Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LARRY ORIGER,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
		                      :      File No. 848639
 
            LEY MOTOR COMPANY, 	      :
 
		                      :
 
                 Employer, 	      :
 
		                      :
 
		            and       :
 
        		              :        A P P E A L
 
            UNIVERSAL UNDERWRITERS    :
 
            INSURANCE COMPANY,        :
 
		                      :      D E C I S I O N
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            _______________________________
 
                      		      :
 
            LARRY ORIGER,  	      :
 
                        	      :
 
                 Claimant, 	      :
 
                      		      :
 
		            vs.       :
 
		                      :      File No. 848640
 
            PIERSON FORD-LINCOLN-MERCURY, :
 
                		      :
 
                 Employer, 	      :
 
                      		      :
 
		            and       :
 
                		      :
 
            GENERAL CASUALTY 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.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed May 29, 1990 are adopted as final agency 
 
            action.
 
            
 
                                conclusions of law
 
            
 
                 The issues to be decided are whether claimant's claims 
 
            are barred by the statute of limitations and whether 
 
            claimant has met his burden of proving a causal connection 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            between alleged injuries of April 24, 1984 and October 29, 
 
            1984 and the claimed disability.
 
            Claimant filed this action on August 3, 1987.  Claimant's 
 
            claim would be barred by the provisions of Iowa Code section 
 
            85.26(1) unless the discovery rule is applied.  The 
 
            discovery rule was discussed in Jones v. Continental Baking 
 
            Company, Appeal Decision, September 24, 1991, File No. 
 
            908648.
 
               Under the discovery rule enunciated in Orr v. Lewis 
 
            Central School District, 298 N.W.2d 256, 261 (Iowa 1980), 
 
            and Robinson v. Department of Transportation, 296 N.W.2d 
 
            809, 812 (Iowa 1980), the statute of limitations would not 
 
            start to run until claimant recognized the nature, 
 
            seriousness and probable compensable character of his 
 
            injury....
 
               ....
 
               Defendants argue on appeal that claimant's injury is not 
 
            subject to the discovery rule, because claimant's condition 
 
            flows from an identifiable, traumatic event.  Defendants 
 
            argue that there should be a distinction between "latent 
 
            injuries" and "traumatic injuries with latent 
 
            manifestation."  Defendants cite LeBeau v. Dimig, 446 N.W.2d 
 
            800 (Iowa 1989).  LeBeau is a tort case, dealing with the 
 
            discovery rule in an automobile accident case.  The 
 
            plaintiff received a head injury, which appeared minor at 
 
            first but later turned out to be the cause of epilepsy.  
 
            However, the statute of limitations had     aware of his traumatic injury on April 22, 1986, and its 
 
            compensable nature, he was not aware of its seriousness 
 
            until late summer, 1987.  It is noted that the Robinson 
 
            decision holds that the determination of claimant's 
 
            knowledge is a question of fact for the commissioner to 
 
            decide.  It is also noted that in Robinson, it was found 
 
            that the claimant was aware of both the nature and 
 
            seriousness of his offense at the time of his heart attack 
 
            and benefits were denied.
 
            The Iowa Supreme Court has recently reviewed LeBeau, 446 
 
            N.W.2d 800, and stated:  "Because we classified LeBeau's 
 
            suit as a traumatic event/latent manifestation case, we 
 
            refused to apply the discovery rule."  Wilber v. 
 
            Owens-Corning Fiberglass Corp., No. 333/90-882, Slip Op. at 
 
            6 (Iowa October 16, 1991).
 
            In this case claimant had traumatic injuries on April 24, 
 
            1984 and October 29, 1984 and the claim is barred by Iowa 
 
            Code section 85.26(1).
 
            Even if the discovery rule were to be applied, claimant's 
 
            case is one of inconsistency.  While claimant may not have 
 
            realized that he had a seizure disorder until the first 
 
            seizure occurred in November 1986, it was claimant's 
 
            testimony that he had loss of consciousness, blurred vision 
 
            and headaches shortly after the work incidents.  (Note this 
 
            testimony had been rejected in the findings of fact.)  If 
 
            this testimony were accepted as true it could be found that 
 
            claimant should have realized that his alleged injury was 
 
            something more than a cut or a contusion shortly after the 
 
            work incidents.  Thus, even if the discovery rule were to be 
 
            applicable, claimant's claim would be barred.  If the 
 
            discovery rule were applicable and claimant's testimony were 
 
            to be accepted, claimant should have known shortly after the 
 
            traumatic events that his alleged loss of consciousness, 
 
            blurred vision and headaches were serious and that it may 
 
            have been compensable.
 
            If claimant's claim were not barred by the statute of 
 
            limitations, he would still have the burden of proving a 
 
            causal connection between the alleged injuries and his 
 
            claimed disability.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of April 24, 1984 or October 
 
            29, 1984, or both, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 
 
            236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
            (1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            A cause is proximate if it is a substantial factor in 
 
            bringing about the result.  It need not be the only cause.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).  As discussed in the findings of fact the credentials 
 
            of Drs. Davenport and Dora are superior to Dr. Wolfe.  The 
 
            medical opinions of both Dr. Davenport and Dr. Dora are 
 
            based upon incorrect history.  There is no reliable medical 
 
            testimony that demonstrates that either or both of 
 
            claimant's injuries was the probable cause of claimant's 
 
            disability.
 
            WHEREFORE, the decision of the deputy is affirmed
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant take nothing from these proceedings.
 
            That claimant pay the cost of this proceeding including the 
 
            costs of transcription of the hearing.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. M. Gene Blackburn
 
            Attorney at Law
 
            142 N. 9th St.
 
            P.O. Box 817
 
            Fort Dodge, Iowa 50501
 
            
 
            Mr. Daniel W. Willems
 
            Attorney at Law
 
            104 Third Ave. SW 
 
            P.O. Box 1749
 
            Cedar Rapids, Iowa 52406
 
            
 
            Ms. Jeane W. Pearson
 
            Attorney at Law
 
            603 Snell Bldg.
 
            Fort Dodge, Iowa 50501
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mr. Richard G. Blane, II
 
            Attorney at Law
 
            803 Fleming Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY ORIGER,
 
          
 
              Claimant,
 
          
 
          VS.                                         File No. 848639
 
          
 
          LEY MOTOR COMPANY,                        A R B I T R A T I O N
 
          
 
               Employer,                                 D E C I S I O N
 
         
 
          and
 
          
 
          UNIVERSAL UNDERWRITERS
 
          INSURANCE COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         _______________________________________
 
         LARRY ORIGER,
 
         
 
              Claimant,
 
         
 
         VS.                                                File No. 
 
         848640
 
         
 
         PIERSON FORD-LINCOLN-
 
         MERCURY,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         GENERAL CASUALTY COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This decision concerns two cases in arbitration brought by 
 
         Larry Origer.  File number 848639 deals with an injury of April 
 
         24, 1984 while he was employed by Ley Motor Company.  File number 
 
         848640 deals with an injury of October 29, 1984.  The cases were 
 
         consolidated and heard at Fort Dodge, Iowa on November 16, 1989.  
 
         The record consists of testimony from Larry Origer, Richard L. 
 
         Cooke, Connie Origer, Thomas
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
         Johnson, Gary Meyer, Stephen Blok and Stanley W. Thorpe.  The 
 
         record also contains claimant's exhibits 1 through 31, 33, 34, 
 
         35, 36, 38 and 39 as well as defendants' exhibits A, B, C, D, E, 
 
         F, G, H, I, K, M, N and P.
 
         
 
                                      ISSUES
 
         
 
              Larry Origer sustained injuries on the dates alleged with 
 
         each of the respective employers.  He has since developed a 
 
         seizure disorder.  The controlling issue in these cases is 
 
         whether the seizure disorder was proximately caused by either or 
 
         both of those injuries and therefore arose out of the employment.  
 
         Origer seeks compensation for permanent total disability and 
 
         payment of expenses of medical treatment incurred in relation to 
 
         the seizure disorder and its sequelae.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              After hearing the testimony and considering all the exhibits 
 
         in the record, the following findings of fact are made.
 
         
 
              Larry Origer is a 35-year-old divorced man who lives at 
 
         Spencer, Iowa.  He is a high school graduate who attended 
 
         technical school, served in the United States Marine Corps, 
 
         worked briefly as a telephone lineman and has held a part-time 
 
         job at an oil station.
 
         
 
              Origer began work for Ley Motor Company as a mechanic in 
 
         1982 and eventually became assistant parts manager.  On April 24, 
 
         1984, while preparing to change the rear main seal on an 
 
         automobile, the vehicle fell off the jackstands and, in doing so, 
 
         the front bumper struck claimant's head.  According to Origer, he 
 
         felt dazed, woozy and nauseated.  He stated that he could hear 
 
         co-employees Thomas Johnson and Gary Meyer speaking to him, but 
 
         was unable to understand what they were saying.  Origer stated 
 
         that at lunch time he walked home, a distance of approximately 
 
         two blocks, and observed a lump on the side of his head.  He 
 
         stated that he went to sleep and, when he awoke six hours later, 
 
         his vision was still blurred and that he experienced double 
 
         vision for a couple weeks thereafter.  He stated that he had 
 
         ringing in his ears through the following day.  Origer stated 
 
         that his head and neck hurt and that on the following day his 
 
         wife drove him to see a doctor.  Origer stated he was still 
 
         experiencing dizziness and blurry and double vision at that time.  
 
         He stated that he reported all those symptoms to the doctor, but 
 
         that the doctor had a bad accent which was hard to understand.
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Exhibit I, a record from K. T. Song, M.D., of Park Clinic, 
 
         establishes that Origer was seen on April 25, 1984 with a 
 
         complaint of discomfort in the right side of his neck which 
 
         resulted from being hit by the bumper of a car which had slipped 
 
         off a jack.  The record reflects that Origer denied having loss 
 
         of consciousness.  A small abrasion was observed above his right 
 
         ear, but no hematoma or bump was noted.  Dr. Song authorized 
 
         claimant to return to work and take aspirin for pain as needed.  
 
         Origer did not return to work until May 1, 1984 at which time he 
 
         got into an argument over shoveling snow and left.
 
         
 
              Connie Origer, claimant's former spouse, stated that he had 
 
         come home early, around noon, on April 24, 1984 with a big bump 
 
         the size of a golf ball on the side of his head.  She stated that 
 
         he was also pale and slow.  Connie stated that claimant lay down 
 
         and rested for the remainder of the day and was off work for at 
 
         least a week.
 
         
 
              Thomas Johnson and Gary Meyer, former co-employees of the 
 
         claimant at Ley Motor Company, testified that they heard the car 
 
         which claimant was working under fall from the jackstands.  They 
 
         looked and went to him and found him sitting on a creeper, 
 
         looking surprised and shook up, but conscious.  They related that 
 
         claimant reported bumping his arm and observed no sign of injury 
 
         on him.  Both agreed that after five or ten minutes, they all 
 
         resumed work and that claimant finished the job of changing the 
 
         rear seal on the vehicle.  A signed statement which claimant made 
 
         in June 1984 to the Department of Job Service indicates that his 
 
         neck was bothering him, but contains no reference to headaches, 
 
         blurry vision or any other symptom (exhibit K, page 2).  
 
         Claimant's time card for the week ending April 28, 1984,shows 
 
         that on April 24 he worked from 7:41 a.m. until 12:01 p.m. and 
 
         again from 12:31 p.m. to 5:31 p.m., an amount which appears to be 
 
         a normal work day.  The time cards show no work subsequent to 
 
         April 24, 1984 (exhibit K, page 16).
 
         
 
              The testimony from claimant and his spouse regarding a loss 
 
         of consciousness, blurred vision and headaches is rejected.  The 
 
         testimony from Thomas Johnson and Gary Meyer is accepted as being 
 
         correct, as are the records of Dr. Song and Job Service which 
 
         show claimant"s only symptom to have been pain in his neck.  The 
 
         time card clearly establishes that claimant worked during the 
 
         afternoon of April 24, 1984, rather than staying home and 
 
         sleeping as both he and his former spouse had testified.
 
         
 
              After a period of unemployment and working briefly for 
 
         Winnebago Industries, Origer obtained employment as a mechanic at 
 
         Pierson Ford-Lincoln-Mercury in July 1984 and
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         remained employed there until November 1986.  On October 29, 
 
         1984, while changing the engine in a pickup truck, a chain broke, 
 
         the engine fell and the engine hoist came up hitting claimant on 
 
         the left forehead.  According to claimant's testimony at hearing, 
 
         the next thing he knew was that he was out of the pickup and 
 
         bleeding.  He stated that he felt rubbery-legged, nauseated and 
 
         was unable to hear the persons who were around him.  Origer 
 
         stated that he was taken to a doctor's office where he was 
 
         treated by a nurse practitioner and that by the time he left the 
 
         office, he could hear, but voices sounded hollow.  He stated that 
 
         he continued to have that symptom for a few days.  He stated that 
 
         he felt woozy throughout the next day and was off work for two or 
 
         three days.  Claimant stated that his symptoms lasted for 
 
         approximately two weeks following the incident.
 
         
 
              The notes from Spencer Medical Associates, P.C., show that 
 
         claimant was seen with a full thickness laceration below the left 
 
         eyebrow and a small laceration in the eyebrow on October 29, 
 
         1984.  A note dated November 2, 1984 shows that the sutures were 
 
         removed, the wound was well healed and no infection was noted 
 
         (exhibit F, page 9).  No history or statement regarding other 
 
         complaints appears in the record.
 
         
 
              The records show claimant to have been seen again on 
 
         December 10, 1984, December 17, 1984, February 12, 1985, April 
 
         18, 1985, April 22, 1985, June 26, 1985, June 27, 1985, July 2, 
 
         1986, July 3, 1986, September 16, 1986 and September 19, 1986 
 
         prior to the November 7, 1986 note which makes reference to 
 
         claimant's seizure.  The only one of those notes which makes any 
 
         reference to headache is the one of December 17, 1984.
 
         
 
              Exhibits H, and P, records from Estherville Medical Center, 
 
         P.C., show that claimant was seen on May 1, 1984 with complaints 
 
         of continuous headaches since dropping a car on his head the 
 
         previous Tuesday.  The assessment made was that he has muscle 
 
         spasm, apparently of the trapezius muscle group (exhibits H and 
 
         P).
 
         
 
              Connie Origer stated that on October 29, 1984, claimant came 
 
         home early, spoke slowly, had to struggle for words and remained 
 
         that way for approximately four days.  She stated that he 
 
         complained of headache and blurred vision occasionally.  She was 
 
         unsure how long those complaints continued.
 
         
 
              Steven Blok was acting as service manager at Pierson Ford on 
 
         October 29, 1984.  He heard the bang when the chain broke, looked 
 
         and stated that he saw claimant standing, holding his head.  Blok 
 
         stated that claimant was responsive,
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         able to talk and was getting a lump on his head.  He did not 
 
         recall seeing any blood.  He stated that claimant was taken to 
 
         the hospital.  Blok related that, following claimant's return to 
 
         work, he complained of a headache from time to time, but seemed 
 
         no different than he had been prior to the incident.  Blok was 
 
         best man at claimant's wedding.
 
         
 
              Richard Cooke was also employed as a mechanic at Pierson 
 
         Ford on October 29, 1984.  According to Cooke, he head a loud 
 
         bang when the chain broke, went to assist claimant and found him 
 
         lying over the engine and unresponsive.  Cooke stated that 
 
         claimant had a gash on his head, that his eyes were going in all 
 
         directions and that in approximately 45 seconds, he came to.  
 
         Cooke stated that, with assistance, he removed claimant from the 
 
         engine compartment.  He stated that claimant initially had 
 
         trouble standing and was then taken to the hospital.  Cooke also 
 
         related that claimant's speech was initially slurred and 
 
         difficult to understand when he first came to.  Cooke stated that 
 
         claimant did not return to work for approximately three days and 
 
         that, when he did, he had a bruise on the upper part of his 
 
         forehead, a black eye and stitches.  Cooke related that, after 
 
         returning to work, claimant was slower than he had been prior to 
 
         the injury, but was still a good mechanic.  He related that, on 
 
         numerous occasions after the injury, claimant would not respond 
 
         when spoken to, but often complained of headaches.
 
         
 
              Exhibit 6 shows that claimant continued to be employed at 
 
         Pierson Ford until November 1986.  Earnings for the week which 
 
         includes October 29, 1984 are approximately half of claimant's 
 
         typical weekly earnings and confirm that he missed several days 
 
         of work (exhibit 6, page 29).
 
         
 
              In November 1986, Origer developed a seizure disorder.  He 
 
         eventually came under the treatment of John Davenport, M.D., a 
 
         physician at the Veterans Administration Medical Center in 
 
         Minneapolis, Minnesota.  Dr. Davenport is board-certified in 
 
         neurology and electroencephalography (exhibit 13, page 4; 
 
         deposition exhibit 2).
 
         
 
              Dr. Davenport has concluded that claimant's seizure disorder 
 
         is a result of the two traumas which he sustained in 1984.  In 
 
         making that assessment, Dr., Davenport has relied upon a history 
 
         that claimant was.knocked unconscious on both occasions and was 
 
         afflicted with double vision for several weeks following the 
 
         October injury (exhibit 13, pages 8-9; deposition exhibits 1 and 
 
         3).  Dr. Davenport agreed that if the history were incorrect, his 
 
         opinion regarding causation would be weaker (exhibit 14, pages 6 
 
         and 12).  Dr. Davenport affirmed that most post-traumatic
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 6
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         seizure disorders appear within 6-18 months following the 
 
         causative trauma, but a later onset is not extremely unusual 
 
         (exhibit 14, pages 19, 23, 34 and 35).  He agreed that the lesser 
 
         the severity of the trauma, the lesser is the likelihood of it 
 
         causing a seizure disorder (exhibit 14, pages 19 and 23).
 
         
 
              Steven L. Wolfe, M.D., claimant's family physician at 
 
         Spencer Medical Associates, P.C., reported on June 17, 1988 that 
 
         claimant suffered from a probable idiopathic seizure disorder.  
 
         He stated that the head injury at Pierson Ford was a mild injury, 
 
         that there was no history of any loss of consciousness and that 
 
         the injury was simply a laceration of the eyebrow (exhibit F, 
 
         page 1).
 
         
 
              Joseph M. Doro, D.O., who is board-certified in neurology, 
 
         evaluated claimant and assessed his case.  Dr. Doro has studied 
 
         epilepsy and seizures extensively and for that reason appears to 
 
         have somewhat more expertise than Dr. Davenport.  Dr. Doro agreed 
 
         that claimant has a seizure disorder, but stated that the 
 
         condition is idiopathic, rather than post-traumatic (exhibit A; 
 
         exhibit E, pages 1825 and 46-48).  Dr. Doro explained that most 
 
         seizure disorders are idiopathic, but that they can result from 
 
         trauma.  He stated that the main criteria for a causative feature 
 
         is the severity of the trauma and that, when seizures are 
 
         traumatically induced, there is generally a prolonged loss of 
 
         consciousness with amnesia or structural brain damage and that 
 
         the individual is generally slow to wake up from the loss of 
 
         consciousness (exhibit E, page 14).  Dr. Doro agreed with Dr. 
 
         Davenport that seizures which are traumatically induced generally 
 
         occur within 6-18 months following the trauma (exhibit E, pages 
 
         14 and 51-54).
 
         
 
              Dr. Doro felt that the two 1984 head injuries were minor 
 
         injuries which did not have the potential for producing damage 
 
         sufficiently serious to produce a seizure disorder (exhibit E, 
 
         pages 9-11, 36-38, 44 and 45).
 
         
 
              Upon close examination of the record, it appears as though 
 
         even Dr. Davenport was unimpressed with the severity of the April 
 
         24, 1984 injury.  Claimant's testimony regarding the incident and 
 
         residual 'symptoms is simply not corroborated.  It is found that 
 
         the April 24, 1984 incident produced an abrasion on claimant's 
 
         head, headache which lasted for a few days and spasms in his neck 
 
         and trapezius muscle group.  It did not produce a significant 
 
         head injury and was not a substantial factor in producing the 
 
         seizure disorder which presently afflicts him.
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 7
 
         
 
         
 
              It is.found that the October 29, 1984 injury was more 
 
         serious than the April injury.  It is found that claimant did 
 
         lose consciousness for approximately 45 seconds as related by 
 
         Richard Cooke.  Steven Blok's testimony regarding a lack of 
 
         recall of bleeding is obviously incorrect since the medical 
 
         records show two lacerations which were sutured.  This impairs 
 
         the reliability of his testimony.  Such injuries quite commonly 
 
         produce profuse bleeding.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The medical records make no reference to any particular 
 
         history of injury.  They cannot be relied upon as negating 
 
         claimant's claim and Cooke's testimony that there was a loss of 
 
         consciousness.  It would be expected that, following an injury of 
 
         that type, there would be discomfort at the injury site for a few 
 
         weeks consistent with the medical records.  The record does not, 
 
         however, corroborate the claim of several weeks of blurred or 
 
         double vision.  It does contain corroboration from Blok and Cooke 
 
         of complaints of headaches.  The blow sustained on October 29, 
 
         1984 is found to be much more severe than the blow of April 24, 
 
         1984.
 
         
 
              The professional credentials of Drs. Davenport and Doro are 
 
         impressive.  Both have credentials superior to Dr. Wolfe.  Dr. 
 
         Wolfe's history which negates a loss of consciousness is 
 
         incorrect.  The history relied upon by Dr. Doro is also incorrect 
 
         to the extent that it completely excludes loss of consciousness 
 
         having occurred with the October injury.  The history relied upon 
 
         by Dr. Davenport is also incorrect in that it assumes a loss of 
 
         consciousness from both injuries and a long-term continuation of 
 
         symptoms following both injuries.  It is certain, however, that 
 
         the seizure disorder did not develop until slightly more than two 
 
         years following the October 1984 trauma and both Drs. Davenport 
 
         and Doro have indicated that, after 18 months have passed, the 
 
         likelihood of the seizure being trauma induced is greatly 
 
         reduced.  While the October injury was more serious than the 
 
         April injury, it likewise does not appear to have been 
 
         particularly serious.  As indicated by Dr. Doro, head lacerations 
 
         and brief periods of unconsciousness are generally not 
 
         permanently injurious.  The record of this case, other than 
 
         claimant's complaints, contains no corroboration of claimant's 
 
         testimony regarding continuing symptoms prior to the onset of the 
 
         seizure disorder more than two years later.  It is therefore 
 
         determined that, while it is certainly possible that the October 
 
         29, 1984 injury was a substantial factor in bringing about Larry 
 
         Origer's seizure disorder, the evidence in this case is not 
 
         sufficiently strong to demonstrate that a causative relationship 
 
         is probable or likely.
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 8
 
         
 
         
 
              The record shows that this action was commenced by claimant 
 
         filing a petition on August 24, 1987.  The record of this case 
 
         does not definitely establish the amount of time that claimant 
 
         was disabled following each of the two injuries.  He was off work 
 
         without medical authorization from April 25, 1984 through April 
 
         30, 1984 following the first injury.  With regard to the October 
 
         injury, it is noted that October 29, 1984 was a Monday.  It 
 
         cannot be determined whether he returned to work during that same 
 
         week or during the following week.  The estimates of the time he 
 
         was off work range from three days to a week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is absolutely certain that Origer could not have realized 
 
         that he had a seizure disorder until the first seizure occurred 
 
         in November 1986.  His petition was filed less than a year 
 
         thereafter on August 3, 1987.  He could not have had any reason 
 
         to believe that the seizure disorder was work related until it 
 
         manifested itself in November 1986.  Origer did know, however, 
 
         immediately following both traumas, that he experienced pain, 
 
         obtained medical treatment and was off work.  If his testimony 
 
         regarding continuous symptoms following either injury, or in 
 
         particular the October injury, is accepted as being true, he went 
 
         for a period of two years without seeking any medical treatment 
 
         for those symptoms.  Such a course of conduct, if those are the 
 
         facts that actually existed, would not constitute reasonable 
 
         diligence.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 24, 1984 or October 29, 
 
         1984, or both, is causally related to the disability on which he 
 
         now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d  732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 9
 
         
 
         
 
         an opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need not be the only cause.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).  The opinion of Dr. Doro rebuts the opinion of Dr. 
 
         Davenport.  Neither doctor relied upon a completely correct 
 
         history in reaching an opinion.  Claimant's burden of proof is 
 
         probability rather than mere possibility.  It is determined that 
 
         he has failed to prove that either of the two 1984 head injuries, 
 
         or the combination of them, was a proximate cause in producing 
 
         the seizure disorder which currently afflicts him.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's claim would be barred by the provisions of Iowa 
 
         Code section 85.26(l) unless the discovery rule is applied.  Orr 
 
         v. McNair, 386 N.W.2d 145 (Iowa App. 1986); Robinson v. Dep't of 
 
         Transp., 296 N.W.2d 809 (Iowa 1980).  It is clear that, with 
 
         regard to the April injury, he was off work for more than three 
 
         days and no weekly compensation benefits were paid.  It is clear 
 
         that no weekly benefits were paid following the October injury, 
 
         although it appears that he was off work for at least three days 
 
         following that incident.  An absence from work of four or more 
 
         days is sufficient.to create an entitlement to temporary total 
 
         disability compensation under the provisions of Code sections 
 
         85.32 and 85.33.  If claimant's testimony is accepted as being 
 
         correct, it is clear that he had a claim for temporary total 
 
         disability compensation which could have been pursued well within 
 
         the two-year limitation provided by the statute.  He had a 
 
         remedy, but did not pursue it. Stoller Fisheries, Inc. v. 
 
         American Title Ins. Co., 258 N.W.2d 336, 341 (Iowa 1977).
 
         
 
              This case is somewhat in line with the recent case LeBeau v. 
 
         Dimig, 446 N.W.2d 800 (Iowa 1989).  In that case, it was held 
 
         that, for a personal injury tort claim, there is but one statute 
 
         of limitations and that it begins to run whenever the plaintiff 
 
         has a claim which can be pursued, even if the full extent of the 
 
         claim or damages is not known and could not be discovered through 
 
         the.exercise of reasonable diligence.  The decision.speaks of the 
 
         need for finality, a situation which does not exist in workers' 
 
         compensation proceedings in view of the right to lifetime medical 
 
         treatment and the right to review-reopen.
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 10
 
         
 
         
 
              The most recent pronouncements from the Supreme Court are 
 
         that, in those cases where only medical benefits have been paid, 
 
         the two-year limitation is applicable.  Beier Glass Co. v. 
 
         Brundige, 329 N.W.2d 280 (Iowa 1983); Huntzinger v. Moore 
 
         Business Forms, Inc., 320 N.W.2d 545 (Iowa 1982); Powell v. 
 
         Bestwall Gypsum Co., 255 Iowa 937, 124 N.W.2d 448 (1963).  In 
 
         this case, Larry Origer knew that he had been injured in the 
 
         course of his employment and that he had injury which arose out 
 
         of his employment.  He knew each injury had been sufficiently 
 
         serious to cause him to miss work.  While statutes of limitations 
 
         often produce harsh results, it is determined that Larry Origer 
 
         knew, immediately following each of the two injuries, that it was 
 
         sufficiently serious to cause him to miss work, that each injury 
 
         had been a blow to the head and that it was related to his work.  
 
         In each instance, he was certainly aware of whatever symptoms 
 
         followed those traumas.  He had a litigable claim following each 
 
         of those injuries, but chose not to pursue it.  It is concluded 
 
         that, where an injured employee knows the nature and probable 
 
         compensable character of his injury, it is not necessary that he 
 
         know the full and complete seriousness of that injury in order 
 
         for the statute of limitations provided by section 85.26(l) to 
 
         commence to run.  In this case, it is concluded that claimant's 
 
         claims would be barred by section 85.26(l) if he had been 
 
         successful in demonstrating the existence of a continuing course 
 
         of substantial symptoms consistent with his testimony.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that Larry Origer take nothing from 
 
         these proceedings.
 
         
 
              IT IS FURTHER ORDERED that the costs of these proceedings 
 
         are assessed against Larry Origer pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 29th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 
         Page 11
 
         
 
         
 
         Copies To:
 
         
 
         Mr. M. Gene Blackburn
 
         Ms. Jeane W. Pearson
 
         Attorneys at Law
 
         142 North 9th Street
 
         P.O. Box 817
 
         Fort Dodge,  Iowa  50501
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Richard G. Blane, II 
 
         Attorney at Law 
 
         8th Floor, Fleming Building 
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108, 1402.30, 2402
 
                                         Filed May 29, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY ORIGER,
 
          
 
               Claimant,
 
          
 
          VS.                                         File No. 848639
 
          
 
          LEY MOTOR COMPANY,
 
          
 
               Employer,
 
          
 
          and
 
          
 
          UNIVERSAL UNDERWRITERS                     A R B I T R A T I 0 
 
         N
 
          INSURANCE COMPANY,
 
                                                         D E C I S I 0 N
 
               Insurance Carrier,
 
               Defendants.
 
         ____________________________________
 
         LARRY ORIGER,
 
         
 
              Claimant,
 
         
 
         VS.                                               File No. 848640
 
         
 
         PIERSON FORD-LINCOLN-
 
         MERCURY,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         GENERAL CASUALTY COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108, 1402.30
 
         
 
              Claimant suffered two head injuries in 1984, neither of 
 
         which at the time appeared particularly serious, though both were 
 
         followed by four or more days of absence from work.  Slightly 
 
         more than two years following the second injury,
 
         
 
         
 
         
 
         ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
         claimant developed a seizure disorder.  Nine months later, he 
 
         commenced these proceedings.
 
         
 
              Significant parts of claimant's testimony were contradicted 
 
         by the medical records made at the time of the two incidents.  
 
         The medical experts both supporting and controverting claimant's 
 
         claim of causation had incorrect medical histories.  It was held 
 
         that claimant had failed to prove that causation was probable as 
 
         opposed to merely possible.
 
         
 
         2402
 
         
 
              It was further held that, if claimant's testimony regarding 
 
         continued symptomatology following each incident were true, 
 
         section 85.26(l) defenses would have been valid citing LeBeau v. 
 
         Dimig.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         5-1402.30; 2402
 
         Filed November 18, 1991
 
         BYRON K. ORTON
 
         MGT
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
		                   :
 
         LARRY ORIGER, 		   :
 
                   		   :
 
              Claimant,  	   :
 
                   		   :
 
		         vs.       :
 
                		   :      File No. 848639
 
         LEY MOTOR COMPANY,  	   :		   
 
                   		   :
 
              Employer,   	   :
 
                   		   :
 
         	and    		   :
 
                   		   :        A P P E A L
 
         UNIVERSAL UNDERWRITERS    :
 
         INSURANCE COMPANY,        :		
 
		                   :      D E C I S I O N
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         _____________________________________________________
 
		                   :
 
         LARRY ORIGER,		   :
 
                   		   :
 
              Claimant, 	   :
 
                   		   :
 
         	vs. 	           :
 
                   		   :      File No. 848640
 
         PIERSON FORD-LINCOLN-MERCURY,:
 
                   		   :
 
              Employer,		   :
 
                   		   :
 
         	and  	           :
 
                   		   :
 
         GENERAL CASUALTY COMPANIES:
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         _________________________________________________________________
 
         
 
         
 
         5-1402.30
 
         Claimant suffered two head injuries in 1984, neither of which at 
 
         the time appeared particularly serious, though both were followed 
 
         by four or more days of absence from work.  Slightly more than 
 
         two years following the second injury, claimant developed a 
 
         seizure disorder.  Nine months later, he commenced these 
 
         proceedings.
 
         Material parts of claimant's testimony were inconsistent with 
 
         medical records made at the time of the two work injuries.  The 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         medical opinions from the doctors with the best credentials were 
 
         based upon incorrect history.  There was no reliable medical 
 
         testimony that demonstrated that either or both of claimant's 
 
         injuries were the probable cause of claimant's alleged disability 
 
         (seizure disorder).
 
         
 
         2402
 
         Claimant's claim would be barred by two year statute of 
 
         limitation unless the discovery rule were applied.  The discovery 
 
         rule is not applicable in this traumatic event case.  Even if 
 
         discovery rule were applied, claimant's claim would be barred.  
 
         Claimant should have known shortly after the traumatic events 
 
         that his condition was serious and injury may have been 
 
         compensable.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CARL C. PETERSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         JOHN MORRELL & CO./IOWA           File No. 848648
 
         MEATS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                           D E C I S I 0 N 
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES/NATIONAL UNION
 
         FIRE INSURANCE,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Carl C. Peterson, against his employer, John Morrell & Company, 
 
         and its insurance carrier, National Union Fire Insurance, as well 
 
         as against the Second Injury Fund of Iowa to recover benefits as 
 
         the result of an alleged injury of October 1, 1986 to the right 
 
         arm and an alleged injury of June 4, 1985 to the left arm.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner at Sioux City, Iowa, on July 6, 1990.  A 
 
         first report was filed on August 25, 1987.
 
         
 
              The record consists of joint exhibits 1 through 28; 
 
         defendants' exhibits A through R; Second Injury Fund exhibits A 
 
         through J; and, the testimony of claimant as well as the 
 
         testimony of Donna J. Henry.  At the request of the claimant, 
 
         administrative notice is taken of Division of Industrial Services 
 
         file numbers 906408 and 933308 which allege repetitive use 
 
         injuries to claimant's right hand and
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         to both hands, respectively, on December 12, 1988 and January 3, 
 
         1989, respectively.
 
         
 
              Objections were placed as to joint exhibits 36 through 38 
 
         and defendants' exhibits A through R on the ground that those 
 
         exhibits relate to the alleged dates of injury of December 12, 
 
         1988 and January 3, 1989 and, therefore, are not relevant to this 
 
         proceeding.  The objections are overruled.  Medical reports 
 
         subsequent to the alleged injury date of October 1, 1986 are 
 
         relevant and have probative value as to defendants' contention 
 
         that claimant did not sustain a separate injury on October 1, 
 
         1986 for which he is entitled to compensation at this time.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing order and the oral stipulations 
 
         of the parties at hearing, the parties stipulated that claimant's 
 
         rate of weekly compensation is $229.38.
 
         
 
              The issues remaining to be decided are:
 
         
 
              1. Whether claimant received an injury arising out of and in 
 
         the course of his employment on October 1, 1986;
 
         
 
              2. Whether a causal relationship exists between claimant's 
 
         claimed injury and claimed industrial disability;
 
         
 
              3. The nature and extent of any entitlement to benefits, 
 
         either against the employer or against the Second Injury Fund of 
 
         Iowa; and,
 
         
 
              4. Whether claimant is entitled to Second Injury Fund 
 
         benefits.
 
         
 
                                FINDINGS OF FACTS
 
         
 
              The deputy, having heard the testimony and considered the 
 
         evidence, finds:
 
         
 
              Claimant is 47-year-old male who has worked for both John 
 
         Morrell & Company and its predecessor, Iowa Meats.  Claimant 
 
         marks snouts, a job requiring the use of a 4-inch boning knife.  
 
         Approximately 400 snouts are run per person per hour.
 
         
 
              Claimant initially noted left hand problems on June 4, 1985 
 
         for which he saw the company doctor on June 7, 1985.  Claimant 
 
         received treatment for those problems, briefly did light duty, 
 
         and then returned to his regular duties.  He
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS 
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         continued to see physicians in the interim, however.  Claimant 
 
         then noted symptoms in his right hand for which he saw the 
 
         company doctor who referred him to Robert Quichten, M.D., a 
 
         neurosurgeon, and Bruce Butler, M.D., a neurologist.
 
         
 
              Claimant received conservative care only prior to the John 
 
         Morrell strike which began on March 9, 1987.  On August 10, 1987, 
 
         Dr. Butler opined that claimant had a five percent impairment of 
 
         the right upper extremity secondary to permanent median nerve 
 
         symptoms without surgery.  Claimant testified that Iowa Meats had 
 
         paid him five percent permanent partial disability on account of 
 
         his left hand condition.
 
         
 
              The John Morrell strike continued until subsequent to 
 
         .Easter, 1988.  Claimant worked for a furniture store during the 
 
         strike.  Claimant reported that his hands were sore at first, but 
 
         improved as time went on.  Claimant returned to marking snouts 
 
         after the strike.  Claimant's hands "gave out" on December 12, 
 
         1988.  On company referral, he saw D. M. Youngblade, M.D., who 
 
         referred him to Quentin J. Durward, M.D.  Dr. Durward performed a 
 
         right carpal tunnel release on March 8, 1969 and a left carpal 
 
         tunnel release on March 22, 1989.  Pre- and post-operative 
 
         diagnoses were of bilateral carpal tunnel syndrome.
 
         
 
              Donna J. Henry is a nurse in the John Morrell dispensary.  
 
         Pursuant to her testimony, it is found that a new first report of 
 
         injury was filed relative to a claimed injury of December 12, 
 
         1988 because the company had changed insurers and the new insurer 
 
         would not accept liability for an old injury without a new 
 
         report.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Our first concern is whether claimant has shown a cumulative 
 
         injury arising out of and in the course of his employment for an 
 
         injury date of October 1, 1986.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on October 1, 1986 which 
 
         arose out of and in the course of his employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v  
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS
 
         Page 4
 
         
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. 
 
         Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch. Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al.  
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985), the Iowa Supreme Court upheld this agency's adoption of 
 
         the cumulative injury rule for application in factually 
 
         appropriate cases.  The McKeever Court cited 1B Larson Workmen's 
 
         Compensation Law, section 39.50 at 11-350.23 for two general 
 
         rules as to when the injury occurs for time limitation purposes 
 
         in cumulative trauma cases.  Under Larson, the injury may occur 
 
         when pair prevents the employee from continuing to work or when 
 
         pain occasions the need for medical treatment.  The Court adopted 
 
         the view that the injury occurs when pain prevents the employee 
 
         from continuing work reasoning that "clearly the employee is 
 
         disabled and injured when, because of pain or physical disability 
 
         he can no longer work."  McKeever at 374.  The McKeever Court 
 
         then adopted what is commonly called the "last injurious exposure 
 
         rule" for successive trauma cases, thereby placing full liability 
 
         upon the carrier covering the risk at the time of the most recent 
 
         trauma bearing a causal relationship to any disability.  McKeever 
 
         at 376.
 
         
 
              Claimant has not shown any injury as of October 1, 1986 
 
         which developed as a result of cumulative trauma arising out of 
 
         and in the course of his employment and which expressly relates 
 
         to his right hand.  The medical evidence presented clearly shows 
 
         that claimant was able to continue working clear through the John 
 
         Morrell strike and, while he may have had symptoms, had not been 
 
         required to leave work on account of
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS 
 
         Page 5
 
         
 
         
 
         any injury to his right hand prior to that strike and was able to 
 
         return to work immediately upon call-back after that strike.  
 
         While claimant continued to receive medical care, that care did 
 
         not culminate in any requirement that he leave work until he was 
 
         off work on account of his bilateral carpal tunnel surgeries 
 
         subsequent to December 12, 1988.  Furthermore, the factual 
 
         evidence clearly shows that claimant's condition developed 
 
         simultaneously and involved both the right and the left hands.  
 
         That fact also undercuts any basis for a finding that claimant 
 
         received a cumulative injury to his right hand on October 1, 
 
         1986.  Therefore, it is concluded that claimant has not shown a 
 
         cumulative injury to his right hand on October 1, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As claimant has not shown any second injury of October 1, 
 
         1986, arguably, we need not address the question of any 
 
         entitlement to Second injury Fund benefits as a threshold 
 
         requirement for Second Injury Fund benefits is, that there have 
 
         been a second injury.  We believe it is in the interest of 
 
         administrative economy that we address that issue at this time, 
 
         however.
 
         
 
              Before the Second Injury Fund is triggered, three 
 
         requirements must be met.  First, the employee must have lost or 
 
         lost the use of a hand, arm, foot, leg or eye.  Second, the 
 
         employee must sustain a loss or loss of use of another specified 
 
         member or organ through a compensable injury.  Third, permanent 
 
         disability must exist as to both the initial injury and the 
 
         second injury.  See Allen v. Second Injury Fund, Thirty-fourth 
 
         Biennial Report of the Iowa Industrial Commissioner 15 (1980); 
 
         Ross v. Servicemaster-Story Co., Thirty-fourth Biennial Report of 
 
         the Iowa Industrial Commissioner 273 (1979).  The Act exists to 
 
         encourage the hiring of handicapped persons by making the current 
 
         employer responsible only for the amount of disability related to 
 
         an injury occurring under his employ as if there were no 
 
         preexisting disability.  See Anderson v. Second Injury 
 
         Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer and Higgs, Iowa 
 
         Workers' Compensation-Law and Practice, section 17-1.
 
         
 
              The Fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund 
 
         v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
 
         
 
              Bilateral carpal tunnel syndrome resulting from one gradual 
 
         injury process constitutes the loss of two members from one 
 
         accident and is evaluated on a functional basis
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS 
 
         Page 6
 
         
 
         
 
         under Iowa Code section 85.34(2)(s).  Himschoot v. Montezuma 
 
         Mfg., file numbers 672778 and 738235 (App. Decn., April 15, 1988) 
 
         (affirmed and appealed to Court of Appeals, Feb. 22, 1990).  The 
 
         manifestation of one injury on two occasions does not necessarily 
 
         qualify an injury for Second Injury Fund benefits under section 
 
         85.64.  McMurrin v. Quaker Oats Co., I Iowa Industrial 
 
         Commissioner Report 222 (App. Decn., April 28, 1981).
 
         
 
              The Second Injury Fund correctly asserts in its brief that 
 
         claimant has not shown an initial injury to his left arm on June 
 
         4, 1985 which resulted in permanent impairment to the left arm.  
 
         While claimant did receive some medical treatment at that time, 
 
         he was able to continue in his duties and no permanency rating 
 
         was given at that time.  Such is not indicative of any separate 
 
         permanent injury.  Additionally, as stated in the above findings 
 
         of fact, the record clearly shows that claimant has undergone a 
 
         single, simultaneous bilateral process which cannot be said to 
 
         have culminated in any injury until at least on or after December 
 
         12, 1998 when claimant actually left work on account of that 
 
         single, simultaneous process to undergo bilateral carpal tunnel 
 
         surgeries, with right and left hand surgeries scheduled only two 
 
         weeks apart.  Given that claimant has not sustained a distinct 
 
         first injury of June 4, 1985 and that claimant's injury, if such 
 
         exists, resulted in one simultaneous injury to both extremities 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         occurring on or after December 12, 1988, claimant has not shown 
 
         any entitlement to Second Injury Fund benefits on this record.  
 
         Therefore, it is concluded that claimant has not established any 
 
         entitlement to Second Injury Fund benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.3.
 
         
 
              Signed and filed this 20th day of September, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PETERSON v. JOHN MORRELL & CO./IOWA MEATS
 
         Page 7
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Bryan J. Arneson
 
         Attorney at Law
 
         507 7th Street
 
         Suite 340,,Insurance Center
 
         Sioux City, Iowa 51101
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.50, 2209, 3202
 
                                               Filed September 20, 1990
 
                                               HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL C. PETERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            JOHN MORRELL & CO./IOWA       :         File No. 848648
 
            MEATS,                        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CHUBB GROUP OF INSURANCE      :
 
            COMPANIES/NATIONAL UNION      :
 
            FIRE INSURANCE,               :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50, 2209
 
            Found claimant had not shown separate cumulative trauma to 
 
            his right hand on alleged injury date where evidence showed 
 
            simultaneously developing bilateral carpal tunnel syndrome 
 
            for which claimant did not actually leave work until 
 
            substantially subsequent to alleged injury date.  Separate 
 
            nonconsolidated claims were filed for claims involving 
 
            actual date on which claimant left work.
 
            
 
            3202
 
            No Second Injury Fund entitlement where claimant had no 
 
            permanent injury on account of alleged left hand condition 
 
            and where evidence showed no second injury on alleged injury 
 
            date and that claimant's condition involved simultaneously 
 
            developing bilateral carpal tunnel syndrome.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID A. WOLLMAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File No. 848661
 
         SIOUXLAND QUALITY MEAT CO.INC.,:
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         David A. Wollman, against Siouxland Quality Meat Company, Inc., 
 
         employer, and The Hartford Insurance Company, insurance carrier, 
 
         defendants, to recover benefits as a result of an alleged injury 
 
         sustained on June 30, 1987.  This matter comes on for a hearing 
 
         before the deputy industrial commissioner in Sioux City, Iowa on 
 
         November 2, 1989' The record consists of the testimony of the 
 
         claimant and joint exhibits 1 through 27.
 
         
 
                                      ISSUES
 
         
 
              The issues set out in the prehearing report for resolution 
 
         are: the nature and extent of claimant's disability and whether 
 
         claimant is entitled to medical benefits involving H. G. Blume, 
 
         M.D., under 85.27 of the Iowa Code.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate and attended 
 
         approximately two years total post high school education at two 
 
         different colleges.  Claimant described several manual labor jobs 
 
         he had after he graduated from high school up to beginning work 
 
         for defendant employer on December 16, 1986 at age 26.  Claimant 
 
         said these manual labor jobs were considered heavy duty work.  
 
         Some of these jobs involved constructing buildings, custom meat 
 
         cutting, landscaping and nursery work, working at a gravel 
 
         company and operating a rock crusher, working at a steel pipe
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         company, and working at IBP.  Claimant indicated that he worked 
 
         at many jobs for only a few weeks or months.  Claimant described 
 
         himself as a He-man type person and liked hands-on manual type 
 
         work.  Claimant began working for the defendant employer December 
 
         16, 1986.  He said his job was lugging, which involved unloading 
 
         and loading beef and sheep hinds weighing 150-250 pounds.  
 
         Claimant stated if the equipment wasn't working properly, he 
 
         would bearhug a hind quarter of beef and put it on his shoulder 
 
         and carry it from a truck to the rail.  Claimant said upper body 
 
         strength is more important than leg strength in this type of job.  
 
         Claimant described the number of loads and the weight he unloaded 
 
         and loaded himself.
 
         
 
              Claimant testified that on June 30, 1987, he had finished 
 
         one load of beef and lamb and was starting a second load when the 
 
         equipment stopped working and a hind quarter of beef fell off the 
 
         faulty hook.  He said another fellow worker gave a big heave-ho 
 
         with a piece of beef onto claimant and claimant felt a pop and 
 
         burning sensation in his back.  Claimant stated he reported the 
 
         injury to the foreman who told him to shake it off.  Claimant 
 
         said he tried to continue more than once but had to stop.  
 
         Claimant then received permission to see Frederick J. Lohr, M.D., 
 
         the company doctor.
 
         
 
              Claimant testified he returned to work July 7, 1987 with no 
 
         restrictions.  He said he still had trouble working at this job 
 
         and wasn't able to continue.  Claimant stated he went to attorney 
 
         Furlong to file bankruptcy and was told that he couldn't file as 
 
         the workers' compensation proceeds would be used to pay his 
 
         bills.
 
         
 
              Claimant stated he was unhappy with the company doctor, Dr. 
 
         Lohr, and went to Horst G. Blume, M.D., around July 14, 1987.  
 
         Claimant contends he then obtained some relief from his pain.
 
         
 
              Dr. Blume released claimant to go back to work beginning 
 
         August 13, 1987.  Claimant described his problems with defendant 
 
         employer as to working within his restrictions upon his return to 
 
         work.
 
         
 
              Claimant said he then went to Dr. Blume again on January 17, 
 
         1988 because he was not getting better.  Claimant revealed Dr. 
 
         Blume put more restrictions on him like lifting not over 30 
 
         pounds, no bending, and stooping at the waist.  Claimant said he 
 
         called defendant employer who indicated there were no jobs for 
 
         the claimant with those restrictions.  Claimant said he tried to 
 
         get unemployment on January 20, 1988.
 
         
 
              Claimant said an appointment was arranged with the new 
 
         company doctor, John N. Redwine, D.O., for March or April 1988.  
 
         Claimant indicated the doctor saw no reason for claimant's pain.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 3
 
         
 
         
 
         Claimant was eventually referred to Robert A. Durnin, M.D. 
 
         Claimant said Dr. Durnin left the state so claimant eventually 
 
         was referred to Kevin J. Liudahl, M.D. Claimant contends Dr. 
 
         Liudahl did not know if anything could be done, but did request 
 
         the results of other tests previously performed on claimant 
 
         including Dr. Blume's MRI which cost $2200.00.  Claimant contends 
 
         other doctors used Dr. Blume's medical information.
 
         
 
              Claimant eventually went to Brian W. Nelson, M.D., through a 
 
         referral from Dr. Liudahl.  Dr. Nelson recommended a Cybex 
 
         Program.  Claimant emphasized he felt Dr. Nelson gave him 
 
         inadequate care.  Claimant contends that Dr. Nelson felt the 
 
         Cybex system can tell if claimant is faking.  He thought Dr. 
 
         Nelson treated him like an invalid.  Claimant said he agrees with 
 
         Dr. Nelson's notation in March 1989 that claimant reached maximum 
 
         recovery on March 22, 1989. (Joint Exhibit 19) He also agreed 
 
         with Dr. Nelson's restrictions. (Jt. Ex. 20) Claimant revealed he 
 
         has never improved after March 22, 1989 and does not try to lift 
 
         50 pounds.
 
         
 
              Claimant says he presently has two jobs, one working the 
 
         cash register at Moodys Liquor Store three days a week at $5.00 
 
         per hour and at the Marina Inn, booking and greeting guests at 
 
         $4.00 per hour 34 hours a week.  Claimant contends he is excluded 
 
         from a large portion of the job market due to his injury and 
 
         restrictions.  Claimant acknowledged the truth of the reference 
 
         in the vocational rehabilitation report that he was convicted of 
 
         a felony drug possession in 1982 and pled guilty and served 69 
 
         days of 90 sentence plus 3 years probation.  Claimant admitted he 
 
         has not seen Dr. Nelson for services since claimant's March 22, 
 
         1989 discharge.  Claimant emphasized he never had a problem with 
 
         his back before June 30, 1987 compared to its current condition 
 
         but acknowledged a back problem when working at IBP around 1983.  
 
         Claimant said he didn't file a workers' compensation claim in 
 
         1983.  Claimant said he was also off one to two weeks with a neck 
 
         injury while at IBP.  Claimant emphasized these prior problems 
 
         are not the same as his current problem.
 
         
 
              Frederick J. Lohr, M.D., reported claimant was in his office 
 
         on June 30, 1987 with a complaint of tightness in his paraspinal 
 
         muscles in the lumbar area.  He said that after claimant's 
 
         approximate fourth visit to his office, the last being July 9, 
 
         1987, claimant indicated he had no relief from pain and no relief 
 
         from the therapy.  Claimant requested a second opinion that 
 
         claimant had already arranged.
 
         
 
              John W. Redwine, D.O., saw claimant on March 1, 1988 and 
 
         found no significant physical abnormalities.  He indicated 
 
         claimant continued to complain of pain in the midthoracic region 
 
         and lower lumbar area of the back.  He found no objective 
 
         findings to account for claimant's persistent back pain.  He
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 4
 
         
 
         
 
         referred claimant to a Dr. Samuelson for another opinion.  Dr. 
 
         Redwine's notes of April 22, 1988 and July 20, 1988 respectively 
 
         reflect claimant was to see a Dr. Durnin and a Dr. Liudahl on 
 
         April 29, 1988 and July 22, 1988 respectively.
 
         
 
              Claimant saw Robert Durnin, M.D., two times.  On May 12, 
 
         1988 Dr. Durnin wrote: "I would think that the most likely 
 
         problem with this gentlemen is a disc degeneration." (Jt. Ex. 10)
 
         
 
              Kevin J. Liudahl, M.D., wrote on July 22, 1988: "I have the 
 
         report of minimal degenerative disk disease at the lowest level 
 
         according to Dr. Durnin.  The other report shows that it was 
 
         normal.  Impression: Chronic Lumbar syndrome with some 
 
         radiculitis." (Jt. Ex. 11) On September 15, 1988 Dr. Liudahl 
 
         wrote:
 
         
 
              His diagnosis is chronic lumbar syndrome with radiculitis.  
 
              No nerve root involvement.  The patient requested a surgical 
 
              consultation.  I suggested to Dr. Redwine that he refer him 
 
              to Dr. Durward to answer any of his neurosurgical type of 
 
              questions.  Also recommended he be sent to the Back Clinic 
 
              of North America for testing on their Cybex machinery and 
 
              their muscle rehabilitation program.  I believe this is the. 
 
              best way to handle chronic lumbar syndrome in workman 
 
              compensation cases.  I referred his continuing care back to 
 
              Dr. Redwine and asked him to see him back on a prn basis.
 
         
 
         (Jt. Ex. 12)
 
         
 
              On October 24, 1988 Q. J. Durward, M.D., wrote:
 
         
 
                 I think this patient has a chronic strain to his low back 
 
              associated probably with some facet disease at L5/Sl.  
 
              Clinically this has been on the basis of his injury at work.  
 
              I think that there's a reasonable chance that isokinetic 
 
              rehabilitation by building up the paraspinal muscles will 
 
              lend the best chance of a long term symtomatic relief from 
 
              this.  I ' have made this referral, in fact he requested 
 
              that I do this.
 
              
 
                 My recommendation in the future would be for him not to 
 
              be involved in an occupation where he has to lift more than 
 
              30 lbs.  I think it probably would be appropriate for him to 
 
              have job retraining in some
 
              other light duty.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 5
 
         
 
         
 
                 As far as a permanent partial impairment goes, it's very 
 
              difficult to relate right, but would say it's probably in 
 
              the order of 5%.
 
         
 
         (Jt. Ex. 13  PP. 1-2
 
         
 
              On November 3, 1988 Dr. B. W. Nelson of the Back Care, Inc. 
 
         clinic wrote:
 
         
 
              Assessment: Chronic mild facial strain, apparently secondary 
 
              to work accident on the 30th of June, 1987.  Today patient 
 
              was positive in most of the signs of nonorganic pathology.
 
              
 
              Recommendation: 1) I recommend this patient begin isokinetic 
 
              rehabilitation.  I would like him to be seen 3 times a week 
 
              with the goal being to normalize the values of his trunk 
 
              muscles.
 
              
 
                 2) Patient should be considered temporarily disabled from 
 
              work.  Patient already has been accepted into a vocational 
 
              rehab program and appears to be eager about doing that.  
 
              Hopefully in approximately 8 weeks we will have increased 
 
              his functional ability such that he will be able to tolerate 
 
              sitting at a desk and doing his vocational rehab.
 
              
 
                 3) I will follow this patient up again in 3 weeks for a 
 
              recheck.
 
              
 
                 4) We will follow the Wadell signs closely.
 
         
 
         (Jt. Ex. 14, PP. 2-3)
 
         
 
              On November 30, 1988, Dr. Nelson wrote:
 
         
 
              Assessment: The patient appears to be tolerating the 
 
              treatment well and has shown some positive responses to 
 
              rehab.  He is much less positive today in the signs of 
 
              inorganic pathology.
 
              
 
              Plan:
 
              
 
              1. Continue formal rehab.
 
              
 
              2. We will retest the patient before I see him again in 3 
 
              weeks for a recheck and we will update his disability status 
 
              at that time.
 
              
 
              3. The patient should still be considered temporarily 
 
              totally disabled at this time, but I am confident he
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 6
 
         
 
         
 
              will be able to proceed into his vocational rehab studies in 
 
              electronics without much difficulty.
 
         
 
         (Jt. Ex. 15)
 
         
 
              On December 21, 1988 Dr. Nelson wrote:
 
         
 
              Assessment: Patient is responding very well to isokinetic 
 
              rehab.
 
              
 
              ....
 
              
 
              Patient should still be considered temporarily disabled from 
 
              work but I will follow him up again in 4 weeks and at that 
 
              time it is anticipated that we will discontinue formal 
 
              therapy and transition him to a full time home program.  At 
 
              that time it is my opinion that he will be able to begin 
 
              engaging in his rehab vocation of electronics without any 
 
              difficulty.  I would not recommend that he return to working 
 
              in a packing house.
 
         
 
         (Jt. Ex. 16)
 
         
 
              On January 24, 1989 Dr. Nelson wrote:
 
         
 
                 Dave returns for a recheck.  He appears to be gaining 
 
              strength but is still having some pain.  I would like him to 
 
              continue on his once a week Medex treatment in order to get 
 
              as much strength out of him as we can.  The patient appears 
 
              to be putting in a good effort and I still believe that we 
 
              can squeeze some more improvement out of him and get him as 
 
              good as he can be.
 
         
 
         (Jt. Ex. 17)
 
         
 
              On March 22, 1989 Dr. Nelson wrote:
 
         
 
                 Dave comes in for his final recheck today.  He has just 
 
              finished his 12th session on Medex.  He has shown some 
 
              really remarkable improvement .... He is still below average 
 
              and this reflects the permanency of his condition.
 
              
 
                 Subjectively, the patient states he is much better and 
 
              feels like the rehab program has helped him greatly.  His 
 
              ability to walk without pain has increased and his other 
 
              function & abilities have also increased according to his 
 
              interview today.  Indeed, his whole attitude seems much 
 
              better today.  He is much more upbeat and looks much less 
 
              depressed than when he
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 7
 
         
 
         
 
              first started.  Over the past several weeks he has worked 
 
              very, very hard and shown a genuine effort to work and get 
 
              well.
 
              
 
              ....
 
              
 
              Assessment - This patient has shown reasonable progress both 
 
              subjectively and objectively to active rehab and now appears 
 
              ready to move on with his life in the field of electronics 
 
              in his vocational rehab.
 
              
 
              Plan - 1) Discontinue formal physical therapy and transition 
 
              to home life line program.  It was emphasized to the patient 
 
              how critical it is to continue with this for the rest of his 
 
              life on a daily basis.
 
              
 
                 2) Based on the patient's objective testing, physical 
 
              exam, and diagnostic work-up I would rate him as having a 5% 
 
              permanent partial disability of the body as a whole.
 
         
 
         (Jt. Ex. 18)
 
         
 
              On March 30, 1989 Dr. Nelson responded to defendant's 
 
         attorney's letter and noted that claimant reached maximum healing 
 
         on March 22, 1989 and claimant's impairment to the body as a 
 
         whole would be 3 percent based on AMA guidelines. (Jt. Ex. 19, P. 
 
         1)
 
         
 
              On May 10, 1989 Dr. Nelson's notes reflect:
 
         
 
                 Dave comes in today stating that his schooling in 
 
              electronics has apparently been put on hold.  He is in the 
 
              process now of looking for another job.  He wondered what 
 
              restrictions might be applicable to him while looking for 
 
              this job and asked me to give him some.
 
              
 
                 Based on his previous strength testing and physical exam 
 
              and response to treatment, I would give Dave a maximum 50# 
 
              lifting restriction.  I would also state that he should lift 
 
              this maximum amount of weight no more than 3-4 times per 
 
              hour.  He should avoid a job that requires repetitive 
 
              stooping and bending.  He should be allowed to stand for a 
 
              maximum of 4 hours.  After standing for 4 hours he should be 
 
              allowed to sit for at least an hour before he is required to 
 
              stand again.  Within those restriction, it is my opinion 
 
              that he is employable.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 8
 
         
 
         
 
         (Jt. Ex. 20)
 
         
 
              On October 15, 1987 the Marian Health Center x-ray report 
 
         reflects:
 
         
 
                 MRI/thoracic and lumbar spine: Tl and T2 weighted 
 
              techniques were used in the sagittal plane.  Axial views 
 
              were obtained at the levels of L4-5 and L5-Sl, D8-D9 and 
 
              D9-DlO.  There is no evidence of a disc herniation.  All 
 
              discs identified have a normal appearing signal brightness.  
 
              No evidence of a bony destructive process.  No evidence of 
 
              an epidural mass effect.
 
         
 
         (Jt. Ex. 21)
 
         
 
              Dr. Quenton John Durwood, a neurosurgeon, testified through 
 
         his deposition on December 9, 1988 that he saw claimant on 
 
         October 24, 1988 through a referral from Dr. John Redwine.  Dr. 
 
         Durwood said he reviewed reports of Drs. Lohr, Blume, Redwine, 
 
         Durnin, and Liudahl, some x-ray reports (MRI), and an EMG report.  
 
         Dr. Durwood was asked and answered the following questions:
 
         
 
              Q. Based on what you saw and reviewed, did you come to some 
 
              conclusions about his condition?
 
              
 
              A. Yes. After I had reviewed his case and examined him and 
 
              seen the MRI scan, I felt that he had caused or the injury 
 
              had caused a type of strain or injury to the ligaments and 
 
              muscles of the lower back and possibly also the smaller 
 
              joints of the lower back called facets.  And I thought that 
 
              this was the cause of the back pain and that there was no 
 
              specific disk problem.
 
              
 
                 The best form of future treatment was going to be 
 
              rehabilitative treatment and I felt the best form of 
 
              rehabilitative treatment was the rehabilitation treatment 
 
              known as isokinetics and modification of his job so that he 
 
              was not involved in lifting heavy objects.
 
              
 
              Q. Would you describe this isokinetic treatment?
 
              
 
              A. It's a way to build up the strength and bulk of the 
 
              muscles surrounding the spine so that the spine is 
 
              internally splinted and so it doesn't move excessively.  And 
 
              by splinting it, that way it reduces the amount of 
 
              inflammation in the joints and ligaments.
 
              
 
         (Jt. Ex. 27, PP. 9-10)
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 9
 
         
 
         
 
              Dr. Durwood opined a 5 percent permanent impairment to 
 
         claimant's body as a whole and indicated claimant does not have a 
 
         neurological deficit in the way of paralysis or the loss of a 
 
         limb.  Dr. Durwood stated: "I don't think any surgery or any 
 
         further blocks are going to help him."  (Jt. Ex. 27, P. 14) Dr. 
 
         Durwood estimated that claimant would get as good as he can 
 
         become after 8 weeks of isokinetic rehabilitation.  Dr. Durwood 
 
         said that he believed the claimant's degree of limitation in 
 
         movement was restricted by pain.
 
         
 
              Sharon Koeppe of the Nebraska Vocational Rehabilitation 
 
         Services Career Development Center, wrote in the vocational 
 
         evaluation report on July 26, 1988 the following:
 
         
 
              Based upon the assessment results, Dave does appear to be a 
 
              very good candidate for post-secondary training.  He 
 
              received excellent GATB scores with the exception of a 
 
              below-average score in manual dexterities because the 
 
              reaching caused back discomfort for him.  His academic 
 
              results, as well, seemed to support his desire to pursue 
 
              training in electronics, as he received mostly above-average 
 
              scores.  He definitely seems to possess the numerical 
 
              aptitude as well as the spatial aptitude that is important 
 
              for doing well in the electronics area.
 
              
 
              Dave seems to take a very serious and mature approach to the 
 
              career exploration process and his need for selecting an 
 
              appropriate vocational goal.  He seems to realize that he 
 
              now needs to receive training for a lighter job.  However, 
 
              it is critical that before he becomes involved with a 
 
              training program he needs to reach further medical 
 
              improvement in regard to his physical condition.  He is 
 
              unable to tolerate sitting for any longer than thirty 
 
              minutes.  He definitely appears to need to work closely with 
 
              his doctors and needs to participate fully in his treatment 
 
              plan.
 
         
 
         (Jt. Ex. 24, PP. 7-8)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the  injury of June 30, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 10
 
         
 
         
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag V. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co. 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                 Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered ... In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              A healing period may be interrupted by a return to work.  
 
         Riesselman v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 11
 
         
 
         
 
              Iowa Code section 85.27, in part, states:
 
         
 
                 The treatment must be offered promptly and be reasonably 
 
              suited to treat the injury without undue inconvenience to 
 
              the employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 29 year old high school graduate with two 
 
         years post high school education.  Claimant's work history 
 
         indicates he never stuck to any job very long.  At least one job 
 
         lasted two weeks.  Claimant has basically had manual labor jobs.  
 
         Claimant described himself as a He-man type person who likes 
 
         hands-on work.  Claimant has seen many doctors.  Claimant was 
 
         injured on June 30, 1987 while lifting a hind quarter of beef 
 
         that had fallen off a faulty hook.  Although claimant attempted 
 
         to return to work on July 7, 1987 he wasn't able to continue.  
 
         Claimant was off work July 1, 1987 through August 12, 1987.
 
         
 
              Claimant was released by Dr. Blume to return to work 
 
         beginning August 13, 1987.  In January 1988 claimant saw Dr. 
 
         Blume again because he wasn't getting any better.  Dr. Blume 
 
         restricted claimant's lifting to not over 30 pounds, no bending 
 
         and no stooping at the waist.  Claimant indicated defendant 
 
         employer told him there was no job available for the claimant 
 
         with those restrictions. claimant filed for unemployment on 
 
         January 20, 1988.  Claimant then saw a series of doctors.  It 
 
         appears from the record that the restrictions of Dr. Brian W. 
 
         Nelson set out in the doctor's May 10, 1989 report are the 
 
         current restrictions still existing for the claimant.  Those 
 
         restrictions are a maximum of 50 pounds lifting with,this maximum 
 
         amount of weight to be lifted no more than 3-4 times per hour.  
 
         Claimant is to avoid a job that requires repetitive stooping and 
 
         bending.  Claimant is allowed to stand for a maximum of 4 hours 
 
         but after standing for four hours, he should be allowed to sit 
 
         for at least one hour before he is required to stand again.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Durward and Dr. Nelson opined a five percent permanent 
 
         partial impairment to claimant's body as a whole.
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 12
 
         
 
         
 
              The undersigned finds claimant has a five percent permanent 
 
         partial impairment to the body as a whole which arose out of and 
 
         in the course of claimant's employment and is causally connected 
 
         to claimant's work related injury on June 30, 1987.
 
         
 
              The undersigned finds from the record that it is basically 
 
         undisputed that claimant was off July 1, 1987 through August 12, 
 
         1987 and July 20, 1988 through March 22, 1989 which totals 41 
 
         weeks and 2 days.  The parties are in dispute as to whether, in 
 
         fact, claimant is entitled to temporary total disability or 
 
         healing period from and including March 23, 1989 to July 20, 
 
         1989.  Dr. Nelson concluded claimant roached maximum improvement 
 
         on March 22, 1989.  There is no other contrary medical evidence 
 
         as to this date.  The second healing period arose from the 
 
         attempt to help claimant in a back clinic program.  Claimant 
 
         finished his twelfth session of Medex and showed real improvement 
 
         (Jt. Ex. 18, P. 1).  It was on this same date that Dr. Nelson 
 
         opined a five percent permanent partial impairment to claimant's 
 
         body as a whole.  The doctor used the word disability which is 
 
         only within the prerogative of this deputy.  The undersigned 
 
         believes without question the doctor meant impairment.  There is 
 
         no indication that claimant was to expect anymore significant 
 
         improvement from his June 30, 1987 injury.  The undersigned finds 
 
         claimant incurred two healing periods namely July 1, 1987 through 
 
         August 12, 1987 (6 weeks 1 day) and July 20, 1988 through March 
 
         22, 1989 (35 weeks 1 day).
 
         
 
              Claimant testified as to his intent to return to school at 
 
         one time. claimant showed an aptitude and ability on various 
 
         tests he took in relation to his rehabilitation evaluation in 
 
         1988 (Jt.  Ex. 24).
 
         
 
              Claimant testified he interviewed and tested and appeared 
 
         acceptable to get into an electronics technology school.  It 
 
         seemed like claimant was qualified to begin the fall of 1988.  A 
 
         delay was caused because claimant needed $2500 for his delinquent 
 
         student loan.  Claimant acknowledged that the insurance carrier 
 
         was going to advance the delinquent student loan amount which 
 
         would possibly allow claimant to get a Federal grant.  Claimant 
 
         never pursued this any further.
 
         
 
              Claimant's history of work, his general attitude towards 
 
         various things as exhibited by his demeanor and testimony, his 
 
         comments, and his self serving prepared document read at the end 
 
         of his testimony show claimant may have some personality problem 
 
         that could affect his ability to get a job and keep it.  His past 
 
         history obviously shows a prior inability to stay at a job.  
 
         Claimant appears to have a big He-man ego which may not sit well 
 
         with employers when one does not have other credentials and 
 
         skills to support his ego.  Claimant acknowledges a felony 
 
         conviction.  This alone could have a substantial impact upon one
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 13
 
         
 
         
 
         getting a job, particularly for a drug conviction in which time 
 
         was served.  Claimant contends he has no drug or alcohol problem 
 
         today.  Claimant's employability will be affected by his personal 
 
         record which is not the result of his injury.
 
         
 
              There are many criteria to consider in trying to determine 
 
         industrial disability.  There is no question claimant relied on 
 
         his back and physical ability in most of his prior jobs.  He is 
 
         young and used to building up his body in weight lifting.  
 
         Claimant is stymied, in part, by his personal criminal conviction 
 
         and credit record.  Taking in consideration the all the criteria 
 
         arriving at a determination of industrial disability, the 
 
         undersigned finds claimant has a twenty percent industrial 
 
         disability.
 
         
 
              The only remaining issue involves 85.27.  It is undisputed 
 
         claimant did not seek authority from the defendants to have Dr. 
 
         Blume as claimant's treating physician.  The defendants have 
 
         provided and paid for the services of several doctors including 
 
         specialists.  Claimant knew or should have known Dr. Blume was 
 
         unauthorized.  It is immaterial if his former lawyer made the 
 
         arrangements.  Claimant is stuck with his lawyer's action, if in 
 
         fact, his former lawyer made the determination.  Defendants paid 
 
         for all the medical service bills except for Dr. Blume.  Claimant 
 
         contends the other doctors used the test results of Dr. Blume, 
 
         therefore, the defendants should pay his costs.  If the 
 
         defendants' doctors didn't refer to Dr. Blume's reports and 
 
         tests, the claimant would have attacked the doctors on their 
 
         credibility plus performing malpractice or at least misfeasance 
 
         in their examination and evaluation of the claimant.  The 
 
         undersigned finds claimant is solely responsible for Dr. Blume's 
 
         bills and any mileage connected therewith.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant received a lumbar back injury while lifting a 
 
         hind quarter of beef on June 30, 1987.
 
         
 
              2. Claimant has a five percent permanent partial impairment 
 
         to his body as a whole.
 
         
 
              3. Claimant's five percent permanent partial impairment to 
 
         his body as a whole is a result of claimant's work related injury 
 
         on June 30, 1987.
 
         
 
              4. Claimant is entitled to healing period of July 1, 1987 
 
         through August 12, 1987 (6 weeks 1 day) and July 20, 1988 through 
 
         March 22, 1989 (35 weeks 1 day) at the rate of $170.85 per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 14
 
         
 
         
 
              5. Claimant has restrictions of: maximum 50 pound lifting 
 
         with this maximum to be lifted no more than 3-4 times per hour, 
 
         avoid repetitive stooping and bending, standing for maximum of 4 
 
         hours after which time sitting for at least 1 hour before 
 
         standing again.
 
         
 
              6. Claimant has a loss of earning capacity as a result of 
 
         his June 30, 1987 injury, but this loss is contributed to by 
 
         claimant's drug conviction and his non injury related credit 
 
         record.
 
         
 
              7. Dr. H. G. Blume was not a defendant authorized physician 
 
         and claimant is responsible for all of Dr. Blume's.bills and any 
 
         mileage expense connected therewith.
 
         
 
                                   CONCLUSIONS
 
         
 
              Claimant's June 30, 1987 injury arose out of and in the 
 
         course of claimant's employment.
 
         
 
              Claimant's five percent permanent partial impairment to his 
 
         body as a whole is causally connected to his lumbar back injury 
 
         on June 30, 1987.
 
         
 
              Claimant is entitled to healing period of July 1, 1987 
 
         through August 12, 1987 (6 weeks 1 day) and July 20, 1988 through 
 
         March 22, 1989 (35 weeks 1 day) at the rate of.$170.85 per week.
 
         
 
              Claimant has a twenty percent industrial disability.
 
         
 
              Defendants are not responsible for Dr. H. G. Blume's medical 
 
         bills or mileage expense connected therewith as he was not a 
 
         defendant authorized physician.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the defendants shall pay unto claimant healing period 
 
         benefits of July 20, 1987 through August 12, 1987 and July 20, 
 
         1988 through March 22,, 1989 totaling forty one point two eight 
 
         six weeks (41.286) at the rate of one hundred seventy and 85/100 
 
         dollars ($170.85) per week.
 
         
 
              That defendants shall pay unto claimant one hundred weeks 
 
         (100) of permanent partial disability benefits at the rate of one 
 
         hundred seventy and 85/100 dollars ($170.85) beginning March 23, 
 
         1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the awards for weekly
 
         
 
         
 
         
 
         WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC.
 
         Page 15
 
         
 
         
 
         benefits previously paid.  Defendants have previously paid forty 
 
         two weeks (42) of healing period benefits and fifty weeks (50) of 
 
         permanent partial disability benefits.
 
         
 
              That defendants shall pay interest on the benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          
 
          Copies To:
 
          
 
          Mr. Stanley E. Munger
 
          Attorney at Law
 
          Terra Centre, Suite 303
 
          600 4th Street
 
          Sioux City, Iowa  51101
 
          
 
          Mr. James M. Cosgrove
 
          Attorney at Law
 
          1109 Badgerow Building
 
          P.0. Box 1828
 
          Sioux City, Iowa  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51803 - 52505
 
                                         Filed December 27, 1989
 
                                         BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID A. WOLLMAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 848661 
 
         SIOUXLAND QUALITY MEAT CO.INC,:
 
                                         A R B I T R A T I 0 N 
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
         
 
              Claimant awarded twenty percent industrial disability.
 
         
 
         
 
         52505
 
         
 
              Claimant was denied 85.27 medical benefits for an 
 
         unauthorized doctor.  Claimant had seen several doctors already 
 
         but wasn't personally satisfied with the care being given to him.