BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID E. HANSEN,
 
         
 
              Claimant,                             File No. 844403
 
          
 
         vs.                                     A R B I T R A T I O N
 
         
 
         GEORGE A. HORMEL & CO.,                    D E C I S I O N
 
         
 
               Employer,                               F I L E D
 
               Self-Insured,
 
               Defendant.                             JAN 20 1989
 
         
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David E. 
 
         Hansen, claimant, against George A. Hormel & Co., self-insured 
 
         employer, defendant.  The case was heard by the undersigned in 
 
         Storm Lake, Iowa on August 15, 1988.  This case is a bifurcated 
 
         proceeding.  This proceeding does not address the issue of the 
 
         extent and nature of permanency benefits, if liability is 
 
         established.
 
         
 
              The record consists of the testimony of claimant, and the 
 
         testimony of the following witnesses for claimant:  Bradley Paul 
 
         Gorhem and Deborah Hansen.  For the defendant, the following 
 
         witnesses have testified:  Troy Michael Hawkshead, Ralph Elver, 
 
         and Michael Robert Lee.  The record also consists of the 
 
         following exhibits:  Joint exhibits 1, items 1-12.  Defendant 
 
         objects to page 33, line 17 to page 34, line 9 of exhibit 2, on 
 
         the basis of relevancy.  The undersigned determines that exhibit 
 
         2 is admitted in its entirety.  The subjects are relevant and the 
 
         witness is qualified to testify as to the work practices used at 
 
         the witnesses' place of business.
 
         
 
              The record also consists of joint exhibit 3 and claimant's 
 
         exhibits 1, 2 and 3.  Exhibit 5 is also admitted as it is listed 
 
         on claimant's exhibit list which has been served more than 15 
 
         days prior to the hearing.  Claimant's exhibit 6 is also admitted 
 
         for the very limited purpose of establishing a list of 
 
         chiropractors which includes the name of Dr. Zelm.  The 
 
         defendant's exhibit A is also a part of the record.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved on 
 
         March 16, 1988, the issues presented for this proceeding are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits; and,
 
         
 
              4.  Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was 32 years old at the time of the hearing.  He is 
 
         married and has three children.  Claimant commenced his 
 
         employment with defendant on October 14, 1985.  Prior to that 
 
         date, claimant had been primarily engaged in the field of auto 
 
         mechanics.
 
         
 
              At the time of claimant's hire, he was given an employment 
 
         physical.  He was placed in the Algona plant.  For approximately 
 
         one year, claimant was assigned the job of stuffing and hanging.
 
         
 
              Claimant testified that in March of 1986, he slipped while 
 
         at work.  In order to catch himself, claimant grabbed a rack with 
 
         his left hand.  Claimant fell on his left shoulder.  He stated it 
 
         felt as if he had pulled a muscle.   However, no work was missed.  
 
         This incident is not the subject matter of any claim brought by 
 
         claimant against defendant.
 
         
 
              On the date of claimant's alleged injury in November of 
 
         1986, he was placing pepperoni casings on the stuffer machine.  
 
         Claimant testified it was necessary for him to use his left hand 
 
         to pick up a sausage casing, snap it and place in on the stuffer, 
 
         and then stuff the casing.  The sausages were then placed on a 
 
         stick and the stick, in turn, was placed on a rack.  
 
         Approximately six to nine tubs of sausage were stuffed each hour 
 
         by claimant.  Each tub contained nearly 500 pounds of sausage.
 
         
 
              Claimant testified that while he was flipping casings on 
 
         November 10, 1986, his left shoulder kept popping and grating. 
 
         Then it became even difficult to lift the shoulder.  Claimant 
 
         reported the shoulder problem to his supervisor, Troy Hawkshead.
 
         
 
              On the next morning, claimant visited the company physician, 
 
         J.D. Mixdorf, M.D., at the Family Health Center, P.C.  Claimant 
 
         was placed on light duty and Motrin was prescribed.  Claimant 
 
         testified that any raising or movement of the arm caused his 
 
         shoulder to pop and grind.
 
         
 
              Claimant continued treating with the company doctor.  Later 
 
         he was referred to Dr. Crane who treated claimant in March of 
 
         1987.  After that time, claimant was treated by Dr. Fellows.  
 
         Then claimant went to Iowa City for treatment.
 
         
 
              Subsequent to the November incident in question, claimant 
 
         testified he continued to work.  He was either on a light duty 
 
         assignment or else he was on the scale and pillow pack.  Claimant 
 
         continued working until he was laid off.  He was terminated 
 
         because of low seniority status and not because of his injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Bradley Paul Gorhem testified he was claimant's partner on 
 
         the evening of November 10, 1986.  Mr. Gorhem reported jobs were 
 
         usually alternated every twenty minutes between partners.  On the 
 
         evening in question, claimant stated to Gorhem that claimant had 
 
         hurt his shoulder and he requested Mr. Gorhem to stuff sausage 
 
         for the duration of that shift.
 
         
 
              Troy Michael Hawkshead testified he was the night packaging 
 
         foreman at defendant's place of business.  Mr. Hawkshead 
 
         testified claimant occasionally worked under him.  Mr. Hawkshead 
 
         also testified that claimant reported an injury to him on the 
 
         evening of November 10, 1986.  According to Mr. Hawkshead, 
 
         claimant stated he was picking up casings, opening them and he 
 
         felt pain in his shoulder.  Mr. Hawkshead testified that the 
 
         entire process was performed approximately one inch above waist 
 
         level, and that the employees worked in teams which alternated 
 
         tasks.  Mr. Hawkshead also testified that after the incident on 
 
         November 10, 1986, claimant was performing light-duty work.
 
         
 
              Mr. Ralph Elver, former plant superintendent, testified 
 
         about the process claimant was performing on the evening in 
 
         question.  He admitted under cross-examination there was some 
 
         shoulder movement involved in stuffing the casings.  He also 
 
         reported most of the work was performed with the right hand.
 
         
 
                                  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 he received an injury on November 10, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure, 188 N.W.2d 283.
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 10, 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 essential 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.
 
         
 
              Expert testimony that a condition could be caused by.a given 
 
         injury coupled with additional, non-expert testimony that 
 
         claimant was not afflicted with the same condition prior to the 
 
         injury was sufficient to sustain an award.  Giere v. Asse Haugen 
 
         Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
         
 
              Such evidence does not, however, compel an award as a matter 
 
         of law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimant's 
 
         disability.  Blacksmith v. All-American,,Inc., 290 N.W.2d 348, 
 
         354 (Iowa 1980).  In the case of a preexisting condition, an 
 
         employee is not entitled to recover for an aggravation thereof 
 
         which resulted in the disability found to exist.  Olson v. 
 
         Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In any event, it is claimant's burden of proof to establish 
 
         a causal relationship between the work injury and the claimed 
 
         disability.  He must meet that burden by a preponderance of the 
 
         evidence, which means evidence of greater weight, superior 
 
         influence, or efficacy.  Bauer v. Reavell, 219 Iowa 1212, 260 
 
         N.W. 39 (1935).  The burden is not met by creating a mere 
 
         equipoise. Volk v. International Harvester Co., 252 Iowa 298, 106 
 
         N.W.2d 649 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              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 section 555(17)a.
 
         
 
              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, 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.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he received an injury which arose out of and in the course 
 
         of his employment.  The incident which occurred on November 10, 
 
         1986, generated a complaint by claimant of pain in his left 
 
         shoulder. The incident occurred at work while claimant was 
 
         performing tasks for defendant.
 
         
 
              Claimant has not established the claimed disability is 
 
         causally connected to the incident on November 10, 1986. 
 
         Chiropractic records indicate claimant sought attention for 
 
         shoulder pain in 1981, 1982 and 1983.  Claimant testified he fell 
 
         on his left shoulder in March of 1986.
 
         
 
              Kenton K. Moss, M.D., writes in his letter of March 27, 1987 
 
         to Joe F. Fellows, M.D.
 
         
 
                 David Hansen is being referred for evaluation of left 
 
              shoulder pain.  The patient initially injured his shoulder 1 
 
              1/2 years ago when he fell at work and attempted to hold 
 
              himself up with his left arm.  He reinjured the shoulder 
 
              again in November of 1986 when he was flipping a casing and 
 
              felt something snap in his left shoulder with immediate 
 
              pain. His pain persisted since that time intermittently.  He 
 
              has been taken off work at various intervals, tried on 
 
              anti-inflammatory medications, including Indocin, and has 
 
              tried chiropractic treatments also.  The patient is 
 
              currently laid off from his work and is interesting [sic] in 
 
              having full evaluation to rule out future problems.  He is a 
 
              candidate for a job with the city, but his employment is 
 
              pending upon the outcome of his shoulder evaluation.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Joint Exhibit 1, Item 7, page 16)
 
         
 
              M.W. Crane, M.D., also writes in his report of consultation:
 
         
 
                 Mr. Hansen is complaining of left shoulder pain.  This 
 
              first happened 1 1/2 years ago when he fell down at work, 
 
              slipped and fell and grabbed something with the left arm. 
 
              Held himself up but sort of twisted around and had pain in 
 
              the shoulder after that.  It cleared up a bit and then this 
 
              last November, he injured it again doing something where he 
 
              was simply flipping casings open.  That's what he thinks 
 
              caused it this time.  His foreman seemed to think that job 
 
              shouldn't cause it; however, he had to that at some 8 times 
 
              a minute and over a 8-hour day, I would suspect that that 
 
              type of motion which calls for abduction and internal 
 
              rotation of the shoulder at about shoulder level would cause 
 
              him tendinitis.  At any rate, since then he's continued to 
 
              have pain.  This past week he has been on light duty and, in 
 
              fact, last night he was driving a forklift and seemed to do 
 
              much better.
 
         
 
                 At this point, EXAMINATION shows some tenderness in the 
 
              shoulder.  He has good active abduction against resistance 
 
              as well as full ROM.  X-rays are essentially normal.
 
         
 
                 IMPRESSION:  Rotator cuff tendinitis superimposed on a 
 
              possible old partial tear or severe sprain.  At this point, 
 
              will continue on light duty with no working at or above 
 
              shoulder level.  He is on NSAI.  Recheck him in two weeks.
 
         
 
         (Jt. Ex. 1, Item 7, p. 17)
 
         
 
              Finally, the treating physician, Joe F. Fellows, M.D., 
 
         testified by way of deposition.  He opined the claimant initially 
 
         strained his shoulder, possibly tearing a portion of the labrum, 
 
         during the time of the fall.  He further opined the shoulder 
 
         condition was aggravated by claimant's repetitive type work.  Dr. 
 
         Fellows, in his deposition, reported the aggravation from the 
 
         incident in November 1986 was slight and of the type and nature 
 
         which with rest would subside.  Dr. Fellows also testified that 
 
         other repetitive activities unrelated to claimant's work could 
 
         have aggravated claimant's shoulder.  He opined that no single 
 
         repetitive activity could have caused the whole aggravation. 
 
         Additionally, during his deposition, Dr. Fellows testified:
 
         
 
              Q.  So if I were to ask you to assume that Mr. Hansen had 
 
              only been performing that particular activity for -- I 
 
              believe he had only been on that job for a day and that on 
 
              the day this incident occurred he had only been on his shift 
 
              for about two hours, are you saying then that that kind of 
 
              activity, given the smaller time frame, is probably not the 
 
              cause of the underlying condition that he suffers from?
 
         
 
              A.  That would be my opinion, yes.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q.  Let's assume that the activity he was performing in 
 
              November 1986 with the stuffing casings aggravated the 
 
              underlying condition.  Would you suspect that that 
 
              aggravation would subside with rest and inactivity?
 
              
 
              A.  It's possible that it could, yes.
 
         
 
              Q.  If the evidence were to show in this case that Mr. 
 
              Hansen, in fact, did not miss any work from Hormel 
 
              concerning the shoulder problem until his permanent layoff 
 
              in March of 1987, is that an indication at all to you that 
 
              his -- any aggravation he may have had in November of 1986 
 
              was more of a temporary or minor aggravation.
 
         
 
              A.  Well, I guess I would have to know more of the facts.  I 
 
              assume that it did not cause a severe enough problem that 
 
              would take him off of work, that he was able to continue 
 
              doing the same type of activity.  If he continued to do that 
 
              same type of repetitive activity from that point on, even 
 
              though he was able to continue doing it would probably cause 
 
              some increased aggravation, again of a preexisting problem.
 
         
 
              Q.  The aggravation, if any, that was caused by the 
 
              continuing work, do you think it's the kind of -- once 
 
              again, do you think it's the kind of aggravation that given 
 
              some rest you could expect would subside?
 
         
 
              A.  Normally, yes.
 
         
 
         (Jt. Ex. 3, pp. 20-22)
 
         
 
              Claimant's injury on November 10, 1986 was only a temporary 
 
         aggravation of a preexisting condition.  The aggravation was 
 
         minimal at best.  It was not a significant and material factor in 
 
         contributing to claimant's claimed disability.  The record 
 
         establishes that claimant's frayed cartilage condition was the 
 
         result of the original fall.  (Jt. Ex. 3, p. 43, 11. 11-25).  
 
         Since the frayed cartilage condition was the result of the 
 
         earlier fall, the requisite medical services needed to repair the 
 
         condition were likewise causally connected to the original injury 
 
         in March of 1986.  Consequently, no benefits under section 85.27 
 
         are due to claimant as a result of the injury on November 10, 
 
         1986.
 
         
 
              Finally, no temporary total disability or healing period 
 
         benefits are due to claimant.  The record is void of any evidence 
 
         establishing that as a result of the injury on November 10, 1986, 
 
         claimant missed time from work.  A worker is entitled to 
 
         temporary total disability benefits only until the employee has 
 
         returned to work or until the employee is medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of the injury, whichever occurs first 
 
         (Code section 85.33).  Claimant's evidence fails to establish by 
 
         a preponderance of the evidence that the injury to his left 
 
         shoulder was a result of the injury on November 10, 1986 and that 
 
         he was ever rendered incapable of working.  In fact, claimant was 
 
         receiving unemployment compensation after he was terminated by 
 
         defendant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
         FINDING 1.  Claimant injured his left shoulder in March of 1986 
 
         when he slipped while at work.
 
         
 
         FINDING 2.  As a result of the injury in March of 1986, claimant 
 
         suffered a frayed cartilage condition.
 
         
 
         FINDING 3.  On November 10, 1986, claimant aggravated a 
 
         preexisting condition when he sustained an injury to his left 
 
         shoulder while working for defendant.
 
         
 
         FINDING 4.  The aggravation to the preexisting condition was 
 
         minimal at best.
 
         
 
         FINDING 5.  Claimant missed no work as a result of the injury on 
 
         November 10, 1986.
 
         
 
         FINDING 6.  As a result of the injury sustained in March of 1986, 
 
         claimant incurred medical expenses.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
         CONCLUSION 1.  Claimant has established by a preponderance of the 
 
         evidence that on November 10, 1986, he suffered an injury to his 
 
         left shoulder arising out of and in the course of his employment 
 
         at Hormel.
 
         
 
         CONCLUSION 2.  Claimant's injury to his left shoulder was only a 
 
         slight aggravation to a preexisting condition; the aggravation 
 
         was only minimal at best.
 
         
 
         CONCLUSION 3.  Claimant has not established by a preponderance of 
 
         the evidence there was a causal connection between the injury on 
 
         November 10, 1986 and claimant's claimed disability.
 
         
 
         CONCLUSION 4.  Claimant has not established by a preponderance of 
 
         the evidence that medical benefits under section 85.27 are due to 
 
         him as a result of the November 10, 1986 injury.
 
         
 
         CONCLUSION 5.  Claimant has not established by a preponderance of 
 
         the evidence that temporary total disability or healing period 
 
         benefits are due to him as the result of claimant s injury on 
 
         November 10, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant take nothing from these proceedings.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant pays costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St
 
         P.O. Box 455
 
         Spirit Lake, IA  51360
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at law
 
         218 Sixth Avenue
 
         P.O. Box 9130
 
         Des Moines, IA  50306-9130
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1108; 2700
 
                                            Filed January 20, 1989
 
                                            Michelle McGovern
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID E. HANSEN,
 
         
 
              Claimant,                            File No. 844403
 
         
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         GEORGE A. HORMEL & CO.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and the work.  The injury in question only 
 
         minimally aggravated a preexisting condition.
 
         
 
         2700
 
         
 
              Claimant failed to show an entitlement to medical benefits 
 
         as a result of the work injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN G. SMITH,
 
         
 
              Claimant,
 
                                                  File No. 844416
 
         
 
         vs.
 
                                               A R B I T R A T I O N
 
         
 
         AMERICAN FREIGHT SYSTEMS, INC.
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Steven G. 
 
         Smith, claimant, against American Freight Systems, Inc., 
 
         self-insured employer, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an injury sustained on 
 
         June 19, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner March 16, 1988.  The 
 
         record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant and joint exhibits 1 through 18, inclusive.  Claimant's 
 
         objection to defendant's exhibit A is sustained.  Defendant's 
 
         exhibit A was not served in compliance with the hearing 
 
         assignment order and therefore was not considered in making the 
 
         decision.  Further, it cannot be considered rebuttal or 
 
         sur-rebuttal evidence.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved March 16, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether or not the Iowa Workers' Compensation Act 
 
         applies to the claimant's injury;
 
         
 
              2.  Whether the injury which arose out of and in the course 
 
         of claimant's employment on June 19, 1985 is causally connected 
 
         to all of the disability on which claimant now bases his claim;
 
         
 
              3.  Claimant's entitlement to weekly benefits for temporary 
 
         total disability/healing period and permanent partial disability; 
 
         and,
 
         
 
              4.  Claimant's entitlement to certain medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              On direct examination, claimant testified that he has 
 
         resided in Clear Lake, Iowa, for approximately ten years and that 
 
         he became aware that defendant employer was seeking employees to 
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   2
 
         
 
         
 
         drive semi tractor-trailers through an ad in the newspaper.  
 
         Claimant explained he answered the advertisement by reporting to 
 
         McGuire Trucking in Burt, Iowa, at which time he was told he had 
 
         to go to Sioux Falls, South Dakota, and so reported there on 
 
         December 12, 1984.  While in Sioux Falls, claimant explained he 
 
         took a written department of transportation test, a driving test, 
 
         had a physical and spoke with Howard Jamison, office manager of 
 
         the perishable division of American Freight.  Claimant stated 
 
         that Mr. Jamison told him he "couldn't get into a truck until Mr. 
 
         McGuire okayed it, or until I had my physical."  Claimant did not 
 
         learn the results of his physical while in South Dakota but 
 
         "found out later." Claimant testified he then returned to the 
 
         state of Iowa and approximately one week later went back to Burt 
 
         for a discussion with Mr. McGuire at which time he "was hired."  
 
         Claimant stated:
 
         
 
         
 
              Q.  What did Mr. McGuire tell you in terms of your 
 
              hire, if anything?
 
         
 
              A.  He asked me my experience, and that was about it, 
 
              and he said to report back there that night.  I believe 
 
              I left that night.
 
         
 
         (Transcript, page 10)
 
         
 
              Claimant's job consisted of picking up loads of meat and 
 
         delivering them to destinations as far east as Pittsburgh, 
 
         Pennsylvania, and as far west as Denver, Colorado, strictly at 
 
         American Freight terminals.  Claimant testified that to the best 
 
         of his knowledge American Freight had offices or businesses in 
 
         the state of Iowa.  Claimant stated he generally picked up his 
 
         trailer either in Burt at McGuire Trucking or in Ankeny at Paul 
 
         Baumberger & Sons whom he understood exclusively leased their 
 
         equipment to American Freight, but later testified testified that 
 
         he was "assigned to a specific truck out of Baumberger's and I 
 
         stayed in that truck, and when I was done, I parked it in Ankeny 
 
         and got in my car and went to Clear Lake."  Claimant testified 
 
         that most of his driving was done outside of the state of Iowa.  
 
         Claimant explained that he considered the people in Burt and/or 
 
         Ankeny to be his employment supervisors and that it was they who 
 
         told him what to do, where to go and to perform certain acts.  
 
         Claimant testified:
 
         
 
              Q.  Now, is it or is it not a fact that you were not 
 
              hired until you went to Burt and met with Mr. McGuire 
 
              in Burt?
 
         
 
              A.  Yes.
 
         
 
              Q.  Yes, what?
 
         
 
              A.  I was told that he had the final say.
 
         
 
              Q.  And did he tell you you were hired, then?
 
         
 
              A.  Yes.
 
         
 
              Q.  Was that the time you agreed to go to work for this 
 
              company?
 
         
 
              A.  Yes.
 
         
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   3
 
         
 
         
 
         (Tr., pp. 127-128)
 
         
 
              On cross-examination, claimant testified he got paid from 
 
         South Dakota, that at the time he left employment his boss was 
 
         Dave Baumberger, in Ankeny, who could hire or fire him, that he 
 
         was paid on a mileage basis, and that he would submit his mileage 
 
         to Mr. Baumberger whom he assumed in turn submitted it to Howard 
 
         Jamison, in South Dakota.  When asked if it was the fact that he 
 
         was "supervised and directed and employed and paid out of South 
 
         Dakota" claimant responded "yes."  Claimant testified:
 
         
 
              Q.  If there was to be a change in the way in which you 
 
              performed your duties, where would that direction have 
 
              come from? South Dakota or Mr. Baumberger?
 
         
 
              A.  From Howard Jamison.
 
         
 
         
 
         (Tr., p. 80)
 
         
 
              Claimant maintained Mr. McGuire hired him but acknowledged 
 
         that Howard Jamison would have the "power to say no, he does not 
 
         have the authority."  Claimant explained he picked up boxed meat 
 
         at Iowa Beef Processors, in Des Moines (which he described on 
 
         redirect examination as one of the major pickup points in Iowa 
 
         for his travels), other meat products in Kansas and Ohio and 
 
         always hauled them somewhere outside the state of Iowa.
 
         
 
              Claimant's written contention, submitted with the prehearing 
 
         report, states:
 
         
 
              1.  JURISDICTION:  Claimant alleges jurisdiction under 
 
              either Iowa Code Section 85.71(l) or (2).
 
         
 
              Claimant, domiciled in Iowa, worked for employer which 
 
              has a place of business in Iowa for whom Claimant 
 
              regularly works or Claimant contracted for hire by 
 
              accepting from Iowa by telephone the offer of a 
 
              position with Employer and Claimant's work as an 
 
              over-the-road trucker is employment "not principally 
 
              localized in any state".  Albertson v. 129 Country 
 
              Diesel, 4 Iowa Industrial Commissioner Reports No. 5 
 
              (1984).
 
         
 
              Claimant was injured in Cincinnati, Ohio.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Although jurisdiction over the subject matter in this action 
 
         was not raised on the hearing assignment order, subject matter 
 
         jurisdiction is an issue which can be raised at any time.  In 
 
         Smiths v. Dubuque County, 1 Iowa 492 (1855), the Iowa Supreme 
 
         Court stated at 494 that "consent could not confer jurisdiction" 
 
         and noted as well that no "failure to object, could confer upon 
 
         the court, a power to hear and determine the subject matter which 
 
         it was not authorized to try."  In Pierce v. Pierce, 287 N.W.2d 
 
         879, 881-82 (Iowa 1980) the court reviewed recent rulings on 
 
         subject matter jurisdiction stating:
 
         
 
              "Jurisdiction of the subject matter is the power to 
 
              hear and determine cases of the general class to which 
 
              the proceedings belong."  Green v. Sherman, 173 N.W.2d 
 
              843, 846 (Iowa 1970).  "When a court acts without legal 
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   4
 
         
 
         
 
              authority to do so, it lacks jurisdiction of the 
 
              subject matter."  In re Adoption of Gardiner, 287 
 
              N.W.2d 555, 559 (Iowa 1980).  "The court's jurisdiction 
 
              of the subject matter however may be raised at any time 
 
              and is not waived even by consent."  Green, 173 N.W.2d 
 
              at 846.  We will determine subject matter 
 
              jurisdictional issues even though not raised in the 
 
              appellate briefs of either party.  Swets Motor Sales, 
 
              Inc. v. Pruisner, 236 N.W.2d 299, 302 (Iowa 1975).  
 
              Also, we will examine the grounds for jurisdiction on 
 
              our own motion before proceeding further.  Qualley v. 
 
              Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978).  
 
              If we determine subject matter jurisdiction is absent, 
 
              an order dismissing the petition is the only 
 
              appropriate disposition.  Lloyd v. State, 251 N.W.2d 
 
              551; 558 (Iowa 1977).
 
         
 
              Accordingly, the issue of whether or not there is subject 
 
         matter jurisdiction must be addressed before any other questions 
 
         raised by claimant.
 
         
 
              Iowa Code section 85.71 refers to injuries to workers 
 
         laboring outside the borders of Iowa and governs the industrial 
 
         commissioner's subject matter jurisdiction.  That section of the 
 
         law states:
 
         
 
              If an employee, while working outside the territorial 
 
              limits of this state, suffers an injury on account of 
 
              which the employee, or in the event of death, the 
 
              employee's dependents, would have been entitled to the 
 
              benefits provided by this chapter had such injury 
 
              occurred within this state, such employee, or in the 
 
              event of death resulting from such injury, the 
 
              employee's dependents, shall be entitled to the 
 
              benefits provided by this chapter, provided that at the 
 
              time of such injury:
 
         
 
              1.  The employment is principally localized in this 
 
              state, that is, the employee's employer has a place of 
 
              business in this or some other state and the employee 
 
              regularly works in this state, or if the employee is 
 
              domiciled in this state, or
 
         
 
              2.  The employee is working under a contract of hire 
 
              made in this state in employment not principally 
 
              localized in any state, or
 
         
 
              3.  The employee is working under a contract of hire 
 
              made in this state in employment principally localized 
 
              in another state, whose workers' compensation law is 
 
              not applicable to the employee's employer, or
 
         
 
              4.  The employee is working under a contract of hire 
 
              made in this state for employment outside the United 
 
              States.
 
         
 
              Clearly, subsection 4 does not apply to the claimant as he 
 
         was not working outside the United States.  As well, subsection 3 
 
         does not apply as claimant sought benefits under the South Dakota 
 
         Workers' Compensation Act.  Therefore, for the industrial 
 
         commissioner to have subject matter jurisdiction of this case, 
 
         claimant must come under either subsection 1 or subsection 2.
 
         
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   5
 
         
 
         
 
              For subsection 1 to apply, claimant must establish that his 
 
         employment with American Freight is principally localized in this 
 
         state.  For subsection 2 to apply, in the event subsection 1 does 
 
         not, claimant must establish that he is working under a contract 
 
         of hire made in this state.
 
         
 
              Iowa Code section 85.71 has come to the attention of the 
 
         Iowa Supreme Court on two recent occasions.  In Iowa Beef 
 
         Processors, Inc. v. Miller, 312 N.W.2d 530 (Iowa 1981) the court 
 
         dealt with an employee who was hired, employed and injured 
 
         outside of Iowa, but who was domiciled in Iowa and who applied 
 
         for employment in response to an advertisement in a Sioux City, 
 
         Iowa, paper.  The court began with an analysis of Iowa Code 
 
         section 85.71 and found the overall purpose of the provision to 
 
         be "to specify employees who are entitled to Iowa Workers' 
 
         Compensation benefits for injuries sustained during employment 
 
         outside the territorial limits of this state."  The court focused 
 
         attention on the enacting clause of subsection 1 which provides 
 
         benefits for an employee whose employment is principally 
 
         localized in this state.  The court found that an isolated, 
 
         literal reading of the definition of clause would provide 
 
         coverage based on domicile alone, if the employer has a business 
 
         in any state but noted that "defining employment that is 
 
         principally localized in this state to allow benefits to be based 
 
         exclusively upon the domicile of the employee, with no part of 
 
         the employment relationship either originating or performed in 
 
         Iowa would ... be arbitrary."  The court went on to state that 
 
         the definitional clause "or if he is domiciled in this state" 
 
         must be construed with reference to the enacting clauses language 
 
         of "employment [that] is principally localized in this state."  
 
         The court held that "the plain meaning of the enacting clause 
 
         indicates that the employee must perform the primary portion of 
 
         his services for the employer within the territorial boundaries 
 
         of the State of Iowa or that such services be attributable to the 
 
         employer's business in this,state."  Domicile alone is inapposite 
 
         to whether an employee's employment is principally localized in 
 
         this state.
 
         
 
              In George H. Wentz, Inc. v. Sabast, 337 N.W.2d 495 (Iowa 
 
         1983) the claimant, Sabasta, an Iowa resident, learned of a job 
 
         available with a Nebraska corporation through a business agent of 
 
         a local union in Iowa.  Sabasta was injured in South Dakota and 
 
         had.not performed services within Iowa.  The opinion states at 
 
         498:  "In workers' compensation cases it is unnecessary to 
 
         identify the jurisdiction with the greatest contacts and 
 
         interest.  The test is not whether Iowa's interest exceeds or 
 
         excludes those of other states, but whether Iowa's interest is 
 
         itself sufficient, based on analysis of our workers' compensation 
 
         statutes."  The court stated that generally, the place the 
 
         contract of hire is formed is where the meeting of minds occurs, 
 
         or where the final act necessary to form a binding contract takes 
 
         place citing to Burch Mfg. Co. v. McKee, 231 Iowa 730, 735, 2 
 
         N.W.2d 98: 101 (1942) and 99 C.J.S. Workers' Compensation at 
 
         section 23, at 159.
 
         
 
              As set out above, principally localized employment occurs 
 
         when the employee performs the primary portion of his services 
 
         for the employer within the territorial boundaries of the state 
 
         of Iowa or when such services are attributable to the employer's 
 
         business in this state.  It cannot be concluded that based on the 
 
         evidence presented in this case that claimant performed the 
 
         primary portion of his services for American Freight within the 
 
         territorial boundaries of the state of Iowa.  Claimant candidly 
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   6
 
         
 
         
 
         acknowledged that the majority of his driving was outside of the 
 
         state of Iowa and that the only contact he had within the state 
 
         of Iowa was to pick up his trailer in Ankeny, a load of beef in 
 
         Des Moines and to "always" deliver that product outside of the 
 
         state of Iowa.  Therefore, it is concluded that claimant's 
 
         employment was not principally localized within the state of Iowa 
 
         and that subsection 1 of Iowa Code section 85.71 is not 
 
         applicable.  Accordingly, for the industrial commissioner to have 
 
         jurisdiction in this matter, claimant must fall within subsection 
 
         2.
 
         
 
              The primary question for resolution under subsection 2 is 
 
         whether or not claimant was working under a contract of hire made 
 
         within the state of Iowa.  It is here where serious questions 
 
         arise as to exactly where and when the contract of hire was made. 
 
          A review of the testimony presented to claimant in this matter 
 
         reveals that claimant had one view when speaking on direct 
 
         examination with his attorney and another view on 
 
         cross-examination with defendant's attorney.  Yet another view is 
 
         presented in claimant's written contentions submitted with the 
 
         prehearing report.
 
         
 
              Claimant testified that after initially reporting to McGuire 
 
         Trucking in Burt, Iowa, he was sent to South Dakota to take a 
 
         written test, a driving test and a physical.  Claimant testified 
 
         that he was told he could not drive until Mr. McGuire okayed it 
 
         or until he passed his physical.  Clearly, claimant passed his 
 
         physical within the state of South Dakota.  In addition, however, 
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   7
 
         
 
         
 
         claimant stated that it was not until he reported a second time 
 
         to Burt, Iowa, that he agreed to work for American Freight.  
 
         Claimant failed to present any testimony on how he came to go to 
 
         Burt a second time.  As the court in Wentz, supra pointed out, 
 
         the place of contract the contract is formed is where the meeting 
 
         of the mind occurs or where the final act necessary to form a 
 
         binding contract takes place.  If it is in fact accurate that 
 
         claimant did not agree to accept employment until he reported to 
 
         Burt on the second occasion and spoke with Mr. McGuire, then it 
 
         is possible that the contract of hire may have taken place within 
 
         the state of Iowa thus allowing the industrial commissioner 
 
         subject matter jurisdiction under subsection 2.  However, 
 
         claimant's written contentions indicate that he accepted from 
 
         Iowa by telephone the offer of a position with the employer.  
 
         Claimant presented no testimony on where the specifics of the 
 
         employment-salary, hours, working conditions, for example, were 
 
         discussed.  Claimant maintained that Mr. McGuire had the "final" 
 
         say and at the same time stated Paul Baumberger could hire and 
 
         fire him.  Yet, no mention was made concerning any involvement of 
 
         Paul Baumberger at the time claimant began driving for American 
 
         Freight.  In addition, claimant acknowledges that Howard Jamison 
 
         had a type of veto power if he had elected to utilize it.  At one 
 
         point, claimant testified that Mr. McGuire and Mr. Baumberger 
 
         were his supervisors but that his instructions came from South 
 
         Dakota.  At the same time, claimant testified that he was 
 
         supervised, directed, employed and paid out of South Dakota.  
 
         Claimant's testimony, standing alone, is simply wrought with too 
 
         many inconsistencies for the undersigned to arrive at a 
 
         conclusion that the contract of hire was made in the state of 
 
         Iowa without resorting to innuendo, assumption and inference.  If 
 
         a party has the power to produce more explicit and direct 
 
         evidence than it chooses to do, it may be fairly inferred that 
 
         other evidence would lay open deficiencies in that party's case.  
 
         Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 682 (Iowa 
 
         1976).  Were either Mr. Baumberger or Mr. McGuire claimant's 
 
         employer, this conclusion may be different.  Claimant's employer, 
 
         however, was American Freight.
 
         
 
              Therefore, it is concluded that claimant has failed to 
 
         establish this agency has subject matter jurisdiction in this 
 
         case.  In light of that conclusion, it is unnecessary to address 
 
         any other issue presented for resolution.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on ali the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant was injured in Cincinnati, Ohio.
 
         
 
              2.  Claimant resides in Clear Lake, Iowa.
 
         
 
              3.  Claimant answered a newspaper advertisement of McGuire 
 
         Trucking, in Burt, Iowa, and was told to report to Sioux Falls, 
 
         South Dakota.
 
         
 
              4.  Claimant reported to Sioux Falls where he took a driving 
 
         test, a DOT written test, had a physical and discussion with 
 
         Howard Jamison, defendant employer's office manager, perishable 
 
         division.
 
         
 
              5.  Claimant returned to Iowa and approximately one week 
 
         later began driving for American Freight.
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   8
 
         
 
         
 
         
 
              6.  Claimant was assigned a specific truck out of Paul 
 
         Baumberger & Sons Trucking, in Ankeny, Iowa, and when he finished 
 
         his work left the truck there and drove his own car to Clear 
 
         Lake.
 
         
 
              7.  Most of claimants driving was outside the state of 
 
         Iowa.
 
         
 
              8.  Claimant maintained he was supervised by those persons 
 
         in Ankeny and Burt, that his supervisor resided in Sioux Falls 
 
         and that he was supervised, directed and paid out of South 
 
         Dakota.
 
         
 
              9.  Claimant hauled meat out of state.
 
         
 
             10.  The vehicles claimant drove were owned by Baumberger and 
 
         McGuire and leased to American Freight.
 
         
 
             11.  Claimant's testimony is inconsistent and therefore lacks 
 
         credibility.
 
         
 
             12.  Claimant asserted he was not employed until talking with 
 
         Mr. McGuire.
 
         
 
             13.  Claimant asserted he could not be employed until he 
 
         passed his physical.
 
         
 
             14.  Claimant asserted he accepted employment the second time 
 
         he went to Burt, Iowa.
 
         
 
             15.  Claimant asserted he accepted employment by a telephone 
 
         call from employer.
 
         
 
             16.  The employer in this case is American Freight, not 
 
         McGuire Trucking or Paul Baumberger & Sons Trucking.
 
         
 
             17.  Claimant's employment is not principally localized in 
 
         the state of Iowa as claimant does not perform the primary 
 
         portion of his services for the employer within the territorial 
 
         boundaries of the state of Iowa.
 
         
 
             18.  Claimant's contract of hire may or may not have been 
 
         made in the state of Iowa.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously cited, 
 
         the following conclusions of law are made.
 
         
 
              1.  The Iowa Workers' Compensation Act cannot be applied to 
 
         the injury to claimant in Ohio thereby entitling him to workers' 
 
         compensation benefits in Iowa.
 
         
 
              2.  Claimant has failed to establish by a greater weight of 
 
         evidence that the industrial commissioner has subject matter 
 
         jurisdiction of the injury pursuant to Iowa Code section 85.71.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from these proceedings.
 

 
         
 
         
 
         
 
         SMITH V. AMERICAN FREIGHT SYSTEMS, INC.
 
         PAGE   9
 
         
 
         
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule .343-4.33.
 
         
 
         
 
              Signed and filed this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 N. Adams
 
         P.O. Box 679
 
         Mason City, IA 50401
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg
 
         Des Moines, IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2300
 
                                                 Filed October 24, 1988
 
                                                 Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN G. SMITH,
 
         
 
              Claimant,
 
                                                File No. 844416
 
         vs.
 
                                             A R B I T R A T I O N
 
         AMERICAN FREIGHT SYSTEMS, INC.
 
                                                D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2300
 
         
 
              Claimant, an Iowa resident, was injured in Cincinnati, Ohio. 
 
          Claimant failed to establish that either 85.71(1) or (2) were 
 
         applicable to his employment and therefore concluded no subject 
 
         matter jurisdiction over his injury.
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                               .
 
                                                               
 
                                                               
 
        SCOTT REED BEATTY,
 
        
 
            Claimant,
 
                                                File No. 844418
 
        vs.
 
                                             A R B I T R A T I O N
 
        TERRELL, INC.,
 
                                                D E C I S I O N
 
            Employer,
 
        
 
        and                                        F I L E D
 
        
 
        ALLIED GROUP,                             FEB 1 1989
 
        
 
            Insurance Carrier,          IOWA INDUSTRIAL COMMISSIONER
 
            Defendant.
 
        
 
        
 
        
 
                                      INTRODUCTION
 
             
 
             This is a proceeding in arbitration brought by Scott Reed 
 
             Beatty, claimant, against Terrell, Inc., employer, and Allied 
 
             Group, insurance carrier, defendants. The case was heard by the 
 
             undersigned in Cedar Rapids, Iowa on October 27, 1988.
 
             
 
             The record consists of the testimony of claimant. The 
 
             record also consists of joint exhibits 1 through 8. Defendants' 
 
             exhibits A and B were not admitted as they were not placed on 
 
             defendants' exhibit list and served upon claimant at least 15 
 
             days prior to the date of the hearing.
 
             
 
             The parties stipulate to the existence of an 
 
             employer-employee relationship between claimant and defendant at 
 
             the time of the alleged injury.
 
        
 
                                 ISSUES PRESENTED
 
             
 
             Pursuant to the prehearing report submitted and approved on 
 
             October 3, 1988, the issues presented are:
 
             
 
             l) Whether claimant received an injury which arose out of 
 
             and in the course of employment;
 
        
 
             2) Whether there is a causal relationship between the 
 
             alleged injury and the disability;
 
             
 
             3) Whether claimant is entitled to temporary 
 
             disability/healing period benefits or permanent partial or total 
 
             disability benefits;
 
        
 
             4) Whether claimant is entitled to medical benefits under 
 
             section 85.27; and,
 
             
 
             5) Whether claimant is entitled to benefits under section 
 
             86.13.
 

 
        
 
 
 
 
 
             
 
                                 FACTS PRESENTED
 
             
 
             Claimant commenced his employment with defendant on or about 
 
             April 12, 1986 and worked until May 1, 1986 when he was 
 
             temporarily laid off. Claimant returned to work on June 1, 1986 
 
             and continued working until October 31, 1986.
 
             
 
             Defendant was engaged in the business of laying fiber optic 
 
             cable. During the course of his employment, claimant was hired 
 
             as a general laborer. His duties were varied. Claimant's job 
 
             responsibilities included keeping the plow blade clean, digging, 
 
             moving equipment, locating cable, fixing lawns, raking and 
 
             leveling lawns. Also, claimant was required to unwind cable, dig 
 
             a hole, and run the cable through a hole onto another cable 
 
             wheel. This cable unwinding involved the use of a hydraulic motor 
 
             and pulling with either hand.
 
             
 
             Claimant testified he was employed on a full time basis and 
 
             that he worked 55 or 60 hours per week. Claimant reported he 
 
             worked three or four hours per day winding and unwinding the 
 
             cable.
 
                  
 
             At the hearing, claimant testified he experienced pain in 
 
             both elbows during the latter part of April of 1986. Claimant, 
 
             under direct-examination, stated he had more pain in his right 
 
             elbow. He also stated he would have problems during the night. 
 
             He would awaken almost every evening with numbness. Both elbows 
 
             would ache and there was a burning in his hand. Claimant would 
 
             run his hands under water to soothe them. Claimant also reported 
 
             that while he was on the three or four week temporary layoff, his 
 
             pain subsided.
 
             
 
             Claimant testified that in September and October of 1986, 
 
             his hands continued to hurt during the daytime hours. Claimant 
 
             was engaged in more raking during this time period. He was 
 
             working a two week rotation composed of 12 days of work and two 
 
             days of relaxation.
 
             
 
             Claimant testified he was terminated on the 31st of October, 
 
             1986, because he had not returned to his doctor as soon as 
 
             possible after tests had been conducted. Two weeks later 
 
             claimant was hired as a bagger at Randall's Foods for $3.35 per 
 
             hour. Claimant is still employed at Randall's where he is engaged 
 
             in lifting 40 to 90 pound boxes of meat, stocking shelves and 
 
             filling counters.
 
        
 
             Under cross-examination, claimant admitted that during the 
 
             first month of his employment with defendant, he was using a 
 
             spring loaded hand device to increase his hand strength. 
 
             Claimant also admitted he performed push-ups and sit-ups during 
 
             this time. He revealed he had been lifting weights since he was 
 
             13 or 14 years old. Claimant could not recall whether he had 
 
             ever told the son of the owner of defendant that he had 
 
             experienced a problem with his arm one year prior to that time.
 
             
 
             Claimant has had a carpal tunnel release performed on his 
 
             right hand on April 1, 1987. He returned to work on May 28, 
 
             1987. No surgery has been performed on the left hand.
 
                  
 
                                 APPLICABLE LAW
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
             
 

 
        
 
 
 
 
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on October 31, 1986 which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
             
 
             The injury must both arise out of and be in the course of 
 
             the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
             402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
             Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
             255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
             249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
             The 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 October 31, 1986 is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
             The opinions of experts need not be couched in definite, 
 
             positive or unequivocal language. Sondag v. Ferris Hardware, 220 
 
             N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an 
 
             incomplete history is not binding upon the commissioner, but must 
 
             be weighed together with the other disclosed facts and 
 
             circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The 
 
             expert medical evidence must be considered with all other 
 
             evidence introduced bearing on the causal connection between the 
 
             injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). In regard to medical testimony, the commissioner is 
 
             required to state the reasons on which testimony is accepted or 
 
             rejected. Sondag, 220 N.W.2d 903 (1974).
 
             
 
             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, 
 
             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).
 
             
 
             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.2nd 756, (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,    (1962).
 
                  
 
             When an aggravation occurs in the performance of an 
 
             employer's work and a causal connection is established, claimant 
 
             may recover to the extent of the impairment. Ziegler v. United 
 
             States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
             
 
             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 section 555(17)a.
 
                  
 
             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, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
             Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
             
 
             An employer takes an employee subject to any active or 
 
             dormant health impairments, and a work connected injury which 
 
             more than slightly aggravates the condition is considered to be a 
 
             personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
             (1960), and cases cited.
 
                  
 
             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 (1963); Yeager, 253 Iowa 369, 112 
 
             N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
             See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
             Almquist, 218 Iowa 724, 254 N.W. 35 (1934).
 
             
 
             The right of a worker to receive compensation for injuries 
 
             sustained which arose out of and in the course of employment is 
 
             statutory. The statute conferring this right can also fix the 
 
             amount of compensation to be paid for different specific 
 
             injuries, and the employee is not entitled to compensation except 
 
             as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 
 
             268 N.W. 598 (1936).
 
             
 
             An injury to a scheduled member may, because of after 
 
             effects (or compensatory change), result in permanent impairment 
 
             of the body as a whole. Such impairment may in turn form the 
 
             basis for a rating of industrial disability. Dailey v. Pooley 
 
             Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 
 
             272; 268 N.W. 598 (1936).
 
                  
 
             An injury to a scheduled member which, because of 
 
             aftereffects (or compensatory change), creates impairment to the 
 
             body as a whole entitles claimant to industrial disability. 
 
             Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
             (1961). Daily, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
             
 
             An injury is the producing cause; the disability, however, 
 
             is the result, and it is the result which is compensated. 
 
             Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 

 
        
 
 
 
 
 
             758, 10 N.W.2d 569 (1943).
 
        
 
                                      ANALYSIS
 
        
 
               Claimant has established by a preponderance of the 
 
             evidence that he has received injuries arising out of and in the 
 
             course of his employment. He testified he was required by 
 
             defendant to pull cable and to rake, both activities of a 
 
             repetitive     nature. Claimant reported he experienced 
 
             problems during the latter part of April of 1986, while he was 
 
             employed by defendant. He also testified when he was on 
 
             temporary layoff, his pain subsided. The problems increased as 
 
             the extent of his repetitive activities increased. Claimant's 
 
             last day at work was October 31, 1986. He was unable to work. 
 
             On November 1, 1986 medical attention was sought. This is the 
 
             injury date. McKeever Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
             1985).
 
             
 
             Next, claimant has established there is a causal 
 
             relationship between the alleged injury and the claimed 
 
             disability. Claimant testified about the problems he experienced 
 
             while he was employed by defendant. The problems exacerbated as 
 
             the length of claimant's employment increased.
 
             
 
             Additionally, there is medical testimony which supports a 
 
             causal connection between the alleged injuries and the claimed 
 
             disability. Arnold E. Delbridge, M.D., was hired by defendants 
 
             to examine and evaluate claimant. Dr. Delbridge writes in his 
 
             letter of August 15, 1987 to defendants' attorney:
 
        
 
             The first evidence in his records that there is [sic] 
 
             problems with his wrists and hands comes on a note dated 
 
             4-27-87 [sic]. I cannot read the doctor's name who signed 
 
             the note but it appears to be Doug Cullbaite, or something 
 
             close to that. At that time, according to the note, Mr. 
 
             Beatty was having numbness in his right arm, which comes and 
 
             goes, and occasionally in his left arm which goes away when 
 
             he works harder. There is no mention of his hands or 
 
             fingers in that note, but sometimes when evaluating a 
 
             patient a non-orthopedic or hand surgeon will refer to the 
 
             entire upper extremity as the arm. This was apparently 
 
             shortly after he started on the cable laying job. No date 
 
             of beginning is known by this examiner. The patient does 
 
             not remember exactly when he started the Terrell Inc. job.
 
        
 
               ...
 
        
 
             SUMMARY: According to his history the documents reviewed, 
 
             and his examination, there is little doubt that Mr. Beatty 
 
             has bilateral severe carpal tunnel syndromes. The question 
 
             is whether or not his work at Terrell Inc., precipitated the 
 
             problem. On one occasion in the history of apparently his 
 
             family physician, there is mention that there are symptoms 
 
             even eight months prior to July of 1986. The patient places 
 
             the onset of his symptoms as April of 1986, and there is 
 
             certainly evidence in the records that he went to see the 
 
             doctor about it at about that time.
 
        
 
             After-reviewing all the information, I concluded that Mr. 
 
             Beatty may have had some symptomatology prior to April 1986, 
 
             but that the symptomatology was not severe. His job at 
 
             Terrell caused the symptomatology to increase to the point 
 
             where he had to seek medical attention. It is likely, 
 
             therefore, that his bilateral carpal tunnel syndrome is 
 
             related to his work at Terrell. I would recommend that he 
 
             have the left carpal tunnel released. Considering that he 
 

 
        
 
 
 
 
 
             has good recovery on the right, there will probably be 
 
             little or no permanency as a result of the carpal tunnel 
 
             problem.
 
        
 
             The medical history set out in joint exhibit 7 corroborates 
 
             Dr. Delbridge's opinion. Joint exhibit 7 states in relevant 
 
             portion:
 
             
 
             Numbness in R arm. States comes it goes occasionally in L 
 
             arm. States goes away when working harder. But works in 
 
             heavy labor, laying cables used arms extensively....
 
                  
 
             Finally, there is the progress note of July 10, 1986 from 
 
             Walter J. Hales, M.D. Dr. Hales writes:
 
             
 
             Shovel a lot
 
             numbness middle ring and
 
             little fingers...
 
        
 
             Such a note buttresses not only claimant's testimony but 
 
             also the opinion of Dr. Delbridge.
 
             
 
             Claimant has established the requisite causal connection 
 
             between the injuries and the claimed disability.
 
             
 
             The third issue to address is whether claimant is entitled 
 
             to any benefits under the Iowa Workers' Compensation laws. 
 
             Claimant has not proven by a preponderance of the evidence that 
 
             he has any permanent impairment to his right hand subsequent to 
 
             the surgery which he received on April 1, 1987. Medical 
 
             testimony refutes any permanency.
 
             
 
             Dr. Hales, in his letter of May 12, 1987, writes:
 
                  
 
             Based on the severity of this young man's problems, I would 
 
             suspect that he would see return of feeling up to a year 
 
             from the time of the surgery. Since his surgery occurred in 
 
             November, I would recommend there is some question 
 
             concerning any permanent impairment present and that he be 
 
             reevaluated at approximately a year from his last surgery 
 
             and careful sensory testing, including moving two point 
 
             discrimination and vibrometer testing, be done to pick up 
 
             any losses of sensation that might be permanent.
 
             
 
             No such recommended tests were ever performed by Dr. Hales 
 
             in April or May of 1988.
 
             
 
             The opinion of Dr. Delbridge supports a finding of no 
 
             permanent impairment. Dr. Delbridge writes in his letter of 
 
             October 20, 1987:
 
                  
 
             Mr. Beatty's right wrist has been released and his symptoms 
 
             are largely resolved. Continued improvement can occur in-a 
 
             released carpal tunnel up to two years, but his right wrist 
 
             and hand is now recovered sufficiently to suggest that his 
 
             endpoint was achieved approximately three months after 
 
             surgery which would have been July 1, 1987. There is no 
 
             permanent impairment of the right upper extremity since a 
 
             good result from his carpal tunnel release is evident.
 
                       
 
             Since there is no evidence of permanency, claimant is not 
 
             entitled to any permanent partial disability benefits to a 
 
             scheduled member for his right wrist. Claimant, however, is 
 
             entitled to temporary total disability benefits for the period of 
 
             time when he was having surgery on his right wrist, and while he 
 
             was unable to work. The parties have stipulated this period is 
 

 
        
 
 
 
 
 
             from April 1, 1987 to May 20, 1987 and that the rate of 
 
             compensation is stipulated to be $150.00 per week.
 
             
 
             With respect to the left wrist, there is overwhelming 
 
             medical evidence that claimant is in need of surgery on his left 
 
             carpal tunnel. It is unknown whether the left carpal tunnel 
 
             release will result in any permanent partial impairment. It is 
 
             also unknown what the extent of temporary total disability 
 
             benefits or healing period benefits will be for the left wrist. 
 
             Consequently, these issues are reserved for a later period.
 
                  
 
             The next issue which is presented is the issue of medical 
 
             benefits under section 85.27. Claimant requests payment for 
 
             various expenditures. He also requests payment for future 
 
             medical expenses for his left wrist.
 
             
 
             Iowa Code section 85.27 provides that the claimant is 
 
             entitled to reasonable medical expenses for work related 
 
             injuries.
 
                  
 
        The parties have stipulated to the following:
 
        
 
             a) That the fees charged for the medical services or 
 
             supplies rendered are fair and reasonable;
 
             
 
             b) That the expenses incurred were for reasonable and 
 
             necessary medical treatment;
 
             
 
             c) That the medical expenses are causally connected to the 
 
             work injury;
 
             
 
             d) That the causal connection of the expenses to treatment 
 
             for a medical condition upon which claimant is basing his claim 
 
             is admitted.
 
             
 
             With respect to the right wrist, the employee has incurred 
 
             the following medical expenses:
 
        
 
                       Walter J. Hales, M.D.   $ 880.00
 
                       Mercy Hospital            165.65
 
                                  Total       $1,045.65
 
        
 
             Defendants maintain the expenses were not authorized. Such 
 
             a position is without merit since at all times defendants have 
 
             denied liability for claimant's injuries. Under section 85.27, 
 
             the medical treatment must be offered promptly and the treatment 
 
             must be reasonably suited to treat the injury. Here no medical 
 
             treatment was promptly offered by defendants.
 
             
 
             With respect to the expenses for medical treatment of the 
 
             left wrist, the defendants are responsible for all future 
 
             reasonable medical expenses. Defendants have the right to choose 
 
             the care under section 85.27.
 
                  
 
              The final issue to address is whether claimant is entitled 
 
             to benefits under section 86.13. This section provides in 
 
             relevant portion:
 
                  
 
             If a delay in commencement or termination of benefits occurs 
 
             without reasonable or probable cause or excuse, the 
 
             industrial commissioner shall award benefits in addition to 
 
             those benefits payable under this chapter, or chapter 85, 
 
             85A, or 85B, up to fifty percent of the amount of benefits 
 
             that were unreasonably delayed or denied.
 
        
 
             Under section 86.13 benefits are not awarded for medical 
 

 
        
 
 
 
 
 
             expenses. The section 86.13 benefits are only applicable to 
 
             weekly compensation benefits. Zahn v. Iowa State Men's 
 
             Reformatory, IV Iowa Industrial Commissioner Report 409 (1983).
 
             
 
             If it is alleged that an employer wrongfully withholds 
 
             weekly compensation benefits from a claimant, the claimant must 
 
             establish the benefits were withheld unreasonably in order for 
 
             the claimant to receive additional benefits under section 86.13. 
 
             Curtis v. Swift Independent Packing, IV Iowa Industrial 
 
             Commissioner Report 88 at 93 (1983). In a previous decision 
 
             before the Division of Industrial Services, a hearing deputy has 
 
             ruled that it was reasonable for an employer to withhold benefits 
 
             when the employer was not alerted to occurrences which would 
 
             notify a reasonable person that benefits would be due or when 
 
             there was no work time lost. McCormack v. Sunsprout, I-1 Iowa 
 
             Industrial Commissioner Decisions 142 at 144 (1984).
 
        
 
             In a separate decision before the Division of Industrial 
 
             Services, the same deputy industrial commissioner awarded 
 
             benefits under section 86.13. Here there was an unreasonable 
 
             delay since there were no contradictions in the claimant's claim. 
 
             Willis v. Ruan Transport Corporation, IV Iowa Industrial 
 
             Commissioner Report 395 at 396 (1984). In the Willis case at 396 
 
             the deputy wrote:
 
             
 
             ...Reports and letters from the doctor are consistent with 
 
             claimant's statements regarding his injury.
 
             
 
             There were no ambiguities and inconsistencies in claimant's 
 
             claim. Withholding benefits was arbitrary and unreasonable. 
 
             The five percent award based on Iowa Code section 86.13 will 
 
             be attached to healing period only. Although the evidence 
 
             presented clearly relates claimant's permanent impairment to 
 
             his injury, defendants will be given the benefit of the 
 
             doubt as to whether or not a failure to pay permanent 
 
             disability also was unreasonable. Claimant had prior back 
 
             troubles and conceivably some portion of his impairment 
 
             might have been related to those difficulties or to a 
 
             preexisting arthritis rather than to his injury.
 
             
 
             In the case at bar, it would not have been unreasonable for 
 
             defendants to withhold compensation benefits up until the date of 
 
             Dr. Delbridge's letter to defendants' attorneys. There were 
 
             issues dealing with whether the injuries arose out of and in the 
 
             course of claimant's employment. There were also issues whether 
 
             the injuries were causally related to the claimed disability. 
 
             However, once defendants learned their own medical expert 
 
             believed there was a causal connection between the work injuries 
 
             and the claimed disability, the defendants unreasonably withheld 
 
             compensation benefits. The defendants provided no excuse for the 
 
             denial. Therefore, claimant is entitled to benefits under 
 
             section 86.13 for 50 percent of the weekly benefits which were 
 
             unreasonably denied.
 
        
 
                       FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously stated, the following findings of 
 
             fact and conclusions of law are made:
 
             
 
             FINDING 1. Claimant sustained repetitive trauma injuries to 
 
             his right and left wrists as of October 31, 1986 which arose out 
 
             of and in the course of his employment.
 
             
 
             FINDING 2. Claimant had a right carpal tunnel release on 
 
             April 1, 1987 as a result of the injuries he sustained on October 
 

 
        
 
 
 
 
 
             31, 1986.
 
                  
 
             FINDING 3. Claimant was off work from April 1, 1987 to May 
 
             20, 1987 as a result of the injuries sustained on October 31, 
 
             1986.
 
             
 
             CONCLUSION A. As a result of the October 31, 1986 injury, 
 
             claimant has established by a preponderance of the evidence that 
 
             he is entitled to temporary total disability benefits at the rate 
 
             of $150.00 per week for eight weeks.
 
             
 
             FINDING 4. Claimant has carpal tunnel syndrome of the left 
 
             wrist as a result of the work related injuries he sustained on 
 
             October 31, 1986.
 
             
 
             CONCLUSION B. The extent of temporary or permanent 
 
             disability benefits, if any, are not yet ascertainable for 
 
             claimant's left wrist.
 
             
 
             FINDING 5. Claimant has incurred reasonable and necessary 
 
             medical expenses in the sum of $1,045.65.
 
             
 
             FINDING 6. Claimant is in need of future reasonable medical 
 
             expenses for his left wrist.
 
                  
 
             CONCLUSION C. Claimant is entitled to the reimbursement of 
 
             the following medical expenses:
 
                  
 
                       Walter J. Hales, M.D.  $ 880.00
 
                    Mercy Hospital           165.65
 
                                 Total     $1,045.65
 
        
 
            CONCLUSION D. Defendants are responsible for the payment of 
 
        future medical expenses which are reasonable.
 
        
 
             FINDING 7. Defendants unreasonably denied the commencement 
 
             of benefits without probable cause or excuse.
 
        
 
             CONCLUSION E. Claimant is entitled to benefits under 
 
             section 86.13 for the weeks where weekly compensation benefits 
 
             are due and at the rate of 50 percent of the stipulated weekly 
 
             rate of $150.00 per week.
 
                  
 
                                      ORDER
 
        
 
            THEREFORE, defendants are to pay unto claimant eight (8) 
 
        weeks of temporary total disability benefits at the stipulated 
 
        rate of one hundred fifty and no/100 dollars ($150.00) per week.
 
        
 
             Defendants are to pay unto claimant four (4) weeks of 
 
             section 86.13 benefits at the rate of one hundred fifty and 
 
             no/100 dollars ($150.00) per week.
 
             
 
             Defendants-are to reimburse claimant for the medical 
 
             expenses listed previously in the amount of one thousand 
 
             forty-five and 65/100 dollars ($1,045.65).
 
             
 
             Defendants shall be responsible for future medical expenses, 
 
             including reasonable surgery, which are reasonable and causally 
 
             related to the injuries.
 
             
 
             Issues dealing with future benefits, if any, are reserved 
 
             for a later date.
 
             
 
             Payments that have accrued shall be paid in a lump sum 
 
             together with statutory interest thereon pursuant to Iowa Code 
 

 
        
 
 
 
 
 
             section 85.30.
 
             
 
             Defendants shall file a claim activity report upon payment 
 
             of this award.
 
             
 
             Costs of this action are assessed against defendants 
 
             pursuant to Division of Industrial Services Rule 343-4.33.
 
             
 
             Signed and filed this 1st day of February, 1989.
 
                  
 
                  
 
                  
 
        
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Ms. Janice R. McCool
 
        Mr. C. Roderick Reynolds
 
        Attorneys at Law
 
        Ground Trans CTR, STE 320
 
        Cedar Rapids, IA 52401
 
        
 
        Mr. John M. Bickel
 
        Mr. Douglas R. Oelschlaeger
 
        Attorneys at Law
 
        500 MNB Bldg.
 
        P.O. Box 2107
 
        Cedar Rapids, IA 52406
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                          1100; 1801; 1802;
 
                                          1803; 2500
 
                                          Filed February 1, 1989
 
                                          MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        SCOTT REED BEATTY,
 
        
 
             Claimant,
 
                                               File No. 844418
 
        vs.
 
                                            A R B I T R A T I O N 
 
        TERRELL, INC.,
 
                                               D E C I S I O N
 
             Employer,
 
             
 
        and
 
        
 
        ALLIED GROUP,
 
        
 
             Insurance Carrier,
 
             Defendant.
 
             
 
             
 
             
 
        1100
 
        
 
             Claimant sustained injuries arising out of and in the course 
 
             of his employment.
 
        
 
        1801
 
        
 
             Claimant awarded temporary total disability benefits to the 
 
             right wrist as a result of an injury which arose out of and in 
 
             the course of his employment on October 31, 1986.
 
        
 
        1802; 1803
 
        
 
             The extent of temporary or permanent disability benefits, if 
 
             any, are not yet ascertainable.
 
        
 
        2500
 
        
 
             Claimant awarded medical benefits, including future medical 
 
             benefits, which are reasonable.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDNA HOCH,
 
         
 
              Claimant,
 
                                                   File No. 844438
 
         vs.
 
                                                     A P P E A L
 
         WESTVIEW CARE CENTER,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         BITUMINOUS INSURANCE COMPANY,               OCT 17 1989
 
         
 
              Insurance Carrier,                 INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
                                                      
 
                             STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on February 17, 1987.  The record on appeal consists of 
 
         the transcript of the arbitration proceeding and joint exhibits 1 
 
         through 7.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal as stated by defendants is:
 
         
 
                   Did the deputy err in determining that the claimant had 
 
              established by a preponderance of the evidence that she 
 
              sustained an injury arising out of and in the course of her 
 
              employment?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant was employed by defendant employer on February 
 
         17, 1987.
 
         
 
              2.  Claimant suffered an injury to her back while taking CPR 
 
         training on that date.
 
         
 
              3.  The CPR training occurred on the employer's premises, 
 
         with the employer's encouragement, and was for the mutual benefit 
 
         of claimant and employer.
 
         
 
              4.  Claimant's injury followed as a natural incident of her 
 
         work.
 
         
 
              5.  Claimant's injury caused temporary total disability of 
 
         ten weeks, six days.
 
         
 
              6.  Claimant accrued reasonable and necessary medical 
 
         expenses as set forth in joint exhibit 3 totalling $1,087.00.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant suffered an injury that arose out of her 
 
              employment.
 
         
 
              Claimant's injury occurred in the course of her employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant ten point eight five seven 
 
         (10.857) weeks of temporary total disability at the rate of one 
 
         hundred forty-three and 25/100 dollars ($143.25) per week in the 
 
         total amount of one thousand five hundred fifty-five and 27/100 
 
         dollars ($1,555.27).
 
         
 
              That defendants pay medical expenses as set forth in joint 
 
         exhibit 3 in the total sum of one thousand eighty-seven and 
 
         00/100 dollars ($1,087.00).
 
         
 
              That defendants pay this amount in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 17th day of October, 1989.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Mr. Thomas Drew
 
         Attorneys at Law
 
         West Towers Office Complex
 
         1200 35th St., Ste. 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. John E. Swanson
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1101 - 1102 - 1106
 
                                            Filed October 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDNA HOCH,
 
         
 
              Claimant,
 
                                                File No. 844438 
 
         vs.
 
         
 
         WESTVIEW CARE CENTER,                     A P P E A L
 
              
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1101, 1102, 1106
 
         
 
              Claimant's back injury while engaging in CPR class held to 
 
         be in the course of employment.  Claimant worked at a nursing 
 
         home. The class was set up by employees, who asked for and 
 
         received permission to hold the class on the employer's premises.  
 
         Benefit to employer of having employees trained in CPR in a 
 
         business with a high degree of need for such training, dealing 
 
         with elderly patients subject to heart attacks and choking, was 
 
         noted.  (short form affirmance)
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIA A. ANDRESEN,
 
         
 
              Claimant,                            File Nos. 844448
 
                                                             844449
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         WILSON FOODS CORPORATION,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This action was brought as an arbitration proceeding by 
 
         Julia A. Andresen, claimant, against Wilson Foods Corporation, 
 
         employer and self-insured defendant, for benefits as the result 
 
         of an alleged injury which occurred on September 24, 1986, when 
 
         claimant slipped on some fat, fell to the floor and injured her 
 
         lower back (file no. 844448) and an alleged injury which occurred 
 
         on July 1, 1986, for tendinitis to the left hand and wrist due to 
 
         repetitive work (file no. 844449).  A hearing was held at Storm 
 
         Lake, Iowa, on November 3, 1988.  No witnesses testified and no 
 
         exhibits were introduced for the reason that both cases were 
 
         disposed of on procedural grounds.  Witnesses were, however, in 
 
         the court room prepared to testify.
 
         
 
                           DECISION ON FILE NO. 844448
 
         
 
              The original notice and petition is dated April 17, 1987.  
 
         It was filed with the industrial commissioner on April 20, 1987. 
 
          It alleged an injury date of on or about May 15, 1986.  Claimant 
 
         then made an application during discovery to amend the original 
 
         petition to show an injury date of September 24, 1986.  This 
 
         application to amend petition was filed with the industrial 
 
         commissioner on December 11, 1987.  Defendant did not resist the 
 
         application to amend, but rather filed an answer to the 
 
         application to amend on December 14, 1987.  The answer to the 
 
         application to amend stated that defendant denies any knowledge 
 
         of an injury to the employee on September 24, 1986, and further 
 
         denies that there was any injury on September 24, 1986.
 
         
 
              At the opening of the hearing on these two injuries in Storm 
 
         Lake, claimant moved to amend the original notice and petition on 
 
         file no. 844448 to show an injury date of September 24, 1985.  
 
         Defendant objected to the motion.  Defendant asserted that the 
 
         claimant's entire medical history was served on claimant in April 
 
         of 1987, as part of the discovery proceedings in this case.  
 
         Defendant then asserted that claimant moved to amend the original 
 
         notice and petition to show an injury date of September 24, 1986. 
 
          Claimant's application to amend the original petition was 
 
         granted as a matter of course pursuant to Division of Industrial 
 
         Services Rule 343-4.9(5).  Claimant asserted at the hearing in 
 
         Storm Lake, that the September 24, 1986, injury date was a 
 
         clerical error, which claimant first discovered on the date of 
 

 
         the hearing of November 3, 1988, while preparing to try to case.  
 
         Claimant asserted for the first time that the true injury date 
 
         was September 24, 1985, when the hearing commenced.
 
         
 
              Defendant asserted at the hearing that it was not prepared 
 
         to defend an injury that occurred on September 24, 1985.  
 
         Defendant was prepared to defend an injury of September 24, 
 
         1986, with a notice defense.  Iowa Code section 85.23 is 
 
         designated as one of the hearing issues on the hearing 
 
         assignment order.
 
         
 
              Claimant was asked if she could show that she served any 
 
         medical evidence on defendant prior to hearing which placed 
 
         defendant on notice that defendant either knew or should have 
 
         known that the intended injury date was September 24, 1985, 
 
         rather than September 24, 1986.  Claimant was not able to 
 
         produce any medical information served on defendant which 
 
         fairly placed defendant on notice that the intended injury date 
 
         was September 24, 1985.  In addition, defendants asserted that 
 
         claimant has sustained three, four or five injuries after 
 
         September 24, 1985, and that defendant could not reasonable 
 
         anticipate that claimant intended an injury date of September 
 
         24, 1985.
 
         
 
              In making his determination in this case, the deputy 
 
         considered Division of Industrial Services Rule 343-4.9(5), 
 
         Iowa Rules of Civil Procedure 88 and Lawyer and Higgs, Iowa 
 
         Workers' Compensation--Law and Practice, section 21-9 page 72, 
 
         all of which indicate that leave to amend should be liberally 
 
         granted.  Nevertheless, based upon the foregoing information 
 
         provided by counsel in this case that:  (1) all of claimant's 
 
         medical history was served on claimant in April of 1987, (2) 
 
         that claimant has sustained three, four or five injuries after 
 
         September 24, 1985, (3) that claimant could not show where any 
 

 
         
 
         
 
         
 
         ANDRESEN V. WILSON FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
         medical data was served on defendant which put defendant on 
 
         notice that defendant knew or should have known that claimant 
 
         intended an injury date of September 24, 1985, (4) that the 
 
         first knowledge that defendant had that claimant intended an 
 
         injury date of September 24, 1985, was at the time the hearing 
 
         began, and (5) that claimant first realized that both the 
 
         original petition and the amended petition were incorrect on 
 
         the date of the hearing, the deputy then determined that the 
 
         motion to amend the original notice and petition to show an 
 
         injury date of September 23, 1985 was denied.
 
         
 
              Claimant then moved to dismiss file no. 844448 without 
 
         prejudice.  Defendant had no objection to this motion.  The 
 
         motion was granted and claimant's original notice and petition 
 
         was dismissed without prejudice.
 
         
 
         SETTLEMENT ON FILE NO. 844449
 
         
 
              After the dismissal of file no. 844448, the parties then 
 
         discussed a settlement on file no. 844449.  The parties reached 
 
         an agreement for settlement on file no. 844449, which was 
 
         preliminarily approved by Industrial Commissioner David E. 
 
         Linquist on November 3, 1988.  File no. 844449 was then disposed 
 
         of due to the approved settlement of the case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              There are no findings of fact because there was no hearing 
 
         on the merits of either of these file numbers.  File no. 844448 
 
         was dismissed without prejudice and file no. 8444449 was approved 
 
         for settlement by the industrial commissioner.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the information provided by counsel 
 
         pursuant to claimant's motion to amend the petition to show an 
 
         injury date of September 24, 1985, this motion was denied.  
 
         Claimant then moved to dismiss the petition without prejudice and 
 
         this motion was granted and the petition on file no. 844448 was 
 
         dismissed without prejudice.
 
         
 
              Wherefore, the parties agreed to a settlement on file no. 
 
         844449, and the settlement was preliminarily approved by the 
 
         industrial commissioner on November 3, 1988, at the time of the 
 
         hearing, then this file number was disposed of by an approved 
 
         settlement of the case by the industrial commissioner.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 

 
         
 
         
 
         
 
         ANDRESEN V. WILSON FOODS CORPORATION
 
         PAGE   4
 
         
 
         
 
         
 
              That no amounts are due to claimant from defendant on file 
 
         no. 844448.
 
         
 
              That the parties submit settlement documents on file no. 
 
         844449 to the industrial commissioner pursuant to the agreed 
 
         terms for settlement.
 
         
 
              That the costs of this action, for file no. 844448 are 
 
         assessed against claimant and the costs for file no. 844449 are 
 
         charged to defendant pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 12th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        WALTER R. McMANUS, JR.
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City,  Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         233 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2906; 1302; 2907
 
                                                 Filed November 17, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIA A. ANDRESEN,
 
         
 
              Claimant,                         File Nos. 844448
 
                                                          844449
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,
 
                                                D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         
 
         2906
 
         
 
              Claimant moved to amend this petition at hearing to show a 
 
         different injury date.  Defendant asserted prejudice.  The motion 
 
         to amend was denied.  Claimant then moved to dismiss without 
 
         prejudice and the motion was granted.  The statute of limitations 
 
         had run as of the hearing date.
 
         
 
         1303
 
         
 
              The parties then agreed to settle the other remaining 
 
         scheduled member case.
 
         
 
         2907
 
         
 
              Costs in the first case assessed against claimant.  Costs in 
 
         the second case assessed against defendant.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARC G. STEWARD,
 
         
 
              Claimant,                            File No.  844497
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         WILSON FOODS CORPORATION                  D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marc G. 
 
         Steward, claimant, against Wilson Foods Corporation, employer, 
 
         and self-insured defendant, for benefits as a result of an 
 
         alleged injury which occurred on March 3, 1987. A hearing was 
 
         held in Storm Lake, Iowa, on November 1, 1988, and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Marc G. Steward, claimant and joint exhibits 
 
         1 through 16.   Both parties submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the time off work for which claimant now seeks 
 
         temporary total disability benefits is from March 20, 1987 to 
 
         July 20, 1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $219.22 per week.
 
         
 
              That the medical expenses are fair and reasonable.
 
         
 
              That the provider of medical services would testify that the 
 
         fees were reasonable and necessary treatment for the alleged work 
 
         injury and defendant is not offering contrary evidence.
 
         
 
              That defendant is entitled to a credit under Iowa Code 
 
         section 85.38(2), for $2,160 in sick pay benefits which were paid 
 
         pursuant to an employee nonoccupational group health plan prior 
 
         to hearing.
 
         
 
              That no workers' compensation benefits were paid prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   2
 
                             
 
                             
 
                             
 
                             PRELIMINARY MATTER
 
         
 
              Even though the hearing assignment order and prehearing 
 
         report state that causal connection and entitlement to permanent 
 
         disability benefits are issues in this case, nevertheless, 
 
         claimant stated at hearing, and the parties agreed, that claimant 
 
         was not seeking permanent disability benefits.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on March 3, 1987, which 
 
         arose out of and in the course of employment with employer, to 
 
         include whether claimant sustained an cumulative type of injury.
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant is 34 years old.  He started to work for employer 
 
         on June 4, 1979.  Prior to that he was in the army from 1973 
 
         until 1976, and drove a truck from 1976 to 1979.  Claimant denied 
 
         any prior accidents or illnesses involving his left foot.  
 
         Claimant's first job for employer was in the meat specialty 
 
         department.  When the kill floor was closed, claimant was 
 
         transferred to shanking hams in the pace boning department.  This 
 
         job required claimant to stand in one place all day long on a 
 
         hard plastic grating that was elevated four to five inches off of 
 
         the floor.  Claimant said that the plastic grating moved and 
 
         vibrated.  You could not see it, but you could feel it.  His job 
 
         required him to move his upper torso, but not his feet or legs.  
 
         He stated that he wore rubber boots to work.
 
         
 
              Claimant testified that after he performed this job for 
 
         approximately five weeks, he began to experience a sharp pain in 
 
         the bottom of his left foot, in approximately February of 1987.  
 
         Claimant related that he tried hot soaks at home.  He put insoles 
 
         in his boots.  Nevertheless, he continued to have trouble.  His 
 
         pain was just a pinch at first, but grew worse and became a sharp 
 
         pain.  Claimant denied that he was injured in sports or any other 
 
         activities outside of work that could have caused or aggravated 
 
         this problem.  Claimant testified that it first occurred at work.  
 
         After that, it occurred most frequently at work, but continued to 
 
         bother him after he got home.  Eventually, very sharp pains would 
 
         shoot up his leg into his body periodically.  Claimant said that 
 
         he reported this situation to the nurse station at work.  
 
         Claimant testified that he also reported it to his supervisors at 
 
         work.
 
         
 
              The plant nurse, Mary Kitterman, sent claimant to see Keith 
 
         O. Garner, M.D., the company physician, who prescribed 
 
         medication.  The pain got worse and Dr. Garner sent claimant to 
 
         physical therapy, but the physical therapist said that he was 
 
         unable to help claimant.  Dr. Garner then sent claimant to see 
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
         W.O. Carlson, M.D., an orthopedic surgeon in Sioux Falls, South 
 
         Dakota, on March 23, 1987 (Exhibits 9 and 13).
 
         
 
              Dr. Carlson ordered an EMG and it was determined on March 
 
         23, 1987, that claimant had a left tarsal tunnel syndrome with 
 
         entrapment of the posterior tibial nerve across the ankle (Ex. 
 
         10).  Dr. Carlson performed a surgical decompression on March 30, 
 
         1987 (Ex. 2).
 
         
 
              Claimant was off work from March 20, 1987 to July 20, 1987, 
 
         as per stipulation of the parties.  Claimant returned to work at 
 
         the same job on a different table standing on the hard plastic 
 
         grating.  Claimant said that he has not had any problem with his 
 
         right leg or foot.  He has had some continued problems with his 
 
         left leg, but nothing serious.
 
         
 
              Claimant testified that he incurred and personally paid the 
 
         medical expenses itemized in exhibit 16 in the amount of $687.15. 
 
          In addition, he testified that he made 11 trips to see Dr. 
 
         Carlson in Sioux Falls, South Dakota, and the round trip mileage 
 
         is 230 miles.  This results in total mileage claimed of 2,530 
 
         miles.
 
         
 
              Claimant further testified that his only claim is for 
 
         temporary disability benefits and medical expenses.  He stated 
 
         that he was not asserting a claim for permanent disability 
 
         benefits.
 
         
 
              Dr. Carlson wrote to Dr. Garner on March 24, 1987, as 
 
         follows:
 
         
 
              As we discussed, I obtained an EMG which documents the 
 
              fact that he does indeed have a left tarsal tunnel 
 
              syndrome.  We have recommended the patient have a 
 
              decompression of his left posterior tibialis nerve, and 
 
              we feel this should be done in the near future.
 
         
 
              He would like to proceed with this.
 
         
 
              It is difficult for us to say that this was caused by 
 
              his work, but certainly this can occur in most anyone.
 
         
 
         (Ex. 1)
 
         
 
              Dr. Carlson wrote to defendant's counsel on April 17, 1987, 
 
         in the following words:
 
         
 
              I can only say that standing on his left foot at work 
 
              for long periods of time certainly could aggravate or 
 
              accelerate a condition that may be pre-existing, such 
 
              as a tarsal tunnel syndrome.  It is impossible for 
 
              anyone to say that his work caused the tarsal tunnel 
 
              syndrome, but certainly it seems reasonable that 
 
              standing on cement as he does could indeed exacerbate 
 
              or aggravate his condition.
 
         
 
         (Ex. 4)
 
         
 
              Dr. Carlson alluded to causal connection on one other 
 
         occasion on September 29, 1987:  "Apparently, there is some 
 
         concern regarding whether or not this is caused from his job.  He 
 
         is considering re-education and is trying to find a job where he 
 
         doesn't have to stand.  We really have no further recommendations 
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   4
 
         
 
         
 
         for him at this time." (Ex. 8)
 
         
 
              Scott B. Neff, D.O., wrote a letter to Dr. Garner on June 
 
         15, 1987, and another letter on June 22, 1987.  Dr. Neff 
 
         explained that tarsal tunnel is similar to carpal tunnel 
 
         entrapment of the wrist.  In tarsal tunnel the posterior tibial 
 
         nerve becomes entrapped behind the ankle where the nerve goes 
 
         into the foot and divides into the medial, lateral and plantar 
 
         branches.  There are several ligaments and fascial bands that can 
 
         compress or entrap the nerve.
 
         
 
              He concluded as follows:
 
         
 
              The cause of tarsal tunnel are myriad.  This includes 
 
              peripheral neuropathy, diabetes, obesity, fallen 
 
              arches, flat feet, valgus heels, standing on hard 
 
              floors for prolonged period of time, jumping, and 
 
              exposure to vibration.
 
         
 
              I hope this answers your questions, and I wish there 
 
              were a simple answer for this syndrome.
 
         
 
         (Ex. 12)
 
         
 
                           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).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 3, 1987, which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 3, 1987, 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 
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   5
 
         
 
         
 
         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.
 
         
 
              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.2nd 756, 760-761 
 
         (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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury or a 
 
         cumulative injury which arose out of and in the course of his 
 
         employment with employer.  Dr. Neff listed several possible 
 
         causes for tarsal tunnel syndrome.  Standing on hard floors for 
 
         prolonged periods of time and exposure to vibration are two of 
 
         the possible causes of tarsal tunnel (Ex. 12).
 
         
 
              Claimant testified that he stood on a hard plastic grating 
 
         all day, every day at work.  He also testified that the grating 
 
         moved and vibrated.  He said that you could not see it, but that 
 
         you could feel it.  None of the doctors recorded that claimant 
 
         reported to them that the grating moved or vibrated.
 
         
 
              Be that as it may, Dr. Carlson, the treating physician, said 
 
         in his first report on March 24, 1987, that it is difficult to 
 
         say that this was caused by his work, but that it could occur to 
 
         almost anyone (Ex. 1).  On April 17, 1987, Dr. Carlson said that 
 
         it is impossible for anyone to say that claimant's work caused 
 
         the tarsal tunnel syndrome.  He did say that standing on his left 
 
         foot for long periods at work of standing on cement as he does 
 
         could exacerbate, aggravate or accelerate a preexisting condition 
 
         (Ex. 4).
 
         
 
              The fact that Dr. Carlson visited the plant and stated that 
 
         it was impossible for claimant to stand on plastic grating does 
 
         not mean that standing on plastic grating caused the injury (Ex. 
 
         5).  Dr. Carlson had several clear opportunities to establish a 
 
         causal connection of the employment to the injury and he did not 
 
         do so.  Dr. Carlson said it was impossible for anyone to say that 
 
         claimant's work caused the tarsal tunnel condition (Ex. 4).  Dr. 
 
         Carlson was not able to say that claimant's job of standing 
 
         probably caused or probably aggravated his tarsal tunnel 
 
         syndrome.  The question of causal connection is essentially 
 
         within the domain of expert testimony.  Bradshaw, 251 Iowa 375 
 
         101 N.W.2d 167.  The possibility of causal connection is 
 
         insufficient; a probability is necessary.  Burt, 246 Iowa 691 73 
 
         N.W.2d 732.  Dr. Garner did not express an opinion on whether 
 
         claimant's injury was or was not caused by his work.  As 
 
         defendant pointed out, claimant did return to work after the 
 
         surgery and performed the same job without problems.  Claimant 
 
         did not develop right tarsal tunnel syndrome from doing this 
 
         job.
 
         
 
              Claimant therefore, has not sustained the burden of proof by 
 
         a preponderance of the evidence that his tarsal tunnel syndrome 
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   6
 
         
 
         
 
         condition of March 3, 1987, was caused or aggravated by his 
 
         employment or was probably caused or probably aggravated by his 
 
         employment.  Therefore, claimant did not sustain the burden of 
 
         proof by a preponderance of the evidence that he sustained an 
 
         injury or cumulative injury which arose out of his employment.  
 
         Consequently, claimant is not entitled to temporary disability 
 
         benefits or his medical expenses.
 
         
 
              Claimant's counsel is correct in his brief by stating that 
 
         the case of Bittner v. Wilson Foods, file nos. 742180 and 757672, 
 
         filed November 25, 1987, does not stand for the proposition that 
 
         standing for a long period in the pursuit of ones occupation is 
 
         not a compensable injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That tarsal tunnel syndrome can be caused by standing on 
 
         hard floors for prolonged periods of time and exposure to 
 
         vibration.
 
         
 
              That claimant testified that he stood on a hard plastic 
 
         grating eight hours a day and that it moved and vibrated.
 
         
 
              That Dr. Carlson, the treating physician, testified that 
 
         standing for long periods of time and standing on cement could 
 

 
         
 
         
 
         
 
         STEWARD V. WILSON FOODS CORPORATION
 
         PAGE   7
 
         
 
         
 
         aggravate, exacerbate or accelerate a preexisting condition.
 
         
 
              That Dr. Carlson did not say that standing for long periods 
 
         of time, or standing on a hard surface, did cause or aggravate 
 
         claimant's tarsal tunnel syndrome.  Nor did he say that it 
 
         probably caused or aggravated the tarsal tunnel condition.
 
         
 
              That Dr. Carlson testified that it is impossible for anyone 
 
         to say that claimant's work caused his tarsal tunnel syndrome.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury or a 
 
         cumulative injury which arose out of or in the course of his 
 
         employment with employer.
 
         
 
              That claimant is not entitled to temporary disability 
 
         benefits.
 
         
 
              That claimant is not entitled to medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no money is due from defendant to claimant.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 29th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      WALTER R. McMANUS, JR.
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         233 Pine
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1106; 1108.50; 1402.20;
 
                                                  1402.30; 1402.40; 1801;
 
                                                  2209; 2501
 
                                                  Filed November 29, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARC G. STEWARD,
 
         
 
              Claimant,                            File No.  844497
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         WILSON FOODS CORPORATION                  D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.30; 14O2.40; 1801; 2209; 2501
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that his tarsal tunnel condition of 
 
         his left foot and ankle was caused or aggravated by his 
 
         employment or was probably caused or probably aggravated by his 
 
         employment of standing on hard plastic grating all day long.  The 
 
         treating physician and only physician said that it was impossible 
 
         for anyone to say that claimant's work caused his tarsal tunnel 
 
         syndrome.  Therefore, claimant did not prove an injury arising 
 
         out of his employment and was not awarded temporary total 
 
         disability benefits or medical benefits.  No claim was made for 
 
         permanent disability benefits.