an 
 
         employer-employee relationship; that the rate of compensation 
 
         should be based upon a marital status of married with five 
 
         exemptions and gross weekly earnings of $391.60 if the injury be 
 
         found to have occurred in 1984, and $555.00 if the injury be 
 
         found to have occurred in 1986; that affirmative defenses are 
 
         waived; that medical benefits are no longer in dispute; that 
 
                                                       
 
                                                                
 
         defendant is entitled to credit under Iowa Code section 85.38(2) 
 
         for benefits paid under a nonoccupational group plan in the sum 
 
         of $2,423.34. Neither party sought taxation of costs.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began his employment with 
 
         defendant on January 8, 1973 and was laid off from that 
 
         employment when the plant closed on April 24, 1987.  He saw his 
 
         family physician, Richard B. Kasper, M.D., on October 27, 1986 
 
         for pain to the shoulder, back of neck and tingling in hands and 
 
         was referred to William R. Irey, M.D.  Dr. Irey diagnosed 
 
         bilateral carpal tunnel syndrome and performed surgery on 
 
         claimant's right hand on November 3, 1986 and, as shown by his 
 
         records, on the left hand on November 25, 1986.  Claimant 
 
         indicated that he was off work from November 3, 1986 and returned 
 
         to work on January 5, 1987.  He remained in his employment free 
 
         of symptoms until the plant closed.
 
         
 
              Claimant further testified that he began employment with his 
 
         current employer, Red Jacket Pumps, on July 9, 1987, but that his 
 
         symptoms began to resurface approximately six months later.
 
         
 
              Claimant testified to current symptoms including loss of 
 
         grip strength in each hand and constant and often sharp pain to 
 
         each palm and wrist which becomes more severe when he works at 
 
         repetitive tasks with his hands.
 
         
 
              Claimant further testified that his symptoms began in 
 
         approximately 1978 or 1979, but that he first lost work because 
 
         of those symptoms at the time of his initial surgery.
 
         
 
              Medical records show that claimant had complaints of hand 
 
         pain before seeing Dr. Kasper.  The records of Dr. Irey reflect 
 
         that claimant underwent surgery to his right hand on November 3, 
 
         1986 and to his left hand on November 25, 1986 for bilateral 
 
         carpal tunnel syndrome.  In a letter dated August 19, 1988 and 
 
         addressed to claimant's attorney, Dr. Irey expressed the opinion 
 
         that the carpal tunnel syndrome was work aggravated, but not 
 
         solely work caused, and that it was then too early to assign a 
 
         permanent partial impairment rating.
 
         
 
              Dr. Irey's office notes were introduced as joint exhibits 2 
 
         and 3.  The note of August 25, 1988 shows that the doctor 
 
         believed both hands to be somewhat decreased from normal, the 
 
         right disproportionately so.  Dr. Irey further stated on that 
 
         date:
 
         
 
              I told him at this juncture I am not sure what the cause of 
 
              his pain is.  This may be some residual from his carpal 
 
              tunnel syndrome but he does not have obvious carpal tunnel 
 
              syndrome symptoms.
 
         
 
         A further review of Dr. Irey's notes shows that he expressed an 
 
         opinion as to the degree of impairment of claimant's right upper 
 
                                                       
 
                                                                
 
         extremity (seven percent), but not the left.  Significantly, Dr. 
 
         Irey did not express any opinion as to whether this impairment 
 
         was a residual from or connected to the carpal tunnel syndrome 
 
         for which claimant underwent surgery.
 
         
 
                              APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that his alleged injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              Carpal tunnel syndrome is.a prime example of a "cumulative" 
 
         injury.  Cumulative injuries "occur" when the claimant can no 
 
         longer work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).  Therefore, claimant's injury in this case must be 
 
                                                       
 
                                                                
 
         deemed to have occurred on November 3, 1986, when he discontinued 
 
         working for the purpose of undergoing surgery.  As has been seen, 
 
         each of claimant's surgical procedures was for bilateral carpal 
 
         tunnel syndrome which Dr. Irey has tied to the employment. 
 
         Pursuant to Iowa Code sections 85.32 and 85.33(1), weekly 
 
         benefits shall be paid in cases of temporary total disability 
 
         commencing on the fourth day of disability and ending when the 
 
         employee has returned to work, except that as here, compensation 
 
         during the third week shall be increased by adding an amount 
 
         equal to three days of compensation when the incapacity extends 
 
         beyond the fourteenth day.  As discussed hereafter, permanent 
 
         partial disability has not been established.  Therefore, claimant 
 
         is entitled to temporary total disability from November 6, 1986 
 
         through January 4, 1987, with a three day addition during the 
 
         third week (nine weeks).
 
         
 
              Under McKeever Custom Cabinets, supra, the date when 
 
         claimant first loses work as the result of a cumulative injury 
 
         determines the date to be used in determining the applicable 
 
         compensation rate.  It has been stipulated that claimant's gross 
 
         weekly earnings were $555.00, that he was married and that he was 
 
         entitled to five exemptions.  The "Guide to Iowa Workers' 
 
         Compensation Claim Handling" publication of the Division of 
 
         Industrial Services published July 1, 1986 shows, at page 55, 
 
         that claimant's proper weekly rate of compensation under these 
 
 
 
                         
 
                                                                
 
         circumstances is $341.51.
 
         
 
              Agency expertise and experience has evolved to generally 
 
         indicate that a five percent impairment of the hand is 
 
         appropriate after successful carpal tunnel surgery; ten percent 
 
         or greater for surgery not completely successful.  Rienhardt v. 
 
         John Morrell & Co., file number 769079, (August 17, 1988).  
 
         However, this is general experience and is not dispositive of the 
 
         issue of causation.  As has been seen, causal connection of the 
 
         asserted permanent impairment to the work injury is essentially 
 
         within the domain of expert medical testimony.  Bradshaw, supra.  
 
         The same case held that expert testimony of a mere possibility 
 
         may be sufficient if coupled with nonexpert testimony of no 
 
         preexisting condition.  However, in this case, the expert 
 
         evidence does not rise even to the level of showing a mere 
 
         possibility.  The most recent opinion expressed by any physician, 
 
         as shown of record, is that of Dr. Irey on August 25, 1988.  The 
 
         doctor indicated that he was not sure of the cause of claimant's 
 
         pain.  Further, he noted that claimant did not have obvious 
 
         carpal tunnel symptoms.  Dr. Irey later noted that claimant did 
 
         have some persisting denervation and bilateral ulnar neuropathy, 
 
         probably at the wrist, following EMG and nerve conduction 
 
         velocities done by one Dr. Rasmus on September 29, 1988.  
 
         Nonetheless, it would be speculative and far beyond the medical 
 
         expertise of this deputy to conclude that these comments supply 
 
         the necessary causal connection between claimant's current 
 
         symptoms and the bilateral carpal tunnel syndrome which has been 
 
         found to be work-related. That is to say, claimant has failed to 
 
         meet his burden of proof in establishing any causal connection 
 
         between his current symptoms and the work injury.  Therefore, no 
 
         award for permanent partial disability can be made.
 
         
 
                             FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant suffers from bilateral carpal tunnel syndrome, 
 
         a cumulative trauma injury.
 
         
 
              2.  Claimant first lost work by reason of his injury on 
 
         November 3, 1986.
 
         
 
              3.  Claimant returned to work following surgery on both 
 
         hands on January 5, 1987.
 
         
 
              4.  Claimant's injury was caused by his work with this 
 
         defendant, the most recent defendant at the time he first missed 
 
         work time.
 
         
 
              5.  After claimant returned to work, he suffered no further 
 
         symptoms until approximately December, 1987, when he was then 
 
         working for a subsequent employer.
 
         
 
              6.  That no expert evidence establishes that claimant's 
 
                                                       
 
                                                                
 
         current symptoms are related to his work injury.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         cited, the following conclusion are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment, bilateral carpal tunnel syndrome, on 
 
         November 3, 1986.
 
         
 
              2.  Claimant's injury caused temporary total disability of 
 
         nine weeks, six days, from November 6, 1986 through January 4, 
 
         1987, with a three-day addition during the third week of 
 
         disability.
 
         
 
              3.  Claimant's rate of weekly compensation is $341.51.
 
         
 
              4.  Claimant has failed to meet his burden of proof in 
 
         establishing any permanent impairment resulting from his work 
 
         injury.
 
         
 
              5.  As stipulated, defendant is entitled to credit in the 
 
         sum of $2,423.34 for previous payment of benefits under a 
 
         nonoccupational group insurance plan.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant nine (9) weeks of 
 
         temporary total disability at the stipulated rate of three 
 
         hundred forty one and 51/100 dollars ($341.51) per week, 
 
         totalling three thousand seventy-three and 59/100 dollars 
 
         ($3,073.59).
 
         
 
              Defendant shall be entitled to credit for benefits under a 
 
         nonoccupational group insurance plan, Iowa Code section 85.38(2), 
 
         in the sum of two thousand four hundred twenty-three and 34/100 
 
         dollars ($2,423.34).
 
         
 
              The compensation awarded shall be paid to claimant as a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That any costs of this action shall be assessed to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file a,Claim Activity Report upon 
 
         payment of this award pursuant to Division of Industrial Services 
 
         Rule 343-3.1.
 
         
 
              Signed and filed this 16th day of February, 1989.
 
         
 
         
 
                                                       
 
                                                                
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas H. Preacher
 
         Attorney at Law
 
         2535 Tech Drive, Suite 200
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1802
 
                                            Filed February 16, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BLAINE KIRBY,
 
         
 
              Claimant,
 
                                                     File No. 840146
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         J. I. CASE COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.50
 
         
 
              Claimant established temporary disability from bilateral 
 
         carpal tunnel syndrome, but failed to establish causal connection 
 
         to claimed permanent impairment.
 
         
 
         1802
 
         
 
              Date of injury in cumulative trauma case was when the 
 
         claimant first lost work.