BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ANTHONY BOCKENSTEDT,
 
        
 
            Claimant,
 
                                                                  File 
 
        Nos. 850416
 
        and                                                       850417
 
        
 
        NORTHWEST ERECTION SERVICES,
 
        INC.,
 
                                                 A R B I T R A T I O N 
 
            Employer,
 
                                                   D E C I S I O N
 
        and
 
        
 
        CIGNA INSURANCE COMPANIES and                  F I L E D
 
        IOWA CONTRACTORS WORKERS'
 
        COMPENSATION GROUP,                           APR 6 1989
 
        
 
            Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Anthony 
 
             Bokenstedt, claimant, against Northwest Erection Services, Inc., 
 
             employer, and Cigna Insurance Companies and Iowa Contractors 
 
             Workers' Compensation Group, insurance carriers, to recover 
 
             benefits as a result of an alleged injury sustained in December 
 
             1985 and December 1986. This matter comes on for hearing before 
 
             the undersigned deputy industrial commissioner in Des Moines, 
 
             Iowa, on February 28, 1989. The record consists of the testimony 
 
             of the claimant, Jack McFadyen, and joint exhibits 1 through 12.
 
        
 
            Pursuant to the prehearing report, any claim for permanent 
 
        partial disability benefits has been bifurcated from this 
 
        proceeding. All of the parties further agree that defendant Iowa 
 
        Contractors Workers Compensation Group is the carrier for the 
 
        period through December 31, 1985 and that defendant Cigna 
 
        Insurance Companies is the carrier for the period from January 1, 
 
        1986 through December 31, 1986.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report, the issues for resolution 
 
             are:
 
        
 
            1. Whether claimant received an injury in December 1985 
 
        which arose out of and in the course of his employment; SERVICES, 
 
        INC. Page 2
 
        
 
        
 
             2. Whether claimant's alleged injury in December 1985 is 
 
             causally connected to his present disability for which claimant 
 
             is having surgery;
 
        
 
            3. Whether defendant insurance carrier Iowa Contractors 
 
        Workers' Compensation Group is responsible for payment of the 
 
        surgery scheduled to occur on claimant's left ankle;
 

 
        
 
 
 
 
 
        
 
            4. Whether claimant received an injury in December 1986 
 
        which arose out of and in the course of his employment;
 
        
 
            5. Whether claimant's alleged injury in December 1986 is 
 
        causally connected to his present disability for which claimant 
 
        is having surgery; and
 
        
 
            6. Whether defendant insurance carrier Cigna Insurance 
 
        Companies is responsible for payment of the surgery scheduled to 
 
        occur on claimant's left ankle.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that in December 1985, while walking down 
 
             stairs during his work break at defendant employer's job site, 
 
             his left ankle gave out. Claimant indicated that his left ankle 
 
             developed pain requiring him to seek medical treatment. Claimant 
 
             stated that he notified Doug Dyer, his foreman, of the injury. 
 
             Claimant stated that he could not determine why his ankle gave 
 
             out but that he felt a locking sensation. Claimant stated he 
 
             prevented his fall by grabbing the handrail. Claimant testified 
 
             that his work involved many facets in the erection of steel 
 
             buildings for defendant employer. Claimant testified that he 
 
             continued working after his December 1985 incident and did not 
 
             miss any work until he was laid off by defendant employer 
 
             December 19, 1986, except for a few doctor appointments. 
 
             Claimant acknowledged that he was off work three months when he 
 
             broke his left ankle and wrist in 1977 while erecting metal 
 
             buildings for Ace Construction Company.
 
        
 
            Claimant stated he has never had surgery on his left ankle. 
 
        Claimant testified that his ankle has bothered him inside and 
 
        outside since his 1977 injury, but not to the extent that he 
 
        could not work. Claimant contended he has lost his ankle 
 
        flexibility and has more pain and swelling as a result of his 
 
        1985 injury. Claimant testified that he was reluctant to have 
 
        surgery on his left ankle because he had a good job with good pay 
 
        and company benefits.
 
        
 
            Claimant stated that Hawkeye Security Insurance Company, the 
 
        insurer for Ace Construction on the 1977 injury, has been paying 
 
        claimant's medical bills except for those paid by his personal 
 
        disability insurance carrier. Claimant testified as to various 
 
        other doctors he saw in 1986 and 1987 at the request of his 
 
        workers' compensation carrier involved with his 1977 injury. 
 
        Claimant said that during 1986 and 1987 his ankle was getting 
 
        worse and that the 1977 insurance carrier wanted a second 
 
        opinion. Claimant testified that in the spring of 1987 he drew 
 
        unemployment compensation until James V. Nepola, M.D., gave 
 
        claimant a disability rating. Claimant then began receiving 
 
        disability payments from Farm Bureau Insurance Company under the 
 
        claimant's personal disability insurance policy. Claimant stated 
 
        that his disability carrier wanted claimant to see David B. 
 
        McClain, D.O. This insurance company paid these medical bills. 
 
        Claimant said that he has set up an appointment for surgery on or 
 
        around March 19, 1989 and that arrangements have been made for 
 
        the personal disability insurance carrier to pay for his left 
 
        ankle operation. Claimant revealed that he has Sarcoidosis which 
 
        he understands is like TB but is not cancerous and this causes 
 
        him to have a blood imbalance. Claimant stated this condition 
 
        may affect him having his scheduled operation. Claimant admitted 
 
        that he was still available for work after his December 19, 1986 
 
        layoff, but that he has had no employment since this date except 
 
        that he drove a school bus since January 1988 eight to ten hours 
 
        per week. Claimant also stated that was taking some courses at 
 

 
        
 
 
 
 
 
        Simpson College.
 
        
 
             Jack McFadyen testified that Doug Dyer, claimant's foreman, 
 
             called him on December 4, 1985 and that Mr. McFadyen had made a 
 
             memo of a call (exhibit 10, page 93). McFadyen acknowledged that 
 
             this was the first he knew of claimant's prior ankle injury. 
 
             McFadyen stated that he was told that the 1977 injury insurance 
 
             carrier would pay for claimant's medical.
 
        
 
            McFadyen testified that claimant called him on March 5, 1986 
 
        about his old injury of eight years ago. He stated that claimant 
 
        told him that the 1977 insurance carrier was going to pay for the 
 
        appointment that claimant recently made with Marvin H. Dubansky, 
 
        M.D.
 
        
 
            Joshua D. Kimelman, D.O., records reflect the following:
 
        
 
             IMPRESSION: Painful osteophyte in the front of his ankle.
 
             
 
                  We will have him work on therapy. Get a bone scan 
 
                      because what concerns [sic] me is this gentleman says his 
 
                      ankle hurts and has hurt severely since the time of his 
 
                      fracture 7 or 8 years ago. We will get a bone scan and see 
 
                      him back again in one month and take a look at that time.
 
             
 
        (Joint Exhibit 1, page 10)
 
        
 
             IMPRESSION: We have 3 problems here; I explained that to 
 
             Anthony. He has degenerative arthritis in his right normal 
 
             ankle so that there is an aspect of osteoarthritis present. 
 
             He also has post-traumatic osteoarthritis as a result of his 
 
             previous bimallcolar fracture in 1977 which is clearly 
 
             increased over the other ankle. He also has the aspect of a 
 
             job-related injury in December of 1985.
 
             
 
        (Jt. Ex. 1, p. 8)
 
        
 
             As we have discussed, Mr. Bockenstedt has a post-traumatic 
 
             degenerative arthritis that dates back to an injury in 1977. 
 
             The question, at this time, is whether this is an 
 
             exacerbation of pre-existing condition, which is workman 
 
             compensable as a result of 1985 and 1986 job-related wear 
 
             and tear or whether it is just expected sequala of 
 
             post-traumatic arthritis associated with his original 
 
             injury. I am unable to resolve that non-medical question.
 
             
 
        (Jt. Ex. 1, p. 7
 
        
 
             On September 29, 1988, the records of Dr. Rosenfeld, D.O., 
 
             reflect:
 
        
 
             Initial visit. Pt. has been in my Des Moines office. He 
 
             has left ankle arthrosis with spur formation. He has 
 
             history of an ankle injury in 1977 and has had problems ever 
 
             since.
 
             
 
               ....
 
             
 
                  History: States had broken left ankle about 10 yrs. ago 
 
                      - Has had almost continuous problem & pain and ROM ankle - 
 
                      wanting to know about ankle fusion.
 
             
 
        (Jt. Ex. 1, pp. 12-13)
 
        
 
             University of Iowa clinical notes from the Ortho Clinic 
 
             reflect the following:
 

 
        
 
 
 
 
 
        
 
                  Anthony Bockenstedt returns today for follow-up of his 
 
                      left ankle pain. He is status post a 25 foot fall in 1977 
 
                      which resulted in a left ankle fracture. This was treated 
 
                      by an outside doctor and previous records and x-rays are not 
 
                      available. He states that he has had a problem with pain in 
 
                      the left ankle essentially since the injury.
 
             
 
        (Jt. Ex. 1, p. 18)
 
        
 
             Ronald K. Bunten, M.D., an orthopedic surgeon, on November 
 
             5, 1986 diagnosed as follows:
 
        
 
             DIAGNOSIS: PROBABLE LOOSE BODY OR UNUNITED FRACTURE 
 
             FRAGMENT, LEFT ANKLE.
 
             
 
                  S: This 38-year-old man sustained a bimalleolar fracture 
 
                       of the left ankle in 1977, treated by Dr. Dubansky 
 
                       with casting for about eight weeks. The cast was 
 
                       subsequently removed and he returned to work shortly 
 
                       thereafter. He has continued to have pain in the 
 
                       ankle, which is principally over the anterolateral 
 
                       and anterior aspects of the ankle. Occasionally he 
 
                       gets some sharp pain and locking which may suddenly 
 
                       release.
 
                  
 
        (Jt. Ex. 1, p. 21)
 
        
 
             On September 19, 1988, Mercy Hospital progress notes reflect 
 
             the following: "Patient noted. Years ago fell off building and 
 
             having multiple fractures. [T]aken care of by Dr. Kimelman and 
 
             Dr. Dubansky at that time. Continued to have moderate discomfort 
 
             in his left ankle for 9 1/2 yrs. and then the pain worsened and 
 
             had to stop working at his job." (Jt. Ex. 1, p. 22)
 
        
 
            Claimant's Mercy Hospital records of February 20, 1986 note 
 
        the following: "BONE SCAN ATTN LT ANKLE. VERIFICATION 
 
        PENDING--PT EMPLOYED TIME OF INJ W/ ACE CONSTRUCTION" (Jt. Ex. 1, 
 
        p. 34)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received injuries in December 1985 and December 
 
             1986 which arose out of and in the course of his employment. 
 
             McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
             Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
             (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injuries of December 1985 and December 1986 
 
        is causally related to the disability on which he now bases his 
 
        claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
        (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
        (1945). A possibility is insufficient; a probability is 
 
        necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
        691, 73 N.W.2d 732 (1955). The question of causal connection is 
 
        essentially within the domain of expert testimony. Bradshaw v. 
 
        Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
        
 
 
 
 
 
        
 
             However, expert medical evidence must be considered with all 
 
             other evidence introduced bearing on the causal connection. 
 
             Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
             not be couched in definite, positive or unequivocal language. 
 
             Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
             the expert opinion may be accepted or rejected, in whole or in 
 
             part, by the trier of fact. Id. at 907. Further, the weight to 
 
             be given to such an opinion is for the finder of fact, and that 
 
             may be affected by the completeness of the premise given the 
 
             expert and other surrounding circumstances. Bodish, 257 Iowa 
 
             516, 133 N.W.2d 867. See also, Musselman v. Central Telephone 
 
             Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). 
 
        If the claimant had a preexisting condition or disability that is 
 
        aggravated, accelerated, worsened or lighted up so that it 
 
        results in disability, claimant is entitled to recover. Nicks v 
 
        Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
        
 
            When an aggravation occurs in the performance of an 
 
        employer's work and a causal connection is established, claimant 
 
        may recover to the extent of the impairment. Ziegler v. United 
 
        States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
        
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
        C.J.S. statement that the aggravation should be material if it is 
 
        to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 
 
        Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
        Compensation section 555(17)a.
 
        
 
            An employee is not entitled to recover for the results of a 
 
        preexisting injury or disease but can recover for an aggravation 
 
        thereof which resulted in the disability found to exist. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
        Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
        299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
        106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 
 
        N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
        724, 254 N.W. 35 (1934).
 
        
 
            "Claimant is not entitled to reimbursement for medical bills 
 
        unless he shows that he paid them from his own funds." See 
 
        Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 
 
        1983).
 
        
 
            There is no evidence of any work-related traumatic injury to 
 
        claimant in December 1986. There is lack of evidence to even 
 
        suggest a work-related cumulative injury that resulted in 
 
        claimant leaving work in December 1986. In fact, claimant was 
 
        laid off from work in December 1986 and testified that he was 
 
        willing and able to continue if the employer would request his 
 
        return. Claimant testified that December is a slow time for 
 
        ironworkers. It is obvious this December 1986 date was a 
 
        convenient time for claimant, who had been laid off, to consider 
 
        other medical remedies for his ankle problems which the greater 
 
        weight of evidence shows are a result of his 1977 injury and the 
 
        normal post-traumatic conditions that followed thereafter along 
 
        with the other medical problems that are a part of claimant's 
 
        general body makeup, which had nothing to do with either the 
 
        December 1986 or December 1985 alleged injuries. Any surgery 
 
        that claimant needs is not the result of any December 1986 
 
        injury. There is no material exacerbation of claimant's prior 
 

 
        
 
 
 
 
 
        medical condition as a result of any work-related injury in 
 
        December 1985 or December 1986.
 
        
 
             As to the December 1985 alleged injury, the medical history 
 
             and evidence overwhelmingly proves that there was no traumatic 
 
             event that occurred in December 1985 that is causally connected 
 
             to claimant's current complaints or that would result in a 
 
             necessity for claimant to have the surgery he has now planned. 
 
             The medical evidence and the history given by claimant to the 
 
             respective doctors show that claimant has been attributing his 
 
             medical problems since his injury in 1977 through his 1985 
 
             alleged injury to the injury claimant incurred in 1977 while 
 
             employed by Ace Construction. The workers' compensation insurer 
 
             for Ace Construction has been paying many of claimant's bills. 
 
             Claimant has been submitting his medical bills to this company 
 
             and same have been paid except for those bills that claimant has 
 
             chosen to send to his personal disability insurance carrier who 
 
             in turn has been paying those respective bills. Claimant's 
 
             alleged injury of December 1985 did not arise out of and in the 
 
             course of his employment and claimant's alleged disability and 
 
             need for an ankle operation is not causally connected nor is it 
 
             the result of any alleged injury that claimant incurred in 
 
             December 1985. Defendants are not responsible for any medical 
 
             that has been incurred by this claimant past, present or future 
 
             as a result of claimant's alleged injuries in either December 
 
             1985 or December 1986.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             WHEREFORE, it is found:
 
        
 
            1. Claimant did not sustain a work-related injury in 
 
        December 1985.
 
        
 
            2. Claimant's medical condition requiring left ankle 
 
        surgery is not the result of claimant's alleged injury in 
 
        December 1985.
 
        
 
             3. Defendants are not responsible for claimant's medical 
 
             bills past, present or future as a result of his alleged December 
 
             1985 injury.
 
        
 
            4. Claimant did not sustain a work-related injury in 
 
        December 1986.
 
        
 
            5. Claimant did not sustain a cumulative trauma in December 
 
        1986.
 
        
 
            6. Claimant's medical condition and required impending 
 
        surgery of his left ankle is not the result of claimant's alleged 
 
        injury or any cumulative trauma in December 1986.
 
        
 
            7. Defendants are not responsible for any past, present or 
 
        future medical bills or surgery expenses as a result of 
 
        claimant's alleged injury in December 1986.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             THEREFORE, it is concluded:
 
        
 
            Claimant did not receive an injury in December 1985 which 
 
        arose out of and in the course of his employment.
 
        
 
            Claimant's medical condition and needed surgery is not 
 
        causally connected to claimant's alleged injury in December 1985.
 
        
 

 
        
 
 
 
 
 
            Defendants are not responsible for any medical bills in 
 
        relation to claimant's alleged injury in December 1985.
 
        
 
            Claimant did not receive an injury in December 1986 which 
 
        arose out of or in the course of his employment.
 
        
 
            Claimant's medical condition or needed surgery is not 
 
        causally connected to claimant's injury in December 1986.
 
        
 
            Defendants are not responsible for any medical bills in 
 
        relation to claimant's alleged injury in December 1986.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            Claimant takes nothing from these proceedings.
 
        
 
            Defendants shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        
 
             Signed and filed this 6th day of April, 1989.
 
             
 
        
 
        
 
                                        BERNARD J. O'MALLEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Channing L. Dutton
 
        Attorney at Law
 
        1200 35th St Ste 500
 
        West Des Moines, IA 50265
 
        
 
        Ms. Valerie A. Fandel
 
        Attorney at Law
 
        Terrace Center, Ste 111
 
        2700 Grand Ave
 
        Des Moines, IA 50312
 
        
 
        Ms. Ann M. Ver Heul
 
        Mr. John A. Templer, Jr.
 
        Attorneys at Law
 
        3737 Woodland Ste 437
 
        West Des Moines, IA 50265
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9999
 
                                          Filed May 10, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY BOCKENSTEDT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 850416
 
            NORTHWEST ERECTION SERVICES   :                850417
 
            INC.,                         :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES and :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9999
 
            Deputy's decision summarily affirmed on appeal, with only 
 
            minor additional analysis.
 
            
 
 
        
 
 
 
 
 
        
 
                                       1400; 1402.20; 1402.30
 
                                       1402.60
 
                                       Filed April 6, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ANTHONY BOCKENSTEDT,
 
        
 
            Claimant,
 
                                                               File Nos. 
 
        850416
 
        and                                                    850417
 
        
 
        NORTHWEST ERECTION SERVICES,
 
        INC.,
 
                                              A R B I T R A T I O N
 
            Employer
 
                                                 D E C I S I O N
 
        and
 
        
 
        CIGNA INSURANCE COMPANIES and
 
        IOWA CONTRACTORS WORKERS'
 
        COMPENSATION GROUP,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1400; 1402.20; 1402.30; 1402.60
 
        
 
             Claimant alleged same ankle injury on two different 
 
             occasions during same month with no specific day stated, one year 
 
             apart.
 
        
 
            No causal connection or arising out of and in the course of 
 
        employment found. Claimant awarded nothing as claimant failed to 
 
        carry his burden of proof.
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            n                             5-9999
 
                                          Filed May 10, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY BOCKENSTEDT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 850416
 
            NORTHWEST ERECTION SERVICES   :                850417
 
            INC.,                         :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES and :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9999
 
            Deputy's decision summarily affirmed on appeal, with only 
 
            minor additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TOM DONNELLY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :   File Nos. 850429/850430
 
            SWIFT INDEPENDENT PACKING     :
 
            COMPANY,                      :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRANSPORTATION INSURANCE      :
 
            COMPANY/CNA,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding  
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on June 12, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits A to E.  Both parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 1.  The nature and extent of any injury occurring 
 
                 June 12, 1987, and whether cumulative trauma has 
 
                 properly been considered by the Deputy.
 
            
 
ress the June 12, 1987 low 
 
            back injury only. 
 
            
 
                 Claimant clearly suffered a traumatic injury on June 
 
            12, 1987, when he slipped on ice and fell at work.  Peter D. 
 
            Wirtz, M.D., has found claimant to have a five percent 
 
            permanent partial impairment of the whole body.  Dr. Wirtz 
 
            opines that claimant's June 12, 1986 injury aggravated a 
 
            preexisting degenerative disc disease, but only temporarily.  
 
            (Joint Exhibit A, page 25.)
 
            
 
                 The evidence of Sinesio Misol, M.D., also establishes 
 
            that claimant's current back condition results from a 
 
            preexisting degenerative disc disease.  Dr. Misol declined 
 
            to opine to what extent claimant's current condition was 
 
            attributable to his preexisting degenerative disc disease, 
 
            his obesity, or his employment.  Dr. Misol appears to 
 
            attribute claimant's current back condition to all of these 
 
            factors.  In his deposition, Dr. Misol stated that 
 
            claimant's work, along with his weight and age, did 
 
            aggravate his preexisting degenerative disc condition.  Dr. 
 
            Misol assigned claimant a rating of permanent impairment of 
 
            ten percent of the whole body.
 
            
 
                 Dr. Wirtz saw claimant only for purposes of evaluation.  
 
            Although defendants insisted claimant see Dr. Wirtz only, 
 
            they did not accommodate his request for an appointment and 
 
            claimant was compelled to seek treatment elsewhere.  Dr. 
 
            Misol then became claimant's treating physician, and Dr. 
 
            Misol had much more extensive contact with claimant.  The 
 
            opinion of Dr. Misol as to both causation and permanency 
 
            will be given the greater weight.  
 
            
 
                 Dr. Misol at times appears to attribute claimant's 
 
            condition to his work in general, rather than to the 
 
            specific injury of June 12, 1987.  Defendants urge that 
 
            claimant is precluded from a finding of cumulative injury 
 
            because his pleadings alleged a traumatic injury.  However, 
 
            a finding of a cumulative injury and establishment of a 
 
            cumulative injury date may be made even though the claimant 
 
            has relied on a traumatic injury theory and a traumatic 
 
            injury date in his pleadings.  Johnson v. George A. Hormel & 
 
            Company, Appeal Decision, June 21, 1988.  Claimant's work 
 
            activity of pushing beef carcasses is not of a cumulative 
 
            nature.  Although this work may be strenuous and may even 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            expose claimant to frequent injuries, it is not work that 
 
            subjects claimant to a series of micro-traumas that may be 
 
            termed a cumulative injury.  See McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985) and Babe v. Greyhound 
 
            Lines, Inc., (Appeal Decision, February 29, 1988).  Affirmed 
 
            by the Iowa Court of Appeals, March 27, 1990.
 
            
 
                 Taken as a whole, the medical evidence indicates that 
 
            claimant's current back condition was caused by a 
 
            combination of his June 12, 1987 injury, which aggravated a 
 
            preexisting degenerative disc condition; his overall work 
 
            activity, which also aggravated his degenerative disc 
 
            condition; and claimant's age and obesity.  Claimant bears 
 
            the burden of proof to show that his condition is causally 
 
            connected to his work injury.  To establish compensability, 
 
            the injury need only be a significant factor, not the only 
 
            factor causing the claimed disability.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); 
 
            Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d 
 
            667, 670 (Iowa 1971).  Claimant's age and weight did not 
 
            cause claimant to experience disability prior to his June 
 
            12, 1987 injury.  Prior to his June 12, 1987, slip and fall 
 
            injury, claimant was able to perform all the duties of his 
 
            job.  Claimant did not have any restrictions on his work 
 
            activity prior to his fall, but now has substantial 
 
            restrictions.  Although claimant had prior episodes of back 
 
            pain, none of the three incidents appear to be possible 
 
            intervening causes of claimant's present back condition, but 
 
            rather appear to be symptoms of his degenerative disc 
 
            condition.  Claimant's June 12, 1987 work injury is found to 
 
            have been a significant factor in causing claimant's current 
 
            permanent impairment of the body as a whole.
 
            
 
                 Based on the conclusion above that claimant does have 
 
            permanent disability as a result of his injuries, claimant 
 
            is entitled to healing period benefits for the period June 
 
            12, 1986 to December 29, 1987, the date Dr. Misol last saw 
 
            claimant for treatment purposes.    
 
            
 
                 Defendants also raise on appeal the extent of 
 
            claimant's industrial disability.  Claimant has received 
 
            ratings of impairment of five percent and ten percent.  
 
            Claimant has restrictions on bending and stooping.  Although 
 
            surveillance evidence showed claimant limping at one time 
 
            and not limping at another time, the surveillance tapes do 
 
            not contradict the ratings of impairment or restrictions.  
 
            Claimant has declined surgery, a decision his physician 
 
            concurred with.
 
            
 
                 Claimant was 29 years old at the time of the hearing.  
 
            Claimant did not complete high school, although he lacked a 
 
            diploma only by a few credits.  Claimant's work experience 
 
            is limited to drywall finishing work, and his work with 
 
            defendant employer.  Claimant was given medical permission 
 
            to return to "sit down" work, but defendant employer had no 
 
            such work available for claimant.  Claimant has not returned 
 
            to work since his June 12, 1987 injury.  Claimant was making 
 
            $8.30 per hour at the time of his June 12, 1987 injury, but 
 
            has had no income since then.  Claimant has consulted 
 
            vocational rehabilitation personnel, but has not attempted 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to look for alternative employment.  
 
            
 
                 A defendant employer's refusal to give any sort of work 
 
            to a claimant after he suffers his affliction may justify an 
 
            award of industrial disability.  McSpadden v. Big Ben Coal 
 
            Co., 288 N.W.2d 181 (Iowa 1980).  Claimant was allegedly 
 
            discharged for his third unexcused absence from work four 
 
            days after his slip and fall injury.  However, claimant 
 
            testified that he did call in on the day in question per 
 
            company policy, and the company records verify this.  
 
            Defendants have not offered a satisfactory explanation of 
 
            why claimant was discharged, and defendants have not 
 
            attempted to accommodate claimant and his restrictions.  
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of twenty percent. 
 
            
 
                 Although claimant had a preexisting condition, an 
 
            apportionment is not appropriate.  Claimant's preexisting 
 
            degenerative disc disease was not disabling.  Prior to his 
 
            June 12, 1987 fall, claimant was gainfully employed and had 
 
            no restrictions.  Now claimant has significant medical 
 
            restrictions.  Employers take employees as they find them.  
 
            Zeigler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).  If a subsequent injury aggravates a 
 
            preexisting condition rendering the condition disabling, the 
 
            employer is liable for the disability.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
            (1956).  Apportionment is limited to those situations where 
 
            a prior injury or illness independently produces some 
 
            ascertainable portion of the ultimate industrial disability 
 
            which exists following the employment-related aggravation.  
 
            Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 
 
            1984).
 
            
 
                 Defendants also urge on appeal that claimant is not 
 
            entitled to medical benefits for the services of Dr. Misol 
 
            because claimant sought his services without authorization.  
 
            Claimant was advised by Dr. Paulillo to see Dr. Wirtz, and 
 
            claimant asked defendants to set up an appointment with Dr. 
 
            Wirtz, but this was not done.  Claimant then went to Dr. 
 
            Misol on his own.  
 
            
 
                 Whether claimant's injury arose out of and in the 
 
            course of employment was an issue contested by defendants.  
 
            Where the employer denies liability for a work-related 
 
            injury, the employer loses the right to select the care 
 
            which the injured worker receives.  Kindhart v. Fort Des 
 
            Moines Hotel, I State of Iowa Industrial Commissioner 
 
            Decision 611 (Appeal Decision 1985).  Claimant is entitled 
 
            to medical benefits for the services of Dr. Misol.
 
            
 
                 Defendants urge that the arbitration decision engaged 
 
            in impermissible speculation in concluding that claimant 
 
            would have been compelled to leave his employment with Swift 
 
            eventually even if he had not been discharged because of his 
 
            decision not to undergo surgery and to find another line of 
 
            work.  The decision of the deputy is reviewed de novo on 
 
            appeal.  Even if the statement of the deputy constituted 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            speculation, no such conclusion is drawn here. 
 
            
 
                                 findings of fact
 
            
 
                 1.  On April 28, 1986 claimant suffered an injury in 
 
            the form of muscle strain to the neck and shoulders which 
 
            arose out of and in the course of employment with Swift.  
 
            The injury necessitated medical treatment and restricted 
 
            duty but claimant was not compelled to be absent from work 
 
            as treatment was received after work hours.  Claimant has 
 
            not shown that he suffered any permanent loss of function 
 
            due to this injury.
 
            
 
                 2.  On June 12, 1987 claimant suffered a trauma from a 
 
            fall which resulted in low back pain and absence from work.  
 
            This injury was an aggravation of underlying and prior 
 
            existing degenerative disc disease which accelerated the 
 
            degenerative process and was one of the significant 
 
            causative factors in the development of the degenerative low 
 
            back discs.  
 
            
 
                 3.  As a result of the work injury of June 12, 1987, 
 
            claimant was absent from work beginning on June 12, 1987 and 
 
            ending on December 29, 1987, at which time claimant reached 
 
            maximum healing. 
 
            
 
                 4.  The work injury of June 12, 1987 was a cause of a 5 
 
            to 10 percent permanent partial impairment to the body as a 
 
            whole and of permanent restrictions upon claimant's physical 
 
            activities consisting of no heavy lifting and no repetitive 
 
            lifting, bending or twisting.
 
            
 
                 5.  Claimant is 29 years of age with only a tenth grade 
 
            education.  Claimant has no other formal training or 
 
            schooling.  
 
            
 
                 6.  Claimant's only prior work experience has been in 
 
            heavy construction work as a drywaller requiring the type of 
 
            activities he can no longer perform.  
 
            
 
                 7.  Claimant has not been reemployed by Swift.  
 
            Claimant has not returned to work in any capacity since June 
 
            12, 1987.  
 
            
 
                 8.  Claimant has not looked for work since his release 
 
            from treatment by his physicians and his physicians have not 
 
            opined that claimant is unable to work in any capacity. 
 
            
 
                 9.  Claimant has only recently contacted vocational 
 
            rehabilitation counselors.  
 
            
 
                 10. The requested medical expenses in the prehearing 
 
            report are fair and reasonable and were incurred by claimant 
 
            for reasonable and necessary treatment of his cumulative 
 
            trauma of June 12, 1987.
 
            
 
                 11. Claimant's average gross weekly earnings over 13 
 
            representative weeks prior to the injury was $351.98.
 
            
 
                 12. The work injury of June 12, 1987 and the resulting 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            permanent partial impairment and permanent work restrictions 
 
            is a cause of a 20 percent loss of earning capacity.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant's back condition is causally related to his 
 
            work injury of June 12, 1987.
 
            
 
                 Claimant has an industrial disability of 20 percent as 
 
            a result of his June 12, 1987 work injury.
 
            
 
                 Defendants are responsible for the medical services 
 
            rendered by Dr. Misol.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred nine and 78/100 dollars ($209.78) per week 
 
            from December 30, 1987.
 
            
 
                 That defendants shall pay to claimant healing period 
 
            benefits from June 12, 1987 through December 29, 1987 at the 
 
            rate of two hundred nine and 78/100 dollars ($209.78) per 
 
            week.
 
            
 
                 That defendants shall pay claimant the medical expenses 
 
            requested in the prehearing report namely Dr. Misol, one 
 
            hundred thirty-seven and 50/100 dollars ($137.50); Mercy 
 
            Medical Center, nine hundred thirty-one and 00/100 dollars 
 
            ($931.00); and prescription charges in the amount of one 
 
            hundred twenty and 29/100 dollars ($120.29).  Defendants are 
 
            ordered to pay the provider directly.  Defendants shall pay 
 
            claimant only if he has paid those bills.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay all costs of this proceeding 
 
            including the cost of transcription of the arbitration 
 
            hearing.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Michael R. Hoffmann
 
            Attorney at Law
 
            Breakwater Bldg.
 
            3708 35th St. 
 
            Des Moines, Iowa 50322
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2600, 1108.50, 1803,
 
            5-1806, 5-2501
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TOM DONNELLY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :   File Nos. 850429/850430
 
            SWIFT INDEPENDENT PACKING     :
 
            COMPANY,                      :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRANSPORTATION INSURANCE      :
 
            COMPANY/CNA,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2600
 
            One of claimant's physicians opined that claimant's 
 
            preexisting degenerative back condition was only temporarily 
 
            aggravated by his work injury; another stated that it was 
 
            permanently aggravated by his work injury, his age, and his 
 
            obesity.  Greater weight was given to the latter physician, 
 
            based on his greater contact with claimant.  
 
            
 
            1108.50
 
            Although claimant's age and weight may have contributed to 
 
            his aggravation of his back condition, the medical evidence 
 
            attributed the aggravation to these factors and his injury.  
 
            The work injury need be only a substantial cause of the 
 
            condition, not the only cause.
 
            
 
            1803
 
            Claimant, 29 years old, without high school diploma, work 
 
            experience limited to drywall work and packing plant work, 
 
            who has not worked since his injury and with ratings of 
 
            impairment of five percent and 10 percent of the body as a 
 
            whole and restrictions on bending and stooping, was awarded 
 
            20 percent industrial disability.  
 
            Claimant was fired for an alleged unexcused absence.  
 
            Claimant disputed this, and the company records corroborated 
 
            claimant.  Defendants discharge of claimant and failure to 
 
            accommodate his restrictions considered in assessing 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            industrial disability.
 
            
 
            5-1806
 
            Claimant's preexisting back condition did not cause 
 
            disablement prior to his injury, and no apportionment was 
 
            made.
 
            
 
            5-2501
 
            Defendants cannot object to medical fees on the basis of 
 
            lack of authorization when the compensability of the injury 
 
            was disputed by them.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOM DONNELLY,
 
         
 
              Claimant,
 
                                                  File Nos. 850430
 
         vs.                                              & 850429
 
         
 
         SWIFT INDEPENDENT PACKING             A R B I T R A T I O N
 
         COMPANY,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and                                         F I L E D
 
         
 
         TRANSPORTATION INSURANCE                   AUG 25 1989
 
         COMPANY/CNA,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Tom Donnelly, 
 
         claimant, against Swift Independent Packing Company, employer 
 
         (hereinafter referred to as Swift), and Transportation Insurance 
 
         Company/CNA, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of alleged injuries on April 
 
         28, 1986 and June 12, 1987.  On January 11, 1989, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during hearing.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Claimant is seeking temporary total disability or 
 
         healing period benefits only from June 12, 1987 through December 
 
         29, 1987 and defendants agree that he was not working at Swift 
 
         during this time.
 
              
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
              3.  For the purpose of computing claimant's rate of weekly 
 
         compensation, claimant was single and entitled to one exemption 
 
         at the time of the alleged work injuries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  With reference to the medical bills submitted by 
 
         claimant at hearing, it was agreed that the medical providers 
 
         would testify that the charges in these bills are fair and 
 
         reasonable and were for necessary treatment of the alleged work 
 
         injury.  Defendants indicated that they are not offering contrary 
 
         evidence.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  Whether claimant received an injury arising out of and 
 
         ,in the course of employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability;
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
               V.  Claimant's rate of weekly compensation; and,
 
               
 
              VI.  The extent of penalty benefits to which claimant is 
 
         entitled for an unreasonable denial or delay in payment of 
 
         benefits.
 
         
 
              It should be noted that the parties indicated in the 
 
         prehearing report that credibility was at issue in this 
 
         proceeding.  Therefore, a credibility finding will be made.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Swift from May 11, 
 
         1982, until his termination for three alleged unexcused absences 
 
         on June 26, 1987.  Claimant's duties at Swift consisted of heavy 
 
         manual loading dock work in the lugging of beef carcasses and 
 
         occasionally claimant was transferred to pushing beef carcasses 
 
         on a trolley system.  Claimant earned $8.30 per hour in this job 
 
         at the time of the alleged injuries.  The circumstances of 
 
         claimant's termination are in dispute and are discussed below.
 
         
 
              Claimant testified that on April 28, 1986, he experienced 
 
         severe neck and right shoulder pain.  The medical records 
 
         indicate that claimant received treatment from a board certified 
 
         orthopedic surgeon, Peter Wirtz, M.D., for approximately 30 days 
 
         consisting of medication and temporary work restrictions.  
 
         Claimant said that he lost no work from this incident but 
 
         received treatment in the form of pain medication and physical 
 
         therapy after work hours. Claimant said that he simply used his 
 
         other shoulder to push the beef carcasses during this time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he slipped on ice and fell while 
 
         pushing beef on June 12, 1987.  Claimant reported this injury to 
 
         company personnel and he was referred to the company doctor, A. 
 
         Pandullo, M.D., for treatment of the onset of low back pain 
 
         radiating into his legs.  Dr. Pandullo diagnosed a severe low 
 
         back strain and took claimant off work for two days.  Claimant 
 
         saw Dr. Pandullo on June 15, 1987.  Dr. Pandullo placed claimant 
 
         on restricted duties for five to seven days consisting of only 
 
         sitting with "no demand on the low back."  Medical records 
 
         indicate that claimant was directed by Dr. Pandullo to see Dr. 
 
         Wirtz if he did not improve after this time.  Claimant said that 
 
         he reported back for work at Swift but was told by the company 
 
         nurse to return home as no such light duty work was available. 
 
         Claimant said that on the evening of June 15, 1987, his back and 
 
         leg pain became severe and he reported to the emergency room at a 
 
         local hospital.  Physicians at the hospital took claimant off 
 
         work for three additional days until he could see Dr. Wirtz.  
 
         Claimant said that he requested Swift to set up an appointment 
 
         with Dr. Wirtz but Swift did not do so.  Claimant was then 
 
         terminated from Swift's employ on June 26, 1987.  Claimant said 
 
         that he was told that the reason for his termination was three 
 
         unexcused absences and the last incident occurring on June 16, 
 
         1987, when he failed to call in as directed.  Claimant testified 
 
         at hearing that he did call in as directed.  Company records 
 
         indicate that claimant did in fact call in at 7:54 a.m.  Nothing 
 
         in decipherable form contained in the personnel records submitted 
 
         show that this would have been a violation of company rules.  No 
 
         one testified on behalf of Swift as to the nature of any rule 
 
         violations.
 
         
 
              Claimant testified that he has not worked in any capacity 
 
         since June 12, 1987.  He said that defendants told him not to 
 
         contact Dr. Wirtz without their approval and promised to set up 
 
         an appointment for him.  Claimant said that he waited until 
 
         September 1987 and then finally contacted a board certified 
 
         orthopedic surgeon, Sinesio Misol, M.D., on his own for his 
 
         continuing complaints of low back pain.  After his extensive 
 
         testing of claimant's low back difficulties, Dr. Misol, on 
 
         December 8, 1987, diagnosed that claimant suffered from 
 
         persistent back pain from degenerative disc at two levels of 
 
         claimant's lower spine and that claimant was a candidate for 
 
         fusion surgery.  However, after discussion of the diagnosis and 
 
         possible treatment options with claimant, claimant decided with 
 
         concurrence by Dr. Misol to forgo surgery and seek a vocational 
 
         change to more sedentary work. Active treatment then ended when 
 
         claimant was released on December 29, 1987, and claimant returned 
 
         on January 6, 1988, for disability evaluation.  As a result of 
 
         this evaluation, Dr. Misol opined that claimant has suffered a 10 
 
         percent permanent partial impairment as a result of his 
 
         degenerative disc without herniation.
 
         
 
              Claimant was eventually examined by Dr. Wirtz in November 
 
         1987 at the direction of Swift who likewise diagnosed 
 
         degenerative disc disease and he began conservative treatment of 
 
         claimant's condition consisting of medication,and further tests 
 
         including a back brace, weight reduction and limitations on 
 
         activity.  On January 13, 1988, Dr. Wirtz concluded that 
 
         treatment was not improving claimant's symptoms and he imposed 
 
         restrictions to include no bending, twisting and lifting but 
 
         stated that claimant was capable of sitting.  On April 28, 1988, 
 
         Dr. Wirtz concluded that claimant had suffered two aggravations 
 
         of prior existing upper and lower back conditions on April 28, 
 
         1986 and June 12, 1987, respectively and that both of these 
 
         aggravations were temporary in nature.  Based upon his findings, 
 
         he opined that claimant suffers from a five percent permanent 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         partial impairment due to degenerative disc disease and not due 
 
         to other conditions such as weight.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Since his initial hire at Swift, claimant suffered neck, 
 
         shoulder and back problems while performing his duties.  On May 
 
         24, 1982, claimant experienced upper back and neck pain from 
 
         lugging beef according to company records and a first report of 
 
         injury was filed.  Claimant lost no work and did not suffer 
 
         disability according to these records.  On March 22, 1983, 
 
         claimant suffered chronic lumbar strain from lugging beef and was 
 
         placed on light duty for 2-3 days.  The first report of injury 
 
         for this matter indicates that claimant lost no work.  On 
 
         September 14, 1984, claimant reported right shoulder pain after 
 
         pushing beef but again lost no work.  On March 29, 1985, claimant 
 
         suffered low back pain after being struck in the mid back by a 
 
         metal tub. Claimant lost no work at that time but a few days 
 
         later on April 12, 1985, he experienced more low back pain and 
 
         was placed on light duty for approximately two weeks.  At hearing 
 
         claimant could not recall if he lost work at this time but the 
 
         first report of injury for the March 29, 1989 incident indicates 
 
         that claimant did not lose work and no other report was submitted 
 
         for the complaints on April 12, 1985.  Claimant's physicians in 
 
         April 1985 returned claimant to work without restrictions.  
 
         Claimant testified that he only lost a few days of work before 
 
         June 12, 1987.  He was not specific as to the reasons for any of 
 
         this lost time.
 
            
 
              A deposition of Dr. Misol was taken and the following 
 
         excerpts represent his causal connection views:
 
            
 
              Q.  Is there any way to tell whether or not Mr. Donnelly's 
 
              work at Swift or any of these incidents that I have related 
 
              to you caused this condition to progress any further than lt 
 
              normally would have?
 
              
 
              A.  Common sense and the understanding of the mechanics of 
 
              the back make me believe that that may have contributed to 
 
              it, yes.  The lifting, bending, falls, twists probably 
 
              accelerated the process.
 
              
 
                  ...
 
              
 
              A.  Given the history that we have today, I don't like it, 
 
              because why should he not tell me the truth?  And then I 
 
              believe that it may have been one of several contributing 
 
              factors.  That's what I think.
 
              
 
                  ...
 
              
 
              Q.  (BY MR. DRAKE) Is it your opinion that the work that he 
 
              was doing at Swift and the injuries that Mr. Hoffmann listed 
 
              to you, including the June 12th, 1987 slip and fall, all 
 
              contributed to his underlying condition?
 
              
 
              MR. HOFFMANN:  Question is objected to as being compound, 
 
              being three questions put together.  The doctor already 
 
              answered that he cannot tell if the June 12 incident was a 
 
              significant contributing factor.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                  ...
 
              
 
              A.  Yes.  My answer is already on the record, because I 
 
              think I said in my opinion it is probably his age, the 
 
              genetics that he inherited from his father and mother, and 
 
              the type of work that he has been doing.  With all these 
 
              incidents, I think that they all have been playing a role, 
 
              and I said that earlier.
 
                 
 
              Claimant testified that his employment, prior to being hired 
 
         by Swift, consisted solely of construction work as a drywaller. 
 
         Claimant was 29 years of age at the time of hearing.  Claimant 
 
         left high school in the eleventh grade and has not obtained his 
 
         GED.  Claimant has not received any other formal training or 
 
         schooling.  Claimant testified that he has not looked for work 
 
         since being released by Dr. Misol but has made a recent contact 
 
         with vocational rehabilitation consultants, approximately three 
 
         or four, prior to the hearing.  Claimant states that he continues 
 
         to experience pain and takes medication along with performing 
 
         regular exercises to improve his condition.  Claimant believes 
 
         that he is not ready for work.  He states that he cannot sit for 
 
         very long, has recurrent severe headaches and low back pain 
 
         extending into his legs.  He states that he cannot stand for 
 
         prolonged periods of time and that his heaviest task in the few 
 
         months before the hearing was "a little shopping."  Claimant 
 
         states that he has trouble sleeping and is forced to sleep on a 
 
         floor mat.  Claimant testified that his neck and shoulder pain 
 
         has improved but that he still has some neck pain.  No physician 
 
         has given claimant an impairment rating for any of his neck and 
 
         shoulder problems.
 
         
 
              A video tape recording of surveillance of claimant's home 
 
         activities was made in January of 1988.  In these tapes claimant 
 
         is only depicted twice.  On one day he was seen coming out of his 
 
         house to briefly start his truck in the winter time and to return 
 
         to the house.  He appeared to have no trouble walking at that 
 
         time.  Approximately two weeks later, claimant is seen limping 
 
         into a passenger side of the car.  The private detective report 
 
         states that claimant appeared disabled.  Claimant testified that 
 
         he was having a "bad day" at the time and his wife was 
 
         transporting him to the doctor at the time.  The private 
 
         detective testified at hearing that he believes that claimant 
 
         spotted him and was faking his limp on the day in question.
 
         
 
              Claimant's appearance and demeanor at hearing indicated he 
 
         was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).  An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is found credible.  His uncontroverted testimony 
 
         concerning the work injuries are believable given the nature of 
 
         his heavy work.  Therefore, it will be found that claimant has 
 
         suffered work injuries in the manner described and at the times 
 
         alleged.  However, the fighting issue in this case is the causal 
 
         connection of these incidents to permanent disability.
 
              
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
              
 
              In the case sub judice, claimant contends that he has 
 
         suffered disability as a result of work injuries due to permanent 
 
         impairment to the body as a whole.  First, the medical evidence 
 
         is uncontroverted that claimant suffers some degree of permanent 
 
         impairment due to degenerative disc disease at two levels of his 
 
         lower spine.  No medical evidence was offered to show that 
 
         claimant suffers from permanent partial impairment due to upper 
 
         back and neck or shoulder difficulties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Second, the preponderance of the evidence when viewed in its 
 
         entirety shows the requisite causal connection between the 
 
         alleged work injury of June 12, 1987 and a significant degree of 
 
         permanent partial impairment to the lower spine.  Although Dr. 
 
         Wirtz opines that the two dates of injury were only temporary 
 
         aggravations, his deposition was not taken and he was not able to 
 
         explain his views, especially with reference to the cumulative 
 
         effect of claimant's work and injuries at Swift on the 
 
         degenerative disc disease condition.  On the other hand, Dr. 
 
         Misol was able to explain his views which were quite clear after 
 
         you waded through his bickering with the two attorneys involved 
 
         in this case.  It is quite clear that although he could not opine 
 
         as to the relative importance of any single event including the 
 
         injury on June 12, 1987, Dr. Misol clearly felt that the 
 
         cumulative effect of all of the lifting and heavy work at Swift 
 
         including the prior incidents of low back strain accelerated the 
 
         degenerative disc disease process.  The prior history of low back 
 
         problems, apart from the shoulder and neck difficulties, was 
 
         exaggerated by defense counsel in Dr. Misol's deposition.  The 
 
         records indicate that claimant had only two prior incidents of 
 
         low back problems while working for Swift. The first being in 
 
         March 1983 and the other in later March and early April of 1985.  
 
         The medical records, personnel file information and first reports 
 
         of injury submitted into evidence all indicate that claimant lost 
 
         no work from any of these incidents.  Also, no physician who 
 
         treated any of claimant's prior problems opined that claimant 
 
         suffered any permanent partial impairment from these incidents, 
 
         nor did they impose before the incident of June 12, 1987, any 
 
         permanent work restrictions.  On June 12, 1987, claimant was 
 
         compelled by his pain to permanently leave Swift's employ.  
 
         Claimant's termination from Swift is irrelevant to the disability 
 
         issue as claimant would have been compelled to leave Swift's 
 
         employ in any event when he decided with Dr. Misol to forgo 
 
         surgery and change his vocation.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         claimant's claim under Iowa Code section 85.26 and notice under 
 
         Iowa Code section 85.23.
 
         
 
              It can be argued that the McKeever court joined the majority 
 
         of other states by placing full liability upon an insurance 
 
         carrier covering the risk at the time of the most recent injury 
 
         that bears a causal relationship to the disability.  This method 
 
         of assessing the liability of successive insurers and employers 
 
         is the "last injurious exposure" rule previously adopted by the 
 
         Iowa Supreme Court in Doerfer Division of CCA v. Nicol, 359 
 
         N.W.2d 428 (Iowa 1984) for occupational disease cases.  This rule 
 
         is favored by Larson for not only occupational diseases but in 
 
         cases of "successive accidents" contributing to the claimed 
 
         disability. Larson and the majority of states prefers this rule 
 
         as it provides the most benefit to claimant with the least amount 
 
         of potential litigation.  Most importantly, the rule eliminates 
 
         the troublesome and complicated issues of apportionment and the 
 
         identification of which party has the burden of proof in 
 
         apportionment cases.  Under the majority rule, full liability for 
 
         the final disability is placed upon the insurer or employer at 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the time of "the last injurious exposure" even if the last 
 
         exposure was relatively minor compared to prior injuries and 
 
         accidents.  Larson explains that the harshness of this rule is 
 
         tempered by a broad based  application of the rule which would 
 
         spread the cost of any one case among all workers' compensation 
 
         carriers.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, this agency in Babe v. Greyhound Lines, Inc., 
 
         (Appeal Decision filed February 29, 1988), has rejected this 
 
         argument and limits the application of the McKeever rule or the 
 
         gradual injury theory to only cases where there is repetitive and 
 
         gradual injuries and not where there are successive accidents or 
 
         injuries caused by trauma which results in loss of work or a 
 
         compensable period of time.
 
              
 
              In the case sub judice, it is found that no prior injury to 
 
         claimant's low back resulted in loss of work for a compensable 
 
         period of time.  Therefore, application of the McKeever rule is 
 
         appropriate in this case.  The injury date for cumulative trauma 
 
         experienced by claimant was June 12, 1987, the last day worked.  
 
         As Dr. Misol's causal connection views were adopted, his views as 
 
         to the extent of functional impairment will be adopted as well.
 
         
 
              It should be noted that defendants' video tapes surveillance 
 
         of claimant's activity tends, if anything, to support claimant's 
 
         claim of functional impairment.  The testimony of the detective 
 
         that he felt that he was spotted by claimant and that claimant 
 
         was acting out in front of the video camera is inconsistent with 
 
         his written report which clearly stated that claimant appeared to 
 
         be disabled.  However, this belief on the part of the private 
 
         detective is nothing more than speculation.  However, as stated 
 
         by the undersigned on previous occasions (See Hoover v. Iowa 
 
         Department of Agriculture, Arbitration Decision filed April 14, 
 
         1989), the usefulness of video tapes depicting surveillance 
 
         activities in disability assessments is quite limited without 
 
         expert advice as to their interpretation.  Except in obvious 
 
         cases of inconsistency, it would be improper speculation on the 
 
         part of a non-medically trained deputy industrial commissioner to 
 
         assess a person's functional impairment from only a brief 
 
         observation of physical activity, especially in a manner contrary 
 
         to expert medical opinion.
 
                
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
               
 
              Claimant's medical condition before the work injury was not 
 
         excellent and he had recurring problems, albeit temporary, with 
 
         upper and lower back pain since his initial hire at Swift. 
 
         However, prior to the last event of June 12, 1987, he had no 
 
         permanent functional impairment or ascertainable disabilities. 
 
         Claimant was able to fully perform physical tasks involving heavy 
 
         lifting, repetitive lifting, bending, twisting and stooping along 
 
         with prolonged sitting and standing with only temporary problems 
 
         with his neck, low back and shoulders.
 
              
 
              Claimant's treating physicians have given claimant a 
 
         significant permanent impairment rating to the body as a whole 
 
         due to degenerative disc disease.  More importantly in an 
 
         industrial disability case, claimant's physicians have restricted 
 
         claimant's work activities to no heavy lifting and no repetitive 
 
         lifting, bending, twisting and stooping.  As a result of these 
 
         restrictions precipitated by the June 12, 1987 incident and the 
 
         cumulative effects of his heavy work at Swift, claimant no longer 
 
         is able to return to his work at Swift or any other heavy work 
 
         which he has performed in the past for which he is best suited 
 
         given his lack of training and education.  Claimant is not a high 
 
         school graduate.
 
         
 
              On the other hand, claimant is relatively young at 29 years 
 
         of age and such youth is favorable to retraining.  See Walton v. 
 
         B. & H Tank Corp., II Iowa Industrial Commissioner Report 426 
 
         (Appeal Decision 1981).
 
         
 
              Claimant has not shown a great deal of motivation to seek 
 
         alternative employment suitable to his disability.  Claimant only 
 
         recently contacted vocational counselors.  Why claimant has not 
 
         looked for work is unclear.  Dr. Misol certainly did not opine 
 
         that claimant was unable to work in any capacity.  Given such a 
 
         lack of effort, claimant has not shown that light duty 
 
         alternative employment is not available to him.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 20 percent loss of 
 
         earning capacity from his cumulative work injury of June 12, 
 
         1987.  Based on such a finding, claimant is entitled as a matter 
 
         of law to 100 weeks of permanent partial disability benefits 
 
         under Iowa Code section 85.34(2)(u) which is 20 percent of 500 
 
         weeks, the maximum allowable for an injury to the body as a whole 
 
         in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work he was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.  The circumstances of 
 
         claimant's termination are again not relative to this analysis as 
 
         claimant has never been returned to full duty at Swift subsequent 
 
         to June 12, 1987.  Claimant offered to return to light duty work 
 
         but this offer was refused by Swift.  It would appear that 
 
         claimant was not under treatment between the time of his 
 
         termination at Swift and the time he sought treatment on his own 
 
         from Dr. Misol in September 1987.  However, this lack of 
 
         treatment was not the fault of claimant as Dr. Pandullo directed 
 
         that claimant see Dr. Wirtz if symptoms persisted.  Swift simply 
 
         did not schedule such an appointment until after claimant began 
 
         seeing his own doctor.  The time period requested by claimant in 
 
         the prehearing report shall be awarded as healing period and 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant was released from the care of Dr. Misol on December 29, 
 
         1987.  The subsequent treatment by Dr. Wirtz appears maintenance 
 
         in nature.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was not asking for temporary total disability 
 
         benefits for his neck and shoulder injuries of April 28, 1986.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise claimant is entitled to only an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              The medical reports in the evidence established the causal 
 
         connection of the requested medical expenses in the prehearing 
 
         report to the accumulative work injury to claimant's low back and 
 
         to the temporary aggravations of claimant's neck and shoulder 
 
         problems.  Consequently, all of the requested expenses will be 
 
         awarded.
 
         
 
               V.  The parties dispute as to weekly rate of compensation 
 
         centers around the calculation of his gross wages.  As claimant's 
 
         hours varied from week to week, the previous 13 weeks should be 
 
         utilized to calculate the rate.  However, this agency has 
 
         consistently held that weeks which contain absences due to 
 
         illness, vacation or other causes are not representative weeks 
 
         and should be excluded from the calculation.  Lewis v. Aalf's 
 
         Manufacturing Co., I Iowa Industrial Commissioner Reports 206 
 
         (Appeal Decision 1980).  The parties stipulated to claimant's 
 
         weekly gross earnings as set forth in exhibit A which include 
 
         claimant's regular work hours plus overtime hours.  However, 
 
         overtime pay is not included in the rate calculation and overtime 
 
         hours are only included at the straight time pay.  Division of 
 
         Industrial Services Rule 343-8.2.  Therefore, claimant's gross 
 
         wage shall be calculated by going back in time from the date of 
 
         injury and adding together the total number of hours worked for 
 
         13 "representative" weeks prior to the injury.  Excluded as 
 
         unrepresentative in this particular case was 2 weeks which had 
 
         13.3 and 4 hours of work respectively.  The resulting total 
 
         hours, 551.3, was multiplied by the hourly rate of $8.30 per hour 
 
         and the product divided by 13 to arrive at an average weekly 
 
         gross rate of $351.98.  According to the commissioner's rate 
 
         booklet for an injury occurring on June 12, 1987, and given the 
 
         parties' stipulation as to marital status and exemptions, 
 
         claimant's rate of weekly compensation is $209.78.
 
         
 
              VI.  Claimant's claim for penalty benefits is denied.  The 
 
         merits of claimant's claim and the views of the medical experts 
 
         in this case are fairly debatable and defendants have a right to 
 
         debate such matters.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On April 28, 1986, claimant suffered an injury in the 
 
         form of muscle strain to the neck and shoulders which arose out 
 
         of and in the course of employment with Swift.  The injury 
 
         necessitated medical treatment and restricted duty but claimant 
 
         was not compelled to be absent from work as treatment was 
 
         received after work hours.  Claimant was not shown that he 
 
         suffered any permanent loss of function due to this injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  On June 12, 1987, claimant suffered a trauma from a fall 
 
         which resulted in low back pain and absence from work.  This 
 
         injury was an aggravation of underlying and prior existing 
 
         degenerative disc disease.  However, the degenerative disc 
 
         disease was shown to be work related in that the claimant's heavy 
 
         work as a lugger and pusher of beef carcasses involving heavy 
 
         lifting, bending and pushing between May 1982 and June 1987 
 
         accelerated the degenerative process and was one of the 
 
         significant causative factors in the development of the 
 
         degenerative low back discs. Other contributing factors were 
 
         claimant's age, his genetic traits and his obesity.  As a result 
 
         of an acceleration of his degenerative disc, claimant was 
 
         compelled on June 12, 1987, due to his pain to permanently leave 
 
         work.  Claimant has been unable to return to his work at Swift or 
 
         in any other heavy work.  Claimant suffered no compensable period 
 
         of lost time due to prior low back injuries sustained in March 
 
         1983 and again in March and April 1985.  After each of the prior 
 
         injuries and traumas, claimant was able to return to full duty at 
 
         Swift without work restrictions.
 
         
 
              4.  The work injury of June 12, 1987, was a cause of a 
 
         period of total disability from work beginning on June 12, 1987 
 
         and ending on December 29, 1987, at which time claimant reached 
 
         maximum healing and was released by his primary treating 
 
         physician, Dr. Misol.
 
         
 
              5.  The work injury of June 12, 1987, was a cause of a 10 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activities 
 
         consisting of no heavy lifting and no repetitive lifting, bending 
 
         or twisting.
 
              
 
              6. The work injury of June 12, 1987, and the resulting 
 
         permanent partial impairment and permanent work restrictions is a 
 
         cause of a 20 percent loss of earning capacity.  Claimant is 29 
 
         years of age with only a tenth grade education.  Claimant has no 
 
         other formal training or schooling.  Claimant's only prior work 
 
         experience has been in heavy construction work as a drywaller 
 
         requiring the type of activities he can no longer perform. 
 
         Claimant has not been reemployed by Swift.  Claimant has not 
 
         returned to work in any capacity since June 12, 1987.  However, 
 
         claimant has not looked for work since his release from treatment 
 
         by his physicians and his physicians have not opined that 
 
         claimant is unable to work in any capacity.  Claimant has only 
 
         recently contacted vocational rehabilitation counselors.  
 
         Claimant is found not to be well motivated to overcome his 
 
         disability and the award is lowered accordingly.  On the other 
 
         hand, claimant has not been offered any assistance in vocational 
 
         rehabilitation by defendants.
 
         
 
              7.  The requested medical expenses in the prehearing report 
 
         are fair and reasonable and were incurred by claimant for 
 
         reasonable and necessary treatment of his cumulative trauma of 
 
         June 12, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              8.  Claimant's average gross weekly earnings over 13 
 
         representative weeks prior to the injury was $351.98.
 
              
 
                                CONCLUSIONS OF LAW
 
               
 
              Claimant has established under law entitlement to weekly 
 
         benefits for a 20 percent permanent partial industrial disability 
 
         and to healing period benefits from June 12, 1987 through 
 
         December 29, 1987.  Claimant is entitled to all the medical 
 
         benefits requested and to a rate of weekly compensation in the 
 
         amount of $209.78.
 
         
 
              Claimant failed to show entitlement to penalty benefits 
 
         under Iowa Code section 86.13 for any unreasonable denial or 
 
         delay of payment of benefits.
 
               
 
                                      ORDER
 
               
 
              1.  Defendants shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred nine and 78/100 dollars ($209.78) per week from December 
 
         30, 1987.
 
              
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from June 12, 1987 through December 29, 1987 at the rate of two 
 
         hundred nine and 78/100 dollars ($209.78) per week.
 
              
 
              3.  Defendants shall pay claimant the medical expenses 
 
         requested in the prehearing report namely Dr. Misol, one hundred 
 
         thirty-seven and 50/100 dollars ($137.50); Mercy Medical Center, 
 
         nine hundred thirty-one and no/100 dollars ($931.00); and, 
 
         prescription charges in the amount of one hundred twenty and 
 
         29/100 dollars ($120.29).  Defendants are ordered to pay the 
 
         provider directly including any legal late charges.  Defendants 
 
         shall pay claimant only if he has paid those bills.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
              
 
             5.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
             
 
             6.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
             
 
             7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
             
 
             Signed and filed this 25th day of August, 1989.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                                 5-1108; 5-1803; 3701
 
                                                 Filed August 25, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOM DONNELLY,
 
         
 
              Claimant,
 
                                                  File Nos. 850430
 
         vs.                                              & 850429
 
         
 
         SWIFT INDEPENDENT PACKING               A R B I T R A T I O N
 
         COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         TRANSPORTATION INSURANCE
 
         COMPANY/CNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1108; 5-1803 - Nonprecedential causal connection and extent of 
 
         disability issues.
 
         
 
         3701 - Video tape surveillance
 
         
 
              Held that a video tape surveillance tape of claimant's 
 
         activities obtained for the purpose of controverting disability 
 
         claims and/or expert opinions as to the extent of disability have 
 
         limited value without medical expert interpretation.  Except in 
 
         obvious cases of inconsistency, it would be improper speculation 
 
         by a non medically trained deputy industrial commissioner to 
 
         assess a person's functional impairments from only a brief 
 
         observation of physical activity, especially if the assessment is 
 
         contrary to expert medical opinion.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ELEFTHEROPOULOS,                       File No. 850435
 
         
 
              Claimant,                             A R B I T R A T I O N
 
         
 
         vs.                                           D E C I S I O N
 
         
 
         J.I. CASE                                        F I L E D
 
         
 
              Employer,                                  MAR 21 1990
 
              Self-Insured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by George 
 
         Eleftheropoulos, claimant, against J.I. Case Company, employer 
 
         and self-insured defendant, for benefits as the result of an 
 
         injury which occurred on May 20, 1987.  A hearing was held in 
 
         Davenport, Iowa, on October 24, 1989, and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by Thomas H. Preacher.  Defendant was represented by Larry L. 
 
         Shepler.  The record consists of the testimony of George 
 
         Eleftheropoulos, claimant; joint exhibits A through HH and 
 
         claimant's exhibits 1 through 3.  The deputy ordered a transcript 
 
         of the hearing. Claimant's attorney submitted a prehearing brief.  
 
         Neither attorney submitted a posthearing brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on May 20, 1987, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was not the cause of any temporary 
 
         disability and that no claim is made for entitlement to temporary 
 
         .disability benefits.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is May 20, 
 
         1987.
 
         
 
              That the rate of compensation can be based upon gross 
 
         earnings of $546 per week for a married person with five 
 
         exemptions, which translates to a rate of $336.91 on May 20, 
 
         1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
              That defendant seeks no credit for either employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born January 1, 1948, was 39 years old at the time 
 
         of the injury and 41 years old at the time of the hearing. 
 
         Claimant attended high school.  He obtained a GED after receiving 
 
         the injury in this case.  He also completed a diesel mechanic 
 
         course and a measurement inspections course after the injury.  He 
 
         testified that he had no limitations prior to this injury.
 
         
 
              Claimant started to work for employer on October 3, 1972, 
 
         and continued to work there, for a period of approximately 15 
 
         years, until the plant closed on August 15, 1987.  Claimant 
 
         worked primarily as a repairman, but.his duties also included 
 
         welding and caulking.  On May 20, 1987, claimant slipped on some 
 
         oil and fell and struck his back against a metal box which was 
 
         welded inside of the crawler that he was working in.  The injury 
 
         was reported immediately and claimant was sent to see C.R. 
 
         Fesenmeyer, M.D. Claimant testified he saw Dr. Fesenmeyer five or 
 
         six times.  X-rays were taken.  Pain killers and physical therapy 
 
         were prescribed.  Claimant testified that he did not lose any 
 
         work.  He returned to work the following day with limitations on 
 
         lifting and twisting.  He continued to work for employer until 
 
         the plant closed on August 15, 1987.  Claimant testified that he 
 
         also saw Dennis L. Miller, M.D., on August 31, 1987, at the 
 
         request of employer.  Claimant testified that he also saw a 
 
         physician of his own choosing by the name of Willard M. Smith, 
 
         D.C. (transcript pages 32-39).
 
         
 
              Employer's medical record shows that claimant reported 
 
         numerous back complaints and other complaints from November 22, 
 
         1972 until August 10, 1987.
 
         
 
              Claimant saw Dr. Fesenmeyer on September 17, 1973 for back 
 
         strain from lifting at work and was referred to Leo J. Miltner, 
 
         M.D.  Dr. Miltner reported that on November 5, 1973, claimant was 
 
         wearing an elastic belt and two weeks ago got an elastic corset. 
 
         On November 12, 1973, Dr. Miltner's examination was relatively 
 
         negative except for minor symptoms which claimant mildly 
 
         exaggerated.  He said, "Patient is a worrier."  On November 19, 
 
         1973, he stopped all medications (jt. ex. B, p. 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On December 4, 1973, Dr. Miltner said claimant was wearing a 
 
         poultice on the lumbosacral area.  On December 20, 1973, he 
 
         concluded, "Suggest referral to another orthopedic doctor. 
 
         Examination:  negative.  Reflexes:  negative.  No muscle spasm. 
 
         Mild chronic subjective complaints and no objective findings.  
 
         Poor sleeper and nervous type."  (jt. ex. B, p. 2).  Claimant was 
 
         then referred to Dr. Whitmore (full name unknown) by employer.  
 
         Clinical testing and x-rays were essentially negative.  Dr. 
 
         Whitmore concluded, "Impression:  Low back strain with secondary 
 
         functional.overlay which is difficult to separate from his low 
 
         back strain."  (jt. ex. C).
 
         
 
              The medical records show that claimant saw Joseph C. Azer, 
 
         M.D., five times in April of 1976 for:  (1) sprain lower dorsal 
 
         and cervical spine and (2) sprain left sacro-illiac (jt. ex. T, 
 
         pp. 1-3; tr. p. 39).
 
         
 
              Claimant saw Steven R. Jarrett, M.D., on April 27, 1979, 
 
         when he fell backwards in the back seat of a vehicle hitting his 
 
         low back and hyperextending his neck.  Claimant voiced low back 
 
         discomfort, nervousness and dizziness.  Dr. Jarrett diagnosed 
 
         mild lumbar strain (jt. ex. D, pp. 1 & 2).
 
         
 
              On May 6, 1980, claimant saw Robert J. Chesser, M.D., after 
 
         he lifted two batteries and felt immediate onset of low back pain 
 
         as well as pain in both knees and ankles.  Dr. Chesser diagnosed, 
 
         "Impression:  I feel that the patient has undergone an acute 
 
         lumbar strain of moderate intensity."  (claimant's ex. 1).
 
         
 
              Claimant was treated by James R. Vana, B.S., D.C., from 
 
         working in a bent over position in May of 1982.  Dr. Vana 
 
         restricted claimant from excessive bending, twisting or lifting 
 
         over 30 pounds (jt. ex. Y).  Claimant was also seen for this 
 
         complaint by Dr. Jarrett in July and August of 1982.  Claimant 
 
         reported that on May 26, 1982, while bent over working with an 
 
         air hammer, he developed pain in his low back and in his neck.  
 
         Dr. Jarrett commented in his history, "He indicates the pain to 
 
         be cervical and lumbar. He goes through a great many facial 
 
         grimaces while giving the history and demonstrates a greater than 
 
         usual amount of visible pain behavior in the presence of this 
 
         examiner." Dr. Jarrett added, "on examination, this gentleman 
 
         went through all the testing with a considerable amount of pain 
 
         behavior demonstrated."  Dr. Jarrett also commented, "He had 
 
         normal strength by manual muscle testing in all four extremities, 
 
         but again, complained bitterly of pain while testing all muscles 
 
         in all four extremities."  Dr. Jarrett concluded, "Impression: 
 
         Cervical and lumbar strains."  (jt. ex. W, pp. 1-3).
 
         
 
              On July 30, 1982, Dr. Jarrett said, "I do feel that this 
 
         gentleman is quite sincere in his complaints, but feel there is a 
 
         significant functional overlay.  We are getting psychometric 
 
         testing and will recheck him next week."  (jt. ex. W, p. 4).  On 
 
         August 5, 1982, Dr. Jarrett said, "His MMPI reveals rather 
 
         extreme elevation of the hypochondriasis scale.  I do feel this 
 
         gentleman should be seen by a psychiatrist.  He is willing to see 
 
         one.  He has requested to be seen by Dr. Tourlentes and an 
 
         appointment has been scheduled for August 20."  (jt. ex. W, p. 
 
         5).  Dr. Tourlentes reported on September 13, 1982, "I found no 
 
         clear evidence of psychiatric disability indicative of conversion 
 
         hysteria or malingering.  However, Mr. Eleftheropoulos was 
 
         preoccupied with his back, and reluctant to accept any 
 
         psychological explanations for his difficulties."  (jt. ex. X, 
 
         p-3).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen by T.J. Kennedy, D.C., on August 4, 1983 
 
         for low back pain, numbness in the right leg, nervousness and 
 
         right arm numbness while working on April 4, 1983.  Dr. Kennedy 
 
         stated that x-rays showed cervical kyphosis, posterior C6 
 
         subluxation, spina bifida occulta of T1, thoraco/lumbar 
 
         scoliosis, thoracic nerve root irritation and rotational 
 
         subluxations.  He felt some of the pain might be due to disc 
 
         involvement at L4-L5 (jt. ex. E).
 
         
 
              Claimant was next seen at Franciscan Hospital by Vijay 
 
         Verma, M.D., on August 15, 1983; August 22,,1983; September 6, 
 
         1983; September 13, 1983; September 27, 1983; and February 9, 
 
         1984.  Dr. Verma authored reports on August 15, 1983, and 
 
         February 9, 1984. Dr. Verma was treating claimant for the injury 
 
         while bending over and using the air hammer on May 26, 1982.  On 
 
         August 15, 1983, Dr. Verma commented that claimant seems to be 
 
         dominated by more than a usual amount of pain behavior.  Dr. 
 
         Verma diagnosed:  (1) chronic cervical lumbar strain and (2) 
 
         there is a probability of psychogenic and functional overlay.  On 
 
         February 9, 1984, Dr. Verma diagnosed chronic low back myofascial 
 
         strain.  Dr. Verma also commented, "It should be noted from the 
 
         previous notes that he was given a trial of nearly everything in 
 
         the physical modalities.  He refused trial with a TENS unit 
 
         because it did not benefits him.  Other modalities such as heat, 
 
         ultrasound, were also tried and he did not like the spinal 
 
         brace."  (jt. ex. F, pp. 1-3; jt. ex. Z, pp. 1-9).
 
         
 
              Claimant was examined at the University of Iowa Hospitals 
 
         and Clinics by Dr. Walsh and Dr. Lehmann (full names unknown).  
 
         They began their report by stating, "Mr.  Eleftheropoulos is a 
 
         37-year-old Greek male who has had complaints of intermittent LBP 
 
         since approx. 1976."  (jt. ex. AA, p. 1).  The bending injury in 
 
         the spring of 1982 was mentioned and its course of treatment was 
 
         summarized.  These doctors related that claimant had seen an 
 
         orthopedist, neurosurgeon, psychiatrist, and physiatrist. 
 
         Numerous x-rays, two CT scans and reportedly a myelogram were 
 
         normal.  There were no positive objective physical findings in 
 
         the past examinations.  These doctors concluded:
 
         
 
              IMPRESSION:  The patient was seen with Dr. Lehmann.  He has 
 
              no subjective neurologic deficits and no specific anatomic 
 
              abnormality of the lumbar spine can be identified.  It is 
 
              felt that his healing period has ended and that he is able 
 
              to return to work on a limited basis, limited by his 
 
              complaint of symptoms.  He was given a total body disability 
 
              impairment rating of 0% to 5%.  No additional diagnostic 
 
              studies were recommended.
 
         
 
         (jt. ex. AA, p. 2)
 
         
 
              The medical records show that claimant saw Richard Mento, 
 
         D.C., five or six times in September and October of 1985 for low 
 
         back pain, sciatica, fatigue, and muscle spasms (jt. exs. G & H).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that he saw Theodore Grevas, M.D., his 
 
         personal physician, to check himself and see if there was any 
 
         permanent disability from his work accidents (tr. pp. 49 & 50). 
 
         Dr. Grevas saw claimant on approximately October 15, 1985 for low 
 
         back pain and referred claimant to Robert Milas, M.D., a 
 
         neurosurgeon (jt. ex. I).  Dr. Milas saw claimant on November 18, 
 
         1985 and scheduled a myelogram on November 22, 1985 (jt. ex. J). 
 
         Claimant testified that the myelogram was never completed.  When 
 
         he learned it might affect his nervous system, he refused to have 
 
         it, but continued with physical therapy (tr. pp. 49-51).,
 
         
 
              Claimant said that he voluntarily went to the Mayo Clinic 
 
         (tr. pp. 51 & 52).  There is a report from Tom Gatiuk, M.D., from 
 
         St. Mary's Hospital dated November 25, 1985 which shows a 
 
         discharge diagnosis of:  (1) musculoskeletal low back pain; (2) 
 
         mild D & D thoracolumbar spine; (3) idiopathic osteopenia; (4) 
 
         psoriasoform dermatitis" (jt. exs. K & L).
 
         
 
              Claimant then saw Willard M. Smith, D.C., four times in 
 
         November of 1985 for sciatic neuritis accompanied with facet 
 
         right syndrome and diminished reflexes on the right (jt. ex. M).
 
         
 
              On November 14, 1985, claimant saw J.R. Lee, M.D., for low 
 
         back pain and right leg pain.  Dr. Lee concluded, "I do not see 
 
         any significant physical evidence of an Orthopaedic, 
 
         Neurological, or Rheumatologic problem.  He had a CT scan in 
 
         November 1982 at Mercy Hospital.  It reported some bulging at 
 
         L4-L5 and S1 disc." Dr. Lee diagnosed lumbar radiculopathy on the 
 
         right S1 nerve root indicated by depressed ankle jerk on the 
 
         right (jt. ex. FF, pp. 1 & 2).
 
         
 
              This completes the summary of claimant's back treatment 
 
         prior to this injury.  Claimant pointed out that he passed a 
 
         preemployment physical examination prior to being employed by 
 
         employer on August 3, 1972.  Claimant related that he was a 
 
         volunteer in the Green Berets.  He also maintained a part-time 
 
         job as a painter. claimant further testified, "The prior 
 
         accidents, they were small accidents, and I was completely 
 
         cured."  (tr. p. 56).  Claimant testified several times that he 
 
         was fully recovered after each prior episode with his back (tr. 
 
         pp. 68, 76, 81 & 81, 92, 95, 131).
 
         
 
              Since the injury of May 20, 1987, claimant obtained a GED, 
 
         completed a course in fundamental measurement inspections, 
 
         completed a course in electrical and mechanical maintenance, and 
 
         completed a course in asbestos removal (tr. pp. 59-65).  He has 
 
         been employed as a maintenance custodian, lubricated police cars 
 
         for a temporary service employment agency, assembled meat and 
 
         cheese packages for a meat packer (tr. pp. 65-74).  At the time 
 
         of the hearing, he was a water plant technician for the city of 
 
         East Moline earning $11 per hour working a 40-hour week (tr. pp. 
 
         72 & 73).
 
         
 
              With respect to the injury of May 20, 1987, the medical 
 
         record shows that claimant saw Dr. Fesenmeyer on that date.  He 
 
         was diagnosed as having acute low back strain and he was returned 
 
         to work with a 15 pound weight lifting restriction and he was not 
 
         to stoop or bend for three days.  Claimant had follow-up visits 
 
         with Dr. Fesenmeyer on May 20, 1987; May 26, 1987; and May 29, 
 
         1987 for acute low back strain and was returned to work after 
 
         each office visit with minor restrictions (jt. ex. N, pp. 1-3).  
 
         He continued to see Dr. Fesenmeyer on June 5, 1987 and June 12, 
 
         1987 for back strain and claimant continued to work with minor 
 
         restrictions (jt. ex. R, pp. 5 & 6).  Dr. Fesenmeyer released 
 
         claimant to return to work without any restrictions on June 25, 
 
         1987 (jt. ex. R., p. 7).
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was then evaluated by employer for the May 20, 1987 
 
         injury by Dennis L. Miller, M.D., an orthopedic surgeon, on 
 
         August 31, 1987.  Dr. Miller recorded:
 
         
 
              On exam, he walks with a definite limp.  He indicated that 
 
              he had weakness of the lower extremity and instability of 
 
              his foot.  I thought that his gait was very peculiar.  He 
 
              was noted to be wearing a corset.  He was unable to walk on 
 
              his heels or toes on the right.  On exam of his back, he had 
 
              what I considered to be a hyper-response to touch and 
 
              palpation throughout the lumbosacral area.  He walks in a 
 
              peculiar forward flexed position.  His deep tendon reflexes 
 
              were active and equal.  I had the definite sense that he 
 
              tried to accentuate the left ankle jerk by plantarflexing 
 
              his foot and tried to diminish the response on the right.  I 
 
              thought that he definitely tensed his muscles to make that 
 
              effort.
 
         
 
              In view of his long-standing recurrent injury and previous 
 
              findings of nonphysiological findings, I don't think there 
 
              is any evidence that this man has any impairment related to 
 
              any injury of May 20, 1987.  I think that his current 
 
              findings are inappropriate and there are no objective 
 
              finding of specific injury.  I made no further appointments.
 
         
 
         (jt. ex. HH, p. 1)
 
         
 
              Dr. Miller noted narrowing of the L5-S1 intervertebral disc 
 
         space, otherwise, he thought the radiographs were within normal 
 
         limits.
 
         
 
              Claimant admitted that he did not lose any time from work 
 
         from the injury of May 20, 1987 (tr. p. 132).  He further 
 
         admitted that he was returned to work on June 25, 1987 without 
 
         restrictions (tr. pp. 132-136).  Claimant saw Dr. Fesenmeyer one 
 
         more time on August 10, 1987, but was returned to work with a 25 
 
         pound weight lifting restriction and with a restriction that he 
 
         was unable to work lying on his back.  The doctor said he could 
 
         continue working at his previous job (jt. ex. N, p. 4).  From 
 
         August of 1987 until the hearing in October of 1989, claimant 
 
         only saw a chiropractor four times during that period of time 
 
         (tr. pp. 137 & 138). Claimant admitted that he was not taken off 
 
         work at any time from July 1, 1987 up until the time of the 
 
         hearing on October 24, 1989 (tr. p. 138).
 
         
 
              On October 2, 1989, just 22 days prior to hearing, Dr. 
 
         Chesser evaluated claimant and made a report.  Prior to 1984 
 
         claimant had intermittent pain from work-related injuries.  From 
 
         1984 until 1987, claimant had persistent low grade pain.  Since 
 
         the injury in 1987, his symptoms were increased and have been 
 
         persistent.  In addition, he has pain behind both knees, 
 
         complained of easy fatigueability and being tired with occasional 
 
         dizziness.  His pain is constant low back pain with occasional 
 
         pain into the lower extremities aggravated by lifting or 
 
         twisting. Dr. Chesser stated, "X-rays were obtained and 
 
         demonstrated minimal L5-S1 disc space narrowing; however, there 
 
         were no significant changes from films taken in 1979."  Dr. 
 
         Chesser concluded this evaluation in these words:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              ASSESSMENT:  Based on the patient's history, it does appear 
 
              that the 1984 and 1987 injuries were the most significant in 
 
              regards to his ongoing symptoms, and it appears as though 
 
              the 1987 injury was the most aggravating.  However, he is 
 
              very difficult to assess.  It is difficult to tell just how 
 
              much of his disability is related to a true organic disorder 
 
              and how much is behavioral or psychological.  If these are 
 
              both looked at as legitimate sources for disability, then 
 
              based on his presentation I feel that he would have a 50% 
 
              whole man impairment based on his ongoing pain symptoms.  
 
              However, my clinical impression would be that this would be 
 
              a 40% behavioral and 10% organic.  In regards to the 
 
              work-related injuries actually being the precipitating 
 
              event, it does appear that, historically, that the symptoms 
 
              are related to injuries at work, with the primary injuries 
 
              being in 1984 and 1987.
 
         
 
         (cl. ex. 2,.p. 2)
 
         
 
              Dr. Willard M. Smith, the chiropractor, reported on October 
 
         4, 1989, just 20 days prior to hearing.  He first saw claimant as 
 
         early as November 19, 1985 and then again on May 20, 1987.  He 
 
         made cervical and lumbar range of motion calculations and 
 
         performed numerous orthopedic and neurological tests.  Dr. Smith 
 
         concluded:
 
         
 
              OPINION
 
         
 
              This patient is in an acute state of health of gradual 
 
              degeneration of the physical body.  Complicated by spinal 
 
              subluxation, spinal balance and acerbated by trauma of falls 
 
              and strains.
 
         
 
              The possibility of sclarodermal pain of low back being a 
 
              referred pain from some other must be considered with the 
 
              spinal posture and caroneal joints fascet or capsular 
 
              insult, there is the possibility of a causal relationship.
 
         
 
              The accumulation of the injuries could have causal 
 
              relationship to this patient present condition.
 
         
 
              The fall of May 20, 1987 could be a contributor to the 
 
              condition.
 
         
 
              Permanent partial impairment of the whole body as examined 
 
              on October 4th of 1989.
 
         
 
         (cl. ex. 3, p. 4)
 
         
 
              Dr. Smith concluded his report by finding, "30% Final 
 
         impairment rating."  (cl. ex. 3, p. 4).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 20, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of May 20, 1987 was 
 
         the cause of any permanent impairment or disability.  Claimant 
 
         was treated by Dr. Fesenmeyer and he lost no time from work on 
 
         account of the injury (jt. ex. N, pp. 1-4; jt. ex. R, pp. 5-7).  
 
         Claimant was returned to work without restrictions on June 25, 
 
         1987, approximately five weeks after the injury.  At worst, the 
 
         injury was described as acute back strain and at times it was 
 
         described as simply back strain or chronic back strain by Dr. 
 
         Fesenmeyer.
 
         
 
              Dr.  Smith could not say that claimant's difficulties were 
 
         probably caused by the injury of May 20, 1987.  Dr. Smith said, 
 
         "...there is a possibility of a causal relationship."  He said 
 
         the accumulation of injuries, "...could have causal 
 
         relationship." to the patient's present condition.  He said the 
 
         fall of May 20, 1987, "...could be," a contributor to the 
 
         condition.  Therefore, Dr. Smith's report does not establish 
 
         causal connection between the injury of May 20, 1987 and 
 
         claimant's current 30 percent impairment found by Dr. Smith.  A 
 
         possibility is insufficient; a probability is necessary.  In 
 
         addition, Dr. Smith did not characterize it as permanent 
 
         impairment (cl. ex. p, 4).
 
         
 
              Dr. Chesser's report did not establish causal connection of 
 
         a permanent impairment or disability.  He states, "...it does 
 
         appear that, historically that the symptoms are related to the 
 
         injuries at work, with the primary injuries being 1984 and 1987."  
 
         This is not sufficient to establish that the injury of May 20, 
 
         1987 was the cause of permanent disability when claimant had 
 
         countless episodes of work related and nonwork-related back 
 
         complaints for the last 14 years, from 1973 until 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, Dr. Chesser's impairment rating was not 
 
         characterized as a permanent impairment rating.  Dr. Chesser's 
 
         medical specialty was not established by either testimony or a 
 
         curriculum vitae.  Dr. Chesser did not state whether he used the 
 
         Guides to the Evaluation of Permanent Impairment, published by 
 
         the American Medical Association, The Orthopedic Surgeon's Guide 
 
         to Permanent Impairment, some other permanent impairment guide, 
 
         or no guide at all.
 
         
 
              In view of claimant's long, extensive history of treatment 
 
         for back complaints, both cervical and lumbar, practically all of 
 
         which occurred before the injury on May 20, 1987, claimant did 
 
         not establish by Dr. Chesser's qualified remarks that the injury 
 
         of May 20, 1987 was the cause of any permanent impairment or 
 
         disability.  Claimant's prehearing brief asserted a cumulative 
 
         injury theory under McKeever Custom Cabinets vs. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).  Claimant's attorney is correct that the 
 
         deputy is entitled to determine the nature of claimant's injury 
 
         and entitlement to compensation from the evidence presented 
 
         regardless of the particular theories pled.  Citing Shank vs. 
 
         Mercy Hospital Medical Center, file number 119627 (Appeal 
 
         Decision August 28, 1989) ; Coghlan vs. Quinn Wire and Iron 
 
         Works, 164 N.W.2d 848, 850 (Iowa 1969).  Claimant did not prove a 
 
         cumulative injury, but rather only a series of separate injuries 
 
         and episodes arising from possible various causes.
 
         
 
              Dr. Miller, defendant's evaluator, examined the x-rays taken 
 
         in Dr. Fesenmeyer's office on May 20, 1987 and stated there may 
 
         be some slight narrowing of the L5-S1 intervertebral disc space, 
 
         but otherwise, he thought the radiographs were within normal 
 
         limits. Dr. Miller's conclusion was:
 
         
 
              In view of his long-standing recurrent injury and previous 
 
              findings of nonphysiological findings, I don't think there 
 
              is any evidence that his man has any impairment related to 
 
              an injury of May 20, 1987.  I think that his current 
 
              findings are inappropriate and there are no objective 
 
              finding of specific injury.  I made no further 
 
              appointments."
 
         
 
         (jt. ex. HH, p. 1)
 
         
 
              Dr. Miller's opinion is determined to be more sound and 
 
         reliable than the opinions of Dr. Chesser and Dr. Smith.  
 
         Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 
 
         (Iowa 1985). A doctor's expertise or board certification may 
 
         afford his testimony greater weight.  Reiland v. Palco, Inc., 
 
         Thirty-second Biennial Report of the Industrial Commissioner, 56 
 
         (1975); Dickey v. ITT Continental Baking Company, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 89 (1979).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant was employed by employer from October 3, 1972 
 
         until August 15, 1987.
 
         
 
              That from 1973 until May 20, 1987, claimant was treated by 
 
         several physicians for numerous back complaints.
 
         
 
              That the injury in this case occurred on May 20, 1987, 
 
         approximately four months before the employer's plant was closed.
 
         
 
              That Dr. Fesenmeyer described claimant's injury as acute low 
 
         back strain, back strain, and chronic back strain.
 
         
 
              That Dr. Fesenmeyer's x-rays were normal for traumatic 
 
         injury.
 
         
 
              That Dr. Fesenmeyer treated claimant on May 20, 1987; May 
 
         26, 1987; May 29, 1987; June 5, 1987; June 12, 1987; and June 25, 
 
         1987 with medications and physical therapy.
 
         
 
              That claimant lost no time from work from this injury.
 
         
 
              That claimant was returned to work on June 25, 1987 without 
 
         restrictions.
 
         
 
              That Dr. Miller said that claimant did not sustain any 
 
         permanent impairment from this injury.
 
         
 
              That Dr. Smith's opinion did not state that claimant's 
 
         impairment and disability were caused by or probably caused by 
 
         the injury of May 20, 1987.
 
         
 
              That Dr. Chesser's evaluation was nonspecific and 
 
         indefinite.
 
         
 
              That Dr. Miller's opinion is the most sound and reliable.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of May 20, 1987 was 
 
         the cause of permanent impairment.
 
         
 
              That since claimant did not prove causal connection, the 
 
         issue of entitlement to benefits is moot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendant to claimant as a 
 
         result of the injury of May 20, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant file any claim activity reports that might be 
 
         requested by this agency to close out the file pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 21st day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas H. Preacher
 
         Mr. Albert Stafne, Jr.
 
         Attorneys at Law
 
         2535 Tech Drive STE 200
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         STE 102, Executive Square
 
         400 Main St.
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51108.50; 51401; 51402.40
 
                                            Filed March 21, 1990
 
                                            Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ELEFTHEROPOULOS,
 
         
 
              Claimant,                              File No. 850435
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         J. I. CASE
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51108.50; 51401; 51402.40
 
         
 
              Claimant, who had an extremely elevated MMPI hypochondriasis 
 
         scale, did not sustain the burden of proof by a preponderance of 
 
         the evidence that the injury was the cause of permanent 
 
         disability and, therefore, was not entitled to any permanent 
 
         disability benefits.  He was diagnosed as back strain, treated 
 
         conservatively for five weeks, lost no time from work and was 
 
         released to.return to work without any permanent restrictions.  
 
         One claimant evaluation dealt only with possibility of causal 
 
         connection.  The other evaluation was vague and nonspecific as to 
 
         the cause of the instant injury.