before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LINDA DOLPH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 847583
 
            LAMONT LIMITED,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GREAT AMERICAN INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. George E. Wright
 
            Attorney at Law
 
            607 Eighth St.
 
            Fort Madison, Iowa 52627
 
            
 
            Mr. Jon K. Swanson
 
            Attorney at Law
 
            900 Des Moines Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 28, 1990
 
            LPW
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LINDA DOLPH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 847583
 
            LAMONT LIMITED,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GREAT AMERICAN INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 23, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA DOLPH,
 
         
 
              Claimant,                              File No. 847583
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         LAMONT LIMITED,                             D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       APR 23 1990
 
         GREAT AMERICAN INSURANCE
 
         COMPANY,                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Linda Dolph, 
 
         claimant, against Lamont Limited, employer (hereinafter referred 
 
         to as Lamont), and Great American Insurance Company, insurance 
 
         carrier, defendants, for workers' compensation benefits as a 
 
         result of an alleged injury on July 24, 1986.  On October 26, 
 
         1989, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
              
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  On July 24, 1986, claimant received an injury which 
 
         arose out of and in the course of employment with Lamont.
 
              
 
              2.  Temporary total disability and temporary partial 
 
         disability benefits have been paid to claimant through November 
 
         12, 1988.
 
              
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $126.46.
 
              
 
              4.  All requested medical benefits have been or will be paid 
 
         by defendants.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
              
 
               I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
              
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
              
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
              
 
              Claimant testified that she worked for Lamont from July 11, 
 
         1983 until her termination on January 5, 1988.  She stated that 
 
         she was a quality control inspector of wicker units at the time 
 
         of the injury.  Claimant said that this work required her to 
 
         stand, walk and bend and to perform this activity on cement 
 
         floors.  She said that it was not possible for her to sit in this 
 
         job. Claimant was terminated for the reason that she failed to 
 
         accept light duty work consistent with her disability.  Claimant 
 
         denies this.
 
              
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that on July 24, 1986, she fell over some 
 
         boxes and felt something pull in her back.  She said that she 
 
         began to experience severe back pain.  She said that she 
 
         continued to work that day and then went on a pre-scheduled 
 
         vacation.  She said that she had to cut this vacation short 
 
         because of difficulty with her back.  Upon her return from 
 
         vacation, she was referred to the company doctor.  Since that 
 
         time, claimant has been treated by numerous physicians.
 
              
 
              Claimant worked only a few weeks between the date of injury 
 
         and her termination at Lamont due to her chronic back problems. 
 
         Since the date of injury, claimant has received medical treatment 
 
         consisting of limitations on activity, medications for pain and 
 
         inflammation along with extensive physical therapy.  Linda Coats, 
 
         an LPT, has prepared an extensive functional capacity assessment 
 
         which generally found functional limitations in lifting, 
 
         kneeling, overhead reaching, climbing and stooping.  Coats found 
 
         no limitations in repeated bending, standing, walking or sitting. 
 
         Claimant testified that she could not perform such repeated 
 
         activities such as bending, standing, walking or sitting over a 
 
         full eight hour day.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant attempted a return to light duty work at Lamont on 
 
         a couple of occasions both before and after her termination.  
 
         This effort was unsuccessful.  On the last time, Marion Griffin, 
 
         Lamont's personnel manager, testified that claimant left work 
 
         without notifying any management official.  Griffin said that 
 
         claimant was told to report to them any problems she may have had 
 
         so they could deal with it.  Claimant testified that she was 
 
         unable to work due to pain and left at noon the following day.
 
              
 
              Most of the physicians involved in claimant's case have 
 
         expressed difficulty in arriving at a diagnosis for claimant's 
 
         back pain in that all tests performed have failed to reveal any 
 
         objective evidence of disease or disorder.  The diagnoses by 
 
         these physicians range from low back strain or low back syndrome 
 
         to degenerative disc disease.  One orthopedic surgeon, John 
 
         Sinning, M.D., has opined that he is unable to diagnose anything 
 
         or impose any restrictions on claimant's activity.  Dr. Sinning 
 
         would release claimant to perform any work she chooses.  The most 
 
         recent diagnosis by an orthopedic surgeon is from Keith Riggins, 
 
         M.D.  Dr. Riggins opines that claimant suffers from a 10 percent 
 
         permanent partial impairment due to "intervertebral disc disease 
 
         without herniation."  It must be noted that one of the physicians 
 
         discussed in their reports what role, if any, the work injury of 
 
         July 24, 1986 played in causing claimant's current difficulties. 
 
         Claimant testified that she had no back injuries before July 24, 
 
         1986.
 
              
 
              Claimant has attempted employment outside of Lamont as a 
 
         child care worker, sales clerk, switchboard operator and service 
 
         station cashier.  Claimant said that she left each of these jobs 
 
         for physical inability to perform work.  She had indicated on a 
 
         few occasions to a vocational counselor in this case that she 
 
         left a couple of these jobs for reasons other than physical 
 
         impairment. Since December 1988, claimant was worked part-time as 
 
         an Avon salesperson taking phone orders and delivering the orders 
 
         by automobile.
 
              
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury. Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974)  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
              
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
              
 
              In the case sub judice, claimant has not shown by a 
 
         preponderance of the evidence a causal connection between the 
 
         July 24, 1986 injury and her current back problems.  Admittedly, 
 
         claimant has testified that she suffered no prior back injuries. 
 
         However, this is the only evidence submitted to show causal 
 
         connection.  Not one physician in this case has opined that the 
 
         incident in July of 1986, is a possible cause of claimant's 
 
         current difficulties.  The exact nature of these difficulties is 
 
         still rather unclear according to the medical evidence.  The 
 
         primary diagnosis relied upon by claimant is that of Dr. Riggins. 
 
         Unfortunately, he did not discuss causation of the diagnosed 
 
         condition or the impairment rating.
 
              
 
              With reference to temporary total disability, again we find 
 
         a definite lack of medical opinion.  John T. Baldwin, D.O., 
 
         states that a maximum healing date is speculative.  Dr. Sinning 
 
         states that maximum healing probably occurred in December of 
 
         1987. According to the prehearing report, claimant started 
 
         working in various jobs in August of 1988.  Claimant continues to 
 
         work part-time at the present time.  Claimant's temporary total 
 
         disability period apparently ended in August 1988 when she 
 
         returned to work under Iowa Code section 85.33(1).  It was 
 
         stipulated that claimant was paid temporary total disability 
 
         benefits through November 12, 1988.  Claimant is not entitled to 
 
         further weekly benefits. Although she lost her claim, she 
 
         appeared sincere and will be awarded costs.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
              
 
              2.  The work injury of July 24, 1986, was a cause of an 
 
         extended period of disability from work from the date of injury 
 
         until August 31, 1988, at which time claimant returned to work. 
 
         During this time, claimant received extensive treatment of the 
 
         work injury consisting of various treatment modalities such as 
 
         limitations on activity, medications for pain and inflammation, 
 
         home exercises and supervised physical therapy.
 
              
 
              3.  Although claimant demonstrated that she is suffering 
 
         from permanent partial impairment due to chronic pain syndrome 
 
         and degenerative disc disease, she failed to show by a 
 
         preponderance of the evidence that this condition was caused, 
 
         lighted up or accelerated in any way by the July 24, 1986 injury.  
 
         Claimant offered no medical opinions to show that such was even 
 
         possible. Claimant only testified that she had no back injuries 
 
         before the work injury.  Extensive testing of claimant since 1986 
 
         has failed to reveal any objective evidence of disease or 
 
         disorder.
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant has not established by the preponderance of the 
 
         evidence entitlement to further weekly benefits for disability.
 
              
 
                                      ORDER
 
                                        
 
              1.  Claimant's petition is dismissed.
 
              
 
              2.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              
 
              Signed and filed this 23rd day of April, 1990.
 
              
 
              
 
              
 
              
 
              
 
              
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. George E. Wright
 
         Attorney at Law
 
         607 Eighth St.
 
         Fort Madison, IA  52627
 
         
 
         Mr. Jon K. Swanson
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         900 Des Moines Bldg.
 
         Des Moines, IA  50309
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed April 23, 1990
 
                                            LARRY P. WALSHIRE
 
                                       
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA DOLPH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 847583
 
         LAMONT LIMITED,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential
 
         
 
              Permanent disability benefits denied for lack of medical 
 
         evidence to support causation.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 23, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA DOLPH,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 847586
 
            LAMONT LIMITED,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY                       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Nonprecedential
 
            
 
                 Permanent disability benefits denied for lack of 
 
            medical evidence to support causation.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                   :
 
         KATHLEEN NELSON, spouse of    :
 
         ERNEST NELSON, Deceased Wage  :
 
         Earner,   :
 
                   :
 
              Claimant, :
 
                   :      File No. 847781
 
         vs.       :
 
                   :        A P P E A L
 
         JEFFERSON COUNTY, IOWA,  :
 
                   :      D E C I S I O N
 
              Employer, :
 
                   :
 
         and       :
 
                   :
 
         GREAT AMERICAN INSURANCE :
 
         COMPANIES,     :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         1, 1991 is affirmed and is adopted as the final agency action in 
 
         this case with the following additional analysis:
 
         Any prejudice to defendants stemming from the deputy's 
 
         pronouncement at the hearing is cured in this de novo review of 
 
         all the evidence in the record.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Myron L. Gookin
 
         Attorney at Law
 
         P.O. Box 30
 
         Fairfield, Iowa 52556
 
         
 
         Mr. Jon K. Swanson
 
         Mr. Lee H. Gaudineer
 
         Attorneys at Law
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         900 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed January 28, 1993
 
            Byron K. Orton
 
            JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            KATHLEEN NELSON, spouse of    :
 
            ERNEST NELSON, Deceased Wage  :
 
            Earner,   :
 
                      :
 
                 Claimant, :
 
                      :      File No. 847781
 
            vs.       :
 
                      :        A P P E A L
 
            JEFFERSON COUNTY, IOWA,  :
 
                      :      D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            GREAT AMERICAN INSURANCE :
 
            COMPANIES,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed May 1, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHLEEN NELSON, spouse of    :
 
            ERNEST NELSON, Deceased Wage  :
 
            Earner                        :
 
                                          :      File No. 847781
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      D E C I S I O N
 
                                          :
 
            JEFFERSON COUNTY, IOWA,       :            O N
 
                                          :
 
                 Employer,                :          D E A T H
 
                                          :
 
            and                           :       B E N E F I T S
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding for death benefits upon the 
 
            petition of Kathleen Nelson, spouse of Ernest Nelson, 
 
            deceased wage earner, filed on March 13, 1989.  The petition 
 
            alleges that Mr. Nelson's death arose out of and in the 
 
            course of his employment with defendant Jefferson County, 
 
            Iowa, on March 16, 1987, and seeks benefits under the Iowa 
 
            Workers' Compensation Act from that employer and its 
 
            insurance carrier, Great American Insurance Companies.
 
            
 
                 A hearing on the petition was held in Ottumwa, Iowa, on 
 
            April 19, 1991, before the undersigned deputy industrial 
 
            commissioner.  The record consists of joint exhibits 1-14; 
 
            defendants' exhibits 15 and 16; and the testimony of the 
 
            following witnesses:  Roy Lamansky, Dick Simmons, Harry 
 
            Gilbert, Robert Stump, Jackie Cook, Rich Kinseth, and 
 
            Kathleen Nelson.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on April 19, 1991, the following issues are 
 
            presented for resolution:  Whether decedent sustained an 
 
            injury causing death on March 16, 1987, arising out of and 
 
            in the course of his employment.
 
            
 
                 Defendants assert an affirmative defense that claimant 
 
            deviated for personal reasons while on a business trip 
 
            removing him from the course of employment and rendering his 
 
            death during the deviation not compensable; and decedent 
 
            willfully intended to injure himself and/or willfully 
 
            intended to injure another as set out in Iowa Code section 
 
            85.16(1).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Decedent, Ernest Nelson, was duly elected and employed 
 
            by Jefferson County, Iowa, as one of three county 
 
            supervisors in March 1987.  Roy Lamansky and Dick Simmons 
 
            were the other two supervisors.  Ernest Nelson was chairman 
 
            of the board.
 
            
 
                 Jefferson County owned its own county care facility 
 
            south of Fairfield, Iowa, near the rural Jefferson County 
 
            town of Libertyville.  As of February 1, 1987, the county 
 
            had contracted with Res Care, Inc., to manage the county 
 
            care facility.  However, in March 1987, the county, through 
 
            its supervisors, still exercised ultimate responsibility for 
 
            the care facility and its oversight.  It was a regular and 
 
            customary function of the county supervisors' employment to 
 
            drive to the care facility to oversee its operation.
 
            
 
                 Roy Lamansky and Dick Simmons testified that the county 
 
            had no particular policy regarding traveling to the care 
 
            facility.  There were several different routes to the 
 
            facility, all of which allowed the supervisors to examine 
 
            county roads and bridges along the way.  Some routes were 
 
            longer than others, but the longest route was not more than 
 
            a couple miles longer than the shortest route.
 
            
 
                 Mr. Harry Gilbert, manager of the county care facility, 
 
            testified that on Sunday, March 15, 1987, he had a telephone 
 
            conversation with Mr. Ernest Nelson and arrangements were 
 
            made for the supervisors to meet with Mr. Gilbert at the 
 
            care facility on the morning of Monday, March 16, 1987.
 
            
 
                 On the morning of March 16, 1987, all three supervisors 
 
            arrived at the Jefferson County Courthouse by approximately 
 
            8:00 a.m.  Mr. Nelson informed the other two supervisors of 
 
            the appointment at the care facility.  Connie Hedger 
 
            testified by way of deposition on April 3, 1991, that she 
 
            was working at the county treasurer's office on March 16, 
 
            1987, and, sometimes between 8:00 a.m. and 8:30 a.m., Mr. 
 
            Nelson presented to the office with a payroll check and 
 
            personal check for $793 which he used to pay his Spring real 
 
            estate taxes (Exhibit 5).  Afterwards, Mr. Nelson pulled his 
 
            vehicle up to the door of the courthouse for the trip to the 
 
            care facility.  Mr. Simmons sat in the front passenger seat 
 
            and Mr. Lamansky sat in the back seat.
 
            
 
                 Mr. Nelson headed west out of Fairfield on U.S. Highway 
 
            H34. Taking Highway 34 west to county road V64 south through 
 
            Libertyville was one of the common routes to the care 
 
            facility, although it was the longest.  As the supervisors 
 
            traveled west on Highway 34, Mr. Lamansky testified that he 
 
            inquired why they were taking that route.  Apparently, Mr. 
 
            Nelson responded to the effect that he wanted to stop at the 
 
            bank in Libertyville and that Pete always did this, ending 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            his comment with a chuckle.  The one bank in Libertyville is 
 
            directly on the route to the care facility.  Robert Stump, 
 
            president of Libertyville Savings Bank since 1960, testified 
 
            at the hearing that Mr. Nelson had no business dealing with 
 
            Libertyville Savings Bank and his only appearances at the 
 
            bank were to distribute campaign advertisements.  Mr. Nelson 
 
            had no accounts with the bank and never did personal 
 
            business there.
 
            
 
                 According to the other two supervisors, the car 
 
            proceeded west on Highway 34.  Both Lamansky and Simmons got 
 
            distracted and were watching some back hoe work on the right 
 
            side of the road.  Instantaneously, and without warning, the 
 
            Nelson car struck, left front to left front, an oncoming 
 
            Fairfield City dump truck driven by Mr. Jackie Cook.  Mr. 
 
            Cook testified that Mr. Nelson's car drifted across the 
 
            center line at normal speed and appeared to be about six 
 
            feet into the lane of traffic.  He stated that he first saw 
 
            the Nelson vehicle when it was coming over the hill but the 
 
            car had drifted substantially into his lane and he could not 
 
            avert hitting him.
 
            
 
                 The collision occurred several miles before 
 
            Libertyville, approximately half way between Fairfield and 
 
            Libertyville.  Mr. Rich Kinseth, Iowa state trooper, 
 
            testified that the accident investigation revealed that the 
 
            Nelson vehicle began to gradually drift across the center 
 
            line approximately 100 feet from the oncoming truck and was 
 
            two or three feet across the center line when the impact 
 
            occurred.
 
            
 
                 Kathleen Irene Nelson, widow of Ernest Nelson, decedent 
 
            herein, testified that Mr. Nelson was 67 years old at the 
 
            time of his death.  She stated that at the time of the 
 
            accident, decedent was healthy, happy and enjoyed his family 
 
            and professional life.  She stated that decedent handled all 
 
            of the financial matters but to the best of her knowledge, 
 
            other than a second mortgage on their house, they had no 
 
            other outstanding debts.  She stated that in 1982 when 
 
            decedent was defeated in a supervisor race by Dick Simmons, 
 
            he was disappointed that he lost the election but he got 
 
            other employment at the Jefferson County Law Center.  Mrs. 
 
            Nelson also testified that on the morning of March 16, 1987, 
 
            she had breakfast with her husband and noticed nothing 
 
            unusual about his behavior.  She corroborated prior 
 
            testimony that neither she nor decedent had business 
 
            dealings at the bank in Libertyville.  She stated that in 
 
            addition to his supervisor job, decedent drove cars for two 
 
            car companies and he was very careful about servicing his 
 
            own car regularly.  She admitted that decedent did not tell 
 
            her that Mr. Simmons had accused him of falsifying his 
 
            mileage claims to the county.
 
            
 
                                conclusions of law
 
            
 
                 Defendants argue that Mr. Ernest Nelson's death in an 
 
            auto accident on March 16, 1987 did not arise out of or in 
 
            the course of his employment as a Jefferson County 
 
            supervisor.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The burden of proof is on the claimant to prove by a 
 
            preponderance of evidence that the death arose out of and in 
 
            the course of employment.  Holmes v. Bruce Motor Freight, 
 
            Inc., 215 N.W.2d 296, 297 (Iowa 1974).
 
            
 
                 Death occurs in the course of employment when it is 
 
            within the period of employment at a place where the 
 
            employee reasonably may be performing his duties, and while 
 
            he is fulfilling those duties or engaged in doing something 
 
            incidental thereto.  McMullin v. Dept. of Revenue, 437 
 
            N.W.2d 596, 597 (Iowa App. 1989).
 
            
 
                 Iowa courts liberally construe the phrase "in the 
 
            course of employment."  Id.
 
            
 
                 If the work of the employee creates the necessity for 
 
            travel, he is in the course of his employment, even though 
 
            he is serving at the same time some personal purpose.  If, 
 
            however, the work has had no part in creating the necessity 
 
            for travel, if the journey would have progressed though the 
 
            employment purpose had b        the course of his employment he does some act which he deems 
 
            necessary for the benefit or interest of his employer.  
 
            Bushing v. Iowa Railway and Light, 226 N.W. 719 (Iowa 
 
            1929).
 
            
 
                 Whenever an employee leaves the line of duty, 
 
            compensation coverage ceases.  Walker v. Speeder Mach. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Corp., 240 N.W. 725 (1932).  However, to disqualify the 
 
            employee from compensation coverage, the departure from the 
 
            usual place of employment must amount to an abandonment of 
 
            the employment or be an act wholly foreign to the usual 
 
            work.  Crowe v. DeSoto Consolidated School District, 68 
 
            N.W.2d 63 (1955).  The mere fact that an employee happens to 
 
            be a short distance removed from the actual situation of his 
 
            work does not prevent recovery in a compensation 
 
            proceedings.  Bushing, supra.  If an employee deviates 
 
            sufficiently from the line of duty so that his actions are 
 
            foreign to the employer's line of work, injuries which occur 
 
            to the employee may be outside the course of employment.  
 
            Sheerin v. Holin Company, 380 N.W.2d 415 (Iowa 1986).  In 
 
            determining whether an employee was acting in the course of 
 
            his employer's business, the question of whether the 
 
            activity was to the benefit of the employer is a relevant 
 
            factor.  Briar Cliff College v. Campolo, 360 N.W.2d 91 (Iowa 
 
            1984).
 
 
 
                 Defendants also claim that Mr. Nelson's death was the 
 
            result of a willful intent to injure himself or others.
 
            
 
                 There is a strong presumption against suicide.  Reddick 
 
            v. Grand Union Tea Company, 296 N.W. 800 (1941); Schofield 
 
            v. White, 95 N.W.2d 40 (1959); Bill v. Farm Bureau Life 
 
            Insurance Co., 119 N.W.2d 768, 771 (Iowa 1963).
 
            
 
                 The burden is on the employer to prove by a 
 
            preponderance of the evidence that the death was willful and 
 
            intentional.  Reddick, at 118.
 
            
 
                 If facts surrounding death could be reconciled with any 
 
            reasonable theory of innocence or accidental cause, such 
 
            explanation would be adopted.  Id.
 
            
 
                 The presumption against suicide has the effect of 
 
            evidence.  Bill at 771.
 
            
 
                 While the presumption is not conclusive and may in 
 
            exceptional cases be overcome as a matter of law, this is 
 
            not ordinarily so.  Id.
 
            
 
                 As to whether Mr. Nelson's death arose out of and in 
 
            the course of employment with Jefferson County, Mr. Lamansky 
 
            and Mr. Simmons testified that on March 16, 1987, they were 
 
            going to Cedar Creek residential care facility just south of 
 
            Fairfield, Iowa, near the rural Jefferson County town of 
 
            Libertyville.  Unfortunately, the supervisors never reached 
 
            their destination nor did they ever reach Libertyville.  
 
            Even if they had reached Libertyville and Mr. Nelson had 
 
            intended to do business at the local bank, the bank is 
 
            physically located on the road that leads to the care 
 
            facility and, other than pulling into a roadside parking 
 
            space, there would have been no physical deviation, or only 
 
            a slight deviation, from the intended route to the care 
 
            facility.  Defendants contend that Mr. Nelson's off-handed 
 
            comment about doing business in Libertyville was, in fact, 
 
            his stated intention in taking the route that he did.  At 
 
            the time the remark was made, Mr. Nelson's mileage 
 
            statements were being questioned by Mr. Simmons.  It was 
 
            well known to both Mr. Nelson and Mr. Simmons that Mr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Harold "Pete" Pearce, a former county supervisor, had 
 
            oftentimes found some county business to do that would take 
 
            him through Libertyville where he would transact personal 
 
            business, all the while charging the county for his mileage.  
 
            Thus, Mr. Nelson's comment to the other supervisors on March 
 
            16, 1987, may well have been cynical and sarcastic, espe
 
            cially directed towards Mr. Simmons, who was actively 
 
            involved in Mr. Nelson's mileage claim dispute.  Obviously, 
 
            Mr. Nelson cannot now personally defend or clarify his 
 
            comments and their interpretation is left to the speculation 
 
            of others.
 
            
 
                 In any event, the route taken by Mr. Nelson to the 
 
            county care facility was one of four customary routes taken 
 
            by supervisors when visiting the facility.  In fact, both 
 
            supervisors testified that Mr. Pearce had routinely taken 
 
            this route when he was supervisor.
 
            
 
                 At the time of the accident, Mr. Nelson was conducting 
 
            county business and was in the course of his employment when 
 
            the collision occurred.  As noted above, the route taken, 
 
            although a little longer than other routes, was one of the 
 
            common routes taken by the supervisors to the care facility.  
 
            There is no indication from the evidence that Mr. Nelson 
 
            deviated sufficiently from his line of duty to put him 
 
            outside the course of employment.  Accordingly, the 
 
            undersigned concludes that Mr. Nelson's death in the car 
 
            accident on March 16, 1987 arose out of and in the course of 
 
            his employment as a Jefferson County supervisor.
 
            
 
                 Iowa Code section 85.16 states that no compensation 
 
            will be paid in the case of an "employee's willful intent to 
 
            injure himself or to willfully injure another."  Employers 
 
            have the burden of establishing this affirmative defense.
 
            
 
                 Mr. Simmons testified that he defeated Mr. Nelson in a 
 
            supervisor race in 1982.  He stated that on the night of the 
 
            election, Mr. Nelson appeared to be disappointed and upset.  
 
            However, he admitted that when Mr. Nelson returned to the 
 
            Board of Supervisors in 1985, upon the retirement of 
 
            Supervisor Harold Pearce, they served in harmony at least 
 
            until March 2, 1987.  Mr. Simmons intimated that Mr. Nelson 
 
            held a grudge against him because of the lost election in 
 
            1982 but he described their relationship on the board as 
 
            cooperative and congenial.
 
            
 
                 On March 2, 1987, Mr. Simmons accused Mr. Nelson of 
 
            filing false or "padded" mileage claims with the county for 
 
            his travel as a supervisor.  At the same meeting, Mr. 
 
            Simmons demanded that Mr. Nelson quietly resign or an 
 
            investigation would be commenced.  Mr. Lamansky testified 
 
            that he was also present at this meeting but did not involve 
 
            himself in the dispute.  Mr. Simmons testified that Mr. 
 
            Nelson admitted wrongdoing at this meeting.  However, Mr. 
 
            Lamansky did not remember Mr. Nelson making any admission of 
 
            wrongdoing.  After some argument between Mr. Simmons and Mr. 
 
            Nelson, the county attorney was called in and advised Mr. 
 
            Nelson to get an attorney.
 
            
 
                 Mr. Simmons testified that the March 2, 1987 meeting 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            was the only meeting between the supervisors regarding the 
 
            mileage claim matter and the last time they discussed it 
 
            with one another.  Mr. Nelson did, in fact, hire an attorney 
 
            and later, in a letter, denied any wrongdoing.  There were a 
 
            few meetings between Nelson's attorney, Simmons and Lamansky 
 
            and between the county attorney and Simmons and Lamansky.  
 
            Although some alternatives were discussed, and some 
 
            "deadlines" for resolution considered, nothing really 
 
            definite had been decided about the matter by March 16, 
 
            1987.  Otherwise, business went on as usual for the 
 
            supervisors between March 2 and 16, 1987.  They met with 
 
            each other in the same office and conducted business as 
 
            usual.  Mr. Nelson did not act any different toward Mr. 
 
            Simmons or Mr. Lamansky than he ever did.
 
            
 
                 Claimant contends there is insufficient evidence to 
 
            reasonably support the claim by defendants that the car 
 
            accident on March 16, 1987 was a willful and intentional act 
 
            by Mr. Nelson to kill himself or others.  Mr. Nelson was a 
 
            man in good health who enjoyed life.  His children and 
 
            grandchildren lived in the same community.  His finances 
 
            were in good order.  Mr. Simmons admitted at the hearing 
 
            that he had no proof whatsoever that the wreck was an 
 
            intentional act, and that he did not really know Mr. 
 
            Nelson's state of mind at the time of the incident.  He 
 
            based his accusation on a "feeling" and conjecture that 
 
            since he "caught Mr. Nelson's hand in the till," Mr. Nelson 
 
            was disgraced and could not face his family or the 
 
            community.
 
            
 
                 Individuals who encountered Mr. Nelson on the morning 
 
            of the accident found nothing unusual about his behavior.  
 
            One can only speculate as to Mr. Nelson's state of mind on 
 
            March 16, 1987. Defendants produced no evidence showing that 
 
            Mr. Nelson was either despondent or suicidal.  The manner in 
 
            which the accident occurred does not support a theory of 
 
            suicide.  The car gradually drifted across the center line 
 
            and the impact occurred approximately two or three feet 
 
            across the line.  If Mr. Nelson was trying to kill all the 
 
            occupants in his car he certainly picked a poor way to do it 
 
            and executed it in a poor manner.  It is just as probable 
 
            that Mr. Nelson, like Mr. Simmons and Mr. Lamansky, was 
 
            briefly distracted by the back hoe work along the right side 
 
            of the road, turned his head to look to the right and 
 
            unintentionally turned his steering wheel to the left, 
 
            drifting across the center line, and striking the truck.  
 
            The collision was instantaneous and Mr. Nelson probably had 
 
            no time to avoid the impact.
 
            
 
                 Accordingly, based on the total evidence in this case, 
 
            the undersigned concludes that Mr. Nelson's death was not 
 
            the result of a willful intention to injure himself or 
 
            others but was a spontaneous unpremeditated act.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Pursuant to Iowa Code section 85.31, defendants shall 
 
            pay to claimant, Kathleen Nelson, surviving spouse of Ernest 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Nelson, death benefits at the stipulated rate of one hundred 
 
            seventy-four and 93/100 dollars ($174.93) per week 
 
            commencing March 16, 1987.
 
            
 
                 Pursuant to Iowa Code section 85.65, defendants shall 
 
            pay to the Treasurer of the State of Iowa the appropriate 
 
            amount for the benefit of the Second Injury Fund of Iowa.
 
            
 
                 Defendants shall pay burial expenses pursuant to Iowa 
 
            Code section 85.28.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Myron L Gookin
 
            Attorney at Law
 
            1st Natl Bank Bldg
 
            P O Box 30
 
            Fairfield IA 52556
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr Jon K Swanson
 
            Mr Lee H Gaudineer
 
            Attorneys at Law
 
            900 Des Moines Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1602; 1805
 
                      Filed May 1, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHLEEN NELSON, spouse of    :
 
            ERNEST NELSON, Deceased Wage  :
 
            Earner                        :
 
                                          :      File No. 847781
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      D E C I S I O N
 
                                          :
 
            JEFFERSON COUNTY, IOWA,       :            O N
 
                                          :
 
                 Employer,                :          D E A T H
 
                                          :
 
            and                           :       B E N E F I T S
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1602; 1805
 
            In a proceeding for death benefits, decedent employee's 
 
            spouse, claimant, proved by a preponderance of the evidence, 
 
            that the vehicle accident which resulted in employee's 
 
            death, arose out of and in the course of his employment with 
 
            Jefferson County.  Defendants argued that decedent deviated 
 
            from his line of duty to put him outside the course of 
 
            employment.  To disqualify employee from compensation 
 
            coverage, the departure from the usual place of employment 
 
            must amount to abandonment of the employment or be an act 
 
            wholly foreign to the usual work.  Crowe v. DeSoto 
 
            Consolidated School District, 68 N.W.2d 63 (1955).  It was 
 
            found that at the time of the accident, decedent was on 
 
            county business and was in the course of his employment when 
 
            the accident occurred.
 
            Defendants raised the statutory defense of "willful intent 
 
            to injure himself or willfully injure another" under Iowa 
 
            Code section 85.16.  Insufficient evidence to reasonably 
 
            support defendants' contentions in view of the strong 
 
            presumption against suicide.  Reddick v. Grand Union Tea 
 
            Company, 296 N.W. 800 (1941).
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
         
 
                  
 
         
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
---------------------------------------------------------         
 
         
 
SANDY WEISHAAR,          
 
 
 
                         File Nos. 847903 916722 916723 
 
                                   916724 916725 916726 
 
                                   916727 916728 916729  
 
                                   916730 916731
 
         
 
     Claimant, 
 
         
 
vs.                          A R B I T R A T I O N
 
         
 
SNAP-ON TOOLS,                     A N D
 
         
 
     Employer,          R E V I E W - R E O P E N I N G
 
         
 
and                           D E C I S I O N
 
         
 
ROYAL INSURANCE,     
 
         
 
     Insurance Carrier,  
 
     
 
     Defendants.    
 
 
 
----------------------------------------------------------                  
 
         
 
                  
 
         
 

 
         
 
 
 
 
 
                    STATEMENT OF THE CASE
 
 
 
     This decision concerns ten proceedings in arbitration 
 
brought by the claimant against her former employer Snap-On 
 
Tools Corporation and its insurance carrier Royal Insurance 
 
Company.  Claimant seeks compensation for healing period, 
 
temporary partial disability and permanent partial 
 
disability.  The disputed issues included whether the 
 
claimant sustained injury which arose out of and in the 
 
course of employment.  The rate of compensation is an issue.  
 
There is also an issue with regard to whether these claims 
 
are barred by the doctrines of preclusion or res judicata.  
 
Claimant also seeks interest and costs.
 
         
 
     The hearing on the consolidated cases was conducted at 
 
Fort Dodge, Iowa on August 2, 1994.  The record consists of 
 
testimony from Michael Schadendorf, Cory Weishaar, Kathy 
 
Gremmer, Sandra Weishaar-Schadendorf, Lee Gunderson, and 
 
Steven Schaffer.  The record also contains claimant's 
 
exhibits A, B, C, D, and E.  Official notice was taken of 
 
the files having numbers 847903, 848681 and 848682, 
 
including the transcript of the hearing which was conducted 
 
on those files on March 21, 1989 and the exhibits received 
 
into evidence at that hearing.  
 
         
 
               ANALYSIS AND FINDINGS OF FACT
 
         
 
     One of the first issues which must be discussed is 
 
whether or not the claimant's claims are barred by the 
 
doctrines of res judicata/preclusion.  In making such an 
 
analysis it is essential that a close analysis be made of 
 
what issues were or were not fully litigated and adjudicated 
 
in the prior proceedings.  From reading the deputy 
 
industrial commissioner's arbitration decision and the 
 
         
 

 
         
 
 
 
 
 
 
 
subsequent appeal decision, it is clear that the deputy 
 
found that claimant had incurred bilateral carpal tunnel 
 
syndrome as a single cumulative trauma injury with a date of 
 
injury of September 3, 1985.  
 
 
 
     Claimant had alleged a right wrist injury of September 3, 
 
1985 and a left wrist injury of April 14, 1986.  Claimant 
 
had also alleged a shoulder or back injury with a date of 
 
April 29, 1986.  In the arbitration decision the deputy 
 
expressly found in finding of fact numbers 6 and 7 that 
 
claimant failed to prove that she received any work-related 
 
shoulder or back injury on April 29, 1986 and that her 
 
shoulder and back disability is not the result of her 
 
(alleged) injury on April 29, 1986.  In the Conclusions of 
 
Law the deputy stated "Claimant's [alleged] injury on April 
 
29, 1986 did not arise out of and in the course of her 
 
employment.  Claimant's alleged disability to her shoulders 
 
and back is not causally connected to her alleged injury on 
 
April 29, 1986."  As far as fixing the date of injury, the 
 
date of April 29, 1986 was apparently chosen because that is 
 
the first record in the medical reports of claimant having 
 
any shoulder or back complaints.  
 
         
 
     Claimant appealed to the commissioner from the deputy's 
 
arbitration decision.  The commissioner affirmed the 
 
arbitration decision.  At page 7 in the discussion, the 
 
appeal decision states, "The medical evidence does not 
 
support the conclusion that claimant's bilateral carpal 
 
tunnel syndrome has resulted in impairment to her shoulders 
 
or back."  The decision goes on to discuss the various 
 
impairment ratings from physicians.  At page 8, the 
 
following appears, "In addition, even if claimant had shown 
 
that her alleged shoulder and back pain was caused by her 
 
cumulative injury or as a sequelae of her injury, claimant 
 
         
 

 
         
 
 
 
 
 
 
 
at most has only shown that her shoulder and back conditions 
 
result in pain and discomfort.  There is no showing of 
 
impairment."  On page 12, the first full paragraph discusses 
 
claimant seeking healing period benefits for dates running 
 
from April 29, 1986 through June 25, 1988.  Claimant was 
 
barred from raising a claim for healing period benefits on 
 
appeal since they had not been sought at the time the 
 
arbitration hearing was conducted.  The ruling was that 
 
claimant had waived any possible claim for additional 
 
healing period benefits.  In the appeal decision, finding of 
 
fact number 7 states:  "Claimant experienced possible 
 
intervening causes of traumatic back or shoulder injury in 
 
November 1986; on January 28 or 29, 1987; and on January 15, 
 
1988.  The incidents on these dates are not the subject of 
 
the instant proceedings."  The second conclusion of law in 
 
the appeal decision states: "Claimant's back and shoulder 
 
condition did not result from her bilateral carpal tunnel 
 
injury."  
 
         
 
     It is clear that the deputy commissioner in the 
 
arbitration decision and the industrial commissioner in the 
 
appeal decision expressly stated that they realized that 
 
there was a possibility that the claimant had sustained 
 
injury to her shoulders on dates other than the date of 
 
April 29, 1986 and that they were not making any 
 
adjudication with regard to any of those other potential 
 
injuries or dates.
 
         
 
     Claimant petitioned for judicial review of the 
 
commissioner's appeal decision.  Claimant asserted that 
 
error had been committed when the deputy and commissioner 
 
failed to determine whether or not claimant had injured her 
 
back or her shoulders on dates other than April 29, 1986 
 
         
 

 
         
 
 
 
 
 
 
 
when those other occurrences of injury appeared in the 
 
record presented at the hearing.  The district court found 
 
that the commissioner had erred by failing to consider 
 
whether a work-related shoulder or back injury occurred at 
 
any time after April 29, 1986 and that the error was 
 
prejudicial since the commissioner's analysis of the 
 
permanent impairment and disability appeared to not consider 
 
these possible subsequent injuries which may have 
 
aggravated or contributed to the claimant's condition.  The 
 
case was remanded to the commissioner.  Claimant then 
 
appealed the decision of the district court to the court of 
 
appeals on other issues.  Defendants cross-appealed.  The 
 
court of appeals then adopted the defendants' argument that 
 
the commissioner's error was not prejudicial because the 
 
commissioner did consider medical evidence of events that 
 
had occurred after April 1986.  The court of appeals also 
 
affirmed the commissioner's ruling that the claimant's 
 
failure to raise the issue of additional healing period 
 
constituted a waiver.
 
         
 
     Affixing a date of occurrence or injury when dealing 
 
with a cumulative trauma or overuse type of condition is 
 
often quite difficult since these types of conditions are 
 
much more similar to occupational diseases than they are to 
 
an injury or injuries which result from a single trauma.  
 
The similarity lies in the fact that the condition can be 
 
known, identified and treated medically yet not progress to 
 
disability or disablement until a later time.  The injury 
 
continues to occur for so long as the individual continues 
 
to be exposed to the conditions which produce the injury.  A 
 
great deal of the confusion arises from the fifth paragraph 
 
of agency rule 343 IAC 4.6 which states in part, "A separate 
 
date of injury shall be alleged and a separate original 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
notice and petition shall be filed on account of each 
 
injury, gradual injury, occupational disease or occupational 
 
hearing loss alleged by an employee."  Interestingly, for 
 
occupational disease there is no date of injury.  The 
 
crucial dates are the date of last injurious exposure under 
 
section 85A.10 and the date of disablement under sections 
 
85A.4, .5 and .23.  Normally, it is incumbent in civil 
 
proceedings for the plaintiff or petitioner to bring but one 
 
action for all damages sustained as a result of a single 
 
event or occurrence.  Fragmentation of the claim is not 
 
permitted.  When dealing with a cumulative trauma or overuse 
 
condition, each and every day of exposure to the injurious 
 
activity contributes to the injury.  The condition can 
 
occur, be identified, be treated, show improvement, worsen, 
 
improve, worsen, improve, and continue in a like pattern 
 
indefinitely.  The condition may initially appear to not be 
 
permanently disabling yet eventually become permanently 
 
disabling.  Continued exposure to the injurious activity may 
 
be a factor in causing the condition to become permanently 
 
disabling.  
 
         
 
     One basic rule which must be followed when the 
 
beneficent purpose of the workers' compensation statues is 
 
considered, is that when an injury is inflicted upon an 
 
employee, the employee should be compensated.  Black v. 
 
Creston Auto Company, 225 Iowa 671, 678, 281 N.W.2d 189 
 
(1938).  The beneficent purpose is served when the 
 
compensation paid is commensurate with the loss that was 
 
actually sustained, nor more, no less.  
 
         
 
     The controlling precedents dealing with date of 
 
cumulative trauma injury are well known.  They are: Oscar 
 
Mayer Foods Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992); 
 
         
 

 
         
 
 
 
 
 
 
 
Venenga v. John Deere Component Works, 498 N.W.2d 422 
 
(Iowa Appellate 1993) and McKeever Custom Cabinets v. 
 
Smith, 379 N.W.2d 368 (Iowa 1985).  Agency cases have held 
 
that the degree of disability which can constitute a date of 
 
injury does not require abject helplessness or disability 
 
before the claimant can properly leave work on account of a 
 
cumulative injury and that other factors may be considered 
 
in determining a date.  Koehler v. Morrison, Lloyd and 
 
McConnel, file number 874140 (App. Decn. October 28, 1991)  
 
The agency has held that it is not necessary to leave work 
 
due to pain in order to have a cumulative trauma injury.  
 
Scheurmann v. Oscar Mayer Foods, file numbers 773553, 
 
872707 and 872708 (App. Decn. December 20, 1991)  The agency has 
 
also held that each manifestation or consequence in a 
 
cumulative injury process is not a separate injury.  
 
Slawson v. Humboldt Care Center South, file numbers 
 
1015026, 1015025, 1015024, 1015023, 950764, and 934958 (App. 
 
Decn. November 30, 1993)
 
         
 
    When reading the cases dealing with determining the 
 
date of injury in a cumulative trauma situation, there is 
 
normally a statute of limitation problem under section 
 
85.26.  The Tasler case confirms that there can be more 
 
than one proper date of injury which permits litigation in a 
 
cumulative injury process.  It is not always necessary to 
 
wait for disability in the sense contemplated in McKeever.  
 
The date that the injury manifests itself is referred to in 
 
Tasler and was used in Venenga.  That date is the date on 
 
which both the fact of the injury and the causal 
 
relationship of the injury to the employment would have 
 
become plainly apparent to a reasonable person.  There is 
 
also discussion in the decisions about when the injury 
 
         
 

 
         
 
 
 
 
 
 
 
becomes a "compensable workers' compensation injury."  In 
 
making an analysis it must be remembered that there is a 
 
close correlation between the discovery rule and the 
 
cumulative trauma injury rule.  Other established rules 
 
dealing with limitations of actions must also be considered, 
 
such as that the statutory period cannot run until events 
 
have developed to a point where the injured party is 
 
entitled to a remedy, not merely a symbolic judgment.  
 
Stoeller Fisheries, Inc. v. American Title Insurance 
 
Co., 258 N.W.2d 336 (1977)  When dealing with continuing 
 
injuries, the rule is that where resultant injuries are 
 
recurring, successive actions lie and the limitation period 
 
runs from the occurrence of each injury.  Anderson v. 
 
Yearous, 249 N.W.2d 855 (Iowa 1977)  This case is one in 
 
which the injury process continues and is recurring.  
 
Accordingly, the fact of the prior litigation does not bar a 
 
subsequent litigation that deals with the same cumulative 
 
trauma process or overuse condition.  
 
         
 
     When all the controlling cases and precedents are 
 
considered, several rules dealing with cumulative trauma 
 
injury seem to have evolved.  As in McKeever, the claimant 
 
is not barred if the claim is brought within two years from 
 
the date that the condition became disabling in the sense 
 
that it had an impact on the claimant's employment by 
 
causing the claimant to be unable to work or perhaps through 
 
some other quite notable and apparently permanent, 
 
detrimental change to the employment status.  This does not, 
 
however, mean that a claim cannot be brought earlier.  A 
 
claim could be brought for medical expenses incurred at the 
 
time medical care commenced if the employer had, for 
 
example, refused to pay the medical expense.  Bringing the 
 
claim at that time for the medical expense which had been 
 
         
 

 
         
 
 
 
 
 
 
 
incurred would not bar bringing additional or subsequent 
 
claims whenever some additional entitlement arises.  If 
 
those other entitlements had not accrued, they would not be 
 
ripe for adjudication and could not yet be determined.  For 
 
example, a person could bring a claim for an unpaid medical 
 
expense in 1988 and then subsequently bring another claim in 
 
1992 if the condition had evolved to the point that it 
 
required more medical care or produced a disability in the 
 
sense of inability to work.  The fact that a medical expense 
 
had been sought and either recovered or denied two years 
 
earlier would not bar a subsequent claim if exposure to the 
 
injurious activity continued and produced further symptoms 
 
or disability.  As in Venenga, the claimant was disabled 
 
and hospitalized yet that was not held to bar the later 
 
bringing of the claim when the condition evolved further.  
 
 
 
It merely barred recovery for that earlier period of 
 
hospitalization.  Under appropriate circumstances a third 
 
and perhaps several other 
 
claims could be subsequently brought so long as the 
 
injurious exposure continues.  If for some reason the 
 
employment situation ends, as in Tasler, a claim can be 
 
made at that time because that constitutes the last 
 
injurious exposure.  In other words, all the damage that is 
 
going to be inflicted through that cumulative injury process 
 
has occurred and the claim is then ripe.  
 
         
 
     At the time of the previous arbitration hearing in this 
 
case, claimant was in a lay off status.  Her last day of 
 
work had been December 29, 1988.  Using the rule from 
 
Tasler and applying the judicial review decisions from the 
 
earlier litigation in this case, it is apparent that all 
 
injury which had been caused by the cumulative injury 
 
process running up through December 29, 1988 should have 
 
         
 

 
         
 
 
 
 
 
 
 
been considered to be part of the case.  There are not 
 
multiple separate injuries, there is one injury process.  
 
         
 
     In this decision, it is appropriate to separate the 
 
carpal tunnel conditions from the shoulder conditions since 
 
the two do not appear to be related.  The shoulder condition 
 
appears to have arisen after treatment from the carpal 
 
tunnel syndrome had been essentially completed.  They are 
 
two separate cumulative injury processes under the facts of 
 
this case.  Such might not necessarily hold true in all 
 
cases.  
 
         
 
     What was adjudicated in the prior litigation between 
 
these parties was the claimant's entitlement to benefits 
 
which had accrued prior to the date that evidence completion 
 
was cut off preceding the arbitration hearing that was held 
 
on March 21, 1989.  In other words, all evidence which was 
 
available and properly admissible in the prior hearing is 
 
controlling for all benefits which were payable or had 
 
accrued at the time of the prior hearing.  Since the hearing 
 
was conducted on March 21, 1989, the claimant's entitlement 
 
to healing period compensation or temporary total or 
 
temporary partial disability compensation which had accrued 
 
prior to March 21, 1989 is barred from being reinvigorated 
 
in this proceeding by the doctrine of res judicata and 
 
preclusion.  All injury or dates of injury which precede 
 
March 21, 1989, (in this case December 29, 1988, since that 
 
was the last injurious exposure prior to the hearing), are 
 
merged into that prior hearing.  Accordingly, the injury 
 
dates alleged in files 916722, 916723, 916724, 916725, 
 
916726, 916727, 916728, 916729, and 916730 are barred by the 
 
prior adjudication.  Those files are to be dismissed because 
 
the claims made in them are barred by the former 
 
         
 

 
         
 
 
 
 
 
 
 
adjudication.  Only the claim in file number 916731 is to be 
 
determined in this decision.  
 
         
 
     In this decision the claimant's timely claim for weekly 
 
benefits, other than permanency benefits, as set forth in 
 
the claimant's contentions attached to the hearing report 
 
are for the periods of 9/22/89; 7/17/89 - 10/21/89; 
 
12/28/89; 1/7/90 - 1/8/90; 2/14/90 - 7/17/90; and 8/23/90 - 
 
8/25/90.  The claims for the earlier weekly benefits for 
 
temporary total, healing period, temporary partial 
 
disability are barred by the prior proceeding and 
 
adjudication.  
 
         
 
     Any claim for medical expenses incurred prior to the 
 
time of the prior hearing is barred by the former 
 
adjudication.  Any claim for permanent disability that 
 
existed at the time of the prior hearing is likewise barred 
 
by the former adjudication.  The former adjudication does 
 
not, however, bar any 
 
claim for healing period benefits, medical expenses incurred 
 
subsequently or any permanent disability that has 
 
subsequently developed.  As far as events subsequent to the 
 
prior hearing are concerned, the burden is upon the claimant 
 
to demonstrate that there has been some change as a result 
 
of the continued injurious exposure to cumulative trauma and 
 
that the claim currently made is not simply the same claim 
 
as that which was formerly adjudicated.  
 
         
 
     The legal precedents cited by claimant are found to be 
 
more persuasive than those cited by the defense when ruling 
 
upon the issue of what is barred by the former adjudication.  
 
It should be noted, however, that when dealing with an 
 
injury that is not a scheduled injury, in this case shoulder 
 
         
 

 
         
 
 
 
 
 
 
 
and back conditions, that the existence, or lack thereof of 
 
a permanent impairment that is ratable under any particular 
 
set of guides or standards is not controlling.  Compensation 
 
is awarded for industrial disability.  Industrial disability 
 
in the sense of loss of earning capacity cannot be found 
 
unless there is some permanent physiological disability or 
 
impairment.  It is recognized that there can be permanent 
 
physiologic physical disability or impairment which does not 
 
necessarily produce a numerical rating under established 
 
rating guides.  Activity restrictions and limitations upon 
 
use of parts of the body have a much stronger impact or 
 
effect upon industrial disability than a numerical 
 
impairment rating.  Impairment ratings do not cause people 
 
to be unable to perform in certain occupations.  Activity 
 
restrictions and loss of body functions do cause loss of 
 
ability to perform employment activities.  
 
         
 
     An important distinction exists regarding what 
 
constitutes an injury as opposed to a compensable injury.  
 
The evidence in this case clearly demonstrates that the 
 
claimant has experienced injury to her shoulders as a result 
 
of cumulative trauma and overuse resulting from the duties 
 
of her employment.  At the time of the prior hearing the 
 
rulings were that the injury was not compensable because no 
 
permanent disability had been shown to be associated with 
 
the alleged injury.  The distinction between compensable 
 
injury and merely having sustained trauma was very operative 
 
in those decisions even though it was not expressly 
 
discussed.  The deputy and commissioner erred by failing to 
 
consider traumas other than traumas of March 29, 1986, the 
 
date alleged in claimant's petition.  Their finding of fact 
 
that there was no permanent disability, however, was 
 
sustained through the judicial review process.  The real 
 
         
 

 
         
 
 
 
 
 
 
 
holding that was adjudicated was that the claimant had 
 
experienced trauma but that the injury was not compensable 
 
because it had not produced any permanent disability as of 
 
the time of the arbitration decision.  That adjudication is, 
 
of course, subject to change since further exposure to 
 
cumulative trauma has the potential for producing further 
 
injury which in turn can cause the injury to become 
 
permanent.  
 
         
 
     A review of the record in this case shows that little, 
 
if anything, is different now than it was at the time of the 
 
prior hearing.  There is no evidence from any physician 
 
which indicates that the claimant's physical condition has 
 
worsened or changed.  A functional capacity evaluation 
 
conducted on July 5, 1989 shows no substantial difference in 
 
activity restrictions from those which existed at the time 
 
of the previous hearing.  (Ex. A, pp. 73, 81 and 90)  
 
Claimant was laid off due to her restrictions at the time of 
 
the prior hearing and was again laid off due to those 
 
restrictions at the time of the recent hearing.  Her 
 
employment has been terminated 
 
because the restrictions prevented her from being recalled 
 
to work.  While the evidence in the record is certainly 
 
strong to indicate that claimant has permanent disability as 
 
a result of the condition of her shoulders, the evidence in 
 
the record of this case is substantially the same as the 
 
evidence that existed at the time of the prior hearing.  
 
Accordingly, the issue has been fully litigated and 
 
adjudicated.  The evidence fails to show that any disability 
 
was proximately caused by injurious exposures occurring 
 
since December 29, 1988.
 
         
 
                    CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
     The analysis when dealing with cumulative trauma or 
 
overuse syndrome conditions as far as res judicata or 
 
preclusion is concerned, is somewhat similar, though not 
 
identical, to a review-reopening proceeding.  A review-
 
reopening proceeding is based on a change of condition that 
 
occurs after an award or settlement, with the change being 
 
proximately caused by the original injury.  In a case 
 
dealing with cumulative trauma or overuse syndromes the 
 
prior adjudication is res judicata and preclusive.  It does 
 
not, of course, make the individual immune from being 
 
injured further in the future subsequent to the date of the 
 
prior adjudication.  When that occurs the burden falls upon 
 
the claimant to prove, by a preponderance of the evidence, 
 
that there has been injury arising out of and in the course 
 
of employment subsequent to the time of the former 
 
adjudication.  The claimant must show that the injury is a 
 
compensable injury, rather than merely exposure to trauma.  
 
Once the claimant has proven the occurrence of additional 
 
compensable injury, the matter then becomes one of 
 
apportionment.  Any permanent disability that existed at the 
 
time of the former adjudication is simply a preexisting 
 
condition that is subject to aggravation under the normal 
 
rules.  In the event that the claimant proves that the 
 
subsequent injury produced some degree of permanent 
 
disability the normal rules of apportionment are to be 
 
applied.  It is critical, however, that the claimant prove 
 
by a preponderance of the evidence that the subsequent 
 
injury produced some degree of permanent disability.  This 
 
requires the introduction of evidence of permanent 
 
disability that shows it to be something other than the 
 
disability which was alleged to exist at the time of the 
 
former adjudication.  
 
         
 

 
         
 
 
 
 
 
 
 
 
 
     It is concluded that the claimant has failed in this 
 
case to prove that she has any permanent disability that has 
 
been proximately caused by injury that occurred subsequent 
 
to the time of the former adjudication.  Accordingly, it is 
 
concluded that the defense of res judicata or preclusion 
 
applies to and bars the claim for permanent disability 
 
benefits.  
 
         
 
     The record of this case shows an entitlement to 
 
recovery for one day of healing period compensation for the 
 
date of September 22, 1989 when claimant was off work for 
 
testing that was associated with her carpal tunnel injury.  
 
(Ex. A, p. 92)  Claimant is entitled to recover one-sevenths 
 
week of healing period compensation for that date.  
 
         
 
    It is noted that claimant has sought weekly 
 
compensation benefits for the day of December 28, 1989.  The 
 
record does not show that she was actually off work on that 
 
date, however.  
 
         
 
     Claimant has sought weekly compensation benefits for 
 
the dates of January 7 and 8, 1990.  It appears as though 
 
claimant did sustain injury on those dates from an 
 
aggravation type of injury, the amount of time is only two 
 
days.  It appears to be part of the ongoing cumulative 
 
injury process.  (Ex. A, p. 95)  
 
         
 
     Claimant seeks benefits for the dates of August 23 
 
through 25, 1990.  This too is determined to constitute an 
 
aggravation type of injury.  It is all part of the ongoing 
 
cumulative injury process the same as the dates of January 7 
 
and 8, 1990.  When these three days are added to the two 
 
         
 

 
         
 
 
 
 
 
 
 
dates in January the provisions of section 85.33 show 
 
claimant to be entitled to two-sevenths weeks of 
 
compensation.
 
         
 
     File number 916731 alleges a date of injury of July 30, 
 
1990.  Claimant was laid off effective January 18, 1991.  
 
Under this record a correct date of injury would be January 
 
17, 1991, the date of the last injurious exposure.  Tasler, 
 
483 N.W.2d 824  Claimant is entitled to recover all weekly 
 
compensation due for events that have occurred during the 
 
two years preceding January 17, 1991 that accrued subsequent 
 
to those events which were determined, or which should have 
 
been determined had they not been waived, in the former 
 
adjudication.  
 
         
 
     Pleadings and procedural technicalities in workers' 
 
compensation actions are judged by a relaxed standard.  
 
Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369 
 
112 N.W.2d 299 (1961)  In this case it is clear that 
 
claimant has been seeking benefits for her cumulative injury 
 
process.  Defendants are not prejudiced by the interjection 
 
of the previous file into this proceeding for the purpose of 
 
paying benefits for the claimant's absence from work in 
 
order to obtain further treatment for that condition which 
 
was held to be compensable in the prior adjudication.  This 
 
action was brought well within the three-year limitation for 
 
review-reopening of such proceedings.  The failure to file a 
 
review-reopening petition under the facts of this case was 
 
not prejudicial to the employer and does not bar the claim.
 
         
 
      The date of injury alleged in file number 916731 is 
 
hereby amended from July 30, 1990 to January 17, 1991.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
 
 
     It is therefore concluded that claimant is entitled to 
 
recover one-sevenths week of healing period compensation in 
 
file number 847903 based upon the bilateral carpal tunnel 
 
syndrome injury of September 3, 1985.
 
         
 
     It is further concluded that claimant is entitled to 
 
recover two-sevenths weeks of compensation payable 
 
commencing August 24, 1990 in file number 916731 based upon 
 
an injury date of January 17, 1991.  
 
         
 
     The rate of compensation presents another issue in 
 
these cases.  Exhibit B at pages 52 through 54 show that 
 
claimant was earning $11.31 per hour on January 17, 1991.  
 
Prior to January 20, 1990 she had been earning $11.29 per 
 
hour.  It is determined that the rate should be computed 
 
under section 85.36(6).  Unrepresentative weeks should be 
 
excluded.  Weeks denoted as holiday, grievance pay and 
 
disability should be excluded.  The week including the date 
 
of injury should be excluded.  Accordingly, the dates to be 
 
used in determining the claimant's rate of compensation are 
 
the weeks ending January 12, 1991; December 22, 1990; 
 
October 20, 1990; October 13, 1990; October 6, 1990; 
 
September 29, 1990; 
 
September 22, 1990; September 15, 1990; September 1, 1990; 
 
August 18, 1990; August 11, 1990; August 4, 1990; and July 
 
21, 1990.  The weeks of September 15 and October 27, 1990 
 
are excluded as short, unrepresentative work weeks.  The 
 
total wages earned during those weeks is $4,777.93.  The 
 
gross average weekly wage therefore computes to $367.53.  
 
With claimant being married at the time of the date of 
 
injury and entitled to three exemptions, her rate of 
 
compensation is $239.06 per week.  
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
     Claimant seeks temporary partial disability benefits 
 
due to a restriction against overtime work during the 
 
periods of July 17, 1989 through October 21, 1989 and 
 
February 14, 1990 through July 17, 1990.  When the formula 
 
provided by section 85.33 is applied, it is apparent that 
 
the restriction against overtime did not cause claimant to 
 
have earnings at a level which when applied to the formula 
 
would give her any entitlement to compensation for temporary 
 
partial disability benefits.  While there are weeks where 
 
the amount of earnings would show an entitlement if applied 
 
to the formula, none of those weeks appear to be anything in 
 
which the restriction against overtime or restriction to 
 
working only eight hours per day produced the low level of 
 
income or earnings.  Temporary partial disability benefits 
 
are payable only when the injury and restriction which 
 
allows the employee to be employed is responsible for the 
 
reduced earnings, not when the reduced earnings occur as a 
 
result of things other than the restrictions.  
 
         
 
                       ORDER
 
         
 
     IT IS THEREFORE ORDERED:
 
         
 
     That defendants pay Sandra Weishaar-Schadendorf one-
 
sevenths (1/7) week of compensation for healing period at 
 
the previously established rate of two hundred seventeen and 
 
45/100 dollars ($217.45) per week payable as of September 
 
22, 1989.  This payment shall be shown under file number 
 
847903 with September 3, 1985 being the date of injury.
 
         
 
     It is further ordered that in file number 916731 that 
 
defendants pay claimant two-sevenths (2/7) weeks of 
 
compensation for temporary total disability at the rate of 
 
         
 

 
         
 
 
 
 
 
 
 
two hundred thirty-nine and 06/100 dollars ($239.06) payable 
 
commencing August 24, 1990.
 
         
 
     The weekly compensation benefits awarded herein are 
 
past due and owing and shall be paid to claimant in a lump 
 
sum together with interest pursuant to section 85.30.
 
         
 
     It is further ordered that file numbers 916722, 916723, 
 
916724, 916725, 916726, 916727, 916728, 916729, and 916730 
 
are dismissed.  They are barred by the former adjudication.  
 
Claimant shall receive no recovery in any of those files.
 
         
 
     It is further ordered that the costs in file number 
 
916731 are assessed against defendants.  Costs in the other 
 
proceedings which are dismissed are assessed against the 
 
claimant.  
 
         
 
     It is further ordered that defendants file claim 
 
activity reports as requested by this agency in accordance 
 
with the provisions of this decision.
 
         
 
     Signed and filed this __________ day of November, 1994.
 
         
 
                  
 
         
 
         
 
                               ______________________________
 
                               MICHAEL G. TRIER
 
                               DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
                  
 
         
 
Copies to:
 
         
 
Mr. Mark Soldat
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Attorney at Law
 
714 State St.
 
Algona, Iowa  50511
 
         
 
Mr. Paul Thune
 
Attorney at Law
 
PO Box 9130
 
Des Moines, Iowa  50306
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
         
 
                        1402.30 1403.30 1806 2206 2207 
 
                        2209 2905 2906 3001
 
                        Filed November 22, 1994
 
                        Michael G. Trier
 
         
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
------------------------------------------------------------         
 
SANDY WEISHAAR,               File Nos. 847903 916722 
 
                                        916723
 
                                        916724 916725 916726 
 
                                        916727 916728 916729 
 
                                        916730 916731
 
         
 
     Claimant, 
 
         
 
vs.                              A R B I T R A T I O N
 
         
 
SNAP-ON TOOLS,                           A N D
 
         
 
     Employer,               R E V I E W - R E O P E N I N G
 
         
 
and                                  D E C I S I O N
 
         
 
ROYAL INSURANCE,     
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
--------------------------------------------------------------         
 
1402.30 1403.30 1806 2206 2207 2209 2905 2906
 
         
 
In 1989 claimant had a hearing and was awarded weekly 
 
compensation benefits for bilateral carpal tunnel syndrome.  
 
She also claimed shoulder injury based upon a specific date.  
 
It was adjudicated at that time that claimant had failed to 
 
prove that she had a shoulder injury which arose out of and 
 
in the course of employment which resulted from injury on 
 
that specific date.  It was also adjudicated that she had 
 
no shoulder disability which was caused by her employment.  
 
On judicial review it was held that the commissioner erred 
 
by limiting the date of injury to the specific date shown on 
 
the petition but the commissioner was affirmed in the 
 
adjudication that the claimant had no permanent disability 
 
that was affecting her shoulders that was caused by the 
 
employment.  Claimant continued to work for the same 
 
employer.  Claimant continued to work with restrictions, 
 
albeit with restrictions due to the condition of her 
 
shoulders.  She filed ten new petitions asserting new dates 
 
of injury.  None of which were consistent with McKeever, 
 
Venenga or Tasler.  Defendants asserted res 
 
judicata/preclusion as a defense to the new petitions, all 
 
of which made claim for shoulder injuries.  
 
         
 
     It was held that when dealing with cumulative trauma or 
 
overuse conditions, that there is no specific date of injury 
 
which is necessarily correct to the exclusion of all other 
 
dates.  The date of receiving medical care can be a date of 
 
injury if claim is made for the cost of that care.  The date 
 
of disability in accordance with McKeever can be a 
 
         
 

 
         
 
 
 
 
 
 
 
permissible date of injury.  The date of last injurious 
 
exposure in accordance with Tasler can also be a proper 
 
date of injury.
 
         
 
     It was held that whenever claim is made in a cumulative 
 
trauma situation that all benefits accrued and payable must 
 
be sought in that claim or those benefits are waived and 
 
cannot be later claimed in a subsequent proceeding.  The 
 
evidence cutoff date for the hearing effectively establishes 
 
the date of the adjudication as far as subsequent claims or 
 
litigation is concerned.  If, after an adjudication, the 
 
employee continues to be exposed to the injurious cumulative 
 
trauma, further claim can be made for whatever benefits 
 
become due as a result of that further exposure.  Normal 
 
rules of burden of proof, aggravation of preexisting 
 
condition and apportionment of disability are to be applied.  
 
When there has been a prior adjudication and the employee 
 
seeks additional benefits, the employee must prove that the 
 
additional benefits being sought are a result of continued 
 
trauma experienced since the date of the former 
 
adjudication.  The employee's burden is similar, though not 
 
identical, to the burden of showing a change of condition in 
 
order to review-reopen.
 
         
 
     Cumulative trauma/overuse held to be a single injury 
 
process with a floating date of injury and not a collection 
 
of multiple injuries.  The carpal tunnel condition was held 
 
to be one injury process and one injury in the former 
 
adjudication.  The shoulder claim was held to be a separate 
 
injury process where the evidence showed the two not to be 
 
related in the sense that one produced the other.  The 
 
shoulder condition came on after the carpal tunnel syndrome 
 
condition had been treated.  
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
     The evidence of permanent disability relied upon by the 
 
claimant in this proceeding was the same evidence that was 
 
received in the former adjudication coupled with bringing 
 
the employment-related events up to the current time.  It 
 
was held that claimant had failed to prove that subsequent 
 
trauma had produced any disability other than that which had 
 
been alleged at the time of the former adjudication.  
 
Claimant was therefore not awarded any benefits for 
 
permanent disability of any degree.
 
         
 
     Claimant did seek benefits for times when she was taken 
 
off work due to her shoulder condition.  She was awarded 
 
some of those benefits.  Claimant was also awarded one day 
 
of healing period benefits based upon the former 
 
adjudication where she was taken off work for treatment of 
 
her carpal tunnel syndrome condition.  That file was not 
 
pled but the parties litigated the issue and an award was 
 
made based upon that other file number.  
 
         
 
     Of the ten dates of injury alleged by claimant, nine 
 
were dismissed.  The last date was changed to the date of 
 
the claimant's last injurious exposure in accordance with 
 
Tasler and the benefits awarded in this proceeding were 
 
awarded under that date of injury. 
 
         
 
3001
 
         
 
     Rate of compensation determined for all temporary total 
 
disability benefits awarded based upon the date of injury 
 
determined by the undersigned in accordance with Tasler, 
 
namely the last injurious exposure.
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORIS MARTINEZ,
 
          
 
               Claimant,
 
                                         File No. 847915
 
          VS.                                     847916
 
          
 
          BEST WESTERN REGENCY,
 
                                         A R B I T R A T I 0 N
 
               Employer,
 
                                           D E C I S I 0 N
 
          and
 
          
 
          MARYLAND CASUALTY CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Doris Martinez against Best Western Regency, employer, and 
 
         Maryland Casualty Co., insurance carrier, defendants, to recover 
 
         benefits as a result of alleged injuries sustained on January 10, 
 
         1987 and April 17, 1987.  This matter came on for hearing before 
 
         the deputy industrial commissioner in Sioux City, Iowa, on 
 
         February 5, 1990.  The record consists of the testimony of the 
 
         claimant, Librado (Lee) Martinez, claimant's husband, Pamela 
 
         Johnson, Amy Thompson, Susan Maynard; claimant's exhibits 1 
 
         through 28, and defendants' exhibits A through H.
 
         
 
              Claimant moved at the end of claimant's testimony in chief 
 
         to amend her petition, File.No. 847915, to insert the date of 
 
         January 10, 1987 in lieu of the date of January 10, 1986 
 
         regarding the injury date.  There was no objection made by 
 
         defendants and said motion to amend and the actual amendment was 
 
         allowed.
 
         
 
                                      ISSUES
 
         
 
              As set out in the prehearing report by both parties, the 
 
         following issues are presented for resolution for both injuries:
 
         
 
              1. Whether the alleged injuries arose out of and in the 
 
         course of claimant's employment;
 
         
 
              2. Whether claimant's alleged condition and disability is 
 
         causally connected to her injuries;
 
         
 
              3. The nature and extent of claimant's disability;
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 2
 
         
 
         
 
              4. Claimant's entitlement to Iowa Code section 85.27 
 
         benefits as to Horst G. Blume, M.D.;
 
         
 
              5. Claimant's entitlement to Iowa Code section 85.39 
 
         benefits as to Dr. Blume's examination and the reasonableness of 
 
         the cost of said examination.
 
         
 
              6. Whether claimant timely filed her action under Iowa Code 
 
         section 85.26; and
 
         
 
              7. Whether claimant gave timely notice of injuries under 
 
         Iowa Code section 85.23.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified at the hearing and by way of deposition 
 
         taken November 16, 1989.  Claimant stated she completed the 
 
         eighth grade and has trouble reading and spelling.  Claimant 
 
         described her work history as mainly performing minimum wage jobs 
 
         like, but not limited to, being a waitress, dishwasher, doing 
 
         some manufacturing work, being a hotel keeper and maid up to her 
 
         beginning work for defendant employer in 1985.
 
         
 
              Claimant denied any health problems or injuries prior to 
 
         working for defendant employer except for a hysterectomy and 
 
         heart attack in 1983, a diabetic diagnosis in 1982, and a 
 
         slipping on the floor in 1985.
 
         
 
              Claimant emphasized she had no back problems prior to 
 
         working for defendant employer in 1985.  She stated her job with 
 
         defendant employer involved making beds, dusting, vacuuming and 
 
         carrying linen.  Claimant said her title was Maid and Assistant 
 
         Housekeeper.
 
         
 
              Claimant said she hurt her ankle and knee in a stairway fall 
 
         in June of 1986 and received workers' compensation.
 
         
 
              Claimant stated she received her next injury in January 1987 
 
         during a period when defendant employer was remodeling.  Claimant 
 
         said the shower doors had been removed and were sitting in the 
 
         bathtub in a room that had been rented.  Claimant indicated she 
 
         attempted to remove the doors from the tub and twisted her back.  
 
         Claimant contends she told the manager but no papers were filled 
 
         out.
 
         
 
              Claimant stated she hurt her,.back Friday, April 17, 1987, 
 
         while she was packing and pushing laundry after being assigned to 
 
         the laundry room.  Claimant said she did not tell anyone at the 
 
         time, but went home and laid down.  Claimant said she became 
 
         worse over the weekend and was finally taken to the hospital that 
 
         Sunday night, April 19, 1987.  Claimant stated her husband called 
 
         defendant employer regarding the notice of her injury.  Claimant 
 
         emphasized she told defendant employer what had happened and 
 
         filled out papers regarding the injury with the assistance of her
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY 
 
         Page 3
 
         
 
         
 
         husband.  Claimant related she was released from the hospital 
 
         after approximately one week with restrictions of no bending or 
 
         lifting, and went to the Bingo games that evening at a local 
 
         church.
 
         
 
              Claimant testified she received a release from the doctor in 
 
         September 1987 and immediately thereafter obtained a job at Econo 
 
         Lodge Motel on September 18 or 19, 1987.  Claimant revealed that 
 
         a former boss who opened this new hotel looked her up and hired 
 
         her.  Claimant said she told this employer of her back condition.  
 
         Claimant stated no lifting was required but she did dusting, 
 
         vacuuming, the maid work, and inspected rooms.  She stated she 
 
         received $4.00 per hour.  Claimant acknowledged that she worked 
 
         regularly 30 to 32 hours per week at the Econo Lodge from 
 
         September 1987 until she first saw Dr. Blume in October 1988.
 
         
 
              Claimant acknowledged her attorney sent her to Dr. Blume in 
 
         October 1988 for an 85.39 evaluation.  Claimant related Dr. Blume 
 
         said she needed surgery at L4-L5 area.  Claimant said she had 
 
         surgery on October 24, 1988 and was at the hospital thirteen 
 
         days.  Claimant stated she has not worked since her surgery.  
 
         Claimant said she started to wear her back brace more frequently 
 
         when it got closer to October 1988.  Claimant indicated that the 
 
         discomfort was not only in her back but was becoming more 
 
         frequent in her legs.  Claimant contends she currently cannot 
 
         lift more than 15 pounds, cannot fish, garden or mow the lawn, 
 
         but can vacuum with pain.  Claimant revealed her back pain since 
 
         the surgery is less now than it was prior to the surgery and her 
 
         leg no longer gets numb.  Claimant indicated she may be able to 
 
         return to work in May of 1990.  She said the doctor has not 
 
         released her and she has an appointment with the doctor in May 
 
         1990.
 
         
 
              Claimant indicated there is a job available at the Econo 
 
         Lodge if she can make beds.  Claimant contends she was able to 
 
         make beds during her work from September 1987 to October 1988 as 
 
         there was no lifting,, because the sheets are fitted.  She said 
 
         she was responsible for eight to thirteen rooms.
 
         
 
              Librado (Lee) Martinez, claimant's husband, testified 
 
         claimant had no back problems prior to working for defendant 
 
         employer.  He indicated claimant started complaining after this 
 
         April 17, 1987 injury and he took her to the hospital on April 
 
         19, 1987.  He emphasized he called defendant employer from the 
 
         hospital and talked to the desk clerk, Amy, and told her claimant 
 
         could not come to work.  He related he and claimant took the 
 
         workers' compensation papers to defendant employer.  Mr. Martinez 
 
         said his wife cannot fish or do the housework like she used to 
 
         because her back bothers her so much.  He acknowledged the first 
 
         time claimant complained to him about her back was around April 
 
         17, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 4
 
         
 
         
 
              Pamela Johnson, a senior claims representative for 
 
         defendant' insurance company, testified claimant told her on May 
 
         26, 1987 that she injured her back lifting a mattress.
 
         
 
              Amy Thompson, general manager of Best Western Regency in 
 
         Sioux City since February 1987, testified she has been employed 
 
         by defendant employer beginning in 1985.  She testified the 
 
         remodeling began before 1985 and around January 1986 major 
 
         refurbishing was occurring.  She indicated all but 40 rooms were 
 
         completed by April 1986.  She acknowledged the shower doors were 
 
         being removed.  She said there were no other remodeling projects 
 
         involving removing shower doors in 1987.
 
         
 
              Johnson related defendant employer's policy of requiring 
 
         employees to report any injury and filling out a form even if it 
 
         involved a cut finger.  She acknowledged she has had custody of 
 
         the employees' records since 1986 and said there was no record of 
 
         a 1986 or 1987 incident involving claimant injuring her back 
 
         while lifting shower doors.  Thompson said claimant never 
 
         mentioned to her on May 5, 1987, when claimant requested a 
 
         workers' compensation form, that she incurred a pain while doing 
 
         the laundry.  She acknowledged that she and the insurance company 
 
         made the decision that there wasn't a workers' compensation 
 
         injury involved.
 
         
 
              Susan Maynard testified she has been the housekeeping 
 
         supervisor at Best Western since July 1985.  She acknowledged 
 
         that remodeling and refurnishing the rooms and removing the 
 
         shower doors occurred in January 1986 and not in January 1987.  
 
         She is familiar with claimant and recalled claimant playing Bingo 
 
         at St. Joseph's Church the evening right after claimant left the 
 
         hospital.  She said she saw claimant frequently at the church 
 
         Bingo night.  She testified she never saw the claimant wearing a 
 
         back brace after her 1987 injury until the end of the year.  She 
 
         related she and claimant began comparing notes in July 1988.  She 
 
         indicated Best Western did some things easier than Econo Lodge.  
 
         She stated claimant told her she was being run ragged by her new 
 
         employer, Econo Lodge.  She said claimant boasted to her that 
 
         claimant always had the best hall and that her hall was always 
 
         rented first.
 
         
 
              S. Shook, M.D., a family practitioner, testified by way of 
 
         deposition taken July 7, 1988.  Dr. Shook stated he saw claimant 
 
         the only time on April 20, 1987.  He indicated this visit was at 
 
         the hospital where claimant was complaining of severe right low 
 
         back pain.  He acknowledged he carefully took a history from the 
 
         claimant.  He related claimant told him the pains started at 8:00 
 
         a.m. on April 20, 1987, one hour after getting up, and seemed to 
 
         become worse during the day.  Dr. Shook said claimant told him 
 
         there was no known injury and that she had been off work for the 
 
         last three days and she did not think this had any bearing on it.  
 
         Dr. Shook emphasized that there was no evidence her problem was 
 
         related to her work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 5
 
         
 
         
 
              Horst G. Blume, M.D., testified by way of deposition taken 
 
         November 16, 1989 that claimant told him that she injured herself 
 
         on April 18, 1988 (later corrected to April 17, 1987) when 
 
         carrying some glass shower doors out of a motel room she was 
 
         cleaning.  He also stated claimant slipped down the stairs at 
 
         Best Western in 1986, but incurred no back injury.  There was 
 
         considerable interruption in the testimony from the doctor to 
 
         converse with his secretary and get better organized due to some 
 
         apparent inconsistencies in his testimony and records.  Dr. Blume 
 
         indicated the history he had from claimant was., in fact, taken 
 
         by his assistant, who is not a physician.  Dr. Blume was then 
 
         asked and answered as follows:
 
         
 
              Q.  Now in your opinion, Doctor, was there anything that 
 
              happened or was the event that happened in January of 186 
 
              involving the shower door in any way related to the 
 
              condition for which you treated Mrs. Martinez?
 
              
 
              A.  Yeah. Since I saw her the first time on 10/18, 1988 
 
              these three incidents occurred so far as the lifting of the 
 
              shower doors, the loading of the clothes-- clothes into the 
 
              washer as well as the situation in '86 when she slipped and 
 
              fell and so-- so I cannot-- and I do think that-- that-- 
 
              that they all have something to do with her back condition.
 
              
 
              Q.  And her back condition in October of 188 when you first 
 
              saw her was a ruptured disc; is that--
 
              
 
              A.  That is correct.
 
              
 
              Q. -- accurate?
 
              
 
              A.  At the time of the surgery we found an extruded ruptured 
 
              disc which means that the disc has pushed itself out-- out 
 
              of the disc space and was lying as a free fragment 
 
              underneath the nerves and was pushing against the nerve 
 
              structures which caused the pain in the back and the back 
 
              pain.
 
              
 
              Q.  And if all these events starting in January of '86 
 
              contributed to that condition that you found at surgery are 
 
              you saying that it started maybe in January of '86 and 
 
              progressively got worse up until the time that you did the 
 
              surgery?
 
              
 
              A.  This is a good probability.
 
         
 
         (Blume Deposition, Claimant's Exhibit 17, pages 13-14)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The doctor testified that he would not have let the claimant 
 
         go back to work in September 1987 if he knew then what he saw in 
 
         October 1988.  There were a number of questions and answers 
 
         concerning the inconsistencies of the history taken by Dr. Blume
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 6
 
         
 
         
 
         and other prior histories taken by other doctors or medical 
 
         personnel.
 
         
 
              Dr. Blume's notes on his interview with claimant on October 
 
         18, 1988 reflects the following:
 
         
 
                 She fell while working at Best Western in 1986 and this 
 
              was a case where she slipped while going down some steps and 
 
              she fell to her set [sic] with her foot under her.  Sprained 
 
              ankle but no back injury.
 
         
 
         (Cl. Ex. 12)
 
         
 
              This history further reflects:
 
         
 
                 On April 18, 1987 she was working for Best Western 
 
              Regency and there was work going on with remodeling.  She 
 
              was preparing a room because some guests were on their way 
 
              to the room from the office and the glass doors for the 
 
              shower were standing in the tub.'
 
         
 
         (Cl. Ex. 12)
 
         
 
              Dr. Blume's letter to claimant's attorney reflects the 
 
         following:
 
         
 
              On April 17, 1987, the patient was doing laundry and was in 
 
              the process of loading clothes into the washer and when she 
 
              stood up she experienced severe pain....
 
              
 
                 Her only other previous injuries occurred on January 10, 
 
              1986 when she hurt her back while lifting shower doors while 
 
              remodeling was going on at Best Western Regency but was not 
 
              seen by a doctor at that time because of no company 
 
              insurance.  On July 26, 1988 she fell on some stairs while 
 
              carrying linens and was seen by an ER doctor who diagnosed 
 
              her condition as left ankle sprain and left knee strain 
 
              medially.  She forget to mention the original accident which 
 
              occurred on January 10, 1986 when she hurt her back while 
 
              lifting shower doors.  She was under the presumption that 
 
              since we already had the information from partial disability 
 
              to the body as whole for sure....
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                 It is my opinion within reasonable medial [sic] 
 
              probability that,.the injury to the lumbar spine resulting 
 
              in a ruptured lumbar disc at L4-5 with lumbosacral nerve 
 
              root irritation and.compression signs, left, is the result 
 
              of the two work related accidents at Best Western Regency.
 
         
 
         (Cl. Ex. 13)
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 7
 
         
 
         
 
              On November 9, 1988, Dr. Blume's letter to claimant's 
 
         attorney reflects the following:
 
         
 
                 The above patient had lumbar disc surgery on October 24, 
 
              1988 for a ruptured lumbar disc at L4/5, centrally and left, 
 
              with extruded ruptured disk, left laterally.  The surgery 
 
              performed was removal of an extruded ruptured disc and 
 
              remaining disc, decompression of the nerve roots of L4 and 
 
              L5 at the level of L4/5 and interbody fusion L4/5 with bone 
 
              obtained from the right anterior iliac crest.
 
         
 
         (Cl. Ex. 18)
 
         
 
              On June 27, 1989, Dr. Blume wrote claimant's attorney and 
 
         opined:
 
         
 
                 It is my opinion within reasonable medical probability 
 
              that the patient has a permanent partial impairment to the 
 
              body as a whole of 20% as a result of the accident which 
 
              occurred on April 18, 1987 while working for Best Western 
 
              Regency, details of which can be found in the October 28, 
 
              1988 letter.
 
         
 
         (Cl. Ex. 16)
 
         
 
              Marian Health Center notes on April 21, 1987 by Kay Mohring, 
 
         L.P.T., reflects: "This woman comes in with low back pain which 
 
         came on suddenly yesterday without any cause that she could 
 
         remember." (Defendants' Exhibit C)
 
         
 
              The notes of D. M. Rhodes, M.D., dated May 7, 1987, reflect 
 
         in part: "Was in hospital with low back pain.  CT scan showed 
 
         bulging of the disk at L4." (Cl.  Ex. 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on January 10, 1987 and April 
 
         17, 1987 which arose out of and in the course of her employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v..Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at.pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 10, 1987 and April 17, 
 
         1987 are causally related to the disability on which she now
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY 
 
         Page 8
 
         
 
         
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony. 
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              Iowa Code section 85.23 provides:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
              dependent's behalf shall be give notice thereof to the 
 
              employer within ninety days from the date of the occurrence 
 
              of the injury, no compensation shall be allowed.
 
         
 
              Iowa Code subsection 85.26(l) provides:
 
         
 
                 An original proceeding for benefits under this chapter or 
 
              chapter 85A, 85B, or 86, shall not be maintained in any 
 
              contested case unless the proceeding is commenced within two 
 
              years from the date of the occurrence of the injury for 
 
              which benefits are claimed or, if weekly compensation 
 
              benefits are paid under section 86.13, within three years 
 
              from the date of the last payment of weekly compensation 
 
              benefits.
 
         
 
              Claimant is 54 years old and graduated from grade school 
 
         only.  Her work experience has been basically in nonskilled 
 
         minimum wage and slightly above minimum wage jobs.  Claimant 
 
         alleges two injuries, both involving her low back.  One alleged 
 
         injury on her original petition was January 10, 1986 and the 
 
         other was April 17, 1987.  The issues are identical for both 
 
         alleged injuries.  The oldest alleged injury will be considered 
 
         first.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At the end of claimant's testimony, claimant moved to amend 
 
         her petition to assert the date of January 10, 1987 in lieu of 
 
         January 10, 1986.  Claimant's petition for both injuries was 
 
         filed June 2, 1987.  Normally, an amendment made at that late 
 
         date is risky and subject to challenge by the opposing party.  
 
         Although amendments are liberally allowed,,the undersigned was 
 
         initially surprised it was not done sooner in the approximate two 
 
         and one-half years this case has been pending.  After hearing the 
 
         claimant's testimony and reviewing the exhibits, the undersigned 
 
         can more fully understand why claimant's attorney did not amend 
 
         the original petition until claimant testified.  Likewise, 
 
         defendants' attorney's action of not challenging the amendment 
 
         was more understandable after hearing testimony.  The undersigned
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 9
 
         
 
         
 
         wonders if claimant really knows what date she thought she was 
 
         injured at work, if she was injured at work at all.
 
         
 
              It is often hard to pick a date when the facts to support 
 
         the date are questionable.  Some of the medical evidence reflects 
 
         inconsistencies of the dates, in other words, whether the one 
 
         alleged injury occurred January 10, 1986 nor January 10, 1987.  
 
         It appears Dr. Blume., in his reports and testimony, as late as 
 
         November 16, 1987 indicates the doctor understands claimant was 
 
         injured in January 1986.  Of course, that is what claimant told 
 
         him.  By looking at some correspondence, it appears her attorney 
 
         believed that the alleged injury was incurred on January 10, 
 
         1986.  Claimant's petition was filed June 2, 1987, which is 
 
         approximately five months after a January 10, 1987 date and 
 
         approximately one and one-half years after the January 10, 1986 
 
         date.  You would think in June of 1987 claimant would have known 
 
         when, in fact, her first alleged injury occurred.  In searching 
 
         for a date, claimant tried to relate it to the time that 
 
         defendant employer was remodeling and refurbishing the motel 
 
         rooms and had placed the shower doors in the tubs of the 
 
         respective rooms.  The greater weight of evidence shows this was 
 
         January 10, 1986.  At the end of her testimony, claimant amended 
 
         her petition to conform to her testimony, namely, that the motel 
 
         was doing the remodeling and refurbishing in January of 1987; 
 
         therefore, it was in January 1987 that she was injured.  In 
 
         October 1988, claimant's attorney set up an appointment with Dr. 
 
         Blume.  Dr. Blume causally connected claimant's condition with 
 
         apparently two injuries, namely, January 10, 1986 and April 17, 
 
         1987.  His testimony and reports carry forth the same confusion 
 
         as claimant's recollection in this case.  In claimant's Exhibit 
 
         16, Dr. Blume rendered an opinion which gives an impairment to 
 
         claimant's body as a whole as a result of an accident that 
 
         occurred on April 18, 1987.  He obviously has not attributed an 
 
         impairment to any alleged injury whether it occurred on January 
 
         10, 1986 or January 10, 1987 even though he earlier indicated 
 
         that claimant's condition is a result of the two injuries 
 
         previously referred to; namely, January 10, 1986 and April 18, 
 
         1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned believes there is no need to further dwell 
 
         on the complete failure of the claimant to show she was injured 
 
         in January 1987.  The undersigned finds claimant's alleged injury 
 
         on January 10, 1987 did not arise out of and in the course of her 
 
         employment nor is there any causal connection between claimant's 
 
         low back condition and her alleged January 10, 1987 injury.  
 
         Likewise, there is no evidence that claimant gave defendant 
 
         employer notice of a January 10, 1986 injury or a January 10, 
 
         1987 injury, as required by Iowa Code section 85.23 except for 
 
         her statement that she had told the manager in January 1987.  
 
         Until claimant testified in court, she was still alleging a 
 
         January 10, 1986 injury.  The undersigned believes claimant is as 
 
         confused as to what she may or may not have done in January 1986 
 
         or January 1987 as she has been on other items.  Claimant does 
 
         not prevail on her January 10, 1987 alleged injury.  Discussion
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 10
 
         
 
         
 
         of any other issues as to that injury is moot and will not be 
 
         further discussed.
 
         
 
              Claimant alleges her condition from which she now suffers is 
 
         also the result of her April 17, 1987 injury.  The record shows a 
 
         lot of confusion on this alleged injury also.  Dr. Blume, 
 
         claimant's chosen doctor, stated in his report of October 18, 
 
         1988 that claimant's April 17, 1987 injury was a result of 
 
         claimant moving the shower doors from the tub.  It appears that 
 
         in most instances claimant is alleging she was moving, pulling 
 
         and pushing laundry when she hurt her back on April 17, 1987.  
 
         The medical reports also refer to claimant slipping and falling 
 
         down the stairs in July 1988.  It appears she injured her ankle 
 
         and knee in that fall.  There is also reference to a slip and 
 
         fall in 1986.  Whether the doctor or claimant is confusing this 
 
         with the 1988 injury is not clear.
 
         
 
              Claimant was released to work in September 1987 and obtained 
 
         a job immediately thereafter and worked until approximately 
 
         October 18, 1988, when she saw Dr. Blume.  Dr. Blume seems to 
 
         indicate he would not have advised claimant to work during this 
 
         September 1987 to October 1988 period with the condition he found 
 
         claimant in in October 1988.  Of course, Dr. Blume had a 
 
         confusing history from claimant and relied only on claimant's 
 
         allegations when he first saw her in October 1988.  A serious 
 
         question is raised as to how Dr. Blume can causally connect 
 
         claimant's condition with her injuries of January 10, 1986 and 
 
         April 17, 1987, or with a January 10, 1987 injury when the 
 
         claimant was, in fact, working for over a year and her troubles 
 
         became more severe after her July 1988 fall, which fall is not 
 
         the subject of this litigation and was during the time claimant 
 
         was working for another employer.  Dr. Blume's opinion, based on 
 
         the record in this case, lacks medical credibility and the 
 
         undersigned does not accept his opinions.  Claimant, herself, did 
 
         not know why she woke up the morning of April 20, 1987 and had a 
 
         pain in her back.  Claimant has the burden of proof.  The 
 
         undersigned believes it is not necessary to further set out the 
 
         facts in this analysis.  No matter how much one analyzes the 
 
         facts of this case, claimant has failed to sustain her burden.  
 
         The undersigned finds that claimant has failed to prove she 
 
         incurred a low back injury on April 17, 1987 or that there is any 
 
         causal connection between claimant's alleged condition and her 
 
         alleged injury on April 17, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As to whether claimant gave timely notice under Iowa Code 
 
         section, 85.23, the undersigned finds that in May 1987 the 
 
         claimant apparently requested some workers' compensation papers 
 
         of defendant employer even though defendants contend claimant 
 
         never mentioned anything about any specific injury.  The 
 
         undersigned finds as to notice, there was sufficient notice of an 
 
         alleged injury but that the claimant failed to prove the alleged 
 
         April 17, 1987 injury resulted in any of the physical conditions 
 
         from which she allegedly now suffers nor has suffered.
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 11
 
         
 
         
 
              This decision is in no way intended to make any indirect or 
 
         direct conclusion that claimant's current condition is the result 
 
         of a July 8, 1988 slip and fall incident.  That incident is 
 
         beyond any determination herein.
 
         
 
              Defendants raise an issue of untimely filing of claimant's 
 
         claims under the provisions of Iowa Code section 85.26.  The 
 
         undersigned is surprised that this was an issue in this case in 
 
         that it is obvious regardless of any originally alleged injury 
 
         date that these actions were timely filed.  Defendants' attention 
 
         is called to Rule 80.  The undersigned is not desirous of 
 
         disposing of spurious issues.
 
         
 
              All other issues as to both injuries are moot in light of 
 
         the above and will not be further disposed of herein.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Claimant failed to give timely notice under Iowa Code 
 
         section 85.23 of an alleged injury on January 10, 1987.
 
         
 
              2. Claimant failed to prove a work-related injury while 
 
         lifting shower doors from a tub on January 10, 1987.
 
         
 
              3. Claimant failed to show her low back condition and 
 
         resulting surgery was the result of her alleged January 10, 1987 
 
         injury.
 
         
 
              4. Claimant timely filed her petition regarding her January 
 
         10, 1987 injury, as provided by Iowa Code section 85.26.
 
         
 
              5. Claimant gave timely notice to the employer of her 
 
         alleged April 17, 1987 injury, as provided by Iowa Code section 
 
         85.23.
 
         
 
              6. Claimant failed to prove a work-related injury while 
 
         working with the laundry on April 17, 1987.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              7. Claimant failed to prove any kind of work-related injury 
 
         while working for defendant employer on April 17, 1987.
 
         
 
              8. Claimant failed to show her low back condition and 
 
         resulting surgery was causally connected to her alleged April 17, 
 
         1987 injury.
 
         
 
              9. Claimant timely filed her petition regarding her alleged 
 
         April 17, 1987 injury, as provided by Iowa Code section 85.26.
 
         
 
              10. Claimant slipped and fell on or around July 26, 1988 
 
         while in the employment of an employer other than defendant 
 
         employer.
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 12
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did not give timely notice of her January 10, 1987 
 
         injury, as provided under Iowa Code section 85.23.
 
         
 
              Claimant has failed to prove her January 10, 1987 injury 
 
         arose out of and in the course of her employment.
 
         
 
              Claimant has failed to prove her low back condition and 
 
         resulting surgery is causally connected to her alleged January 
 
         10, 1987 injury.
 
         
 
              Claimant timely filed her petition regarding her January 10, 
 
         1987 injury in accordance with Iowa Code section 85.26.
 
         
 
              Claimant gave timely notice of an alleged April 17, 1987 
 
         injury, as provided in Iowa Code section 85.23.
 
         
 
              Claimant has failed to prove her April 17, 1987 injury arose 
 
         out of and in the course of her employment.
 
         
 
              Claimant has failed to prove her low back condition and 
 
         resulting surgery is causally connected to her alleged April 17, 
 
         1987 injury.
 
         
 
              Claimant timely filed her petition regarding her alleged 
 
         April 17, 1987 injury in accordance with Iowa Code section 85.26.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant takes nothing from these proceedings involving File 
 
         No. 847915 and her January 10, 1987 alleged injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant takes nothing from these proceedings involving File 
 
         No. 847916 and her alleged April 17, 1987 injury.
 
         
 
              Claimant and defendants shall equally pay the costs of this 
 
         action, pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 14th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARTINEZ V. BEST WESTERN REGENCY
 
         Page 13
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P 0 Box 1194
 
         Sioux City IA 51102
 
         
 
         Mr Michael P Jacobs
 
         Mr M Anthony Rossi
 
         Mr Timothy S Bottaro
 
         Attorneys at Law
 
         300 Toy Building
 
         Sioux City IA 51101
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1100; 5-1108;
 
                                         5-2401; 5-2402
 
                                         Filed March 14, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORIS MARTINEZ,
 
         
 
              Claimant,
 
                                                  File No. 847915
 
         VS.                                                847916
 
         
 
         BEST WESTERN REGENCY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1100
 
         
 
              Claimant failed to prove either of her injuries arose out of 
 
         and in the course of her employment.
 
         
 
         5-1108
 
         
 
              Claimant failed to prove her alleged disability was causally 
 
         connected to either of her alleged injuries.
 
         
 
         5-2402
 
         
 
              Claimant's petition in both cases was timely filed, as 
 
         provided by Iowa Code section 85.26.
 
         
 
         5-2401
 
         
 
              Claimant failed to give timely notice of one injury and gave 
 
         timely notice of the other injury, as provided in Iowa Code 
 
         section 85.23.
 
         
 
              Claimant took nothing in both cases.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Pate   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DORIS MARTINEZ,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 847915
 
            vs.                           :                 847916
 
                                          :
 
            BEST WESTERN REGENCY,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            MARYLAND CASUALTY CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Doris Martinez against Best Western Regency, 
 
            employer, and Maryland Casualty Co., insurance carrier, 
 
            defendants, to recover benefits as a result of alleged 
 
            injuries sustained on January 10, 1987 and April 17, 1987.  
 
            This matter came on for hearing before the deputy industrial 
 
            commissioner in Sioux City, Iowa, on February 5, 1990.  The 
 
            record consists of the testimony of the claimant, Librado 
 
            (Lee) Martinez, claimant's husband, Pamela Johnson, Amy 
 
            Thompson, Susan Maynard; claimant's exhibits 1 through 28, 
 
            and defendants' exhibits A through H.
 
            
 
                 Claimant moved to amend her petition, File No. 847915, 
 
            to insert the date of January 10, 1987 in lieu of the date 
 
            of January 10, 1986 regarding the injury date.  There was no 
 
            objection made by defendants and said motion to amend and 
 
            the actual amendment was allowed.
 
            
 
                                      issues
 
            
 
                 As set out in the prehearing report by both parties, 
 
            the following issues are presented for resolution for both 
 
            injuries: 
 
            
 
                 1.  Whether the alleged injuries arose out of and in 
 
            the course of claimant's employment;
 
            
 
                 2.  Whether claimant's alleged condition and disability 
 
            is causally connected to her injuries;
 
            
 
                 3.  The nature and extent of claimant's disability;
 
            
 
                 4.  Claimant's entitlement to Iowa Code section 85.27 
 
            benefits as to Horst G. Blume, M.D.;
 
            
 

 
            
 
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                 5.  Claimant's entitlement to Iowa Code section 85.39 
 
            benefits as to Dr. Blume's examination and the 
 
            reasonableness of the cost of said examination.
 
            
 
                 6.  Whether claimant timely filed her action under Iowa 
 
            Code section 85.26; and
 
            
 
                 7.  Whether claimant gave timely notice of injuries 
 
            under Iowa Code section 85.23.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified at the hearing and by way of 
 
            deposition taken November 16, 1989.  Claimant stated she 
 
            completed the eighth grade and has trouble reading and 
 
            spelling.  Claimant described her work history as mainly 
 
            performing minimum wage jobs like but not limited to being a 
 
            waitress, dishwasher, doing some manufacturing work, being a 
 
            hotel keeper and maid up to her beginning work for defendant 
 
            employer in 1985.
 
            
 
                 Claimant denied any health problems or injuries prior 
 
            to working for defendant employer except for a hysterectomy 
 
            and heart attack in 1983, a diabetic diagnosis in 1982, and 
 
            a slipping on the floor in 1985.
 
            
 
                 Claimant emphasized she had no back problems prior to 
 
            working for defendant employer in 1985.  She stated her job 
 
            with defendant employer involved making beds, dusting, 
 
            vacuuming and carrying linen.  Claimant said her title was 
 
            maid and assistant housekeeper.
 
            
 
                 Claimant said she hurt her ankle in a stairway fall in 
 
            June of 1986 and received workers' compensation.
 
            
 
                 Claimant stated she received her next injury in January 
 
            1987 during a period when defendant employer was remodeling.  
 
            Claimant said the shower doors had been removed and were 
 
            setting in the bathtub in a room that had been rented.  
 
            Claimant indicated she attempted to remove the doors from 
 
            the tub and twisted her back.  Claimant contends she told 
 
            the manager but no papers were filled out.
 
            
 
                 Claimant stated she hurt her back Friday, April 17, 
 
            1987, while she was packing and pushing laundry on being 
 
            assigned to the laundry room.  Claimant said she did not 
 
            tell anyone at the time, but went home and laid down.  
 
            Claimant said she became worse over the weekend and was 
 
            finally taken to the hospital that Sunday night, April 19, 
 
            1987.  Claimant stated her husband called defendant employer 
 
            regarding the notice of her injury.  Claimant emphasized she 
 
            told defendant employer what happened and filled out papers 
 
            regarding the injury with the assistance of her husband.  
 
            Claimant related she was released from the hospital for 
 
            approximately one week with restrictions of no bending and 
 
            no lifting, and went to the Bingo games that evening at a 
 
            local church.  Claimant testified she received a release 
 
            from the doctor and immediately thereafter obtained a job at 
 
            Econo Lodge Motel on September 18 or 19, 1987.  Claimant 
 
            revealed that a former boss who opened this new hotel looked 
 

 
            
 
            Pate   3
 
            
 
            
 
            
 
            
 
            her up and hired her.  Claimant said she told this employer 
 
            of her back condition.  Claimant stated no lifting was 
 
            required but she did dusting, vacuuming, inspected rooms and 
 
            did the maid work.  She stated she received $4.00 per hour.  
 
            Claimant acknowledged that she worked regularly 30 to 32 
 
            hours per week at the Econo Lodge from  September 1987 until 
 
            she first saw Dr. Blume in October 1988.
 
            
 
                 Claimant acknowledged her attorney sent her to Dr. 
 
            Blume in October 1988 for an 85.39 evaluation.  Claimant 
 
            related Dr. Blume said she needed surgery at L4-L5 area.  
 
            Claimant said she had surgery on October 24, 1988 and was at 
 
            the hospital thirteen days.  Claimant stated she has not 
 
            worked since her surgery.  Claimant said she started to wear 
 
            her back brace more frequently when she got closer to 
 
            October 1988.  Claimant indicated that the discomfort was 
 
            not only in her back but was becoming more frequent in her 
 
            legs.  Claimant contends she currently cannot lift more than 
 
            15 pounds, cannot fish, garden or mow the law, but can 
 
            vacuum with pain.  Claimant revealed her back pain since the 
 
            surgery is less now than it was prior to the surgery and her 
 
            leg no longer gets numb.  Claimant indicated she may be able 
 
            to return to work in May of 1990.  She said the doctor has 
 
            not released her and she had an appointment with the doctor 
 
            in May 1990.
 
            
 
                 Claimant indicated there is a job available at the 
 
            Econo Lodge if she can make beds.  Claimant contends she was 
 
            able to make beds during her work from September 1987 to 
 
            October 1988 as there was no lifting, because the sheets are 
 
            fitted.  She said she was responsible for eight to thirteen 
 
            rooms.
 
            
 
                 Librado (Lee) Martinez, claimant's husband, testified 
 
            claimant had no back problems prior to working for defendant 
 
            employer.  He indicated claimant started complaining after 
 
            this April 17, 1987 injury and he took her to the hospital 
 
            on April 29, 1987.  He emphasized he called defendant 
 
            employer from the hospital in April 1987 and talked to the 
 
            desk clerk, Amy, and told her claimant could not come to 
 
            work.  He related he and claimant took the workers' 
 
            compensation papers to defendant employer.  Mr. Martinez 
 
            said his wife cannot fish or do the housework like she used 
 
            to because her back bothers her so much.  He acknowledged 
 
            the first time claimant complained to him about her back was 
 
            around April 17, 1987.
 
            
 
                 Pamela Johnson, a senior claims representative for 
 
            defendant insurance company, testified claimant told her on 
 
            May 26, 1987 that she injured her back lifting a mattress.
 
            
 
                 Amy Thompson, general manager of Best Western Regency 
 
            in Sioux City since February 1987, testified she has been 
 
            employed by defendant employer beginning in 1985.  She 
 
            testified the remodeling began before 1985 and around 
 
            January 1986 major refurbishing was occurring.  She 
 
            indicated all but 40 rooms were completed by April 1986.  
 
            She acknowledged the shower doors were being removed.  She 
 
            said there were no other remodeling projects involving 
 
            removing shower doors in 1987.
 

 
            
 
            Pate   4
 
            
 
            
 
            
 
            
 
            
 
                 Johnson related defendant employer's policy of 
 
            reporting any injury and filling out a form even if it 
 
            involved a cut finger.  She acknowledged she has had custody 
 
            of the records since 1986 and said there was no record of 
 
            any 1986 and 1987 injury as to the shower doors and 
 
            claimant's back.  Thompson said claimant never mentioned to 
 
            her on May 5, 1987, when claimant requested a workers' 
 
            compensation form, that she incurred a pain while doing the 
 
            laundry.  She acknowledged that the she and the insurance 
 
            company made the decision that there was no workers' 
 
            compensation injury involved.
 
            
 
                 Susan Maynard testified she has been the housekeeping 
 
            supervisor at Best Western since July 1985.  She 
 
            acknowledged that remodeling and refurnishing the rooms and 
 
            removing the shower doors occurred in January 1986 and not 
 
            in January 1987.  She is familiar with claimant and recalled 
 
            claimant playing Bingo at St. Josephs Church the evening 
 
            right after claimant left the hospital.  She said she saw 
 
            claimant frequently at the church Bingo night.  She 
 
            testified she never saw the claimant wearing a back brace 
 
            after her 1987 injury until the end of the year.  She 
 
            related she and claimant began comparing notes in July 1988.  
 
            She indicated Best Western did some things easier than Econo 
 
            Lodge.  She stated claimant told her she was being run 
 
            ragged by her new employer, Econo Lodge.  She said claimant 
 
            boasted to her that claimant always had the best hall and 
 
            that her hall was always rented first.
 
            
 
                 S. Shook, M.D., a family practitioner, testified by way 
 
            of deposition taken July 7, 1988.  Dr. Shook stated he saw 
 
            claimant the only time on April 20, 1987.  He indicated this 
 
            visit was at the hospital where claimant was complaining of 
 
            severe right low back pain.  He acknowledged he carefully 
 
            took a history from the claimant.  He related claimant told 
 
            him the pains started at 8:00 a.m., one hour after getting 
 
            up, and seemed to become worse during the day.  Dr. Shook 
 
            said claimant told him there was no known injury and that 
 
            she had been off work for the last three days and she did 
 
            not think this had any bearing on it.  Dr. Shook emphasized 
 
            that there was no evidence her problem was related to her 
 
            work.
 
            
 
                 Horst G. Blume, M.D., testified by way of deposition 
 
            taken November 16, 1989 that claimant told him that she 
 
            injured herself on April 18, 1988 (later corrected to April 
 
            18, 1987) when carrying some glass shower doors out of a 
 
            motel room she was cleaning.  He also stated claimant 
 
            slipped down the stairs at Best Western in 1986, but 
 
            incurred no back injury.  There was considerable 
 
            interruption in the testimony from the doctor to converse 
 
            with his secretary and get better organized due to some 
 
            apparent inconsistencies in his testimony and records.  Dr. 
 
            Blume indicated the history he had from claimant was, in 
 
            fact, taken by his assistant who is not a physician.  Dr. 
 
            Blume was then asked and answered as follows:
 
            
 
                 Q.  Now in your opinion, Doctor, was there 
 
                 anything that happened or was the event that 
 

 
            
 
            Pate   5
 
            
 
            
 
            
 
            
 
                 happened in January of '86 involving the shower 
 
                 door in any way related to the condition for which 
 
                 you treated Mrs. Martinez?
 
            
 
                 A.  Yeah.  Since I saw her the first time on 
 
                 10/18, 1988 these three incidents occurred so far 
 
                 as the lifting of the shower doors, the loading of 
 
                 the clothes-- clothes into the washer as well as 
 
                 the situation in '86 when she slipped and fell and 
 
                 so-- so I cannot-- and I do think that-- that-- 
 
                 that they all have something to do with her back 
 
                 condition.
 
            
 
                 Q.  And her back condition in October of '88 when 
 
                 you first saw her was a ruptured disc; is that--
 
            
 
                 A.  That is correct.
 
            
 
                 Q.  -- accurate?
 
            
 
                 A.  At the time of the surgery we found an 
 
                 extruded ruptured disc which means that the disc 
 
                 has pushed itself out-- out of the disc space and 
 
                 was lying as a free fragment underneath the nerves 
 
                 and was pushing against the nerve structures which 
 
                 caused the pain in the back and the back pain.
 
            
 
                 Q.  And if all these events starting in January of 
 
                 '86 contributed to that condition that you found 
 
                 at surgery are you saying that it started maybe in 
 
                 January of '86 and progressively got worse up 
 
                 until the time that you did the surgery?
 
            
 
                 A.  This is a good probability.
 
            
 
            (Blume Deposition, Claimant's Exhibit 17, pages 13-14)
 
            
 
                 The doctor testified that he would not have let the 
 
            claimant go back to work in September 1987 if he knew then 
 
            what he saw in October 1988.  There were a number of 
 
            questions and answers concerning the inconsistencies of the 
 
            history taken by Dr. Blume and other prior histories taken 
 
            by other doctors or medical personnel.
 
            
 
                 Dr. Blume's notes on his interview with claimant on 
 
            October 18, 1988 reflects the following:
 
            
 
                    She fell while working at Best Western in 1986 
 
                 and this was a case where she slipped while going 
 
                 down some steps and she fell to her set [sic] with 
 
                 her foot under her.  Sprained ankle but no back 
 
                 injury.
 
            
 
            (Cl. Ex. 12)
 
            
 
                 This history further reflects:
 
            
 
                    On April 18, 1987 she was working for Best 
 
                 Western Regency and there was work going on with 
 
                 remodeling.  She was preparing a room because some 
 

 
            
 
            Pate   6
 
            
 
            
 
            
 
            
 
                 guests were on their way to the room from the 
 
                 office and the glass doors for the shower were 
 
                 standing in the tub.
 
            
 
            (Cl. Ex. 12)
 
            
 
                 Dr. Blume's letter to claimant's attorney reflects the 
 
            following:
 
            
 
                 On April 17, 1987, the patient was doing laundry 
 
                 and was in the process of loading clothes into the 
 
                 washer and when she stood up she experienced 
 
                 severe pain....
 
            
 
                    Her only other previous injuries occurred on 
 
                 January 10, 1986 when she hurt her back while 
 
                 lifting shower doors while remodeling was going on 
 
                 at Best Western Regency but was not seen by a 
 
                 doctor at that time because of no company 
 
                 insurance.  On July 26, 1988 she fell on some 
 
                 stairs while carrying linens and was seen by an ER 
 
                 doctor who diagnosed her condition as left ankle 
 
                 sprain and left knee strain medially.  She forget 
 
                 to mention the original accident which occurred on 
 
                 January 10, 1986 when she hurt her back while 
 
                 lifting shower doors.  She was under the 
 
                 presumption that since we already had the 
 
                 information from partial disability to the body as 
 
                 whole for sure....
 
            
 
                    It is my opinion within reasonable medical 
 
                 probability that the injury to the lumbar spine 
 
                 resulting in a ruptured lumbar disc at L4-5 with 
 
                 lumbosacral nerve root irritation and compression 
 
                 signs, left, is the result of the two work related 
 
                 accidents at Best Western Regency.
 
            
 
            (Cl. Ex. 13)
 
            
 
                 On November 9, 1988, Dr. Blume's letter to claimant's 
 
            attorney reflects the following:
 
            
 
                    The above patient had lumbar disc surgery on 
 
                 October 24, 1988 for a ruptured lumbar disc at 
 
                 L4/5, centrally and left, with extruded ruptured 
 
                 disk, left laterally.  The surgery performed was 
 
                 removal of an extruded ruptured disc and remaining 
 
                 disc, decompression of the nerve roots of L4 and 
 
                 L5 at the level of L4/5 and interbody fusion L4/5 
 
                 with bone obtained from the right anterior iliac 
 
                 crest.
 
            
 
            (Cl. Ex. 18)
 
            
 
                 On June 27, 1989, Dr. Blume wrote claimant's attorney 
 
            and opined:
 
            
 
                    It is my opinion within reasonable medical 
 
                 probability that the patient has a permanent 
 
                 partial impairment to the body as a whole of 20% 
 

 
            
 
            Pate   7
 
            
 
            
 
            
 
            
 
                 as a result of the accident which occurred on 
 
                 April 18, 1987 while working for Best Western 
 
                 Regency, details of which can be found in the 
 
                 October 28, 1988 letter.
 
            
 
            (Cl. Ex. 16)
 
            
 
                 Marian Health Center notes on April 21, 1987 by Kay 
 
            Mohring, L.P.T., reflects: "This woman comes in with low 
 
            back pain which came on suddenly yesterday without any cause 
 
            that she could remember."  (Defendants' Exhibit C)
 
            
 
                 The notes of D. M. Rhodes, M.D., dated May 7, 1987, 
 
            reflect in part:  "Was in hospital with low back pain.  CT 
 
            scan showed bulging of the disk at L4."  (Cl. Ex. 4)
 
            
 
                           applicable law and analysis
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on January 10, 
 
            1986 and April 17, 1987 which arose out of and in the course 
 
            of her employment.  McDowell v. Town of Clarksville, 241 
 
            N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of January 
 
            10, 1986 and April 17, 1987 are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall be give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Iowa Code subsection 85.26(1) provides:
 
            
 

 
            
 
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                    An original proceeding for benefits under this 
 
            chapter or chapter 85A, 85B, or 86, shall not be maintained 
 
            in any contested case unless the proceeding is commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or, if weekly 
 
            compensation benefits are paid under section 86.13, within 
 
            three years from the date of the last payment of weekly 
 
            compensation benefits.
 
            
 
                 Claimant is 54 years old and graduated from grade 
 
            school only.  Her work experience has been basically in 
 
            nonskilled minimum wage and slight above jobs.  Claimant 
 
            alleges two injuries, both involving her low back.  One 
 
            alleged injury on her original petition was January 10, 1986 
 
            and the other was April 17, 1987.  The issues are identical 
 
            for both alleged injuries.  The oldest alleged injury will 
 
            be considered first.
 
            
 
                 At the end of claimant's testimony, claimant moved to 
 
            amend her petition to assert the date of January 10, 1987 in 
 
            lieu of January 10, 1986.  Claimant's petition for both 
 
            injuries was filed June 2, 1987.  Normally, an amendment 
 
            made at that late date is risky and subject to challenge by 
 
            the opposing party.  Although amendments are liberally 
 
            allowed, the undersigned was initially surprised it was not 
 
            done sooner in the approximate two and one-half years this 
 
            case has been pending.  After hearing the claimant's 
 
            testimony and reviewing the exhibits, the undersigned can 
 
            more fully understand why claimant's attorney did not amend 
 
            the original petition until claimant testified.  Likewise, 
 
            defendants' attorney's action of not challenging the 
 
            amendment was more understandable after hearing testimony.  
 
            The undersigned wonders if claimant really knows what date 
 
            she thought she was injured, if she was injured at all.  It 
 
            is often hard to pick a date when the facts to support the 
 
            date are questionable.  Some of the medical evidence 
 
            reflects inconsistencies of the dates, in other words, 
 
            whether the one alleged injury occurred January 10, 1986 nor 
 
            January 10, 1987.  It appears Dr. Blume, in his reports and 
 
            testimony, as late as November 16, 1987 indicates the doctor 
 
            understands claimant was injured in January 1986.  Of 
 
            course, that is what claimant told him.  By looking at some 
 
            correspondence, it appears her attorney believed that the 
 
            alleged injury was incurred on January 10, 1986.  Claimant's 
 
            petition was filed June 2, 1987, which is approximately five 
 
            months after a January 10, 1987 date and approximately one 
 
            and one-half years after the January 10, 1986 date.  You 
 
            would think in June of 1987 claimant would have known when, 
 
            in fact, her first alleged injury occurred.  In searching 
 
            for a date, claimant tried to relate it to the time that 
 
            defendant employer was remodeling and refurnishing the motel 
 
            rooms and had placed the shower doors in the tubs of the 
 
            respective rooms.   The greater weight of evidence shows 
 
            this was January 10, 1986.   At the end of her testimony, 
 
            claimant amended her petition to conform to her testimony, 
 
            namely, that the motel was doing the remodeling and 
 
            refurbishing in January of 1987.  In October 1988, 
 
            claimant's attorney set up an appointment with Dr. Blume.  
 
            Dr. Blume causally connected claimant's condition with 
 
            apparently two injuries, namely, January 10, 1986 and April 
 

 
            
 
            Pate   9
 
            
 
            
 
            
 
            
 
            17, 1987.  His testimony and reports carry forth the same 
 
            confusion as claimant's recollection in this case.  In 
 
            claimant's Exhibit 16, Dr. Blume rendered an opinion which 
 
            gives an impairment to claimant's body as a whole as a 
 
            result of an accident that occurred on April 18, 1987.  He 
 
            obviously has not attributed any impairment to any alleged 
 
            injury whether it occurred on January 10, 1986 or January 
 
            10, 1987 even though he earlier indicated that claimant's 
 
            condition is a result of two injuries previously referred 
 
            to.  The undersigned believes there is no need to further 
 
            dwell on the complete failure of the claimant to show she 
 
            was injured in January 1987.  The undersigned finds 
 
            claimant's alleged injury on January 10, 1987 did not arise 
 
            out of and in the course of her employment nor is there any 
 
            causal connection between claimant's low back condition and 
 
            her alleged January 10, 1987 injury.  Likewise, there is no 
 
            evidence that claimant gave defendant employer notice to her 
 
            employer of a January 10, 1986 injury or a January 10, 1987 
 
            injury, as required by Iowa Code section 85.23 except for 
 
            her statement that she had told the manager in January 1987.  
 
            Until claimant testified in court, she was still alleging a 
 
            January 10, 1986 injury.  The undersigned believes claimant 
 
            is as confused as to what she may or may not have done in 
 
            January 1986 or January 1987 as she has been on other items.  
 
            Claimant does not prevail on her January 10, 1987 alleged 
 
            injury.  Discussion of any other issues as to that injury is 
 
            moot and will not be further discussed.
 
            
 
                 Claimant alleges her condition from which she now 
 
            suffers is also the result of her April 17, 1987 injury.  
 
            The record shows a lot of confusion on this alleged injury 
 
            also.  Dr. Blume, claimant's chosen doctor, stated in his 
 
            report of October 18, 1988 that claimant's April 17, 1987 
 
            injury was a result of claimant moving the shower doors from 
 
            the tub.  It appears that in most instances claimant is 
 
            alleging she was moving, pulling and pushing laundry when 
 
            she hurt her back on April 17, 1987.  The medical reports 
 
            also refer to claimant slipping and falling down the stairs 
 
            in July 1988.  It appears she injured her ankle in this 
 
            fall.  There is also reference to a slip and fall in 1986.  
 
            Whether the doctor or claimant is confusing this with the 
 
            1988 injury is not clear.
 
            
 
                 Claimant was released to work in September 1987 and 
 
            obtained a job immediately thereafter and worked until 
 
            approximately October 18, 1988 when she saw Dr. Blume.  Dr. 
 
            Blume seems to indicate he would not have advised claimant 
 
            to work during this September 1987 to October 1988 period 
 
            with the condition he found claimant in October 1988.  Of 
 
            course, Dr. Blume had a confusing history from claimant and 
 
            relied only on claimant's allegations when he first saw her 
 
            in October 1988.  A serious question is raised as to how Dr. 
 
            Blume can causally connect claimant's condition with her 
 
            injuries of January 10, 1986 and April 17, 1988, or with a 
 
            January 10, 1987 injury when the claimant was, in fact, 
 
            working for over a year and her troubles became more 
 
            severely after her July 1988 fall, which fall is not the 
 
            subject of this litigation and was during the time claimant 
 
            was working for another employer.  Dr. Blume's opinion, 
 
            based on the record in this case, lacks medical credibility 
 

 
            
 
            Pate  10
 
            
 
            
 
            
 
            
 
            and the undersigned does not accept his opinions.  Claimant, 
 
            herself, did not know why she woke up the morning of April 
 
            20, 1987 and had a pain in her back.  Claimant has the 
 
            burden of proof.  The undersigned believes it is not 
 
            necessary to further set out the facts in this analysis.  No 
 
            matter how much one analyzes the facts of this case, 
 
            claimant has failed to sustain her burden.  The undersigned 
 
            finds that claimant has failed to prove she incurred a low 
 
            back injury on April 17, 1987 or that there is any causal 
 
            connection between claimant's alleged condition and her 
 
            alleged injury on April 17, 1987.  As to whether claimant 
 
            gave timely notice under Iowa Code section 85.23, the 
 
            undersigned finds that in May 1987 the claimant apparently 
 
            requested some workers' compensation papers of defendant 
 
            employer even though defendants contend claimant never 
 
            mentioned anything about any specific injury.  The 
 
            undersigned finds as to notice,  there was sufficient notice 
 
            of some type of an alleged injury has been previously set 
 
            out, on any injury that might have been did not result in 
 
            any of the physical conditions from which this claimant now 
 
            suffers nor has suffered.
 
            
 
                 This decision is in no way intended to make any 
 
            indirect or direct conclusion that claimant's current 
 
            condition is the result of a July 8, 1988 slip and fall 
 
            incident.  That incident is beyond any determination herein.
 
            
 
                 Defendants raise an issue of untimely filing of 
 
            claimant's claims under the provisions of Iowa Code section 
 
            85.26.  The undersigned is surprised that this was an issue 
 
            in this case in that it is obvious regardless of any 
 
            originally alleged injury date that these actions were 
 
            timely filed.  Defendants' attention is called to Rule 80.  
 
            The undersigned is not desirous of disposing of spurious 
 
            issues.
 
            
 
                 All other issues as to both injuries are moot in light 
 
            of the above and will not be further disposed of herein.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant failed to give timely notice under Iowa 
 
            Code section 85.23 of an alleged injury on November 10, 
 
            1987.
 
            
 
                 2.  Claimant failed to prove a work-related injury 
 
            while lifting shower doors from a tub on January 10, 1987.
 
            
 
                 3.  Claimant failed to show her low back condition and 
 
            resulting surgery was the result of her alleged January 10, 
 
            1987 injury.
 
            
 
                 4.  Claimant timely filed her petition regarding her 
 
            January 10, 1987 injury, as provided by Iowa Code section 
 
            85.26.
 
            
 
                 5.  Claimant gave timely notice to the employer of her 
 
            alleged April 17, 1987 injury, as provided by Iowa Code 
 
            section 85.23.
 
            
 

 
            
 
            Pate  11
 
            
 
            
 
            
 
            
 
                 6.  Claimant failed to prove a work-related injury 
 
            while working with the laundry on April 17, 1987.
 
            
 
                 7.  Claimant failed to prove any kind of work-related 
 
            injury while working for defendant employer on April 17, 
 
            1987.
 
            
 
                 8.  Claimant failed to show her low back condition and 
 
            resulting surgery was causally connected to her alleged 
 
            April 17, 1987 injury.
 
            
 
                 9.  Claimant timely filed her petition regarding her 
 
            alleged April 17, 1987 injury, as provided by Iowa Code 
 
            section 85.27.
 
            
 
                 10.  Claimant slipped and fell on or around July 26, 
 
            1988 while in the employment of an employer other than 
 
            defendant employer.
 
            
 
                                conclusions of law
 
            
 
                 Claimant did not give timely notice of her January 10, 
 
            1987 injury, as provided under Iowa Code section 85.23.
 
            
 
                 Claimant has failed to prove her January 10, 1987 
 
            injury arose out of and in the course of her employment.
 
            
 
                 Claimant has failed to prove her low back condition and 
 
            resulting surgery is causally connected to her alleged 
 
            January 10, 1987 injury.
 
            
 
                 Claimant timely filed her petition regarding her 
 
            January 10, 1987 injury in accordance with Iowa Code section 
 
            85.26.
 
            
 
                 Claimant gave timely notice of an alleged April 17, 
 
            1987 injury, as provided in Iowa Code section 85.23.
 
            
 
                 Claimant has failed to prove her April 17, 1987 injury 
 
            arose out of and in the course of her employment.
 
            
 
                 Claimant has failed to prove her low back condition and 
 
            resulting surgery is causally connected to her alleged April 
 
            17, 1987 injury.
 
            
 
                 Claimant timely filed her petition regarding her 
 
            alleged April 17, 1987 injury in accordance with Iowa Code 
 
            section 85.26.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing from these proceedings involving 
 
            File No. 847915 and her January 10, 1987 alleged injury.
 
            
 
                 Claimant takes nothing from these proceedings involving 
 
            File No. 847916 and her alleged April 17, 1987 injury.
 
            
 
                 Claimant and defendants shall equally pay the costs of 
 

 
            
 
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            this action, pursuant to Division of Industrial Services 
 
            Rule 343-4.33.
 
            
 
                 Signed and filed this _____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr Michael P Jacobs
 
            Mr M Anthony Rossi
 
            Mr Timothy S Bottaro
 
            Attorneys at Law
 
            300 Toy Building
 
            Sioux City IA 51101
 

 
            
 
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