1108; 2600
 
                                               Filed July 22, 1993
 
                                               Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                
 
            PETER J. GANSEN,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 851496
 
            FROMMELT INDUSTRIES,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            INTERCONTINENTAL INSURANCE,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1108; 2600
 
            
 
            Claimant could not establish that his work injury on May 12, 
 
            1987 aggravated his preexisting condition.  Claimant 
 
            suffered from a Chiari malformation with syringomyelia which 
 
            may or may not have been symptomatic prior to the work 
 
            injury.  Claimant had no knowledge of his congenital 
 
            abnormality until after the work injury had occurred.
 
            Defendants' expert testified that the work injury did not 
 
            aggravate his preexisting condition.  Defendants' expert was 
 
            a known authority in the field.  He had authored 17 research 
 
            papers in related fields.  Defendants' expert had treated 
 
            140-150 patients with the condition per year.
 
            
 
            Claimant's expert, although the treating neurosurgeon had no 
 
            real expertise in the precise field, he did not have the 
 
            same expertise as defendants' expert.  He also had an 
 
            incomplete medical history.  Great weight was given to 
 
            defendants' expert.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         ____________________________________________________________
 
                                       :
 
         PETER J. GANSEN,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 851496
 
         FROMMELT INDUSTRIES,          :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         INTERCONTINENTAL INSURANCE,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Peter J. Gansen, against his employer, Frommelt 
 
         Industries, and its insurance carrier, Intercontinental 
 
         Insurance, defendants.  The case was heard on January 10, 1992 at 
 
         the Dubuque County Courthouse in Dubuque, Iowa.  The record con
 
         sists of the testimony of claimant.  The record also consists of 
 
         the testimony of Jerry Gosche, licensed physical therapist; 
 
         Joanne Gansen, spouse of claimant; Jan Bickley, R.N., OT; Tom 
 
         Marti, Production Supervisor at defendant-employer's business; 
 
         and Kay Frommelt, former plant nurse.
 
         
 
              Additionally, the record consists of claimant's exhibits 
 
         1-3, 5, 6, 9-53, 57-60 and 64, as well as defendants' exhibits 
 
         1-4, 5 and 6.  The lawyers are hereby cautioned about the 
 
         duplication of records.  Many of the exhibits were duplicated 2 
 
         to 3 times in the record.  The duplication resulted in 
 
         unnecessary review by the undersigned deputy and unnecessary 
 
         delay.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:
 
         
 
              1) Whether there is a causal relationship between the injury 
 
         and any temporary or permanent disability; 2) whether claimant is 
 
         entitled to any temporary total disability or healing period 
 
         benefits; 3) whether claimant is entitled to any permanent par
 
         tial disability benefits; and 4) whether claimant is entitled to 
 
         any medical benefits pursuant to section 85.27.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Claimant is 40 years old.  He is the married father of four 
 
         children.  Claimant has a high school diploma.  Since high school 
 
         claimant has had no formalized training.  All of his training has 
 
         been on-the-job training.
 
         
 
              Claimant commenced his employment with defendant-employer in 
 
         1984.  He was hired as an assembler for the duration of his 
 
         employment.  His duties required him to engage in heavy lifting 
 
         and at heights 20 feet above the ground.
 
         
 
              On May 12, 1987, claimant sustained a work-related injury.  
 
         He was attempting to disassemble a 127 pound press.  He removed 
 
         three of the four holding pins while he balanced the platform 
 
         portion of the press on his left shoulder, neck and arm.  
 
         Claimant supported the weight on his left shoulder for approxi
 
         mately three minutes.  Finally, the platform fell and scraped 
 
         claimant's left arm.  He sustained a bruise to his left arm.  He 
 
         did not seek medical treatment.
 
         
 
              Claimant reported the injury to his immediate supervisor, 
 
         Tom Marti.  Mr. Marti completed an accident report (Claimant's 
 
         Exhibit 1).  He described the injury as affecting:  "Left forearm 
 
         swollen & bruised."
 
         
 
              Claimant continued to work his regular duty.  However, on 
 
         June 17, 1987, claimant reported to his supervisor and to the 
 
         then company nurse, Kay Frommelt, R.N., that claimant was experi
 
         encing numbness in both of his arms.  The company nurse referred 
 
         claimant to Medical Associates Clinic, P.C., where he was exam
 
         ined by Joseph G. Garrity, M.D.
 
         
 
              Dr. Garrity diagnosed claimant's condition as:  "Cervical 
 
         muscular pain."  (Cl. Ex. 5)  Dr. Garrity referred claimant to 
 
         Patrick Sterrett, M.D., a neurologist.  Claimant was examined on 
 
         June 19, 1987 by Dr. Sterrett.  The neurologist noted:
 
         
 
              [C]omplaints of neck pain and also complaints in the 
 
              recent past of about a 3-week history of tingling sen
 
              sations in both arms and forearms followed by a feeling 
 
              of heaviness and "numb feeling" in both upper extremi
 
              ties.
 
         
 
         (Cl. Ex. 19)
 
         
 
              Dr. Sterrett ordered an MRI.  The MRI showed "a Chiari mal
 
         formation and a probable syringomyelia."  (Cl. Ex. 19, page 3)
 
         
 
              Dr. Sterrett referred claimant to the neurology department 
 
         at the University of Iowa Hospitals and Clinics.  Dr. Sterrett 
 
         also prescribed a cervical collar and light duty work assign
 
         ments.
 
         
 
              Claimant was examined on July 30, 1987 at the University of 
 
         Iowa Hospitals and Clinics.  Christopher M. Loftus, M.D., a neu
 
         rosurgeon, conducted the initial examination.  Dr. Loftus took a 
 
         patient history from claimant.  In his deposition, Dr. Loftus 
 
         testified that the history consisted of:
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
              A. This gentleman presented with a history of arm and 
 
                 shoulder injury at work; reports that following this 
 
                 for the last several months he has had episodes of 
 
                 paresthesias in both arms and some aching in the 
 
                 right upper arm.  That's the extent of it, sir.
 
         
 
         (Defendants' Ex. 2, page 4, line 24 through page 5, line 3).
 
         
 
              Dr. Loftus authored a report dated July 30, 1987 relative to 
 
         claimant's condition.  Claimant was diagnosed with a Chiari mal
 
         formation.
 
         
 
              A Chiari malformation is defined in Dorland's Medical 
 
         Dictionary as:
 
         
 
              [E]longation of the cerebellar tonsils, smallness and 
 
              deformity of the medulla, smallness of the pons with 
 
              degeneration of its transverse fibers and herniation of 
 
              the cerebellum into the spinal canal; caudal displace
 
              ment of brain stem.
 
         
 
         (Cl. Ex. 53)
 
         
 
              A syringomyelia is defined in Dorland's Medical Dictionary 
 
         as:
 
         
 
              A condition marked by abnormal cavities filled with 
 
              liquid in the substance of the spinal cord.
 
         
 
         (Cl. Ex. 53, p. 3)
 
         
 
              In the July 30, 1987 report, Dr. Loftus opined:
 
         
 
              I agree that Mr. Gansen has a serious problem and think 
 
              that the most likely symptoms are likely referable to 
 
              his syrinx and Chiari malformation.  If anything, the 
 
              symptoms are probably more from the syrinx than from 
 
              the abscess of any cranial nerve abnormalities.
 
         
 
         (Cl. Ex. 24)
 
         
 
              On August 19, 1987, Dr. Loftus performed a:  "Posterior 
 
         fossa craniectomy, Cl laminectomy, muscle plugging of obex, 
 
         ventricular shunt, duroplasty [sic] with lumbodorsal fascial 
 
         graft."  (Cl. Ex. 26)
 
         
 
              Dr. Loftus, in his deposition, later described claimant's 
 
         condition as a Chiari Type l malformation with a syrinx.  Dr. 
 
         Loftus testified that:
 
         
 
              A. They are often associated.  It's felt to be a con
 
                 genital abnormality within the posterior fossa, 
 
                 which is the back part of the head in the region of 
 
                 the cranial-vertebral junction, where the cerebellum 
 
                 and brain stem just -- where the transition point is 
 
                 where they would form the cervical spinal cord in 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
                 this case.  In the Chiari malformation, the cerebel
 
                 lar tonsils, which are part of the most inferior 
 
                 part of the cerebellum, and ones that sit directly 
 
                 on top of the brain stem, instead are displaced from 
 
                 their usual position within the posterior fossa and 
 
                 are elongated so they come down into the cervical 
 
                 spine region, thereby in many cases compressing the 
 
                 spinal cord, and that's what I mean when I say that 
 
                 they were seen to be under the lamina of C-l.  That 
 
                 means they weren't in the posterior fossa but they 
 
                 were under the lamina of the first cervical verte
 
                 bra, indicating an abnormal position.
 
         
 
                    Now, the associated syrinx, when you have a 
 
                 Chiari malformation -- sometimes there is not, but 
 
                 when you have the Chiari malformation, it's felt 
 
                 that a lot of arachnoiditis, meaning scarring of the 
 
                 covering of the brain, can develop around this her
 
                 niated cerebellar tonsil and prevent the normal 
 
                 egress of spinal fluid out and around the spinal 
 
                 cord, and instead of -- having nowhere else to go, 
 
                 sort of hammers, the water hammer effect, goes down 
 
                 through the obex and may contribute to the formation 
 
                 of the syrinx, which is dilation of the central por
 
                 tion of the spinal cord.  Now, the symptoms that 
 
                 follow of Chiari malformation can be multiple but in 
 
                 many cases there will be cranial nerve involvement, 
 
                 swallowing difficulties, difficulty with the tongue, 
 
                 perhaps changes in sensation over the face, and 
 
                 those symptoms would be rather discreet from the 
 
                 symptoms of the cervical syrinx, would be the kind 
 
                 of symptoms described here, i.e., dissociated sen
 
                 sory loss in the upper extremities felt to be caused 
 
                 by distension of the cervical spinal cord by the 
 
                 space occupying lesion within the center of it.  So, 
 
                 I am sorry, in brief that may describe some of it 
 
                 for you.
 
         
 
         (Def. Ex. 2, p. 14, l. 9 through p. 16, l. 1)
 
         
 
              Subsequent to the surgical procedure, claimant engaged in 
 
         both physical therapy and occupational therapy.  He also engaged 
 
         in a home exercise program.  At the time of the hearing, claimant 
 
         was unemployed.  He was unable to return to his former position 
 
         as an assembler.  Claimant had been receiving disability benefits 
 
         from the Social Security Administration since 1988.  Claimant had 
 
         not sought employment or retraining.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Defendants do not deny that claimant sustained a 
 
         work-related injury on May 12, 1987.  The defendants, however, 
 
         deny there is a causal connection between the work injury on May 
 
         12, 1987 and claimant's Chiari I malformation.  Claimant does not 
 
         claim that he is entitled to recover for the preexisting condi
 
         tion of Chiari malformation.  Claimant maintains that he is enti
 
         tled to benefits because his work injury has aggravated his pre
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         existing condition.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, its mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially 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); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              There is no dispute that claimant suffered from a Chiari 
 
         malformation and a syrinx.  Both Dr. Loftus and defendants' 
 
         expert, Henry H. Sherk, M.D., agree that the abnormality is 
 
         congenital in nature.  (Ex. 1, p. 18) (Ex. 3, pp. 17-19)
 
         
 
              The issue here is whether the injury on May 12, 1987 has 
 
         aggravated claimant's condition or has caused the condition to be 
 
         symptomatic.  It is the determination of the undersigned that 
 
         claimant has failed to prove that the work injury in question has 
 
         aggravated his underlying condition.
 
         
 
              Claimant relies upon the medical opinion of Dr. Loftus for 
 
         support of his position.  He attempts to establish the requisite 
 
         medical causation.  Dr. Loftus, while an expert in neurosurgery, 
 
         admits that he is not a recognized expert on Chiari malforma
 
         tions.  He attributes expertise in the area to another physician.  
 
         That expert is senior staff surgeon, Dr. Menezes, M.D., (first 
 
         name unknown).
 
         
 
              Dr. Loftus admits in his deposition that he has had doubts 
 
         whether there has been an aggravation by the work injury of 
 
         claimant's condition.  He opines that:
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
              Q. Now, in the course of what you said a moment ago, 
 
                 you referred to Chiari Type I malformations as being 
 
                 congenital, is that correct?
 
         
 
              A. Yes, sir.
 
         
 
              Q. And so am I also correct that the Chiari Type I          
 
              malformation was not caused by the accident at work?
 
         
 
              A. I don't think there is any possibility of that.
 
         
 
              Q. Or any other trauma for that matter?
 
         
 
              A. No, sir, I am not aware -- there is an entity of a 
 
                 post-traumatic syrinx, but that customarily develops 
 
                 at a -- rather temporally unrelated to severe trauma 
 
                 in the cervicothoracic spine.  I don't think this is 
 
                 a post-traumatic syrinx unless he had an injury long 
 
                 before, and certainly Chiari malformations per se, 
 
                 the physical abnormality cannot be caused by trauma, 
 
                 to my knowledge.
 
         
 
              Q. And how about the syrinx, is it also fair to say 
 
                 that that is not a condition that is causally 
 
                 related to the work injury?
 
         
 
              A. The presence of the syrinx, you are on a little 
 
                 shakier ground there because the syrinx can kind of 
 
                 come and go.  It's a more dynamic situation, as you 
 
                 understand, because of the fact with that scarring, 
 
                 the fluid takes a pathway under the central canal.  
 
                 Understand these are all theories.  Nobody knows for 
 
                 sure what causes a syrinx.  It's a question that 
 
                 causes a lot of debate, but if you subscribe to the
 
                 ory, if you get more scarring from like an accident, 
 
                 you could presumably accentuate your symptomatology 
 
                 from the syrinx.
 
         
 
              Q. I think in one of your reports you indicated you 
 
                 felt that neither the Chiari nor the syrinx in Mr. 
 
                 Gansen's case were related to the accident at work 
 
         
 
              A. Yeah.  Well, I think --
 
         
 
              Q. -- is that right?
 
         
 
              A. My question in my mind, and I must tell you I always 
 
                 wondered about this myself, was:  Were they symp
 
                 tomatically aggravated?  I don't think I could make 
 
                 a strong case for the fact that they were caused.  I 
 
                 don't think that's a possibility.  It's purely a 
 
                 question of symptomatology.
 
         
 
              Q. And I understand that.  We are going to get the 
 
                 aggravation question in a moment.
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              A. Uh-huh.
 
         
 
              Q. In fact I guess we are here.  Let's go ahead and 
 
                 talk about that.  You said, I believe, just in your 
 
                 last answer that it had always been a question in 
 
                 your mind as to whether those were conditions that 
 
                 were aggravated by the work accident.  Tell me, and 
 
                 let's hit both sides of it, of the question, what 
 
                 are the things here that have caused there to be a 
 
                 question in your mind about that, as opposed to you 
 
                 being able to just say, oh, well, of course it's 
 
                 related or, oh, of course it's not?
 
         
 
              A. Because I basically have no previous experience upon 
 
                 which to draw, I guess what it comes down to, if you 
 
                 want me to give it to you in a nutshell.  The 
 
                 patients come in and they are symptomatic, and I 
 
                 find no physical abnormality, and I operate on them 
 
                 and they may have no improvement, I can only take 
 
                 the patient's word as to what the cause and effect 
 
                 was.  If they said they never had any trouble before 
 
                 and they said they had something happen to them and 
 
                 now it's worse, I think it's plausible that on the 
 
                 basis of some injury -- understand what that means, 
 
                 that the tonsil and the brain stem are impacted in 
 
                 that area, and anything that would impact them could 
 
                 theoretically suddenly accentuate or cause a symp
 
                 tomatic condition.  I would say the physical -- the 
 
                 symptoms are on a continuum, and they may be zero or 
 
                 very severe, and if it gets very bad, it's severe 
 
                 and totally debilitating, and what would be the 
 
                 antecedent event that would cause it to become sud
 
                 denly symptomatic?  I don't think anybody really 
 
                 knows.  I personally had never seen a case where one 
 
                 was accentuated by trauma before, and I thought this 
 
                 might represent the first one.
 
         
 
         (Def. Ex. 2, p. 17, l. 10 through p. 20, l. 12)
 
         
 
              There is doubt in this deputy's mind as to the requisite 
 
         causal connection.  The opinion of Dr. Loftus is based on an 
 
         incomplete medical history.  Claimant has neglected to supply Dr. 
 
         Loftus with a complete medical history.  Dr. Loftus has been 
 
         under the mistaken impression that claimant's symptoms have only 
 
         appeared several weeks after the work injury.  He has based his 
 
         opinion relative to causality on the aforementioned mistaken 
 
         belief.  However, many of the symptoms did appear many years 
 
         prior to the work injury.  Therefore, Dr. Loftus' opinion is 
 
         based upon inaccurate data.  His opinion is considered in light 
 
         of the fact that many symptoms have manifested themselves years 
 
         prior to the work injury.  The evidence establishes that claimant 
 
         has previously experienced many of the symptoms of a person 
 
         afflicted with a Chiari malformation and a syringomyelia.
 
         
 
              For example, claimant has experienced on prior occasions:  
 
         questionable seizures, headaches, chest pain, arm aching, suspi
 
         cious falls, dizziness, eye rolling, irregular gait and depres
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         sion.
 
         
 
              This deputy accords greater weight to the opinion of defen
 
         dants' expert, Dr. Sherk.  He is a recognized authority dealing 
 
         in the areas of syringomyelia and Chiari malformation.  He has 
 
         authored many articles dealing with hydrocephalus, cervical cord 
 
         lesions and spinal deformity.  (Def. Ex. l, p. 16)  Dr. Sherk has 
 
         co-authored approximately 17 research papers which relate to 
 
         Chiari malformation.  He sees approximately 140-150 patients 
 
         annually who suffer from this malady.  This is not a rare case 
 
         for Dr. Sherk.  He is a seasoned medical practitioner in the 
 
         specific area.  He has more expertise than does Dr. Loftus.
 
         
 
              Dr. Sherk has testified by way of deposition.  He informs 
 
         this deputy that medical science has not really pinpointed why a 
 
         Chiari malformation becomes symptomatic (Ex. 1, pp. 86-87).  In 
 
         his research, he has been unable to find any literature which 
 
         discusses the effect of an injury on the Arnold-Chiari mal
 
         formation.  (Def. Ex. l, p. 27, ll. 19-22)
 
         
 
              Dr. Sherk has testified to the current theories concerning 
 
         how a Chiari malformation and a syrinx become symptomatic.  
 
         (Deft. Ex. l, p. 38)  According to Dr. Sherk none of the theories 
 
         deals with the role of trauma.  (Deft. Ex. 1, p. 38)
 
         
 
              With respect to claimant's specific case, Dr. Sherk has had 
 
         the benefit of claimant's entire medical history prior to render
 
         ing his opinion.  He has a complete history.  He opines that 
 
         claimant's various conditions and complaints over the years have 
 
         been possible symptoms of claimant's congenital abnormality.  
 
         (Def. Ex. 1, p. 50)  Dr. Sherk has opined that the work injury 
 
         has not caused nor aggravate claimant's preexisting condition.  
 
         (Def. Ex. 1, pp. 88-89)  Dr. Sherk's opinion is given the great
 
         est weight.  It is the determination of the undersigned that 
 
         claimant's work injury of May 12, 1987 has not aggravated 
 
         claimant's preexisting condition.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs are assessed to each party pursuant to rule 343 IAC 
 
         3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephen J. Juergens
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa  52001
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1108; 2600
 
                                                   Filed July 29, 1992
 
                                                   MICHELLE A. McGOVERN
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            PETER J. GANSEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851496
 
            FROMMELT INDUSTRIES,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            INTERCONTINENTAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1108; 2600
 
            Claimant could not establish that his work injury on May 12, 
 
            1987 aggravated his preexisting condition.  Claimant 
 
            suffered from a Chiari malformation with syringomyelia which 
 
            may or may not have been symptomatic prior to the work 
 
            injury.  Claimant had no knowledge of his congenital 
 
            abnormality until after the work injury had occurred.
 
            Defendants' expert testified that the work injury did not 
 
            aggravate his preexisting condition.  Defendants' expert was 
 
            a known authority in the field.  He had authored 17 research 
 
            papers in related fields.  Defendants' expert had treated 
 
            140-150 patients with the condition per year.
 
            Claimant's expert, although the treating neurosurgeon had no 
 
            real expertise in the precise field, he did not have the 
 
            same expertise as defendants' expert.  He also had an 
 
            incomplete medical history.  Great weight was given to 
 
            defendants' expert.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
          JOHN C. WIDDIG,
 
         
 
              Claimant,
 
         
 
          VS.                                         File No. 851716
 
          
 
          LINCOLN SALES & SERVICE, INC.,             A R B I T R A T I O 
 
         N
 
          
 
               Employer,                               D E C I S I O N
 
          
 
          and
 
         
 
          LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John C. 
 
         Widdig, claimant, against Lincoln Sales & Service, Inc., employer 
 
         (hereinafter referred to as Lincoln), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         February 2, 1986.  On December 2, 1988, 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 was received during the hearing from claimant and 
 
         Leonard Weaver.  The exhibits received into the evidence at 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1. On February 2, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Lincoln.
 
         
 
              2. Claimant's entitlement to temporary total disability 
 
         benefits extends from February 3, 1986 to April 14, 1987.
 
         
 
              3. The injury was not a cause of permanent disability.
 
         
 
         
 
         
 
         WIDDIG V. LINCOLN SALES & SERVICE, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              4. For the purposes of determining claimant's rate of weekly 
 
         compensation, it was stipulated that claimant was married and 
 
         entitled to three exemptions on his tax return at the time of the 
 
         injury.
 
         
 
              5. All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the weekly rate of compensation which is to be 
 
         used for paying temporary total disability benefits.
 
         
 
         
 
                                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 is a full-time truck driver who began his 
 
         employment with Lincoln in 1983.  His employment contract, at the 
 
         time of his initial hire, specified that he would be paid $21.65 
 
         per mile and would receive extra pay pursuant to a schedule for 
 
         such activities as backing trailers up to loading docks, dropping 
 
         and hooking trailers, loading and unloading trailers, layovers 
 
         and breakdowns.  Claimant received reimbursement at the rate of 
 
         $14 per day for motels (100 percent.if resulting from truck 
 
         breakdowns) and other various expenses including business credit 
 
         card telephone calls.  Meals were not reimbursed under this 
 
         initial contract.
 
         
 
              In the latter part of 1985, Lincoln announced a change in 
 
         the manner of payment of earnings.  Instead of receiving $21.65 
 
         per mile, the drivers were to receive $15.65 per mile and an 
 
         additional amount called "per diem allowance" at the rate of $.06 
 
         per mile for miscellaneous expenses such as meals and excess 
 
         motel expenses.  The other income and expense policies remained 
 
         unchanged.  Drivers were also told that withholding taxes would 
 
         not be paid on the per diem amounts.
 
         
 
              Claimant testified that he objected to this arrangement and 
 
         he was told by management at Lincoln to simply keep better track 
 
         of his road expenses to avoid any withholding deficiency at the 
 
         end of the year.  He apparently accepted this arrange-
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WIDDIG V. LINCOLN SALES & SERVICE, INC.
 
         Page 3
 
         
 
         
 
         ment as he continued working for Lincoln under the new pay 
 
         arrangement.  Claimant was then injured on February 2, 1986.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              With reference to computing rate of weekly compensation, the 
 
         introductory paragraph of Iowa Code section 85.36 states as 
 
         follows:
 
         
 
              ... Weekly earnings means gross salary, wages, or earnings 
 
              of an employee to which such employee would have been 
 
              entitled had the employee worked the customary hours for the 
 
              full pay period in which the employee was injured, as 
 
              regularly required by the employee's employer for the work 
 
              or employment for which the employee was employed ....
 
         
 
              Thereafter, various subsections appear in the code section 
 
         which describe numerous alternate methods to arrive at gross 
 
         weekly earnings.  The primary purpose of workers' compensation 
 
         statutes is to benefit workers and workers' dependants and it is 
 
         to be interpreted liberally with view towards that objective.  
 
         Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  
 
         Consequently, given the intent set forth in the introductory 
 
         paragraph of Iowa Code section 85.36, use of any method of 
 
         computation which would not result in a reasonable approximation 
 
         of workers' customary earnings from employment would be contrary 
 
         to the expressed intent and purposes of the statute.  The various 
 
         subsections are not a hierarchy of choices (the first one to 
 
         apply is to be applied first).  Likewise, use of a particular 
 
         subsection is not dictated by how or when a person is paid or how 
 
         much he or she works in a given week.  The subsections are only 
 
         various alternatives which may be utilized by this agency to 
 
         arrive at customary earnings.  Foster v. Plaza Restaurant and 
 
         Lounge, (Arb. Decn. filed February 27, 1989.  Greer v. Sartori 
 
         Memorial Hospital, (Arb. Decn. filed May 19, 1989).
 
         
 
              In the case sub judice, claimant's earnings varied greatly 
 
         from week to week depending upon his mileage or output.  In such 
 
         situations, this agency uses subsection 6 of Iowa Code section 
 
         85.36 and averages the last 13 weeks of earnings before the work 
 
         injury.  Claimant argues in his brief that some of these weeks 
 
         are not representative under the holding in Lewis v. Aalf's 
 
         Mfg.  Co., I Iowa Industrial Commissioner Reports 206, 207 
 
         (Appeal Decn. 1980).  However, the only evidence presented by 
 
         claimant that some of these weeks are not representative was 
 
         contained in claimant's brief filed subsequent to hearing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WIDDIG V. LINCOLN SALES & SERVICE, INC.
 
         Page 4
 
         
 
         
 
         None of the evidence received at hearing or during claimant's 
 
         testimony contains any information that any of the preceding 
 
         weeks were not representative of his customary earnings.  
 
         Evidence cannot be taken after the hearing.  Division of 
 
         Industrial Services Rule 343-4.31.  Therefore, claimant's 
 
         earnings which he received in the last 13 weekly pay periods 
 
         before February 3, 1986, will be utilized in computing his 
 
         compensation rate.
 
         
 
              Defendants argue that.the $.06 per mile "per diem" allowance 
 
         should be excluded from gross earnings for purposes of computing 
 
         claimant's rate of compensation for the February 1986 injury.  
 
         Defendants are correct to the extent that this agency has, in the 
 
         past, excluded per diem expense payments from the calculation.  
 
         Norton v. Stylecraft, Inc., I-4 Industrial Commissioner Decisions 
 
         1001 (Appeal Decn. 1985).
 
         
 
              However, once claimant establishes his gross weekly 
 
         earnings, the burden shifts to the employer to establish the 
 
         portion of those earnings that represent reimbursement of 
 
         expenses or equipment rental.  McCarty v. Freymiller Trucking, 
 
         Inc., File No. 729340 & 729341, Appeal Decision February 25, 
 
         1986.  In the case at bar, in October 1985, claimant's pay 
 
         arrangement was changed with reference to the characterization of 
 
         the $.06 per mile payment.  However, an employer cannot 
 
         contractually limit its liability for payment of benefits under 
 
         the workers' compensation laws.  Iowa Code section 85.18.  It is 
 
         quite apparent from the evidence that no real change in substance 
 
         occurred.  Claimant was paid the same amount of money both before 
 
         and after October of 1985.  The only effect of the changed 
 
         characterization prior to the work injury was the reduction in 
 
         social security taxes paid by claimant and defendant employer to 
 
         the federal government.
 
         
 
              For a "per diem" allowance to be excluded under the Norton 
 
         holding set forth above, the allowance must be for expenses, not 
 
         pay for services performed.  In the case at bar, defendants claim 
 
         that the allowance was for meals and lodging costs over the 
 
         $14/day normal reimbursement allowance policy.  However, the 
 
         amount of the allowance was based upon miles driven, not upon any 
 
         time period which one would expect for a meal or lodging expense 
 
         allowance.  Although miles driven can in some instances be 
 
         related to expenses, in this case no such relationship was shown 
 
         to meals and lodging expenses.  As the term implies, "per diem" 
 
         means "by the day" not "by the mile or by the output." Under the 
 
         arrangement at Lincoln, the harder a driver worked the more "per 
 
         diem" he earned.  Therefore, this "per diem" allowance more 
 
         resembles pay for output and not reimbursement of expenses.  
 
         Therefore, defendants have failed to carry its burden.  The 
 
         preponderance of the evidence fails to show that
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIDDIG V. LINCOLN SALES & SERVICE, INC.
 
         Page 5
 
         
 
         
 
         their so-called "per diem" expense allowance is anything other 
 
         than pay for services performed.  This agency must examine 
 
         substance over form.
 
         
 
              Averaging the earnings over the prior 13 week period and 
 
         using the stipulation contained in the prehearing report with 
 
         reference to marital status and entitlement to exemptions, 
 
         claimant's rate of compensation is $310.46 using the 
 
         commissioner's rate booklet for injuries during fiscal year 
 
         1985/86.  According to the prehearing report, claimant is 
 
         entitled to payment under the correct rate for 62 2/7 weeks of 
 
         temporary total disability benefits.  Claimant's entitlement to 
 
         such benefits totals $19,337.31. According to the prehearing 
 
         report, claimant has been paid 62 2/7 weeks at the rate of 
 
         $178.00 per week or a total of $11,086.91.  This leaves a balance 
 
         owing to claimant, except for interest, of $8,250.40.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant's gross earnings for 13 weekly pay periods prior 
 
         to February 3, 1986, was the sum of $6,633.18.
 
         
 
              2. Claimant's average gross weekly earnings over the 13 
 
         weeks immediately prior to the February 2, 1986 date of injury is 
 
         the sum of $510.24.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established entitlement under law to a rate of 
 
         weekly compensation in the amount of $310.46.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant sixty-two and two 
 
         sevenths (62 2/7) weeks of temporary total disability benefits at 
 
         the rate of three hundred ten and 46/100 dollars (310.46) per 
 
         week.
 
         
 
              2. Defendants shall receive a credit for payment of sixty 
 
         two and two-sevenths (62 2/7) weeks at the rate of one hundred 
 
         seventy-eight and no/100 dollars ($178.00) per week.
 
         
 
              3. Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5. Defendants shall pay the costs of this action pursuant
 
         
 
         
 
         
 
         WIDDIG V. LINCOLN SALES & SERVICE, INC.
 
         Page 6
 
         
 
         
 
         to Division of Industrial Services Rule 343-4.33. Claimant's 
 
         request for mileage expense to attend the hearing is denied as 
 
         this is not a proper cost under the rules of this agency.
 
         
 
              6. 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 20th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Bruce L. Walker
 
         Attorney at Law
 
         Bremer Bldg.
 
         P. 0. Box 2150
 
         Iowa City, Iowa  52240
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Joseph A. Happe
 
         Attorneys at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         3001
 
                                         Filed July 20, 1989
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN C. WIDDIG,
 
         
 
              Claimant,
 
                                                      File No. 851716
 
         VS.
 
                                                  A R B I T R A T I O N
 
         LINCOLN SALES & SERVICE, INC.,
 
                                                       D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         3001 - Re:  Gross weekly earnings
 
         
 
              Applying agency precedent, it was held that once claimant 
 
         establishes weekly earnings, the burden shifts to defendants to 
 
         establish what portion of such earnings represent reimbursement 
 
         of expenses.
 
         
 
              The decision goes on to hold that use of a so-called "per 
 
         diem" allowance pay to a truck driver was not an "expense 
 
         allowance" excluded from gross earnings for computing rate.  
 
         Although it was claimed that the allowance was for meals, the 
 
         allowance was based on the number of miles driven and not upon a 
 
         period of time as is normally the case for meal expenses.  
 
         Consequently, it was not shown that such allowances were 
 
         reasonably related to actual expenses.  As the allowance was 
 
         based on output of the driver, such allowances more resemble pay 
 
         than reimbursement of expenses.  It was concluded that this 
 
         agency must look to substance over form in such cases.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MELVIN AUSTIN,
 
         
 
              Claimant,
 
                                                      File Nos. 851723,
 
         vs.                                           851724 & 851725
 
         
 
         DAVENPORT 76 TRUCK PLAZA,                 A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants. 
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by Melvin 
 
         Austin, claimant, against Davenport 76 Truck Plaza, employer, and 
 
         Aetna Casualty and Surety Company, insurance carrier, defendants.  
 
         The case was heard by the undersigned in Davenport, Iowa on the 
 
         15th day of September, 1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Michael Joseph Cannon, 
 
         foreman, and Dave Newmarch, former co-employee.  Additionally, 
 
         the record consists of exhibits 1-21.
 
         
 
              The parties stipulate to the existence of an 
 
         employer-employee relationship between claimant and employer at 
 
         the time of the alleged injuries.
 
         
 
                                 ISSUES PRESENTED
 
         
 
              Pursuant to a prehearing conference and to a hearing 
 
         assignment order, the parties presented the following issues:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2) Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3)  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              4)  Whether claimant is entitled to medical benefits under 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   2
 
         
 
         
 
         section 85.27.
 
         
 
                                   FACTS PRESENTED
 
         
 
              Claimant is a 32 year old single man.  Claimant has a GED 
 
         and has learned diesel and heavy mechanic's work on the job.  He 
 
         is right handed.
 
         
 
              At his hearing claimant testified that on July 27, 1987, 
 
         during the first part of his shift, he was attempting to perform 
 
         a grease job.  This was claimant's first day on the job.  While 
 
         climbing into the grease pit, claimant reported he slipped, fell 
 
         and then caught his right hand on the rail, bending back his 
 
         thumb.  Because claimant was a new employee, he continued to work 
 
         even though his hand swelled up and became sore.  Approximately 
 
         three weeks later, claimant testified he notified his supervisor, 
 
         John McCarter, relative to the first occurrence.
 
         
 
              Claimant testified he was again injured while on the job on 
 
         August 7, 1987.  He was working the second shift.  According to 
 
         claimant, while he was performing a split rim tire repair, a pry 
 
         bar beneath claimant's right foot popped up and hit his right 
 
         thumb.  This allegedly occurred near the end of the shift.
 
         
 
              Claimant testified that a third injury also occurred on 
 
         August 7, 1987.  He was working an extra hour and a half for 
 
         defendant.  Claimant was replacing an exhaust pipe on a truck 
 
         when he hit the top portion of his head on the air conditioner 
 
         for the reefer unit.  During the hearing, claimant reported he 
 
         was nearly knocked unconscious but a co-employee caught him.  The 
 
         next day the incident was reported to John McCarter.
 
         
 
              Dave Newmarch was called as a witness for defendant.  He 
 
         disputed the manner with which claimant alleged he was injured.  
 
         Mr. Newmarch, on direct examination, reported that when an 
 
         individual is working on a split rim tire repair, and a pry bar 
 
         slips, the bar moves away from the individual and not towards the 
 
         individual.  Additionally, Mr. Newmarch stated because the loose 
 
         pry bar is moving so fast, it is virtually impossible for the 
 
         individual to catch the bar.
 
         
 
              Mr. Newmarch also testified it would not be feasible for 
 
         claimant to climb into the grease pit since there are stairs 
 
         leading into the pit and an individual would have to crawl on his 
 
         belly to get into it. Furthermore, Mr. Newmarch testified if an 
 
         individual fell, that person would fall nose first onto the 
 
         concrete.
 
              Finally, this witness testified he overheard a conversation 
 
         between the claimant, Mike Cannon and Ed Butler.  Mr. Newmarch 
 
         reported one of claimant's hands was bandaged. (Mr. Newmarch 
 
         believed it was claimant's right hand but he was not sure.) Ed 
 
         Butler allegedly asked claimant why his hand was bandaged.  
 
         Purportedly, claimant replied, "I punched a wall because my 
 
         girlfriend wouldn't give me my stuff."
 
         
 
              The next day Mr. Newmarch claimed he had to assist claimant 
 
         with lifting a tire.  Claimant allegedly replied, "I shouldn't 
 
         have hit the wall that hard."
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   3
 
         
 
         
 
              Michael Joseph Cannon was also called as a witness by 
 
         defendant.  He differed with claimant as to the technique used to 
 
         repair a split tire rim.  He reported a pry bar, if loose, would 
 
         act as a catapult.  It would fly away from an individual, not 
 
         toward him.  Mr. Cannon testified that in the presence of 
 
         himself, Ed Butler and David Newmarch, claimant informed them he 
 
         had hit his hand against a wall because he had had an argument 
 
         with his girlfriend.
 
         
 
              Claimant vehemently denied he had ever told co-employees 
 
         that he had hit a wall with his hand.  Claimant also denied that 
 
         he had ever slammed his hand through a wall or that he had hit 
 
         anything.  Finally, claimant indicated he did not wear a bandage 
 
         to the truck plaza.
 
         
 
              Claimant received medical treatment commencing on August 11, 
 
         1987.  He was told to see Ahmad Chamany, M.D., at the Davenport 
 
         Clinic by his supervisor.  After treatment claimant attempted to 
 
         return to work on or about September 21, 1987.  Claimant reported 
 
         he was terminated shortly after he received his medical release. 
 
          At the time of the hearing, claimant was unemployed.  He 
 
         reported he had not been actively seeking employment, but there 
 
         was a possibility he might obtain future employment in Moline, 
 
         Illinois.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on July 27, 1987 and August 7, 
 
         1987 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time  and  place 
 
         and circumstances of the injury.  McClure v. Union et 
 
         al.Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   4
 
         
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of July 27, 1987 and August 7, 
 
         1987 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw  v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         aftereffects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961). Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  
 
         Barton., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is whether claimant has 
 
         established that he has received an injury which arose out of and 
 
         in the course of his employment.  Claimant testified in detail 
 
         concerning the manner with which the three injuries occurred.  
 
         All three incidents took place at work while claimant was 
 
         performing services on behalf of defendant.  Claimant was a 
 
         credible witness.
 
         
 
             While defendants' witnesses attempted to dispute the manner 
 
         with which the injuries had occurred, neither witness was able to 
 
         state that the incidents did not occur.  Additionally, 
 
         defendants' witnesses attempted to discredit claimant's testimony 
 
         concerning the injuries to his right hand.  Nevertheless, Mike 
 
         Cannon stated the incident with claimant's girlfriend involved 
 
         claimant's left hand not his right hand.  While allegedly 
 
         overhearing a conversation between claimant, Mike Cannon and Ed 
 
         Butler, Dave Newmarch reported he could not recall on which hand 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   5
 
         
 
         
 
         an alleged bandage appeared.
 
         
 
              Finally, the medical histories for all of the health care 
 
         providers corroborate claimant's testimony.  Each report made by 
 
         the claimant to a health care provider is totally consistent with 
 
         a subsequent medical history.  Even the injury date of July 27, 
 
         1987 is approximately three weeks prior to the first day that 
 
         claimant sought medical treatment.  According to the x-rays, the 
 
         thumb fracture was approximately three weeks old.  Claimant has 
 
         established that he received three injuries which arose out of 
 
         and in the course of his employment.
 
         
 
              The second issue to discuss is whether claimant has 
 
         established there is a causal connection between the three 
 
         injuries and the disability for which he is making a claim.  
 
         Claimant received two injuries to his thumb and one injury to his 
 
         neck.  All medical records corroborate claimant's testimony that 
 
         his condition was the result of the three previously described 
 
         incidents.  None of the medical records supports defendants' 
 
         claim that the hand injury was the result of an alleged personal 
 
         dispute between claimant and his then girlfriend.
 
         
 
              Dr. Whitmore's clinical notes for August 11, 1987 reveal, in 
 
         part, the following regarding claimant's injury to his right 
 
         hand:
 
         
 
              8-11-87 WRW Melvin is referred by Dr. Chamany on my 
 
              call day for difficulties with his right thumb.  Mr. 
 
              Austin told the nurse who took his initial history that 
 
              he injured his thumb on Friday the 7th of August when a 
 
              tire iron flew back and caught his right thumb.  He 
 
              advised my nurse that he used ice over the weekend and 
 
              was seen by Dr. Chamany today who obtained x-rays and 
 
              he was told that he had a fracture and was referred 
 
              here.
 
         
 
              After I examined Mr. Austin and examined his x-rays, I 
 
              asked him if his thumb had bothered him before Friday.  
 
              He said that it had been sore and he had Osprung it", 
 
              on the 27th of July, the first day he went to work at 
 
              the Truckport at Walcott on the interstate.
 
         
 
              Past history:  He says that his general health is good.  
 
              No allergies.  No medication.  No surgery.
 
         
 
              EXAMINATION:  He has no ecchymosis and no severe 
 
              swelling of the thumb and if mild, limited range of 
 
              motion is carried out, it is painless.  However, if 
 
              more extensive range of motion is done, then it is 
 
              painful at the CMC joint of the right thumb.
 
         
 
              Good sensation and tendon function distally.
 
         
 
              X-RAYS brought with him from the Davenport Clinic shows 
 
              a Bennett's type of fracture dislocation of the right 
 
              thumb with callus formation.
 
         
 
              IMPRESSION:  Healing fracture dislocation, right CMC 
 
              joint, right thumb.
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   6
 
         
 
         
 
         
 
              I ADVISED him the nature of this significant injury to 
 
              his thumb and that he may have difficulties in the 
 
              future with arthritis, limited motion and weakness.  I 
 
              advised him that I felt that the fracture was probably 
 
              at least 3 weeks old.
 
         
 
              Likewise, the medical records for John T. Johnson, D.O., for 
 
         December 16, 1987, reveal the following:
 
         
 
              Mr. Austin is 31 year old right hand dominant mechanic 
 
              who in late June 1987 fell into a grease pit at work 
 
              hyperextending his right thumb.  The immediate symptoms 
 
              were swelling and pain which slowly resolved.  He 
 
              continued working for the next three weeks when he 
 
              reinjured his thumb in the same manner.  He sought 
 
              medical attention at which time a Bennett's fracture 
 
              was noted.  He underwent open reduction and internal 
 
              fixation with Kirschner wires by Dr. Whitmore in 
 
              Davenport with satisfactory results.  He was taken out 
 
              of his cast and pins were removed approximately 6 weeks 
 
              ago and he has a complaint of decreased grip strength.  
 
              
 
         
 
              He has not been back to work since this time.  He has 
 
              been going to a physical therapist for the past month 
 
     
 
         
 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   7
 
         
 
         
 
              with slow increase in grip strength and motion of the 
 
              wrist.
 
         
 
              Examination reveals a gross symmetry between the 
 
              extremities.  He has well healed incision on the radial 
 
              aspect of the base of the thumb.  Ranges of motion are 
 
              shown on the chart below as are the Jamar settings.  
 
              Neurologically he is intact to light touch and two 
 
              point discrimination throughout.  He has no breakaway 
 
              strength defecits [sic].  He has some tenderness around 
 
              the base of the thumb, however no specific location is 
 
              noted.
 
         
 
              Progress notes marked claimant's exhibit 5 at page one 
 
         reveal:
 
         
 
              Pt working at Union 76 Walcott when he slipped and 
 
              almost fell in the grease pit and injured his Rt thumb.  
 
              It was very painful & swollen - then on Aug 7- 1987 he 
 
              grabbed a tire iron c this same hand and re-injures the 
 
              hand - Later that noc [sic] he bumped his head on a 
 
              truck as he was raising up - Seen by a physician 2 days 
 
              later and X- ray revealed a H thumb.  Now c/o severe 
 
              cephalge [sic].
 
         
 
              Those same notes report in relevant part at page three:
 
         
 
              wt 184 B|P 110/72 Injured at work 7/27/87
 
              Garat| P.T.   Need to re-order if necessary
 
                 still having headache but less
 
                 Thumb aches & Throbs - 
 
                    strength & grip somewhat better.
 
         
 
              Finally, the deposition of David P. Nebbeling, D.O., 
 
         supports the finding that a causal connection exists between the 
 
         three injuries in question and the disability claimed.  Dr. 
 
         Nebbeling writes:
 
         
 
              Q.  What was the basic nature of the injury that Mr. 
 
              Austin had sustained to his hand?
 
         
 
              A.  Okay. As I could -- from Mr. Austin's description 
 
              of slipping while trying to get into this grease pit 
 
              and from x-ray reporting about its fracture to the 
 
              right thumb, I could interpret that as slipping and he 
 
              had an axial type blow to the thumb, the bones of the 
 
              thumb and that caused a fracture.
 
         
 
         ClaimantOs Exhibit 9, page 8, lines 8-16).
 
         
 
              Q.  Do you have an opinion based upon a reasonable 
 
              degree of certainty as to what is producing the 
 
              particular losses of motion in the wrist that you have 
 
              identified in your report?
 
         
 
              A.  I would feel it would be trauma from his fall.
 
         
 
              Q.  I assumed that.  I mean in terms of --
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   8
 
         
 
         
 
              A.  As far as --
 
         
 
              Q.  -- physiological or anatomical?
 
         
 
              A.  Such as a -- I'm assuming it would be due to a 
 
              problem with the ligaments in that area and then 
 
              causing a muscle imbalance or spasm perhaps on one side 
 
              not allowing the body -- do you want me to explain a 
 
              little more?
 
                 Ligaments hold bone to bone and are meant to 
 
              stabilize joints where muscles are meant to move bones.  
 
              When there are weakened or damaged ligaments, 
 
              oftentimes the muscle will attempt to tighten up to 
 
              maintain joint stability which is against its function, 
 
              but it will do that and it will spasm.  That could be 
 
              one explanation for having trauma to this wrist having 
 
              fallen and so he would have unequal range of motion.
 
         
 
         (Cl. Ex. 9, p. 33, 1. 11 to p. 34, 1. 8)
 
         
 
              ... I take it there was a small loss of motion that you 
 
              detected in the cervical spine, is that correct?
 
         
 
              A.  Correct.
 
         
 
              Q.  That was basically what we laymen call side for 
 
              side flexion of the neck?
 
         
 
              A.  Correct.
 
         
 
              Q.  Both to the left and right?
 
         
 
              A.  Right.
 
         
 
         (Cl. Ex. 9, p. 34, 11. 15-23)
 
         
 
              In light of all of the foregoing, claimant has proven by a 
 
         preponderance of the evidence there is a causal connection 
 
         between the three separate injuries and the claimed disability.
 
         
 
              The third issue for consideration is whether claimant is 
 
         entitled to any weekly benefits under section 85.34.  William R. 
 
         Whitmore, M.D., only treated claimant for his right hand.  He 
 
         never treated claimant's neck.  Dr. Whitmore, on August 9, 1988, 
 
         examined claimant for purposes of evaluation pursuant to a 
 
         request from claimant's attorney.  In his notes for that day, Dr. 
 
         Whitmore writes:
 
         
 
              8-09-88 WRW In for follow-up at the request of his 
 
              attorney.  At this time he says that he still has a 
 
              problem with wrist mobility.  He has some numbness and 
 
              tingling in the right thumb and he notices that his 
 
              thumb will twitch if he just leaves his hand lie still. 
 
               He was unable to demonstrate this.
 
         
 
              EXAMINATION reveals the scar is well-healed and is very 
 
              difficult to see.  He has no gross deformity.  He has 
 
              pinch on the right of 14, on the left of 21.  His grip 
 
              is 25 on the right and 42 on the left.  His right 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE   9
 
         
 
         
 
              forearm measures 11 1/4O in circumference, his left arm 
 
              forearm measures 11" in circumference.  He has 
 
              essentially equal motion of both thumbs.
 
         
 
              X-RAYS taken shows [sic] evidence of a healed Bennett's 
 
              fracture in good position with good congruity of the 
 
              jointline at the base of the lst metacarpal.
 
         
 
              In evaluating sensation he reported to me an area of 
 
              diminished [sic] sensation or altered sensation just 
 
              distal to the incision but in general, the thumbtip 
 
              [sic] has good appreciation of pinprick.
 
         
 
              In my opinion the impairment to the thumb would be 5% 
 
              or less which would convert to an impairment of the 
 
              whole hand of 2% or less.
 
         
 
              Dr. Whitmore did not determine whether claimant's injury was 
 
         attributable to his injury on July 27, 1987, or to his injury on 
 
         August 7, 1987.  Likewise, Dr. Whitmore did not assess a 
 
         functional impairment rating to the wrist, which has been ruled a 
 
         part of the hand.  Elam v. Midland Manufacturing, II Iowa 
 
         Industrial Commissioner Report 141 (Appeal Decision 1981).  
 
         Neither was a functional impairment rating calculated for the 
 
         neck.
 
         
 
              For purposes of examination and evaluation only, claimant 
 
         was also seen by David P. Nebbeling, D.O.  He determined the 
 
         following:
 
         
 
              1)   Significant loss of grip strength to the dominant 
 
              right hand.  Grip strength should be within 10% 
 
              comparing right to left.  I find the patient has a 70% 
 
              loss of function of the right hand due to muscle 
 
              weakness which has not returned despite four months of 
 
              Physical Therapy.  This is a 63% impairment to the 
 
              upper extremity.
 
         
 
              2)   I find an 8% impairment to the upper extremity due 
 
              to restricted motion of the right wrist secondary to 
 
              the accident.
 
         
 
              3)  I find that patient has a 3% impairment to the 
 
              whole man contributed to lost cervical motion secondary 
 
              to his injury on 8/10/87.
 
         
 
              4)   Combining the impairment to the upper extremity 
 
              due to lost motion and lost grip strength, I find a 43% 
 
              impairment to the whole man. (Corrected at deposition 
 
              to 40 percent impairment to the whole man, Ex. 9, p. 6, 
 
              11. 18-23)
 
         
 
              4)   By using the Combined Value Chart, I find the 
 
              total impairment from both the cervical region and the 
 
              upper extremity to be 45%. (Corrected at deposition to 
 
              42 percent impairment to the whole man, Ex. 9, p. 7, 
 
              11. 1-5).
 
         
 
              It is the duty of the undersigned to determine the weight to 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  10
 
         
 
         
 
         be given to the opinion of an expert.  An expert's 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 at 907 (Iowa 1974).  
 
         Further, the weight to be given to such an opinion is for the 
 
         finder of fact and that may be affected by the completeness of 
 
         the premise given the expert and other surrounding circumstances. 
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867.  See also Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Additionally, the absence of a functional impairment rating 
 
         by a practitioner does not preclude an award.  The Iowa 
 
         Administrative Procedure Act, Chapter 17A of the Iowa Code and 
 
         more specifically, section 17A.(14)(5) recognizes utilization of 
 
         "[t]he agency's experience, technical competence and specialized 
 
         knowledged" to evaluate evidence.  Conyers v. Ling-Casler Joint 
 
         Venture, II Iowa Industrial Commissioner Reports 309 (Appeal 
 
         Decision 1984).
 
         
 
              No functional impairment rating was provided by John T. 
 
         Johnson, D.O.  He, however, did provide the following on December 
 
         16, 1987:
 
         
 
              Examination reveals a gross symmetry between the 
 
              extremities.  He has well healed incision on the radial 
 
              aspect of the base of the thumb.  Ranges of motion are 
 
              shown on the chart below as are the Jamar settings.  
 
              Neurologically he is intact to light touch and two 
 
              point discrimination throughout.  He has no breakaway 
 
              strength defecits [sic].  He has some tenderness around 
 
              the base of the thumb, however no specific location is 
 
              noted.
 
         
 
              AP and lateral x-rays of the thumb with the pins as 
 
              well as following pin removal from the outside show a 
 
              BennettOs fracture well healed and in good position.  
 
              Satisfactory maintenance of joint congruity has been 
 
              achieved.
 
         
 
              The patient was seen and examined with Dr. Steyers.  We 
 
              are recommending that he continue on with the physical 
 
              therapy and he was reassured that range of motion and 
 
              grip strength should return to a satisfactory level.
 
         
 
              Radiology records which were requested by Dr. Johnson 
 
         revealed:
 
         
 
              No fracture or dislocation.  The articular surfaces and 
 
              joint spaces are normal.  The osseous structures are 
 
              normal.
 
         
 
              The undersigned finds less weight should be afforded to the 
 
         testimony of Dr. Nebbeling than to the remainder of the medical 
 
         records, including the reports of Dr. Whitmore.  Dr. Nebbeling 
 
         was not a treating physician.  He was merely hired to evaluate 
 
         claimant for purposes of furthering testimony before the Iowa 
 
         Industrial Commissioner.  Dr. Nebbeling only saw claimant for one 
 
         hour.  Dr. Nebbeling's findings are inconsistent with the test 
 
         results conducted by the physical therapist, Jack Koster, LPT.
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  11
 
         
 
         
 
              Mr. Koster was the physical therapist who had continually 
 
         treated claimant since the time of his surgery.  In February of 
 
         1988, Mr. Koster treated and tested claimant for grip strength.  
 
         In his notes for February 23, 1988, Mr. Koster writes:
 
         
 
              PT has not returned for care since 2-15-88.  At that 
 
              time patient states minimal residual cervical and 
 
              trapezius pain remains.  There is functional range of 
 
              all neck motinis [sic] with no increase in pain 
 
              symptoms.  The Right Thumb extensors of the MP and IP 
 
              joints continues weak of fair plus grade.  Grip test 
 
              improved with R41 L45 but with pain on motim [sic].  
 
              Hand strength is functional but not equal or normal 
 
              grade.  Pt discharged from treatment to continue 
 
              exercise program as given in home program 
 
         
 
              In addition to the medical testimony, there is the testimony 
 
         of claimant concerning his present condition.  Claimant testified 
 
         he has a lump in his hand which "jams into his wrist and he loses 
 
         his grip."  Claimant also testified he needs help when lifting 
 
         objects and he is unable to maintain a good grip on his 
 
         motorcycle throttle.  However, with respect to his cervical 
 
         complaints, claimant reports he still has headaches.  He has pain 
 
         in his shoulder and he claims he is unable to look over his right 
 
         or left shoulder because of the pain.
 
         
 
              As a result of all of the above, the undersigned finds that 
 
         with respect to file number 851724, claimant has sustained a five 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  12
 
         
 
         
 
         percent permanent partial disability to the hand.  With respect 
 
         to file number 851725, claimant has sustained a 25 percent 
 
         permanent partial disability to the hand.
 
         
 
             With respect to file number 851723, the undersigned finds 
 
         claimant does not have a permanent partial disability.  There is 
 
         very little support in the record to establish any clinical 
 
         findings of an impairment.  There is only claimant's testimony 
 
         concerning his pain.  Pain, absent objective findings, is not 
 
         equivalent to impairment.  Waller v. Chamberlain Mfg., II Iowa 
 
         Industrial Commissioner Report 419, 425. (1981).
 
         
 
              The next issue to address is whether the claimant is 
 
         entitled to healing period benefits.  The evidence supports a 
 
         permanent partial disability rating for the hand.  Therefore, 
 
         healing period benefits are due.  Section 85.34(l) of the Iowa 
 
         Code (1987) governs the award of healing period benefits.  That 
 
         section provides:
 
         
 
              If an employee has suffered personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, 
 
              the employer shall pay to the employee compensation for 
 
              a healing period, as provided in section 85.37, 
 
              beginning on the date of injury, and until the employee 
 
              has returned to work or it is medically indicated that 
 
              significant improvement from the injury is not 
 
              anticipated or until the employee is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first.
 
         
 
              The.parties have stipulated that the healing period, if 
 
         awarded, would run at least from August 7, 1987 to September 21, 
 
         1987.  Claimant was released to return to work on September 21, 
 
         1987 by R. R. Ripperger, M.D., who is Dr. WhitmoreOs partner.  
 
         The parties have disputed the time frame from October 16, 1987 to 
 
         March 25, 1988.  During this period, claimant was under the care 
 
         of Dr. Johnson.  Claimant was receiving physical therapy 
 
         treatment four or five times per week for his hand as well as for 
 
         his neck.
 
         
 
              Claimant was receiving physical therapy during this time 
 
         pursuant to the orders of Dr. Johnson.  There is evidence to 
 
         indicate claimant significantly improved during the course of his 
 
         therapy. (Cl. Ex. 4)  Therefore, it is the determination of this 
 
         deputy that with respect to file number 851725 and 851723, 
 
         claimant was in the healing period from August 7, 1987 to 
 
         September 21, 1987 and from october 16, 1987 to March 25, 1988.
 
         
 
              Finally, there is the issue of medical benefits  under 
 
         section 85.27.  Iowa Code section 85.27 provides that the 
 
         claimant is entitled to reasonable medical expenses for a work 
 
         related injury.  The employer and its insurance carrier have the 
 
         right to choose a treating physician, but section 85.27 does not 
 
         give them the right to invade the province of medical 
 
         professionals in determining what diagnostic tests and/or methods 
 
         of treatment are to be utilized.  Martin v. Armour Dial Co., 
 
         Inc., File No. 754732 (Arbitration Decision filed July 31, 
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  13
 
         
 
         
 
         1985.
 
         
 
              The treatment at the Davenport Clinic was authorized.  At 
 
         his hearing, claimant testified he was told by his supervisor, 
 
         John McCarter, to see Dr. Chamany at the Davenport Clinic after 
 
         the injuries on August 7, 1987.  Dr. Chamany referred claimant to 
 
         Dr. Whitmore.  Defendants cannot now deny responsibility because 
 
         they acquiesced to Dr. Chamany's referral.  Claimant is entitled 
 
         to reimbursement.
 
         
 
              There is no evidence to indicate claimant was referred to 
 
         Dr. Johnson and later to Mr. Koster, LPT.  Nevertheless, claimant 
 
         testified he received relief from the treatment provided by Dr. 
 
         Johnson and by the physical therapy.
 
         
 
              Unauthorized treatment which improves an employee's 
 
         condition and which ultimately may mitigate the employer's 
 
         liability may subsequently be found reasonable and necessary for 
 
         treatment of an injury.  Hutchinson v. American Freight Systems, 
 
         Inc., I-1 Iowa Industrial Commissioner Decision 94 (Appeal 
 
         Decision 1984).  Butcher v. Valley Sheet Metal, IV Iowa 
 
         Industrial Commissioner Report 49 (Appeal Decision 1983); 
 
         Rittgers v. United Parcel Service, III Iowa Industrial 
 
         Commissioner Report 210 (Appeal Decision 1982).  The evidence, in 
 
         the instant proceeding, is uncontroverted that claimant's 
 
         condition improved subsequent to the therapy which he received 
 
         from Dr. Johnson and from the physical therapy.  Claimant is 
 
         entitled to reimbursement for expenditures incurred as a result 
 
         of Dr. Johnson's treatment.
 
         
 
              Likewise, for the same reasons above, claimant is entitled 
 
         to be reimbursed for prescription charges.
 
         
 
              Claimant is not entitled to be reimbursed for the charges of 
 
         the University of Iowa Hospitals and Clinics.  There is no 
 
         evidence to indicate this treatment improved his condition.  
 
         Claimant is also not entitled to be reimbursed for the charges of 
 
         Dr. Nebbeling.  These involved charges solely for examinations 
 
         and evaluations incidental to trial preparation.  The charges 
 
         were not made pursuant to an issue under section 85.39.  Dr. 
 
         Nebbeling was not the treating physician.  His charges do not 
 
         come under section 85.27.
 
         
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained injuries arising out of and 
 
         in the course of employment.
 
         
 
              FINDING 2.  As a result of his July 27, 1987 and August 7, 
 
         1987 injuries, claimant had surgery on his thumb.
 
         
 
              FINDING 3.  As a result of his August 7, 1987 injury, 
 
         claimant sustained an injury to the neck.
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  14
 
         
 
         
 
              CONCLUSION A.  Claimant has established there is a causal 
 
         connection between the injuries he received on July 27, 1987 and 
 
         on August 7, 1987 and the condition of his hand.
 
         
 
              CONCLUSION B.  Claimant has established there is a causal 
 
         connection between the injury he received on August 7, 1987 and 
 
         the condition of his neck.
 
         
 
              FINDING 4.  Claimant is entitled to reasonable medical 
 
         expenditures.
 
         
 
              CONCLUSION C.  Defendants are liable for the following 
 
         medical expenses:
 
         
 
              Mercy Hospital                       $   1,560.06
 
              Orthopaedic Surgery Assoc.               1,178.25
 
              Dr.Bello                                   300.00
 
              Osteopathic Radiology Assoc.               146.00
 
              Peoples' Drug                               12.90
 
              Radiology Group                              9.50
 
              Dr. Johnson                                415.75
 
              Davenport Clinic                           192.45
 
              Davenport Medical Center                   586.00
 
                                                       1,010.00
 
                                                          50.00
 
                                                       1,574.00
 
                                                       2,052.00
 
                                                       1,231.00
 
                                                         112.00
 
                          Total                      $10,429.91
 
         
 
              FINDING 5. Claimant was unable to work because of his 
 
         injuries from August 7, 1987 to September 21, 1987 and from 
 
         October 16, 1987 to March 25, 1988.
 
         
 
              CONCLUSION D.  Because of the injuries which were sustained 
 
         on August 7, 1987, claimant is entitled to healing period 
 
         benefits at the weekly rate of $119.18 per week.
 
         
 
              FINDING 6.  As a result of claimant's injuries, claimant 
 
         sustained impairments to his hand.
 
         
 
              CONCLUSION E.  As a result of his injury on July 27, 1987, 
 
         claimant has sustained a five percent permanent partial 
 
         disability to the hand.
 
         
 
              CONCLUSION F.  As a result of his injury on August 7, 1987, 
 
         claimant has sustained a 25 percent-- permanent partial 
 
         disability to the hand.
 
         
 
              CONCLUSION G.  As a result of his injury on August 7, 1987, 
 
         claimant has not sustained a permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant twenty-nine 
 
         and two-sevenths (29 2/7) weeks of healing period benefits at the 
 
         rate of one hundred nineteen and 18/100 dollars ($119.18) per 
 
         week.
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  15
 
         
 
         
 
         
 
              Defendants are to pay unto claimant nine and one-half (9 
 
         1/2) weeks of permanent partial disability benefits at the rate 
 
         of one hundred nineteen and 18/100 dollars ($119.18) per week as 
 
         the result of the injury which occurred on July 27, 1987.
 
         
 
              Defendants are to pay unto claimant forty-seven and one-half 
 
         (47 1/2) weeks of permanent partial disability benefits at the 
 
         rate of one hundred nineteen and 18/100 dollars ($119.18) per 
 
         week as the result of the injury which occurred on August 7, 
 
         1987.
 
         
 
              Defendants are liable for the payment of the following 
 
         medical expenses:
 
         
 
              Mercy Hospital                      $    1,560.06
 
              Orthopaedic Surgery Assoc.               1,178.25
 
              Dr. Bello                                  300.00
 
              Osteopathic Radiology Assoc.               146.00
 
              Peoples' Drug                               12.90
 
              Radiology Group                              9.50
 
              Dr. Johnson                                415.75
 
              Davenport Clinic                           192.45
 
              Davenport Medical Center                   586.00
 
                                                       1,010.00
 
                                                          50.00
 
                                                       1,574.00
 
                                                       2,052.00
 
                                                       1,231.00
 
                                                         112.00
 
                            Total                    $10,429.91
 
         
 
              Payments for accrued healing period and permanent partial 
 
         disability benefits shall be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              A claim activity reports shall be filed upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 9th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                       MICHELLE GOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, Illinois 61201
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. DAVENPORT 76 TRUCK PLAZA
 
         PAGE  16
 
         
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         STE 102, Executive Square
 
         400 Main St.
 
         Davenport, Iowa 52801
 
 
 
 
            
 
 
 
 
 
 
 
 
 
                                                 1802; 1803;
 
                                                 1803.1; 2500
 
                                                 Filed December 9, 1988
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MELVIN AUSTIN,
 
         
 
              Claimant,
 
                                                 File Nos. 851723,
 
         vs.                                               851724 & 
 
                                                           851725
 
         
 
         DAVENPORT 76 TRUCK PLAZA,               A R B I T R A T I 0 N
 
         
 
               Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1803.1
 
         
 
              Claimant awarded a five percent permanent partial disability 
 
         to the hand as a result of an injury which arose out of and in 
 
         the course of his employment on July 27, 1987.
 
         
 
         1803.1
 
         
 
              Claimant awarded a 25 percent permanent partial disability 
 
         to the hand as a result of an injury which arose out of and in 
 
         the course of his employment on August 7, 1987.
 
         
 
         1803
 
         
 
              Claimant failed to show a permanent partial disability to 
 
         the body as a whole as a result of an injury to claimant's neck 
 
         which arose out of and in the course of his employment on August 
 
         7, 1987.
 
         
 
         1802
 
         
 
              Claimant awarded healing period benefits as a result of an 
 
         injury which  arose out of and in the course of his employment on 
 
         August 7, 1987.
 
         
 
         2500
 
         
 
              Claimant awarded medical benefits.
 
                                                         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MELVIN AUSTIN,
 
        
 
            Claimant,
 
                                           File Nos. 851724
 
        vs.                                          851725
 
        
 
        DAVENPORT 76 TRUCK PLAZA,
 
                                                   A P P E A L
 
            Employer,
 
                                             D E C I S I O N
 
        and
 
        
 
        AETNA CASUALTY & SURETY,                F I L E D
 
        
 
             Insurance Carrier,                DEC 29 1989
 
             Defendants.
 
                                       IOWA INDUSTRIAL COMMISSIONER
 
             
 
             
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendants appeal from an arbitration decision awarding 
 
             healing period benefits, permanent partial disability benefits 
 
             based on disabilities to the hand, and medical expenses.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 21. Neither 
 
        party filed a brief on appeal.
 
        
 
                                      ISSUES
 
        
 
             Because neither party filed a brief on appeal this matter 
 
             will be considered generally without any specified errors. The 
 
             issues considered by the deputy were:
 
        
 
             l) Whether claimant received an injury which arose out of 
 
             and in the course of employment;
 
             
 
             2) Whether there is a causal relationship between the 
 
             alleged injury and the disability;
 
             
 
             3) Whether claimant is entitled to temporary 
 
             disability/healing period benefits or permanent partial or 
 
             total disability benefits; and,
 
             
 
             4) Whether claimant is entitled to medical benefits under 
 
             section 85.27.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision filed December 9, 1988, adequately 
 
             and accurately reflects the pertinent evidence and it will not be 
 
             reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and evidence.
 

 
        
 
 
 
 
 
        
 
                                      ANALYSIS
 
        
 
             The first issue to be resolved is whether claimant suffered 
 
             injuries that arose out of and in the course of his employment. 
 
             The incidents as described by claimant occurred at a time and 
 
             place that claimant would be during his employment. The 
 
             incidents as described by claimant involved activities that 
 
             claimant would be performing in his employment. Claimant's 
 
             version of how the accidents occurred are corroborated by the 
 
             medical records. The most revealing medical record is the 
 
             clinical notes of William R. Whitmore, M.D. The notes of August 
 
             11, 1987, indicates that Dr. Whitmore inquired whether claimant's 
 
             thumb had bothered him before August 7, 1987. Claimant responded 
 
             that he had "sprung it" on July 27, 1987. Dr. Whitmore thought 
 
             that the fracture was at least three weeks old. The age of the 
 
             fracture corresponds with claimant's alleged injury date of July 
 
             27, 1987 and his response to Dr. Whitmore. The incident on 
 
             August 7, 1987 was severe enough that claimant sought treatment 
 
             for the injury where as he had not after the July 27, 1987 
 
             incident. Claimant has proved that he suffered injuries on July 
 
             27, 1987 and August 7, 1987 that arose out of and in the course 
 
             of his employment.
 
        
 
            The next issue to be resolved is whether there is a causal 
 
        relationship between claimant's injuries and his alleged 
 
        disability. The medical records in this case support the finding 
 
        that claimant fractured his thumb in the work injury on July 27, 
 
        1987, and that claimant's thumb injury was aggravated on August 
 
        7, 1987. As a result of these injuries surgery was required. 
 
        The surgery was open reduction, internal fixation with three .035 
 
        smooth K-wires to repair a Bennett's fracture dislocation, right 
 
        thumb. Dr. Whitmore's impression on August 11, 1987 was healing 
 
        fracture dislocation, right CMC joint, right thumb. Claimant has 
 
        proved a disability to his right hand.
 
        
 
            The third issue to be resolved is the nature and extent of 
 
        the disability to claimant's right hand. Dr. Whitmore, the 
 
        treating physician who performed the surgery, offered an opinion 
 
        of rating of impairment. That rating was given after claimant 
 
        had undergone physical therapy. David P. Nebbeling, D.O., also 
 
        gave a rating of impairment. Dr. Nebbeling's rating can be given 
 
        little weight as he saw claimant only once for examination and 
 
        evaluation purposes only and his findings are radically different 
 
        from the other medical evidence. After claimant had undergone 
 
        physical therapy he still had reduced grip strength and a rating 
 
        of impairment by his treating physician. Claimant has proved 
 
        that his disability is permanent. Dr. Whitmore's rating of two 
 
        percent of the hand will be accepted as correct. Dr. Whitmore 
 
        did not determine whether claimant's injury was attributable to 
 
        his injury on July 27, 1987 or his injury on August 7, 1987. The 
 
        fracture itself occurred on July 27, 1987 but claimant did not 
 
        miss work until he reinjured his thumb on August 7, 1987. As a 
 
        result of the injury and reinjury claimant had surgery and a 
 
        resultant two percent permanent impairment of the hand. The 
 
        impairment appears to be equally caused by each of the injuries. 
 
        Therefore, the injuries of July 27, 1987 and August 7, 1987 were 
 
        each the cause of a one percent functional impairment of the 
 
        hand.
 
             
 
             Claimant is also entitled to healing period benefits. The 
 
             parties dispute healing period benefits from October 16, 1987 to 
 
             March 25, 1988. During this period claimant was receiving 
 
             physical therapy pursuant to the orders of John T. Johnson, D.O. 
 
             Physical therapy ended on March 25, 1988. Claimant significantly 
 
             improved during the course of his therapy. Claimant reached 
 

 
        
 
 
 
 
 
             maximum medical improvement on March 25, 1988 when he 
 
             discontinued physical therapy.
 
             
 
             The last issue to be discussed is entitlement to medical 
 
             benefits. The deputy correctly discussed this issue as follows:
 
             
 
                  Finally, there is the issue of medical benefits under 
 
                      section 85.27. Iowa Code section 85.27 provides that the 
 
                      claimant is entitled to reasonable medical expenses for a 
 
                      work related injury. The employer and its insurance carrier 
 
                      have the right to choose a treating physician, but section 
 
                      85.27 does not give them the right to invade the province of 
 
                      medical professionals in determining what diagnostic tests 
 
                      and/or methods of treatment are to be utilized. Martin v. 
 
                      Armour Dial Co., Inc., File No. 754732 (Arbitration Decision 
 
                      filed July 31, 1985).
 
                  
 
                  The treatment at the Davenport Clinic was authorized. At 
 
                      his hearing, claimant testified he was told by his 
 
                      supervisor, John McCarter, to see Dr. Chamany at the 
 
                      Davenport Clinic after the injuries on August 7, 1987. Dr. 
 
                      Chamany referred claimant to Dr. Whitmore. Defendants 
 
                      cannot now deny responsibility because they acquiesced to 
 
                      Dr. Chamany's referral. Claimant is entitled to 
 
                      reimbursement.
 
        
 
                  There is no evidence to indicate claimant was referred to 
 
                      Dr. Johnson and later to Mr. Koster, LPT. Nevertheless, 
 
                      claimant testified he received relief from the treatment 
 
                      provided by Dr. Johnson and by the physical therapy.
 
             
 
               Unauthorized treatment which improves an employee's 
 
             condition and which ultimately may mitigate the employer's 
 
             liability may subsequently be found reasonable and necessary 
 
             for treatment of an injury. Hutchinson v. American Freight 
 
             Systems. Inc., I-1 Iowa Industrial Commissioner Decision 94 
 
             (Appeal Decision 1984). Butcher v. Valley Sheet Metal, IV 
 
             Iowa Industrial Commissioner Report 49 (Appeal Decision 
 
             1983); Rittgers v. United Parcel Service, III Iowa 
 
             Industrial Commissioner Report 210 (Appeal Decision 1982). 
 
             The evidence, in the instant proceeding, is uncontroverted 
 
             that claimant's condition improved subsequent to the therapy 
 
             which he received from Dr. Johnson and from the physical 
 
             therapy. Claimant is entitled to reimbursement for 
 
             expenditures incurred as a result of Dr. Johnson's 
 
             treatment.
 
             
 
               Likewise, for the same reasons above, claimant is 
 
             entitled to be reimbursed for prescription charges.
 
             
 
               Claimant is not entitled to be reimbursed for the charges 
 
             of the University of Iowa Hospitals and Clinics. There is 
 
             no evidence to indicate this treatment improved his 
 
             condition. Claimant is also not entitled to be reimbursed 
 
             for the charges of Dr. Nebbeling. These involved charges 
 
             solely for examinations and evaluations incidental to trial 
 
             preparation. The charges were not made pursuant to an issue 
 
             under section 85.39. Dr. Nebbeling was not the treating 
 
             physician. His charges do not come under section 85.27.
 
             
 
                                 FINDINGS OF FACT
 
        
 
             1. On July 27, 1987 while working on defendant employer's 
 
             premises claimant slipped, fell, and caught his right hand on a 
 
             railing.
 
        
 

 
        
 
 
 
 
 
            2. As a result of the incident on July 27, 1987, claimant 
 
        suffered a Bennett's fracture dislocation, right thumb.
 
        
 
            3. On August 7, 1987 while working on defendant employer's 
 
        premises, claimant was hit on the right thumb by a pry bar during 
 
        a split rim tire repair.
 
        
 
             4. The incident on August 7, 1987 aggravated the condition 
 
             of claimant's thumb.
 
        
 
            5. On August 11, 1987 claimant sought the services of 
 
        William R. Whitmore, M.D.
 
        
 
            6. Dr. Whitmore's impression on August 11, 1987 was healing 
 
        fracture dislocation, right CMC joint, right thumb.
 
        
 
            7. An injury to the CMC joint of the thumb is an injury to 
 
        the hand.
 
        
 
            8. As a result of the injuries on July 27, 1987 and August 
 
        7, 1987 claimant had surgery.
 
        
 
            9. Claimant was unable to work because of the injuries from 
 
        August 7, 1987 to September 21, 1987 and from October 16, 1987 to 
 
        March 25, 1988.
 
        
 
            10. In the time period from October 16, 1987 to March 25, 
 
        1988 claimant underwent physical therapy which significantly 
 
        improved his condition.
 
        
 
            11. Claimant reached maximum medical improvement on March 
 
        25, 1988 when he discontinued physical therapy.
 
        
 
            12. As a result of the injuries on July 27, 1987 and August 
 
        7, 1987, claimant has a two percent functional impairment of the 
 
        right hand. The functional impairment is equally caused by the 
 
        two injuries.
 
        
 
            13. Claimant has incurred the following medical expenses as 
 
        a result of the work injuries on July 27, 1987 and August 7, 
 
        1987.
 
        
 
            Mercy Hospital                      $ 1,560.06
 
            Orthopaedic Surgery Assoc.            1,178.25
 
            Dr. Bello                               300.00
 
            Osteopathic Radiology Assoc.            146.00
 
            Peoples' Drug                            12.90
 
            Radiology Group                           9.50
 
            Dr. Johnson                             415.75
 
            Davenport Clinic                        192.45
 
            Davenport Medical Center                586.00
 
                                                    1,010.00
 
                                                       50.00
 
                                                    1,574.00
 
                                                    2,052.00
 
                                                    1,231.00
 
                                                     112.00
 
                                                  $10,429.91
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
                  Claimant has proved that he suffered injuries on July 27, 
 
                  1987 and August 7, 1987 which arose out of and in the course of 
 
                  his employment.
 
        
 
            Claimant has proved that there is a causal relationship 
 

 
        
 
 
 
 
 
        between the injuries on July 27, 1987 and August 7, 1987 and a 
 
        one percent permanent partial disability to the right hand for 
 
        each injury (total disability of two percent of the hand).
 
        
 
            Claimant has proved entitlement to healing period benefits 
 
        from August 7, 1987 to September 21, 1987 and from October 16, 
 
        1987 to March 25, 1988.
 
        
 
            Claimant has proved entitlement to certain specified 
 
        medical benefits under Iowa Code section 85.27.
 
        
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
        modified.
 
        
 
                                      ORDER
 
        
 
                  THEREFORE, it is ordered:
 
        
 
                  That defendants pay claimant healing period benefits from 
 
                  August 7, 1987 to September 21, 1987 and from October 16, 1987 
 
                  to March 25, 1988.
 
        
 
                  That defendants pay claimant one and nine tenths (1.9) 
 
                  weeks of permanent partial disability benefits at the rate of 
 
                  one hundred nineteen and 18/100 dollars ($119.18) per week as 
 
                  the result of the injury which occurred on July 27, 1987.
 
        
 
            That defendants pay claimant one and nine-tenths (1.9) 
 
        weeks of permanent partial disability benefits at the rate of 
 
        one hundred nineteen and 18/100 dollars ($119.18) per week as 
 
        the result of the injury which occurred on August 7, 1987.
 
        
 
             That defendants are liable for the payment of the following 
 
              medical expenses:
 
             
 
            Mercy Hospital                                  $1,560.06
 
            Orthopaedic Surgery Assoc.                      1,178.25
 
            Dr. Bello                                       300.00
 
            Osteopathic Radiology Assoc.                    146.00
 
            Peoples' Drug                                   12.90
 
            Radiology Group                                 9.50
 
            Dr. Johnson                                     415.75
 
            Davenport Clinic                                192.45
 
            Davenport Medical Center                        586.00
 
                                                      1,010.00
 
                                                         50.00
 
                                                      1,574.00
 
                                                      2,052.00
 
                                                      1,231.00
 
                                                       112.00
 
                                                    $10,429.91
 
                                                
 
            That payments for accrued healing period and permanent 
 
        partial disability benefits be paid in a lump sum together with 
 
        statutory interest thereon pursuant to Iowa Code section 85.30.
 
        
 
            That costs of this action including transcription of the 
 
        arbitration hearing are assessed against defendants pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
            That defendants file claim activity reports pursuant to 
 
        Division of Industrial Services Rule 343-3.1.
 
        
 
        
 
            Signed and filed this 29th day of December, 1989.
 
        
 

 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Peter M. Soble
 
        Attorney at Law
 
        505 Plaza Office Bldg.
 
        Rock Island, IL 61201
 
        
 
        Mr. Larry L. Shepler
 
        Attorney at Law
 
        Executive Sq., Ste. 102
 
        400 Main St.
 
        Davenport, Iowa 52801
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                     1803 - 52500
 
                                     Filed December 29, 1989
 
                                     DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MELVIN AUSTIN,
 
        
 
             Claimant,
 
                                                    File Nos. 851724
 
        vs.                                                   851725
 
        
 
        DAVENPORT 76 TRUCK PLAZA,
 
                                               A P P E A L
 
            Employer,
 
        
 
        and                                 D E C I S I O N
 
        
 
        AETNA CASUALTY & SURETY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1803
 
        
 
             On appeal claimant was awarded a two percent permanent 
 
             partial disability to the hand as a result of two injuries, one 
 
             on July 27, 1987 and the second on August 7, 1987. Claimant 
 
             actually fractured his thumb, CMC joint, in first injury but did 
 
             not seek medical care until after second injury. Each injury 
 
             found to be a one percent permanent partial disability to the 
 
             hand.
 
        
 
             Claimant awarded medical benefits for treatment that 
 
             improved condition. Medical expenses for unauthorized treatment 
 
             that did not improve condition were denied.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY BLOCKER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 851726
 
            SPOONER SPORTS,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 15, 1991 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY BLOCKER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 851726
 
            SPOONER SPORTS,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 15, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY BLOCKER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 851726
 
            SPOONER SPORTS,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Blocker, claimant, against Spooner Sports, employer, and 
 
            Fireman's Fund Insurance Company, insurance carrier, 
 
            defendants, for benefits as a result of a back injury in the 
 
            summer of 1987 and ulcers which occurred on August 11, 1987.  
 
            The hearing was held in Cedar Rapids, Iowa on August 3, 1989 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Harry W. Dahl.  
 
            Defendants were represented by Richard G. Book.  The record 
 
            consists of the testimony of Larry Blocker, claimant; Jack 
 
            Spooner, employer; claimant's exhibit 1 through 9; and, 
 
            employer's exhibits A, C, E, and F.  The deputy ordered a 
 
            transcript of the hearing.  Defendants filed a description 
 
            of disputes at the time of the hearing.  Both attorneys 
 
            submitted excellent posthearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury to his back on or 
 
            about July 1987 and an injury of ulcers on August 12, 1987 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether either alleged injury was the cause of either 
 
            temporary or permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Whether these claims are barred by previous settlements 
 
            under Iowa Code section 85.35.
 
            
 
                               preliminary matters
 
            
 
                 The original notice and petition filed on September 3, 
 
            1987 alleges cumulative trauma to the back caused by 
 
            repetitive heavy lifting at work.  The petition was amended 
 
            on June 8, 1989 to add ulcers to paragraph 11.  Claimant 
 
            testified that he reported his back injury to Vicki Kasal, 
 
            the company bookkeeper, and that she prepared a first report 
 
            of injury (Transcript Pages. 15, 56, 57).  The industrial 
 
            commissioner's file does not contain a report of injury for 
 
            an injury to claimant's back in July of 1987.  Claimant 
 
            testified that the bookkeeper completed a second report of 
 
            injury for the ulcers in August of 1987 (Tr. PP. 58, 59).  
 
            This report of injury is not contained in the industrial 
 
            commissioner's file either, however, a copy of it was 
 
            introduced into evidence (Tr. P. 15; Claimant's Exhibit 6, 
 
            P. 7).  Defendants' attorney agreed to supply the industrial 
 
            commissioner's file with this report of injury at the time 
 
            of hearing (Tr. P. 17).  However, at this time the 
 
            industrial commissioner's file does not contain a first 
 
            report of injury for the alleged back injury in July 1987 or 
 
            for the alleged ulcer injury on August 12, 1987.  
 
            Nevertheless, this decision will address both of these 
 
            alleged injuries.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury to his back in the summer of 1987 which arose out and 
 
            in the course of employment with employer.
 
            
 
                 It is further determined that claimant did not sustain 
 
            an injury of ulcers on August 12, 1987 which arose out of 
 
            and in the course of employment with employer.
 
            
 
                 Claimant advanced two propositions on the occurrence of 
 
            this back injury.
 
            
 
                 First, the answers to interrogatories of claimant filed 
 
            December 8, 1987 allege a cumulative injury from constantly 
 
            aggravating his back and arms while performing his job 
 
            duties.  He said there was no singular event leading to his 
 
            disabling condition which could be witnessed.  Claimant 
 
            asserted his back was in constant pain, both legs hurt, his 
 
            hip burned, he had an ulcer from taking the prescribed pain 
 
            medicine, his right hand and arm fell asleep and he 
 
            sometimes has no feeling in this right hand.  Claimant 
 
            further stated that he had previous back and arm injuries 
 
            but they were not this severe and disabling until mid-July 
 
            of 1987.  (Defendant Ex. C).  In his deposition prior to 
 
            hearing on May 31, 1988, claimant testified that in July of 
 
            1987, "I just got to the point where I had aggravated it so 
 
            much that was it.  I told him that.  I said, "I'm going to 
 
            the doctor to get something done.  That's it.  I've had 
 
            enough of it.""  (Def. Ex. 2, PP. 30-31).  He further 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            testified, "I just kept aggravating it."  (Ex. 2, P. 44).
 
            
 
                 Second, at the hearing claimant described a singular 
 
            incident in July of 1987.  He said that he reinjured his 
 
            back in an accident when, "I was lifting a boat."  (Tr. P. 
 
            56).
 
            
 
                 Employer, Jack Spooner, said that he believed that 
 
            claimant aggravated his back in the summer of 1987 at work.  
 
            Spooner said, "Well, I am sure that he did.  You know, I am 
 
            -- I mean he was reliable.  If he hurt his back, you know, 
 
            it's aggravated by it."  (Tr. P. 19).  Spooner further 
 
            verified that it was Vicki Kasal's responsibility to report 
 
            injuries and that he never told her not to send in a first 
 
            report of injury or any other report concerning claimant.  
 
            (Tr. PP. 17-18).
 
            
 
                 Neither of claimant's descriptions of an injury: (1) 
 
            the aggravation description, or (2) the lifting the boat 
 
            description is supported by the evidence.  J. B. Paulsen, 
 
            M.D., claimant's personal physician, reported on September 
 
            2, 1987 as follows: 
 
            
 
                 As you are aware Larry has mild fascial syndrome 
 
                 or the chronic pain syndrome.  In general, I would 
 
                 say that Larry's condition is certainly not 
 
                 improving and stable in terms of the back pain.  I 
 
                 guess my personal feeling is that I doubt that 
 
                 Larry will ever be pain free and suffers from some 
 
                 sort of on going arthritis.
 
            
 
            (Claimant Ex. 7)
 
            
 
                 Thus, Dr. Paulsen does not mention either an 
 
            aggravation or an incident lifting a boat as the cause of 
 
            any new injury.  
 
            
 
                 Claimant has a history of low back pain going back to 
 
            1979 when he injured his back while lifting a snowmobile.  
 
            (Ex. A, PP. 16, 17; Tr. PP. 43-44).  On October 7, 1980, 
 
            Carl O. Lester, M.D., wrote, "33-year-old while male with a 
 
            history of back pain, every time he bends over in a certain 
 
            direction his back gives out.  He recently fell off his 
 
            patio injuring both thighs."  (Ex. A, P. 45).  Claimant was 
 
            treated by Warren Verdeck, M.D., on April 19, 1982 for low 
 
            back problems.  (Ex. A, PP. 1-2).
 
            
 
                 Claimant sustained injuries to his hands and back on 
 
            September 12, 1984, September 28, 1984, and May 19, 1985 and 
 
            these claims were the subject of a special case settlement 
 
            under Iowa Code section 85.35 in the amount $29,500 on June 
 
            3, 1987.  (Cl. Ex. 1).  At this time claimant was treated by 
 
            Leland G. Hawkins, M.D., an orthopedic surgeon, who 
 
            performed an excision of a herniated nucleus pulposus at 
 
            L4-5 on November 14, 1984.  (Ex. A, P. 57).  Dr. Hawkins 
 
            awarded a six percent permanent impairment from the 
 
            herniated nucleus pulposus and noted claimant still had 
 
            residual aching pain in his thighs on January 2, 1987.  (Ex. 
 
            A, P. 83).  When Dr. Hawkins last saw claimant on February 
 
            11, 1987 claimant still had pains into his back where the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            surgery had been carried out and pain down the posterior 
 
            thigh on the right side.  (Ex. F, P. 6).  A CT scan 
 
            disclosed a broad-based bulging disc again at L4-5 which was 
 
            the same level at which the surgery had been performed.
 
            
 
                 When claimant endeavored to return back to work in 
 
            February of 1985, he was unable to perform the lifting, 
 
            standing, and strenuous work of the job.  (Tr. PP. 47-49)  
 
            In mid 1985, claimant's hours were cut approximately in half 
 
            and his pay was cut in half from $300 per week to $150 per 
 
            week.  (Tr. PP. 37-38, 49-52; Ex. E, P. 2).  Claimant 
 
            continued to have back and leg pains which have never 
 
            improved but have only become worse.
 
            
 
                 Dr. Paulsen sent claimant to the pain clinic at the 
 
            University of Iowa.  (Tr. P. 36 & 39).  On September 29, 
 
            1987, claimant was examined at the pain clinic by Steven 
 
            Geisler, M.D, and Viney Kumar, M.D., and was administered 
 
            triggerpoint injections of steroids under local anesthesia.  
 
            Their records reflect that the low back pain and radiating 
 
            pain began one month after surgery in 1984.  (Ex. 5, PP. 
 
            2-3).  Claimant returned to the pain clinic on October 13, 
 
            1987 (Ex. 5, P. 9) and again on November 3, 1987 (Ex. 5, P. 
 
            13).  
 
            
 
                 On November 13, 1987, Patrick W. Hitchon, M.D., a 
 
            neurosurgeon at the University of Iowa, stated, "Larry 
 
            Blocker was seen in the Neurosurgery Outpatient Clinic for 
 
            evaluation in reference to back and right lower extremity 
 
            pain off and on for the past 2 years."  (Ex. 5, P. 14).  He 
 
            ordered a CT scan which disclosed an asymmetrical bulging 
 
            disc at L4-5.  (Ex. 5, P. 16).  On December 8, 1987 Dr. 
 
            Hitchon wrote, "It is to be recalled that this gentlemen 
 
            complains of chronic low back pain worse on the left 
 
            together with intermittent severe right thigh pain."  (Ex. 
 
            5, P. 17)  On January 12, 1988, Dr. Hitchon wrote to 
 
            claimant's counsel as follows:
 
            
 
                 In my letter of November 13, 1987, it is apparent 
 
                 that Mr. Blocker's back pain did respond to his 
 
                 operation in 1984.  The pain, indeed, recurred 6 
 
                 months prior to his evaluation here.  It is not 
 
                 surprising that patients who undergo surgery upon 
 
                 their spines for disc disease will, at one time or 
 
                 another, develop back pain in the future.  In my 
 
                 opinion, Mr. Blocker is not an exception.  His 
 
                 back pain is expected to subside and occasionally 
 
                 worsen depending on his level of activity.  He may 
 
                 well aggravate his back while working at home, 
 
                 changing a tire, or starting a lawn mower, to 
 
                 mention a few.  It is merely incidental that his 
 
                 pain developed at work. 
 
            
 
            (Cl. Ex. 4, PP. 1-2)
 
            
 
                 He recommended claimant continue to work within his 
 
            capabilities and continue conservative care.
 
            
 
                 Thus, in reviewing the records of Dr. Hawkins and 
 
            claimant's testimony, his symptoms in July of 1987 and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            subsequent to that are basically the same that they were in 
 
            mid 1985 when he attempted to return to work following the 
 
            surgery and found he could only work approximately half the 
 
            amount of time at half amount of pay which he had earned 
 
            previously.
 
            
 
                 In reviewing the records of Dr. Paulsen, Dr. Kumar, and 
 
            Dr. Hitchon there is no evidence that claimant sustained an 
 
            aggravation of his preexisting condition in July of 1987 nor 
 
            is there any evidence of a lifting a boat incident in July 
 
            of 1987.  Therefore it is determined that claimant has not 
 
            sustained the burden of proof by preponderance of the 
 
            evidence that he sustained either a new injury or a more 
 
            severe increase of his symptoms in July of 1987 which arose 
 
            out of and in the course of his employment with employer.  
 
            At the time of his deposition defendants' counsel asked this 
 
            question and received this reply:
 
            
 
                 Q.  Would it be fair to say that your condition 
 
                 today is about the same as it was when you went to 
 
                 half days back in 1985?
 
            
 
                 A.  Yes.
 
            
 
            (Cl. Ex. 2, P. 25)
 
            
 
                 With respect to injury to claimant's arms, this 
 
            colouquy transpired at the time of claimant's deposition:
 
            
 
                 Q.  (BY MR. BOOK)  Larry, since July of '87 have 
 
                 you had any doctor look at your arms or have any 
 
                 treatment for your arms?
 
            
 
                 A.  No.
 
            
 
                 Q.  Are they about the same as they have been 
 
                 since '87?
 
            
 
                 A.  It's hard to say.
 
            
 
                 Q.  You haven't sought medical treatment for them 
 
                 since July of '87?
 
            
 
                 A.  Not that I recall.
 
            
 
            (Cl. Ex. 2, PP. 40-41)
 
            
 
                 Thus it is determined that claimant did not sustain an 
 
            injury to his arms in the summer of 1987 which arose out of 
 
            and in the course of employment with his employer.
 
            
 
                 With respect to the alleged ulcer, the only medical 
 
            evidence is provided by Dr. Paulsen on September 2, 1987 
 
            when he stated:
 
            
 
                 In terms of Larry's ulcer, I would agree the 
 
                 medicine that he has been taking for pain could 
 
                 indeed cause lots of problems in terms of ulcers.  
 
                 So in that respect the two are definitely related.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Cl. Ex. 7)
 
            
 
                 First of all, since claimant has not proven an injury 
 
            to his back in the summer of 1987, then the medications he 
 
            has been taking are for his back condition which preexisted 
 
            that date and for which claimant received a compromise 
 
            settlement under Iowa Code section 85.35.  Furthermore, with 
 
            respect to causal connection a possibility, is insufficient: 
 
            a probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  Thus it 
 
            is determined that claimant did not sustain an ulcer injury 
 
            on August 12, 1987 as he alleged.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury to 
 
            his back or to his arms in the summer of 1987 which arose 
 
            out of and in the course of his employment with employer.  
 
            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); Iowa Code section 85.3(1).
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury of 
 
            ulcers on August 12, 1987 which arose out of and in the 
 
            course of his employment with employer.  McDowell, 241 
 
            N.W.2d 904; Musselman, 261 Iowa 352, 154 N.W.2d 128; Iowa 
 
            Code section 85.3(1).
 
            
 
                 In view of the foregoing findings of fact and 
 
            conclusions of law all of the other issues in this case 
 
            become moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are owed by defendants to claimant.
 
            
 
                 That the costs of this action including the costs of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript are charged to claimant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file a first report of injury for the 
 
            alleged back injury in July of 1987 and another first report 
 
            of injury for the alleged ulcers which occurred on August 
 
            12, 1987 within fifteen (15) days from the signing and 
 
            filing of this order.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                      
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            ________________________________
 
                      WALTER R. MCMANUS, JR.
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St Ste 16
 
            Des Moines Iowa 50312
 
            
 
            Mr Richard G Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1106;5-1108.50-5-1401;5-1402.20
 
                      5-1402.30;5-2206;5-2209;5-2902
 
                      Filed March 15, 1991
 
                      WALTER R. MCMANUS, JR.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY BLOCKER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 851726
 
            SPOONER SPORTS,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1106; 5-1108.50; 5-1401; 5-1402.20; 5-1402.30; 5-2206
 
            5-2209; 5-2902
 
            Claimant failed to prove (1) an injury to his back either by 
 
            (a) an increase in his symptoms after 85.35 settlements for 
 
            his back on a prior injury or (b) a second lifting accident.  
 
            He also failed to prove (2) an ulcer injury from the 
 
            numerous medications he had taken for his back pain and he 
 
            failed to prove (3) an injury to his hands and arms.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PHILLIP B. WETROSKY,
 
         
 
              Claimant,
 
                                                 File No. 851732
 
         vs.
 
                                              A R B I T R A T I O N
 
         JOHN MORRELL & CO.,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Phillip 
 
         Wetrosky, claimant, against John Morrell & Company, employer, and 
 
         National Union Fire Insurance Company, insurance carrier, as a 
 
         result of personal injuries sustained on July 25, 1986.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner August 30, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, and 
 
         Deborah Hanson; joint exhibits A, B and C; defendants' exhibits D 
 
         through G, inclusive; and claimant's exhibit H.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved August 30, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  The extent of claimant's entitlement to healing period 
 
         benefits; and,
 
         
 
              2.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits stipulated to be an industrial 
 
         disability to the body as a whole.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, while grading loins on July 25, 1986, sustained an 
 
         injury to his back which arose out of and in the course of his 
 
         employment.  Claimant explained he did not seek medical attention 
 
         (outside of seeing the company nurse from whom he received Advil) 
 
         until August 1986 when he went to see Drs. Grossman and Krigsten 
 
         who prescribed medication, heat treatments and allowed claimant 
 
         to continue working.  Claimant stated that his back was still 
 
         painful and "no better" and that he went to see a chiropractor 
 
         who failed to provide any relief from his symptoms as well.  
 
         Claimant testified he then returned to see Dr. Krigsten who 
 
         "took" him off work, ran some tests and referred him to Dr. 
 
         Kleider who, after myelogram and CT scan, recommended surgery.
 
         
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   2
 
         
 
         
 
              Claimant left work with defendant employer on or about 
 
         October 1, 1986 and never returned.  Claimant testified that in 
 
         approximately November 1986, he was sent to the State of Iowa 
 
         Vocational Rehabilitation Services through which he was initially 
 
         to enroll in an electronic communication program at Western Iowa 
 
         Tech.  However, there was confusion over payment of books and 
 
         supplies and, since claimant did not have the financial resources 
 
         to pay the $533 necessary for books, he did not enroll in the 
 
         course.  Claimant explained he was then directed to a course in 
 
         equipment rental but concerns arose over whether, in light of his 
 
         medical restrictions, claimant could succeed in this area and 
 
         consequently these plans, too, were delayed.  While working with 
 
         the state counselor at Western Area Tech, claimant explained he 
 
         was also working with a vocational rehabilitation counselor hired 
 
         by defendants who suggested to him that claimant join a "job 
 
         club" to help him find employment.  Claimant secured assistance 
 
         in writing his resume through the job club and then, through a 
 
         contact with a friend, sought and secured employment in February 
 
         1988 at Premier Boneless Meat in Lyons, Nebraska.
 
         
 
              Claimant described his job at Premier as boning and trimming 
 
         hams where he is paid $6.60 per hour plus incentive to bone and 
 
         $5.90 per hour to trim hams.  Claimant testified that since the 
 
         hams on which he works weigh only from five to eight pounds, this 
 
         job falls within his medical restriction and that although he 
 
         continues to experience varying degrees of back pain, he is able 
 
         to perform this job satisfactorily.  Claimant stated he works at 
 
         times up to six days per week, 55 to 60 hours per week on the 
 
         average and that it involves no bending, twisting, climbing, 
 
         kneeling or squatting.  During almost seven months of employment, 
 
         claimant acknowledged he has earned  $10,760.  Wage records show 
 
         claimant had earnings of approximately  $18,000 in 1985 (plus 
 
         $2,288 in unemployment insurance benefits) and $16,275 for the 
 
         seven months he worked in 1986 as claimant testified he had been 
 
         laid off for January and February 1986 and ceased working for 
 
         defendant employer the last working day in September 1986.
 
         
 
              Claimant stated he has not been under any regular medical 
 
         care since last seeing Dr. Durward in June 1987, that he 
 
         currently takes no medication and that he does not wear a back 
 
         brace.  Claimant acknowledged he is still receiving weekly 
 
         workers' compensation benefits and has received them since he 
 
         left work on October 1, 1986 although he had thought those 
 
         benefits would terminate in May 1988.
 
         
 
              Deborah Hanson, who identified herself as a certified 
 
         vocational rehabilitation counselor with the Iowa Division of 
 
         Vocational Rehabilitation Services, testified she first came in 
 
         contact with claimant in the summer of 1987.  Ms. Hanson 
 
         explained claimant had been working with another counselor who 
 
         had given claimant a battery of tests and developed the initial 
 
         vocational plan and that his file was referred to her when the 
 
         electronic communication program at Western Iowa Tech appeared to 
 
         be an alternative plan.  Ms. Hanson stated that claimant lacked 
 
         any academic program/background for the electronic communication 
 
         program and that claimant, therefore, was directed to take some 
 
         independent study in advanced math and algebra during the summer 
 
         of 1987.  When the plans to follow through in the electronic 
 
         communication program went awry, Ms. Hanson and claimant 
 
         discussed the equipment rental/rental management program at 
 
         Western Iowa Tech since she had had some "luck" in job placement 
 
         in this area of work (although outside the Sioux City 
 
         geographical area) and felt claimant would be particularly 
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   3
 
         
 
         
 
         capable of performing the "counter" aspect of this kind of work. 
 
          Ms. Hanson explained that the plan, then, was to register 
 
         claimant for the course which began in November 1987.  She stated 
 
         that she felt there was "much hesitancy" on claimant's part to 
 
         pursue this course not because of any lack of cooperation on the 
 
         part of the claimant but rather because of a concern that his 
 
         workers' compensation benefits would cease in May 1988 when he 
 
         was only half way through the course.  Ms. Hanson testified that 
 
         her last contact with claimant was in November 1987 and that she 
 
         closed her file in May 1988 after there had been no contact with 
 
         the claimant in six months and after claimant had failed to 
 
         respond to two written inquiries concerning his status.
 
         
 
              Ms. Hanson opined that in light of claimant's work 
 
         restrictions, claimant, who had earned his living primarily in 
 
         "unskilled heavy labor" is now capable of working only in the 
 
         light work category, that he is not vocationally suited to do any 
 
         of his previous jobs and that claimant's job opportunities are, 
 
         thus, limited.  Ms. Hanson was aware of claimant's current job, 
 
         felt it was well within his medical restrictions and opined that 
 
         it was most appropriate for claimant, if he was capable of 
 
         handling the job, since it paid a better wage than that which 
 
         claimant would be able to secure without retraining.
 
         
 
              Medical records reveal claimant was initially treated by 
 
         William R. Krigsten, M.D., Joseph R. Krigsten, M.D., and Milton 
 
         D. Grossman, M.D., through August and September 1986 and Roger 
 
         Spencer, D.C., for chiropractic manipulation in September 1986.  
 
         When claimant was seen on September 30, 1986, William Krigsten 
 
         noted claimant had a loss of motion in his back and prescribed 
 
         claimant remain off work until after an EMG, scheduled for 
 
         October 13, 1986, could be conducted.  EMG's revealed "prominent 
 
         fibrillations and positive waves Sl supplied muscles on left.  
 
         Findings compatible with left Sl radiculopathy." (Jt. Ex. A, p. 
 
         35).  Dr. Krigsten recommended surgical repair and referred 
 
         claimant to A. Kleider, M.D.  When Dr. Kleider examined claimant 
 
         on October 21, 1986, he reported his impression that claimant had 
 
         a "clearcut disc syndrome with a left Sl radiculopathy which 
 
         implies a disc protrusion at the lumbosacral level." (Joint 
 
         Exhibit A, page 29)  Dr. Kleider recommended hospitalization for 
 
         complete bed rest where a CT scan and myelogram demonstrated 
 
         lumbar spinal stenosis at L4/5, large central L4/5 disc bulge and 
 
         a left L5/Sl disc herniation.  Claimant was then referred to 
 
         Quentin J. Durward, M.D., and on November 3, 1986, underwent a 
 
         lumbar laminectomy at L4/5 with removal of a disc on the left 
 
         side at L4/5 and a discectomy on the left at L5/Sl.  
 
         Postoperatively, claimant continued to experience pain and when 
 
         discharged on November 10, 1986, was instructed to gradually 
 
         increase activity within pain-free limits.  Dr. Durward noted 
 
         claimant's recovery from the operation was slow but on March 3, 
 
         1987, indicated claimant had improved to a point where he was 
 
         quite mobile and concluded:
 
         
 
                 This patient still has residual low back pain 
 
              related to his underlying degenerative back condition 
 
              and underlying back injury.  I think he will continue 
 
              to improve over the next few months.....
 
         
 
                 ....
 
         
 
                 It is quite clear to me that this patient is 
 
              completely disabled for him to do any type of manual 
 
              labor involving bending, stooping, lifting (more than 
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   4
 
         
 
         
 
              25 lbs.), and for long standing.  I think he needs job 
 
              retraining in an occupation which does not involve any 
 
              strain on his back at all.
 
         
 
         (Jt. Ex. A, p. 41)
 
         
 
              When claimant returned to see Dr. Durward on June 2, 1987, 
 
         it was noted claimant had "generally done very well" 
 
         postoperatively.  Claimant was found to have no localized 
 
         tenderness, a very good range of motion of flexion and extension 
 
         with unrestricted straight leg raising.  Dr. Durward reiterated 
 
         his opinion that claimant should not "go back to the type of 
 
         heavy work that he was doing previously" and felt claimant's plan 
 
         to attend Western Iowa Tech for training was "excellent."  No 
 
         mention is made in the doctor's notes for any follow-up visit.
 
         
 
              On April 4, 1987, Dr. Durward completed an estimated 
 
         functional capacity form indicating claimant could frequently 
 
         lift or carry up to 10 pounds and occasionally lift and carry 11 
 
         to 24 pounds, could frequently push or pull in a seated or 
 
         standing position, occasionally squat, crawl, climb, never bend, 
 
         and frequently reach above shoulder level.  With rest during an 
 
         eight hour.day, Dr. Durward estimated claimant could sit for four 
 
         hours, stand and walk for two hours and alternatively sit and 
 
         stand continuously over a six hour period.  Dr. Durward released 
 
         claimant to return to work within these restrictions and opined 
 
         claimant was fully disabled for any heavy work. (Jt. Ex. A, pp. 
 
         45-46)  On July 27, 1987, Dr. Durward stated:
 
         
 
                 I was somewhat surprised by the report of Joel T. 
 
              Cotton, M.D.  I think one could say that Mr. Wetrosky 
 
              has far less pain than when he presented at the 
 
              hospital here with an acute radicular syndrome.  
 
              However in my opinion.going back to the heavy type of 
 
              work he was doing would bring on within a very short 
 
              period of time an identical syndrome I suspect from 
 
              which he would not recover as well.  My opinion is that 
 
              he should not lift more than twenty-five pounds in 
 
              weight ever again, he should not be involved in 
 
              activity where he has to bend or twist....I would 
 
              estimate that the laminectomy and diskectomy that this 
 
              patient has had permanent disability rating of 15% of 
 
              the whole man as determined by the AMA Guide.  I do 
 
              believe however that if this patient is given the 
 
              opportunity to undergo vocational rehabilitation he 
 
              will be able to get back to gainful employment in an 
 
              occupation which does not injury [sic] his back as his 
 
              previous occupation did.
 
         
 
         (Jt. Ex. A, p. 47)
 
         
 
              On November 19, 1987, Dr. Durward reported to defendants' 
 
         counsel:  "I have reviewed my notes on Mr. Wetrosky.  I believe 
 
         that Mr. Wetrosky has at this point reached maximum medical 
 
         recovery.  The patient, in fact, did undergo a 2 level 
 
         diskectomy.  Therefore, according to the AMA guides he should 
 
         have a rating of 10% impairment of the whole man."  (Jt. Ex. A, 
 
         48)
 
         
 
              Dr. Durward completed another estimated functional capacity 
 
         form on December 19, 1987 indicating claimant could continuously 
 
         lift up to 10 pounds, frequently lift up to 24 pounds, 
 
         occasionally lift up to 34 pounds and never lift more than than.  
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   5
 
         
 
         
 
         Dr. Durward concluded claimant could continuously carry up to 24 
 
         pounds and frequently carry up to 34 pounds.  Claimant could 
 
         continuously push or pull in a seated or standing position, 
 
         occasionally bend, squat and crawl and frequently climb.  Dr. 
 
         Durward estimated that assuming an eight hour work day with two 
 
         15 minute breaks and a half hour meal break claimant should be 
 
         able to continuously sit for four hours, stand and walk for four 
 
         hours with rest and alternately sit and stand for eight hours 
 
         continuously throughout the day.
 
         
 
              Claimant was seen by Joel T. Cotton, M.D., on May 26, 1987 
 
         for evaluation in reference to back and left leg symptoms.  Dr. 
 
         Cotton concluded:
 
         
 
              This patient's neurological examination at this time is 
 
              normal, with the exception of a residual diminished 
 
              left ankle jerk and slight decreased sensation on the 
 
              lateral aspect of the left foot.  His symptoms are 
 
              compatible with a previous Sl radiculopathy, which 
 
              appears to have been corrected, in my opinion, by the 
 
              surgical procedure performed in November of 1986.  This 
 
              man, in my opinion, is without neurological impairment. 
 
               Disability in this man is, in my opinion, solely as a 
 
              result of his having experienced surgery on the spine.  
 
              Residual disability in this individual would represent 
 
              either five or ten percent, depending on whether the 
 
              surgical procedure was felt to involve either one or 
 
              two levels, despite the presence of laminectomy at a 
 
              single level.  There is, in my opinion, however, no 
 
              additional residual disability in this individual, from 
 
              a neurological standpoint.  He appears to have achieved 
 
              a state of permanency.  There is no neurological 
 
              reason, in my opinion, that this individual cannot 
 
              return to his previous, usual, and customary activity, 
 
              without restriction.
 
         
 
         (Jt. Ex. A, p. 132)
 
         
 
              In a letter dated May 1, 1987, Mary A. Johnson, R.N., 
 
         medical services consultant with Crawford Risk Management 
 
         Services, reported:
 
         
 
              On April 14, 1987, I met with Mr. Walt Graves to 
 
              discuss the possibility of re-employment of this 
 
              claimant, citing the restrictions provided by Dr. 
 
              Durward on the EFC form.  Mr. Graves then indicated 
 
              that he felt Mr. Wetrosky would be unable to be 
 
              employed by John Morrell due to the restrictions placed 
 
              by Dr. Durward.  Mr. Graves also indicated that John 
 
              Morrell has a short-term light duty position, but that 
 
              no long-term light duty positions are available at John 
 
              Morrell.
 
         
 
         (Jt. Ex. C)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l.).
 
         
 
              Iowa Code section 85.34(2)(u) provides:
 
         
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   6
 
         
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                 It is determined that an injury has produced a 
 
              disability-less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employe returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
                                     ANALYSIS
 
         
 
              There is no dispute that claimant sustained an injury on 
 
         July 25, 1986 which arose out of and in the course of his 
 
         employment or that the injury is the cause of both temporary and 
 
         permanent disability.  The question is the extent of claimant's 
 
         entitlement to weekly compensation benefits.
 
         
 
              Dr. Durward, who operated on and treated claimant 
 
         postoperatively, has opined claimant sustained a 10 percent 
 
         impairment of the whole man as a result of this injury and 
 
         imposes restrictions on claimant's employability while Dr. 
 
         Cotton, who saw claimant on one occasion only, has opined 
 
         claimant's residual disability would represent 5 or 10 percent" 
 
         and imposes no restrictions on claimant, stating claimant could 
 
         return to his previous usual and customary activities.  Claimant 
 
         was emphatic in his disagreement with Dr. Cotton insisting on his 
 
         inability to perform his previous occupations.  A review of all 
 
         the medical records leaves the undersigned to agree with Dr. 
 
         Durward and to conclude claimant has restrictions on his 
 
         employability.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   7
 
         
 
         
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, it 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.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the.determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial. disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   8
 
         
 
         
 
              Claimant is currently 44 years old and a high school 
 
         graduate who received "average" grades while in school.  He has 
 
         no other formal completed training outside of attending a truck 
 
         driving training course at Western Iowa Tech in 1974 and the 
 
         independent study done in the summer of 1987.  Claimant's 
 
         previous experience includes work as a farm laborer, shipping and 
 
         receiving clerk, salesperson, mounting tires, operating a 
 
         sandblasting machine, a variety of jobs in packing plants 
 
         including a position as a working supervisor and one year's 
 
         experience as a truck driver.  It is clear that while the 
 
         claimant may be precluded from a majority of these jobs because 
 
         of the restrictions imposed by Dr. Durward, claimant still 
 
         possesses some transferable skills even absent any retraining 
 
         through vocational rehabilitation.  Even with these restrictions 
 
         claimant is capable of doing sedentary to light work.  Claimant 
 
         has suffered, as a result of this injury, a loss of earning 
 
         capacity.  Claimant was earning $9.15 per hour with defendant 
 
         employer at the time of his injury and the year of his injury 
 
         (1985) earned $16.275 over an approximate seven month period.  
 
         Claimant has secured employment that is within all off his 
 
         restrictions and allows him to take advantage of his years of 
 
         experience in the meat packing business.  However, over a six 
 
         month period claimant has earned $10,760.  Claimant has suffered 
 
         in actual loss of earnings as well.
 
         
 
              It is significant to note that defendant employer failed to 
 
         provide claimant with any type of employment after he left work 
 
         as a result of his injury.  For example, a defendant employer's 
 
         refusal to give any sort of work to a claimant after he suffers 
 
         his affliction may justify an award of disability.  McSpadden v. 
 
         Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  Considering then 
 
         all the elements of industrial disability, it is concluded that 
 
         as a result of the work injury of July 25, 1986, claimant has 
 
         sustained a permanent partial disability of 30 percent for 
 
         industrial purposes thus entitling him to 150 weeks of permanent 
 
         partial disability.
 
         
 
              The final question for resolution is the length of 
 
         claimant's healing period which the parties agree began on 
 
         October 1, 1986.  This question is somewhat complicated by the 
 
         lack of specificity in the medical reports submitted.  Iowa Code 
 
         section 85.34 dictates that the healing period ends when one of 
 
         three events occurs.  Claimant returned to work on February 1, 
 
         1988.  However, he was released to return to work with 
 
         restriction of light duty by Dr. Durward on April 4, 1987.  Yet 
 
         again, it would appear claimant continued to see Dr. Durward 
 
         until June 2, 1987 as claimant acknowledged he has not seen Dr. 
 
         Durward since then and there are no further office notes 
 
         indicating anything to the contrary.  On July 27, 1987, Dr. 
 
         Durward opines claimant has a 15 percent permanent partial 
 
         "disability" and without any mention of seeing claimant again, 
 
         Dr. Durward lowers this rating to 10 percent on November 19, 
 
         1987.  Normally, this would lead to a conclusion that claimant 
 
         had somehow improved during this four-month period.  However, one 
 
         wonders how Dr. Durward could lower the impairment rating if he 
 
         had not seen claimant and concomitantly, how Dr. Durward could 
 
         note any improvement.  Therefore, it can only be concluded that 
 
         there was no improvement during this period of time.  Based on 
 
         the evidence presented, it is concluded claimant reached maximum 
 
         medical recovery from this injury on June 2, 1987 when he last 
 
         saw Dr. Durward and was released from his care.  Claimant is, 
 
         therefore, entitled to 35 weeks of healing period benefits.
 
         
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE   9
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury to his back which arose out 
 
         of and in the course of his employment on July 25, 1986.
 
         
 
              2.  Claimants injury is the cause of both temporary and 
 
         permanent disability.
 
         
 
              3.   Claimant left work beginning October 1, 1986 and 
 
         underwent a laminectomy and discectomy in November 1986.
 
         
 
              4.  Claimant was released from medical care June 2, 1987.
 
         
 
              5.  Claimant reached maximum medical recovery on June 2, 
 
         1987.
 
         
 
              6.  Claimant has a permanent partial impairment as a result 
 
         of the work injury.
 
         
 
              7.  Claimant has work restrictions which preclude him from 
 
         engaging in much of the work for which he is fitted.
 
         
 
              8.  Claimant's earning capacity has been hampered as a 
 
         result of the work injury.
 
         
 
              9.  Claimant is 44 years old with a high school education.
 
         
 
             10.  Claimant is currently employed in a position that is 
 
         both within all of his medical restrictions and allows him to 
 
         utilize his previous work experience in the meat packing 
 
         industry.
 
         
 
             11.  Claimant has suffered an actual loss of earnings as a 
 
         result of the work injury.
 
         
 
             12.  Defendants failed to offer claimant any type of 
 
         employment following his recovery from surgery.
 
         
 
             13.  Claimant has a permanent partial disability of 30 
 
         percent for industrial purposes.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established his entitlement to healing 
 
         period benefits from October 1, 1986 through June 2, 1987, 
 
         inclusive.
 
         
 
              2.  Claimant has established that as a result of the work 
 
         injury of July 25, 1986, he sustained a permanent partial 
 
         disability of 30 percent for industrial purposes.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant thirty-five (35) weeks of 
 
         healing period benefits for the period of October 1, 1986 through 
 

 
         
 
         
 
         
 
         WETROSKY V. JOHN MORRELL & CO.
 
         PAGE  10
 
         
 
         
 
         June 2, 1987, inclusive, at the stipulated rate of two hundred 
 
         thirty-one and 03/100 dollars ($231.03) per week.
 
         
 
              Defendants shall pay unto claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred thirty one and 03/100 ($231.03) per week 
 
         commencing June 3, 1987.
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 16th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Raymond Johansen
 
         Attorney at Law
 
         508 Davidson Bldg.
 
         Sioux City, IA 51101
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, IA 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 1802
 
                                            Filed September 16, 1988
 
                                            Deborah A. Dubik
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PHILLIP B. WETROSKY,
 
         
 
              Claimant,                           File No. 851732
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         JOHN MORRELL & CO.,                      D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 1802
 
         
 
              The only issue presented for resolution was the extent of 
 
         claimant's entitlement to weekly benefits.  Claimant, who worked 
 
         as a meat packer, injured his back and underwent a laminectomy 
 
         and discectomy.  Claimant's work restrictions precluded him from 
 
         engaging in much of the work for which he is fitted but he has 
 
         secured employment within the restrictions with a meat packing 
 
         company.  Claimant found to have a 30% industrial disability.  
 
         Claimant's healing period found to have ended when he was 
 
         released from medical care.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED HOUSER,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851752
 
            A. M. COHRON & SONS,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ted 
 
            Houser against A. M. Cohron & Sons, employer, based upon an 
 
            injury that occurred on April 29, 1987.  Houser seeks 
 
            compensation for permanent partial disability.  The first 
 
            issue in the case is to determine whether the injury is 
 
            limited to a scheduled member, namely the arm, or whether it 
 
            is an injury to the body as a whole which should be 
 
            compensated industrially.  The second issue is to determine 
 
            the extent of permanent disability.  The record in the 
 
            proceeding consists of testimony from Ted Houser and Donald 
 
            Knudsen.  The record also contains joint exhibits 1 through 
 
            7 and defendants' exhibits 8, 9 and 10.
 
            
 
                                 findings of fact
 
            
 
                 Ted Houser is a 60-year-old married man who has lived 
 
            at Griswold, Iowa all his life.  Houser is a high school 
 
            graduate, but has had no further formal schooling or 
 
            training.  His work history includes farm work, military 
 
            training, truck driving, forklift operation, carpentry, 
 
            general construction work, cutting trees, operating a 
 
            greenhouse, industrial plant maintenance and work for a 
 
            moving contractor.
 
            
 
                 Houser began work for A. M. Cohron & Sons in 1985.  He 
 
            performed carpentry work associated with bridge 
 
            construction.  On April 29, 1987, he fell from a bridge and 
 
            sustained serious injuries.  Those injuries included 
 
            multiple fractured ribs, a left hemothorax, a fractured 
 
            spleen and a tearing of the first intercostal artery from 
 
            the descending aorta.  He underwent emergency surgery to 
 
            repair the torn artery (exhibit 7, David T. Sidney, M.D., 
 
            pages 4, 6 and 9).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 After recuperating, Houser continued to have problems 
 
            with his left arm and shoulder.  He eventually came under 
 
            the care of Des Moines orthopaedic surgeon Joshua D. 
 
            Kimelman, D.O.  Dr. Kimelman diagnosed claimant as having a 
 
            torn left rotator cuff.  On October 28, 1987, Dr. Kimelman 
 
            performed left rotator cuff repair surgery.  Dr. Kimelman 
 
            characterized the size of the tear as massive (exhibit 1, 
 
            pages 9 and 10).  Following recuperation from the surgery, 
 
            Dr. Kimelman rated claimant as having a 20 percent permanent 
 
            impairment of the left upper extremity (exhibit 1, pages 10 
 
            and 11; exhibit 7, Dr. Kimelman, page 7).
 
            
 
                 In March of 1988, Dr. Kimelman authorized claimant to 
 
            return to light work with restrictions against climbing or 
 
            lifting with the left arm (exhibit 7, Dr. Kimelman, pages 9 
 
            and 11).  In coordination with vocational consultant Ellen 
 
            Sokolowski, A. M. Cohron & Sons offered claimant work which 
 
            provided some accommodation or reduction in the exertion 
 
            which had been required for claimant's normal job 
 
            activities.  The job required that claimant work in the 
 
            state of Kansas.  Claimant declined the job because he felt 
 
            that its requirements exceeded his capabilities and he did 
 
            not want to travel that far away from his home.  Dr. 
 
            Kimelman felt that the requirements of the job were not 
 
            appropriate for claimant to be performing (exhibit 7, Dr. 
 
            Kimelman, pages 1, 2 and 7; exhibit 6).
 
            
 
                 Dr. Kimelman, when deposed, recommended that claimant 
 
            avoid repetitive overhead lifting and stated that claimant 
 
            was unable to raise his left arm overhead and had a 
 
            restricted range of motion.  He also explained that his 20 
 
            percent impairment rating of the left upper extremity 
 
            applied only to the shoulder and was not intended to rate 
 
            any other conditions which had resulted from the April 29, 
 
            1987 injury (exhibit 1, pages 11, 12 and 15).
 
            
 
                 Following his initial recuperation from the injury, 
 
            claimant sought treatment from R. L. Peerbolte, D.C., in 
 
            Atlantic, Iowa.  Dr. Peerbolte diagnosed claimant as having 
 
            a number of conditions which were directly related to the 
 
            April 29, 1987 injury.  Those conditions included multiple 
 
            vertebral subluxations of the cervical spine, multiple 
 
            vertebral and costovertebral subluxations of the thoracic 
 
            spine, paravertebral myofibrosis, right sacroiliac and fifth 
 
            lumbar vertebra subluxation of the lumbar spine, spondylosis 
 
            in the lumbar spine and a posterior facet syndrome (exhibit 
 
            7, Dr. Peerbolte, pages 14, 15, 27 and 33).
 
            
 
                 Claimant testified to a continuing problem with pain 
 
            and discomfort affecting his left shoulder, back and chest.
 
            
 
                 Since recuperating from the injury and surgery, 
 
            claimant has returned to work.  At the time of hearing, he 
 
            was performing industrial plant cleaning at a wage of $6.00 
 
            per hour.  He has held a number of different jobs since 
 
            recuperating from the injury.  One part-time job for United 
 
            Parcel Service had paid $8.50 per hour.  At A. M. Cohron & 
 
            Sons, claimant was earning $7.50 per hour.  Claimant had 
 
            attempted to obtain employment at the industrial plant where 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he now cleans, but was denied employment due to his medical 
 
            history.
 
            
 
                 In 1985, claimant's total earnings were $10,418, of 
 
            which $7,957 was earned from A. M. Cohron & Sons.  In 1986, 
 
            claimant's total earnings were $13,733, of which $10,920 
 
            were from A. M. Cohron & Sons (exhibit 4, pages 18-41).
 
            
 
                 Claimant's testimony regarding his symptoms and 
 
            continuing complaints is corroborated by the severity of the 
 
            injuries he sustained and the findings of Drs. Kimelman and 
 
            Peerbolte, both of whose findings are accepted as being 
 
            correct.
 
            
 
                 It is found that the source of claimant's shoulder 
 
            problems is not anatomically limited to the arm. The source 
 
            of the disability is located on the body side of the 
 
            shoulder joint (exhibit 1, page 18).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether the 
 
            disability should be evaluated as a scheduled member 
 
            disability of the arm under Iowa Code section 85.34(2)(m) or 
 
            a disability to the body as a whole under section 
 
            85.34(2)(u).  Claimant's disability is located in his 
 
            shoulder joint.  It is not limited to his arm, even though 
 
            the bulk of the disability is manifested by claimant's loss 
 
            of ability to use his arm.  The arm itself is, for the most 
 
            part, healthy.  It is the socket portion of the shoulder 
 
            joint which is impaired.  In view of these findings, it is 
 
            concluded that claimant's disability is not a scheduled 
 
            disability.  It is one which should be compensated 
 
            industrially as a disability to the body as a whole.  
 
            Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
            Rotator cuff tear injuries have commonly been considered to 
 
            be injuries to the body as a whole by the industrial 
 
            commissioner.  Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (App. Decn. 1982).
 
            
 
                 The use of the term "upper extremity" by a physician 
 
            includes other structures of the body, as well as the arm.  
 
            In this case, claimant sustained severe injuries within the 
 
            trunk of his body.  While there is no impairment rating for 
 
            those injuries from any physician, it is found that claimant 
 
            does have some permanent impairment within his body as a 
 
            result of the fractured ribs, torn aorta and skeletal 
 
            conditions diagnosed by Dr. Peerbolte.  These conditions 
 
            also warrant considering the injury to be to the body as a 
 
            whole rather than a scheduled injury to claimant's arm.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Claimant has had difficulty obtaining long-term stable 
 
            employment since recuperating from the injury.  Most of 
 
            claimant's work life has involved a component of physical 
 
            labor, even when he was in the greenhouse business.  His 
 
            current job seems to be one of the few jobs for which he 
 
            could qualify.  It pays at a lower hourly rate and provides 
 
            less hours of work per week than what he had earned with A. 
 
            M. Cohron & Sons, but he does not have travel expenses and 
 
            layoffs over the winter.  When all the material factors of 
 
            industrial disability are considered, it is determined that 
 
            Ted Houser sustained a 20 percent permanent partial 
 
            disability as a result of the April 29, 1987 injury.  This 
 
            entitles him to receive 100 weeks of compensation under Iowa 
 
            Code section 85.34(2)(u).  The payments are due commencing 
 
            May 28, 1988 as stipulated by the parties in the prehearing 
 
            report.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Ted Houser 
 
            one hundred (100) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of two hundred 
 
            sixteen and 95/100 dollars ($216.95) per week payable 
 
            commencing May 28, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            for the fifty (50) weeks of permanent partial disability 
 
            compensation previously paid and that all remaining accrued 
 
            amounts be paid to claimant in a lump sum together with 
 
            interest at the rate of ten percent (10%) per annum computed 
 
            from the date each weekly payment came due until the date of 
 
            actual payment pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            are assessed against defendants pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1
 
                                               Filed July 18, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED HOUSER,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851752
 
            A. M. COHRON & SONS,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803.1
 
            Disability resulting from torn rotator cuff is compensated 
 
            industrially as an injury to the body as a whole.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CHARLES VAN BLARICUM,         :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 852132
 
         SUPER VALU STORES, INC.,      :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         statement of the case
 
         Claimant appeals from an arbitration decision awarding claimant 
 
         15 percent permanent partial disability benefits as the result of 
 
         a work injury on April 1, 1987.  The record on appeal consists of 
 
         the transcript of the arbitration hearing; joint exhibits 1 
 
         through 9 and defendants' exhibit A.  Both parties filed briefs 
 
         on appeal.
 
         Issue
 
         The issue on appeal is whether the greater weight of the evidence 
 
         supports the deputy industrial commissioner's finding that 
 
         claimant is entitled to 15 percent permanent partial disability 
 
         benefits as a result of claimant's April 1, 1987 work injury.
 
         Review of the evidence
 
         The arbitration decision dated May 18, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         Applicable law
 
         The citations of law in the arbitration decision are appropriate 
 
         to the issues and evidence.
 
         
 
                                     analysis
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         findings of fact
 
         1.  Claimant received a low back injury at work on April 1, 1987 
 
         when he fell from a defective chair.
 
         2.  Claimant's disability is a result of his injury of April 1, 
 
         1987.
 
         3.  All healing period benefits to which claimant is entitled 
 
         have been paid and is not an issue herein.
 
         4.  Claimant was born December 3, 1924 and is nearing the normal 
 
         retirement age.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         5.  Claimant is a high school graduate and completed one and 
 
         one-half years of college at Drake University.
 
         6.  Claimant worked for Super Valu for twenty-six years and his 
 
         duties included order desk, stock person, and assistant manager.
 
         5.  Claimant has a history of back problem which include 
 
         surgeries in 1961, 1980 and 1982.  Claimant's physician imposed 
 
         restrictions upon claimant which he did not honor.
 
         6.  Claimant was told he could return to a light duty job with 
 
         defendant employer on November 18, 1987.  On February 10, 1988, 
 
         claimant was released to return to light duty work with 
 
         restrictions of no lifting within this restriction; no standing 
 
         or sitting longer than two hours without being able to move 
 
         about; and minimal stooping, bending and twisting.
 
         7.  Defendants offered to return claimant to work within his 
 
         restriction but claimant did not return to employment with 
 
         defendants.
 
         8.  Claimant voluntarily chose to retire on March 7, 1988, 
 
         effective April 3, 1988.
 
         9.  Claimant has a 10 percent functional impairment to his body 
 
         as a whole due to his low back injury at L2-L3 which resulted in 
 
         lumbar laminectomy on May 28, 1987.
 
         10.  Claimant has a 15 percent reduction in earning capacity.
 
         
 
                                conclusion of law
 
         
 
              The greater weight of the evidence supports that claimant 
 
         has an industrial disability of 15 percent.
 
         WHEREFORE, the decision of the deputy is affirmed.
 
         order
 
         THEREFORE, it is ordered:
 
         That defendants pay unto claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred fifty-six and 49/100 dollars ($256.49), commencing 
 
         November 19, 1987.
 
         That defendants are to pay or reimburse claimant for the 
 
         fifty-one dollar ($51) medical bill of Dr. Cunningham and 
 
         eighteen and 06/100 dollars ($18.06) for mileage.
 
         That defendants are to pay interest on benefits awarded pursuant 
 
         to Iowa Code section 85.30.
 
         That claimant pay the cost of this appeal including the cost of 
 
         transcription of the arbitration hearing.
 
         That defendants pay all other costs of this proceeding.
 
         That defendants file claim activity reports pursuant to Division 
 
         of Industrial Services Rule 343-3.1(2).
 
         Signed and filed this ____ day of July, 1990.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th Ste. 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309