Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY SCHINTGEN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855298
 
            ECONOMY FIRE AND CASUALTY     :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant 20 percent functional impairment to her left hand 
 
            which is causally connected to her injury on June 15, 1987.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration decision; claimant's exhibits 1 through 19, 21 
 
            and 23 through 26; and defendants' exhibits A through C and 
 
            E through H.  Both parties filed briefs on appeal.  
 
            Defendants filed a reply brief.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:
 
            
 
                 1.  Whether the deputy erred in finding that claimant 
 
            sustained a 20 percent functional impairment to her left 
 
            hand which was causally connected to her work injury on June 
 
            15, 1987.
 
            
 
                 2.  Whether the deputy erred in holding that defendants 
 
            delayed commencement of permanent partial disability 
 
            benefits without reasonable or probable cause or excuse.
 
            
 
                 3.  Whether the deputy erred in holding that Dr. 
 
            Walker's bill was reasonable for services rendered in 
 
            connection with his examination pursuant to Iowa Code 
 
            section 85.39.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed August 7, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence with the law in the 
 
            arbitration decision is adopted except as modified herein.  
 
            Additional analysis is necessary on the issues of nature and 
 
            extent of claimant's alleged disability, 86.13 penalty and 
 
            the reasonableness of Dr. John R. Walker's, independent 
 
            medical examination.
 
            
 
                 Claimant originally sought treatment from Bruce Harlan, 
 
            M.D., in Mason City.  Defendants requested that claimant be 
 
            treated by John Grant, M.D., in Ames, Iowa.  On July 13, 
 
            1987, claimant was examined by Dr. Grant who diagnosed mild 
 
            carpal tunnel syndrome.  Dr. Grant did not provide an 
 
            impairment rating but recommended claimant continue with 
 
            symptomatic care plus a job change.  Dr. Grant referred 
 
            claimant back to Dr. Harlan and/or Thomas F. DeBartolo, M.D.  
 
            Claimant's Exhibit 4, p. 3.  Claimant saw Dr. Harlan on July 
 
            16, 1987 and on August 13, 1987. Dr. Harlan referred 
 
            claimant to Dr. DeBartolo, an orthopedic surgeon. 
 
            
 
                 Section 85.27, Code of Iowa, (1977) requires an 
 
                 employer to provide the reasonable care necessary 
 
                 to treat the injury.  It follows then that when 
 
                 such a designated physician sees fit to refer a 
 
                 patient to another physician, he acts as the 
 
                 defendant-employer's agent, and permission for 
 
                 such referral from the defendants is not 
 
                 necessary.
 
            
 
            Kittrell v. Allen Memorial Hospital, 34 Biennial Report of 
 
            the Indus. Comm'r 164 (1979).
 
            
 
                 While Dr. DeBartolo was not explicitly an authorized 
 
            physician, according to agency precedent, Dr. Grant, 
 
            defendants' agent, authorized claimant's treatment under Dr. 
 
            DeBartolo's care.  Dr. DeBartolo, therefore became 
 
            claimant's authorized physician and provided claimant care 
 
            as an authorized physician.
 
            
 
                 In a letter dated, May 6, 1988, Dr. DeBartolo provided 
 
            the insurer with an impairment rating of 20 percent of the 
 
            left upper extremity.  Claimant's Exhibit 12, p.1.   On 
 
            June 14, 1988 Ronald Bergman, M.D., examined claimant and 
 
            provided a zero percent impairment as a result of claimant's 
 
            left carpal tunnel.  Claimant received an independent 
 
            medical examination from John R. Walker, M.D., who opined 
 
            that claimant suffered a 18 percent temporary, partial 
 
            impairment of the left upper extremity which could be 
 
            reduced with proper treatment.  Claimant was reevaluated by 
 
            Dr. Bergman on April 4, 1989.  Dr. Bergman opined that 
 
            claimant suffered a one percent permanent partial disability 
 
            of the left hand.  Greater weight is given to Dr. 
 
            DeBartolo's opinion.  Dr. DeBartolo was claimant's treating 
 
            physician and treating claimant from August 25, 1987 through 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            May 8, 1988.  
 
            
 
                 Defendants did not compensate claimant for her 
 
            permanent disability until May 15, 1989, the morning of the 
 
            hearing.  Pursuant to Iowa Code section 86.13 claimant may 
 
            be entitled to fifty percent of benefits which were 
 
            unreasonably delayed or denied.  Iowa Code section 86.13 
 
            provides that an unreasonable delay is one that "occurs 
 
            without reasonable cause or excuse."  Dr. DeBartolo, 
 
            claimant's treating physician and authorized medical 
 
            provider, provided a rating in a May 6, 1988 letter.  
 
            Defendants did not pay claimant any benefits, instead 
 
            claimant was referred to Dr. Bergman.  Defendants gave no 
 
            reason or excuse as to why they did not pay claimant any 
 
            benefits when they obtained Dr. DeBartolo's impairment 
 
            rating.  Defendants unreasonably waited to the eleventh 
 
            hour, the morning of the hearing, to pay claimant any 
 
            benefits.  
 
            
 
                 The second issue, defendants dispute the reasonableness 
 
            of medical expenses occurred in the examination conducted by 
 
            Dr. Walker.  Iowa Code section 85.39 requires that a 
 
            defendant employer pay the reasonable fees of an approved 
 
            independent medical examination.  Defendants indicated they 
 
            consented to claimant's independent medical examination 
 
            conducted by Dr. Walker to the extent that the cost of the 
 
            examination was reasonable and customary.  See 
 
            Application-Medical Examination filed July 15, 1988.  In 
 
            addition, defendants disputed the reasonableness of Dr. 
 
            Walker's fees in the hearing assignment order and the 
 
            prehearing order.  
 
            
 
                 Claimant testified that the independent medical 
 
            examination was conducted at Dr. Walker's office and the 
 
            examination took a full day to complete.  Claimant spent up 
 
            to an hour and one-half with Dr. Walker.  Claimant has the 
 
            burden of proving the reasonableness of medical expenses.  A 
 
            recent agency decision is relevant to this issue, it states:
 
               Claimant is not qualified to testify that charges for 
 
            medical services are reasonable.  Claimant has not put into 
 
            the record any evidence on this issue.  Although defendants 
 
            have not put into the record any evidence that the charges 
 
            are unreasonable, claimant bears the burden of proof.  
 
            Claimant was clearly on notice that the reasonableness of 
 
            the charges was disputed by defendants.  See prehearing 
 
            report and order approving same, item 8-(a).  At the 
 
            hearing, claimant failed to introduce any evidence to 
 
            establish that the fees were reasonable.  Defendants will 
 
            not be ordered to pay claimant's medical bills.
 
            
 
            Anderson v. High Rise Construction Specialists, Inc., Appeal 
 
            Decision, July 31, 1990.
 
            Anderson discussed the burden of proof for reasonableness of 
 
            medical services under Iowa Code section 85.27.  The instant 
 
            case deals with the reasonable fee for a medical examination 
 
            pursuant to Iowa Code section 85.39.  Under both Code 
 
            sections the employer is liable for reasonable charges.  
 
            Claimant bears the burden of proof.  Claimant was clearly on 
 
            notice that the reasonableness of Dr. Walker's charges was 
 
            disputed by defendants.  The application for medical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            examination which was filed by claimant was consented to by 
 
            defendants "but only to the extent of reasonable and 
 
            customary charges."  The prehearing report and order 
 
            approving same, item 8(e) indicated that the reasonableness 
 
            of Dr. Walker's charges was an issue.  Claimant failed to 
 
            introduce any evidence to establish that the disputed fees 
 
            were reasonable.  Claimant's total bill with Dr. Walker was 
 
            $528.00.  Defendants paid $175.00 of Dr. Walker's medical 
 
            bill and an outstanding balance of $353.00 remains.  
 
            Claimant failed to present evidence at the hearing that Dr. 
 
            Walker's fee was reasonable, therefore defendants will not 
 
            be ordered to pay the outstanding balance of $353.00 of Dr. 
 
            Walker's medical examination.
 
            Claimant, in her appeal brief, argues that the deputy erred 
 
            in finding the extent of claimant's disability to her left 
 
            hand.  Claimant appears to have acquiesced to the deputy's 
 
            finding that her injury was to the left hand and not the 
 
            left upper extremity.  However, claimant's point on the 
 
            extent of disability is correct.  Claimant's disability is 
 
            to her left hand and a functional impairment rating of the 
 
            upper extremity should be converted to the hand.  Claimant's 
 
            20 percent functional impairment to the left upper extremity 
 
            is converted to 22 percent functional impairment of the left 
 
            hand pursuant to the Guides to the Evaluation of Permanent 
 
            Impairment, American Medical Association, 3rd Edition.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant suffered a bilateral carpal tunnel 
 
            syndrome as a result of her work-related injury on June 15, 
 
            1987.
 
            
 
                 2.  Claimant has no impairment to her right hand or her 
 
            right upper extremity as a result of her work-related injury 
 
            on June 15, 1987.
 
            
 
                 3.  Claimant is right-handed.
 
            
 
                 4.  Claimant has a 20 percent functional impairment of 
 
            the left upper extremity as a result of her work-related 
 
            injury on June 15, 1987.  According to the Guides to the 
 
            Evaluation of Permanent Impairment, AMA, 3rd Ed., 20 percent 
 
            functional impairment of the left upper extremity converts 
 
            to 22 percent functional impairment of the left hand.
 
            
 
                 5.  Claimant reached maximum healing on March 6, 1988.
 
            
 
                 6.  Claimant's permanent partial disability benefits 
 
            shall commence March 7, 1988.
 
            
 
                 7.  Claimant incurred a healing period beginning June 
 
            15, 1987 up to and including September 10, 1987 and another 
 
            healing period beginning September 30, 1987 up to and 
 
            including March 6, 1988.
 
            
 
                 8.  Claimant was paid stipulated temporary partial 
 
            disability benefits for February 29, 1988 through March 6, 
 
            1988, in the amount of $31.87.
 
            
 
                 9.  Defendants' doctor recommended claimant see Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            DeBartolo, a specialist.  Defendants are responsible for Dr. 
 
            DeBartolo's $35.00 bill. 
 
            
 
                 10.  Claimant failed to present evidence that the 
 
            disputed fees generated by Dr. Walker's independent medical 
 
            examination were reasonable.
 
            
 
                 11.  Defendants delayed commencement of permanent 
 
            partial disability benefits without reasonable or probable 
 
            cause or excuse.
 
            
 
                                Conclusions of law
 
            
 
                 Claimant has a 22 percent functional impairment of her 
 
            left hand which is causally connected to her injury on June 
 
            15, 1987.
 
            
 
                 Defendants delayed commencement of permanent partial 
 
            disability benefits without reasonable or probable cause or 
 
            excuse and shall pay 10 percent penalty benefits under Iowa 
 
            Code section 86.13.
 
            
 
                 Claimant failed to meet her burden of proving that Dr. 
 
            Walker's fee for his independent medical examination was 
 
            reasonable pursuant to Iowa Code section 85.39.  Defendants 
 
            are not liable for the disputed portion of claimant's 
 
            medical expenses. 
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and modified in part.
 
            
 
                                      order
 
            
 
                 THEREFORE it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred forty-nine and 46/100 
 
            dollars ($149.46) for the period beginning June 15, 1987 up 
 
            to and including September 10, 1987 and beginning September 
 
            30, 1987 up to and including March 6, 1988.
 
            
 
                 That defendants shall pay unto to claimant forty-one 
 
            point eight (41.8) weeks of permanent partial disability 
 
            benefits at the rate of one hundred forty-nine and 46/100 
 
            dollars ($149.46) beginning March 7, 1988.
 
            
 
                 That defendants shall pay Dr. DeBartolo thirty-five 
 
            dollars ($35.00).
 
            
 
                 That defendants shall pay Iowa Code section 86.13 
 
            penalty benefits of ten percent (10%) on six thousand two 
 
            hundred forty-seven and 43/100 dollars ($6,247.43), which 
 
            amounts to a penalty of six hundred twenty-four and 74/100 
 
            dollars ($624.74).
 
            
 
                 That defendants shall pay the cost of this action 
 
            including the costs of transcribing the hearing
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency pursuant 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 N. Adams
 
            P.O. Box 679
 
            Mason City, Iowa 50401
 
            
 
            Mr. Michael A. McEnroe
 
            Attorney at Law
 
            3151 Brockway Road
 
            P.O. Box 810
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1800; 4000.2; 2500; 2700
 
            BJO
 
            Filed April 26, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY SCHINTGEN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855298
 
            ECONOMY FIRE AND CASUALTY     :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant's treating physician provided an impairment rating 
 
            of 20 percent of the left upper extremity.  Claimant 
 
            asserted that the deputy erred in finding the extent of 
 
            claimant's disability to her left hand.  Claimant acquiesced 
 
            to the deputy's finding that her injury was to the left hand 
 
            and not to the left upper extremity.  Claimant's disability 
 
            is to her left hand and a functional impairment to the left 
 
            upper extremity should be converted to the hand.  Claimant's 
 
            20 percent functional impairment to the left upper extremity 
 
            is converted to 22 percent functional impairment of the left 
 
            hand pursuant to the Guides to the Evaluation of Permanent 
 
            Impairment, American Medical Association, 3rd Edition.
 
            
 
            4000.2
 
            Defendants did not compensate claimant for her permanent 
 
            disability until May 15, 1989, the morning of the hearing.  
 
            Dr. DeBartolo, claimant's treating physician and authorized 
 
            medical provider, provided an impairment rating in a May 6, 
 
            1988 letter.  Defendants did not pay claimant any benefits, 
 
            instead claimant was referred to Dr. Bergman.  Defendant 
 
            gave no reason or excuse as to why they did not pay claimant 
 
            any benefits when they obtained Dr. DeBartolo's impairment 
 
            rating.  Defendants unreasonably waited to the eleventh 
 
            hour, the morning of the hearing, to pay claimant any 
 
            benefits.
 
            
 
            2500, 2700
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            Defendants disputed the reasonableness of medical expenses 
 
            incurred in the independent medical examination conducted by 
 
            Dr. Walker.  Iowa Code section 85.39 requires that a 
 
            defendant employer pay the reasonable fees of an approved 
 
            independent medical examination.  Claimant has the burden of 
 
            proving the reasonableness of medical expenses.  Claimant 
 
            testified that the independent medical examination was 
 
            conducted by Dr. Walker's office and the examination took a 
 
            full day to complete.  Claimant spent up to an hour and 
 
            one-half with Dr. Walker.
 
                 Claimant is not qualified to testify that charges for 
 
            medical services are reasonable.  Claimant has not put into 
 
            the record any evidence on this issue.  Although defendants 
 
            have not put into the record any evidence that the charges 
 
            are unreasonable, claimant bears the burden of proof.  
 
            Claimant was clearly on notice that the reasonableness of 
 
            the charges was disputed by defendants.  See prehearing 
 
            report and order approving same, item 8-(a).  At the 
 
            hearing, claimant failed to introduce any evidence to 
 
            establish that the fees were reasonable.  Defendants will 
 
            not be ordered to pay claimant's medical bills.
 
            
 
            Anderson v. High Rise Construction Specialists, Inc., Appeal 
 
            Decision, July 31, 1990.
 
            Anderson discussed the burden of proof for reasonable fee 
 
            for medical examination pursuant to Iowa Code section 85.27.  
 
            The instant case deals with the reasonable fee for a medical 
 
            examination pursuant to Iowa Code section 85.39.  Under both 
 
            Code sections, the employer is liable for reasonable 
 
            charges.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY SCHINTGEN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :     
 
            vs.                           :
 
                                          :      File No. 855298
 
            ECONOMY FIRE AND CASUALTY     :
 
            COMPANY,                      :        R U L I N G
 
                                          :       
 
                 Employer,                :            O N
 
                                          :
 
            and                           :     R E H E A R I N G     
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 An order granting reconsideration of an appeal decision 
 
            dated April 26, 1991 was granted.  All issues raised by both 
 
            claimant and defendants in their filings are now considered.  
 
            
 
                 Claimant makes a request for the payment of accrued 
 
            interest on all awarded benefits pursuant to Iowa Code 
 
            section 85.30.  The issue of interest was included by the 
 
            parties on the prehearing order.  The deputy industrial 
 
            commissioner presiding over the arbitration hearing, 
 
            however, failed to award section 85.30 interest in his 
 
            order.  Claimant did not assert the issue of interest on 
 
            appeal.  Claimant filed application seeking an order nunc 
 
            pro tunc following the filing of the appeal decision.  
 
            
 
                 Customarily, a party who fails to assert an issue on 
 
            appeal waives that issue for further consideration.  
 
            Claimant did not assert the issue of the deputy's failure to 
 
            award section 85.30 benefits on appeal.  Claimant has a 
 
            statutory right to section 85.30 interest on accrued 
 
            benefits.  "Waiver requires proof of voluntary and 
 
            intentional relinquishment of a known right."  In re 
 
            Guardianship of Collins, 327 N.W.2d 230, 234 (Iowa 1982).  
 
            On the prehearing order, the issue of interest was listed 
 
            among the other issues to be considered by the parties.  
 
            While the deputy failed to award claimant interest on 
 
            benefits, it appears that claimant did not intend to waive 
 
            the right to payment of interest.  
 
            
 
                 Therefore, all accrued unpaid weekly benefits shall be 
 
            paid in a lump sum together with interest from the date each 
 
            payment became due in accordance with section 85.30.
 
            
 
                 The next issue to be considered is the reasonableness 
 
            of charges for the independent medical examination.  
 
            Claimant asserts that the parties stipulated that the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            providers of the medical services would testify to the 
 
            reasonableness of the charges in section 8(a) of the 
 
            prehearing report and assert that it is defendants' burden 
 
            to introduce evidence that the charges are unreasonable.  
 
            
 
                 The attorneys and the deputy prior to the start of the 
 
            hearing discussed the issues to be considered during the 
 
            arbitration hearing:
 
            
 
                 THE COURT:  [B]ut as to Doctor Walker, we do not 
 
                 have a 85.27 issue but we have the issue of 
 
                 reasonableness.
 
            
 
                 MR KINSEY:  That's a 85.39 issue, as I understand.
 
            
 
                 THE COURT:  On Walker. okay.
 
            
 
                 ....
 
            
 
                 THE COURT:  It's my understanding Doctor Walker, 
 
                 the defendants indicated 85.39 application but 
 
                 apparently had the understanding that there would 
 
                 be reasonableness to the bill.
 
            
 
                 MR. McENROE:  Correct, Your Honor.
 
            
 
                 ....
 
            
 
                 MR. KINSEY:  And there's an interest [sic] as to 
 
                 interest and costs.  We had two issues on 85.27, 
 
                 the bill and the authorized continuing care.  The 
 
                 reasonableness of Doctor Walker's charges and then 
 
                 the first two that you mentioned, causal 
 
                 connection, nature and extent.  I think those are 
 
                 the issues.
 
            
 
            (Transcript pages 3-4, 5)
 
            
 
                 The issue of reasonableness of the independent medical 
 
            examination was asserted by defendants on the application 
 
            approving the section 85.39 examination, the prehearing 
 
            order, at the hearing itself and finally, on appeal.  When 
 
            all information is considered in this case it is clear that 
 
            the issue of the reasonableness of the costs of the 
 
            examination by Dr. Walker pursuant to Iowa Code section 
 
            85.39 was in dispute.  Claimant failed to present evidence 
 
            at the hearing that Dr. Walker's fee was reasonable, 
 
            therefore defendants will not be ordered to pay the 
 
            outstanding balance of $353.00.  The appeal decision on the 
 
            reasonableness of the cost of the independent medical 
 
            examination remains unchanged.
 
            
 
                 The appeal decision filed April 26, 1991 remains 
 
            unchanged except as modified by this decision on the issue 
 
            of interest.
 
            
 
                 THEREFORE, it is additionally ordered:
 
            
 
                 That all accrued unpaid weekly benefits shall be paid 
 
            by defendants in a lump sum together with interest from the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            date each payment became due in accordance with Iowa Code 
 
            section 85.30.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 N. Adams
 
            P.O. Box 679
 
            Mason City, Iowa 50401
 
            
 
            Mr. Michael A. McEnroe
 
            Attorney at Law
 
            3151 Brockway Road
 
            P.O. Box 810
 
            Waterloo, Iowa 50704
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOMMY L. WALLERSTEDT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File  No.  855409
 
         FARBER & OTTEMAN CORP.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                          D E C I S I 0 N
 
         and
 
         
 
         TRI-STATE INSURANCE COMPANY OF MINNESOTA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Tommy L. Wallerstedt against defendant employer Farber & Otteman 
 
         Corporation and defendant insurance carrier Tri-State Insurance 
 
         Company of Minnesota to recover benefits under the Iowa Workers' 
 
         Compensation Act for an alleged injury of August 9, 1985.  This 
 
         matter was scheduled to come on for hearing at 8:00 a.m. on March 
 
         15, 1989, at the county courthouse in Storm Lake, Iowa.
 
         
 
              The undersigned was present.  Neither claimant nor 
 
         defendants appeared.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  At the 
 
         time of hearing, an agreement for settlement was not on file with 
 
         the industrial commissioner, nor had a request for continuance 
 
         been granted.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
         
 
         
 
         WALLERSTEDT V. FARBER & OTTEMAN CORP.
 
         Page 2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              WHEREFORE, it is found:
 
         
 
              1. Neither claimant nor defendants appeared at the scheduled 
 
         time and place of hearing.
 
         
 
              2. The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3. At the time of the hearing, an agreement for settlement 
 
         was not on file with the industrial commissioner, nor had a 
 
         continuance been granted.
 
         
 
              4. Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant has failed to meet his burden of proof that he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              Claimant take nothing from this hearing.
 
         
 
              Costs are taxed to the claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lon R. Tullar
 
         Attorney at Law
 
         110 East State Street
 
         P.O. Box 144
 
         Sac City, Iowa  50583
 
         
 
         Mr. H. R. Grigg
 
         Attorney at Law
 
         120 South Hayes
 
         Primghar, Iowa 51245
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1400, 1402
 
                                         Filed March 21, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOMMY L. WALLERSTEDT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 855409 
 
         FARBER & OTTEMAN CORP.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I  0  N
 
         and
 
         
 
         TRI-STATE INSURANCE COMPANY OF MINNESOTA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1400, 1402
 
         
 
              Neither claimant nor counsel appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet his burden of 
 
         proof.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 23, 1991
 
                      BYRON K. ORTON
 
                      DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            CECIL J. CHRISTIAN, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 855413
 
            HIRSCHBACH MOTOR LINES, INC., :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            24, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CECIL J. CHRISTIAN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855413
 
            HIRSCHBACH MOTOR LINES, INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed October 26, 1987.  Claimant was involved in a 
 
            motor vehicle accident while driving a truck on November 10, 
 
            1985.  He alleges that injuries resulting from the accident 
 
            arose out of and in the course of employment with Hirschbach 
 
            Motor Lines, Inc., and now seeks benefits under the Iowa 
 
            Workers' Compensation Act.  Hirschbach Motor Lines denies 
 
            that claimant was an employee as opposed to an owner/ 
 
            operator independent contractor.  Aetna Casualty & Surety 
 
            Company is the workers' compensation insurance carrier for 
 
            Hirschbach Motor Lines.  Liberty Mutual Insurance Company 
 
            had a business/workers' compensation carrier relationship 
 
            with claimant and/or Owner/Operator's Association of 
 
            Hirschbach Motor Lines, Inc. (although there may actually be 
 
            no such entity) and entered into a compromise special case 
 
            settlement with claimant pursuant to Iowa Code section 
 
            85.35.  The settlement was approved by this agency on June 
 
            20, 1989.  Accordingly, Liberty Mutual Insurance Company is 
 
            no longer involved in this action.
 
            
 
                 Hearing on the arbitration petition was held in Council 
 
            Bluffs, Iowa, on August 29, 1989.  The record consists of 
 
            claimant's exhibits 1 through 40, 42 through 45 and the 
 
            testimony of claimant and George Hirschbach.  An objection 
 
            to exhibit 41 was sustained.  Ruling was reserved on 
 
            defendants' objections to proposed exhibit 46.  Because that 
 
            exhibit does not relate to the jurisdictional issue upon 
 
            which this case turns, the offer is moot.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted at the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            arbitration hearing, the parties have stipulated:  that 
 
            claimant sustained an injury on November 10, 1985; that the 
 
            injury caused temporary and permanent disability, the latter 
 
            being an industrial disability to the body as a whole; that 
 
            all requested medical benefits have been or will be paid by 
 
            defendants; that claimant was not deviating from a route and 
 
            was carrying cargo at the time of his injury.
 
            
 
                 Issues presented for resolution include:  whether an 
 
            employment relationship existed between claimant and 
 
            employer at the time of the injury; the extent of claimant's 
 
            entitlement to temporary and permanent disability benefits; 
 
            the rate of compensation; whether claimant failed to give 
 
            timely notice under Iowa Code section 85.23; whether 
 
            defendants are entitled to credit for payments made to 
 
            claimant by Liberty Mutual Insurance Company pursuant to the 
 
            compromise special case settlement noted above.
 
            
 
                 Defendants also dispute whether this agency has 
 
            jurisdiction of the subject matter of this action.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, born in 1957 and a high school graduate, at 
 
            all times relevant resided in the state of Arkansas.
 
            
 
                 Hirschbach Motor Lines ("Hirschbach") is an Iowa 
 
            corporation engaged as an irregular route common carrier by 
 
            motor vehicle transporting property for hire, both as a 
 
            common and a contract motor carrier.  Hirschbach's general 
 
            office headquarters is sited in South Sioux City, Nebraska.  
 
            Central dispatching is through that location.  Hirschbach 
 
            also owns a terminal in Sioux City, Iowa, where all shop, 
 
            maintenance and safety departments are headquartered, along 
 
            with two other relay stations or terminals in other states.  
 
            It owns approximately 300 trailers and 35 trucks.  
 
            Hirschbach employs drivers to operate its own trucks, and 
 
            also has employees engaged as mechanics, office workers, 
 
            dispatchers, salespeople and the like.  Hirschbach has 
 
            entered into a series of lease agreements with various 
 
            owner/operators for transportation of the remaining 
 
            trailers.
 
            
 
                 Over the years, roughly 20 different members of 
 
            claimant's extended family have entered into lease 
 
            agreements with Hirschbach as owner/operators.  In 1980, 
 
            claimant became a "second driver" for a cousin and 
 
            subsequently was employed by his father.  In 1984, 
 
            claimant's father gifted him with a 1977 Peterbilt tractor, 
 
            which claimant then traded in on a 1980 Freightliner 
 
            tractor.  So equipped, in early April of that year, claimant 
 
            placed a telephone call from the state of Missouri to 
 
            "Peggy" (identified as "Smith" in claimant's deposition) to 
 
            inquire as to entering into a similar lease agreement.  
 
            Peggy was apparently located in Sioux City, Iowa.  Claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            reported that she told him "you're hired" or "we'll put you 
 
            on."  Peggy apparently mailed license stickers good for 
 
            several states and decals carrying the company logo to 
 
            claimant in Missouri, following which he transported a 
 
            trailer north.  Claimant was not immediately paid for this 
 
            trip, but eventually was.
 
            
 
                 Claimant and Hirschbach subsequently entered into a 
 
            contract entitled "Contractor Operating Agreement" on April 
 
            28, 1984.  The contract specified that it would be effective 
 
            at 10:00 a.m. on that date.  It further specified that the 
 
            agreement would be governed by laws of the state of 
 
            Nebraska, both as to interpretation and performance.  This 
 
            agreement represented that claimant's status was that of 
 
            independent contractor and he was responsible for obtaining 
 
            his own workers' compensation coverage for his drivers, 
 
            presumably including himself if he elected to drive the 
 
            leased tractor.
 
            
 
                 Claimant believed himself to be an employee of 
 
            Hirschbach and did not believe that signing the lease 
 
            agreement changed that relationship.  However, he did not 
 
            read the contract before signing it.  Claimant signed the 
 
            operating agreement in the state of Missouri and mailed it 
 
            back to Hirschbach from that state.
 
            
 
                 Claimant operated in a number of states driving the 
 
            leased equipment.  He was dispatched from Hirschbach's 
 
            office in South Sioux City, Nebraska.  It appears that his 
 
            primary base of operations was around Rogersville, Missouri, 
 
            where the Christian family maintained its own terminal.
 
            
 
                 Claimant continued to operate under the April 28, 1984 
 
            agreement until he was injured in a motor vehicle accident 
 
            seven miles south of Clinton, Arkansas on November 10, 1985.
 
            
 
                                conclusions of law
 
            
 
                 Claimant was injured outside the territorial limits of 
 
            the state of Iowa.  Therefore, this agency's jurisdiction 
 
            must be found, if at all, under Iowa Code section 85.71.  
 
            That statute provides:
 
            
 
                 If an employee, while working outside the 
 
                 territorial limits of this state, suffers an 
 
                 injury on account of which the employee, or in the 
 
                 event of death, the employee's dependents, would 
 
                 have been entitled to the benefits provided by 
 
                 this chapter had such injury occurred within this 
 
                 state, such employee, or in the event of death 
 
                 resulting from such injury, the employee's 
 
                 dependents, shall be entitled to the benefits 
 
                 provided by this chapter, provided that at the 
 
                 time of such injury:
 
            
 
                    1.  The employment is principally localized in 
 
                 this state, that is, the employee's employer has a 
 
                 place of business in this or some other state and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 the employee regularly works in this state, or if 
 
                 the employee is domiciled in this state, or
 
            
 
                    2.  The employee is working under a contract of 
 
                 hire made in this state in employment not 
 
                 principally localized in any state, or
 
            
 
                    3.  The employee is working under a contract of 
 
                 hire made in this state in employment principally 
 
                 localized in another state, whose workers' 
 
                 compensation law is not applicable to the 
 
                 employee's employer, or
 
            
 
                    4.  The employee is working under a contract of 
 
                 hire made in this state for employment outside the 
 
                 United States.
 
            
 
                 For purposes of discussing subject matter jurisdiction, 
 
            it is assumed without deciding that the "Contractor 
 
            Operating Agreement" entered into by claimant and Hirschbach 
 
            created an employment relationship.  Assuming that claimant 
 
            worked under a contract of hire, it was not for employment 
 
            outside the United States.  Therefore, no jurisdiction 
 
            exists under section 85.71(4).
 
            
 
                 Subsections 85.71(2) and (3) confer jurisdiction, 
 
            respectively, if the employee is working under a contract of 
 
            hire "made in this state" in employment not principally 
 
            localized in any state or for employment principally 
 
            localized in another state whose workers' compensation law 
 
            is not applicable to the employer.  Therefore, inquiry must 
 
            be made as to whether a contract of hire was made in this 
 
            state.
 
            
 
                 Whatever the relationship between the parties between 
 
            the time of the telephone call to "Peggy" in early April and 
 
            the execution of the "Contractor Operating Agreement" on 
 
            April 28, 1984, it seems clear that the relationship was 
 
            defined by that agreement as of the time of the subject 
 
            injury over a year and one-half later.  This contract was 
 
            sealed when claimant signed and mailed the same in the state 
 
            of Missouri.  Execution is dated April 28, 1984 and the 
 
            contract, by its terms, was to remain in full force and 
 
            effect unless and until cancelled according to the terms of 
 
            the agreement.  In a different context, the Iowa Supreme 
 
            Court held in Int'l Transp. Ass'n v. Des Moines Morris Plan 
 
            Co., 215 Iowa 268, 270, 245 N.W. 244 (1932):
 
            
 
                 It is elementary that an offer communicated 
 
                 through the mail cannot constitute a contract 
 
                 until it is accepted.  But, when such offer is 
 
                 accepted and the acceptance thereof, or a letter 
 
                 containing the acceptance, is placed in the mail, 
 
                 properly stamped and directed to the one making 
 
                 the offer at his address, the contract as 
 
                 specified in the offer is then complete.  In that 
 
                 event, the contract is made where the offer is 
 
                 accepted.  Where an offer is made by mail and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 nothing is contained in the offer as to how the 
 
                 acceptance thereof shall be communicated, it will 
 
                 be implied that an acceptance shall be 
 
                 communicated by mail to the one making the offer.
 
            
 
                 A contract is generally considered to have been made in 
 
            the state where the offer is accepted.  The place where a 
 
            contract is formed is where the meeting of minds occurs or 
 
            where the final act necessary to form a binding contract 
 
            takes place.  Burch Mfg. Co. v. McGee, 231 Iowa 730, 2 
 
            N.W.2d 98 (1942); George H. Wentz, Inc. v. Sabasta, 337 
 
            N.W.2d 495 (Iowa 1983).  Based on the foregoing, it is held 
 
            that the "Contractor Operating Agreement" under which the 
 
            parties were operating at the time of claimant's injury was 
 
            made in the state of Missouri when mailed by claimant on or 
 
            about April 28, 1984.  Thus, claimant was not working under 
 
            a contract of hire made in Iowa and cannot rely upon 
 
            85.71(2) or (3) to confer jurisdiction on this agency to 
 
            consider his claim.
 
            
 
                 Section 85.71(1) confers jurisdiction if the employee 
 
            is domiciled in this state or the employment is principally 
 
            localized in this state, that is, the employer has a place 
 
            of business in this or some other state and the employee 
 
            regularly works in this state.  Claimant is not domiciled in 
 
            this state and was not at the time of his injury.  Even Iowa 
 
            domicile alone is insufficient to confer jurisdiction absent 
 
            some "meaningful connection between domicile and the 
 
            employer-employee relationship."  Iowa Beef Processors, Inc. 
 
            v. Miller, 312 N.W.2d 530 (Iowa 1981).  It is unnecessary to 
 
            identify the jurisdiction with the greatest contacts and 
 
            interests; the test is not whether Iowa's interest exceeds 
 
            or excludes those of other states, but whether it is by 
 
            itself sufficient.  George H. Wentz, Inc. v. Sabasta, 337 
 
            N.W.2d 495 (Iowa 1983).  Wentz noted that the purpose of 
 
            85.71 is to identify those employees who are entitled to 
 
            benefits under the Iowa Act despite occurrence of an 
 
            out-of-state injury; if an injury falls outside each of the 
 
            four subsections of 85.71, no Iowa recovery is permitted.  
 
            The primary focus is on the jurisdiction where the 
 
            employment is principally localized.  Although the 
 
            legislature contemplated that a claimant's employment may 
 
            not be localized in any state, Wentz held it similarly 
 
            contemplated a claimant's employment may be localized in but 
 
            one principal state.
 
            
 
                 No doubt claimant visited the Sioux City terminal from 
 
            time to time.  Similarly, he visited company terminals in 
 
            Minnesota and Missouri.  He was dispatched from Nebraska.  
 
            It appears that much of claimant's work was localized in 
 
            Missouri (where the family terminal was sited) and Arkansas 
 
            (where claimant resided).  It is held that claimant has 
 
            failed to establish that his relationship, whether it be 
 
            employment or otherwise, was principally located in the 
 
            state of Iowa.  Jurisdiction does not exist under Iowa Code 
 
            section 85.71(1).
 
            
 
                 Accordingly, this agency lacks subject matter 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            jurisdiction of the claim.  All other issues presented are 
 
            therefore moot.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that this agency lacks subject 
 
            matter jurisdiction to determine this claim.
 
            
 
                 IT IS FURTHER ORDERED that each party shall be 
 
            responsible for its own costs pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James F. Fenlon
 
            Mr. Thomas C. Hemphill
 
            Attorneys at Law
 
            10707 Pacific Street
 
            Suite 200, Westmark Plaza
 
            Omaha, Nebraska  68114
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2303
 
                                               Filed August 24, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CECIL J. CHRISTIAN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855413
 
            HIRSCHBACH MOTOR LINES, INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2303
 
            Arkansas owner/operator was injured in Arkansas motor 
 
            vehicle accident.  Assuming without deciding that he was an 
 
            employee, the "Contract of Hire" (a lease agreement under 
 
            which the parties operated) was executed and mailed in 
 
            Missouri and was not "made in this state."  Although 
 
            defendant had a terminal in Iowa, it also had two other out 
 
            of state terminals and most functions, including dispatch, 
 
            were sited in Nebraska.  Claimant was principally localized, 
 
            if anywhere, at a family-owned (many of his relatives were 
 
            owner/operators) terminal in Missouri.  Held:  This agency 
 
            lacks subject matter jurisdiction under 85.71.  Other issues 
 
            were moot.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN SPICER,
 
              
 
              Claimant                                File No. 855415
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         COLLIS MANUFACTURING,                        D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        APR 12 1990
 
         KEMPER INSURANCE CO.,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Alan Spicer, 
 
         claimant, against Collis Manufacturing, employer, and Kemper 
 
         Insurance Company, insurance carrier, defendants, for benefits as 
 
         the result of an alleged injury which occurred on or about March 
 
         3, 1987.  A hearing was held in Davenport, Iowa, on August 16, 
 
         1989, and the case was fully submitted at the close of the 
 
         hearing.  Claimant was represented by Nick J. Avgerinos. 
 
         Defendants were represented by Craig A. Levien.  After the 
 
         hearing and after the submission of his posthearing brief on 
 
         November 20, 1989, Nick J. Avgerinos withdrew as counsel for 
 
         claimant on March 5, 1990.  James P. Hoffman entered his 
 
         appearance for claimant on January 11, 1990.  The record consists 
 
         of the testimony of Alan Spicer, claimant; Mary Crider, benefits 
 
         clerk; Keith Shaw, assistant personnel manager; joint exhibits A, 
 
         C-I, K, L and O and defendants' exhibits 1 through 76.
 
         
 
              Claimant offered exhibits R and S, a medical report and a 
 
         medical bill.  Defendants objected to exhibits R and S because 
 
         they were not timely served, 15 days prior to hearing, pursuant 
 
         to paragraph six of the hearing assignment order.  Fifteen days 
 
         prior to hearing was August 1, 1989.  These documents were dated 
 
         August 11, 1989.  Claimant's attorney explained that he served 
 
         them as soon as he was able to produce them.  Defendants 
 
         objection was sustained and exhibits R and S were not received in 
 
         evidence (transcript pages 8-12).  Claimant requested to submit 
 
         exhibits R and S as an offer of proof and this request was 
 
         granted.  However, claimant's counsel did not leave exhibits R 
 
         and S with the deputy at the close of the hearing.  Therefore, 
 
         they are not physically present in the industrial commissioner's 
 
         file at this time.  The deputy ordered a transcript of the 
 
         hearing.  Claimant's attorney submitted an excellent posthearing 
 
         brief.  Defendants' attorney did not submit a posthearing brief.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the times off work for which claimant now seeks 
 
         temporary disability benefits are (1) August 20, 1987 to November 
 
         16, 1987; (2) April 20, 1988 to June 6, 1988; and (3) October 20, 
 
         1988 to June 12, 1989.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to the arm.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, if such benefits are awarded, is June 12, 1989.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $206.20 per week.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that their charges are reasonable and that the medical 
 
         services and supplies were for reasonable and necessary medical 
 
         treatment.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         a condition upon which claimant is now basing his claim is 
 
         admitted, but that the causal connection of this condition to a 
 
         work injury remains an issue to be decided by these proceedings.
 
         
 
              That defendants paid claimant income disability benefits and 
 
         medical benefits prior to hearing in an undetermined amount at 
 
         the time of hearing, but the parties did stipulate that 
 
         defendants are entitled to a credit for these payments.  The 
 
         parties agreed to work out the amount of the credit and submit 
 
         the figures in their posthearing briefs (.tr. pp. 6 & 99).  This 
 
         was not done, however, and defendants did not submit a 
 
         posthearing brief.
 
         
 
              That defendants make no claim for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on or about March 3, 
 
         1987 which arose out of and in the course of employment with 
 
         employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant's prior employments include managing a trailer park 
 
         and maintaining the property, working as a meat cutter in a beef 
 
         processing plant, loading trucks, working in a foundry as a 
 
         grinder and machine operator, operating a crane, operating a fork 
 
         lift, and working as a mechanic repairing automobiles for a 
 
         automobile sales company.
 
         
 
              Claimant started to work for employer on November 10, 1986 
 
         as a general laborer packing refrigerator shelves for shipping. 
 
         Claimant described one of his jobs as packing side plates.  Side 
 
         plates are made of steel bars and wire.  A stack of ten side 
 
         plates weighs approximately 15 pounds.  Claimant placed these 
 
         side plates in a box.  When the box was full he lifted the box 
 
         from the floor and put it through a banding machine.  He then 
 
         placed the box back on the floor or on a pallet.  A box of side 
 
         plates weighed approximately 50 or 60 pounds.  Claimant and a 
 
         coemployee would handle approximately 3,000 parts per hour.  
 
         Claimant would handle half of that number or 1,500 parts 
 
         (transcript pp. 24-30 and 84).
 
         
 
              Claimant testified that on or about March 3, 1987, he is not 
 
         positive of the exact date, he noticed a lot of pain in his right 
 
         wrist while he was picking up heavy parts., He had never 
 
         experienced pain in his right wrist or arm before in any of his 
 
         prior employments (tr. pp. 30 & 72).  When it started out it felt 
 
         like a sprained wrist (tr. p. 31).  Claimant admitted that he did 
 
         not write this problem in the first aid book when it first 
 
         occurred.  He explained that when he was hired he was shown the 
 
         first aid room, but the first aid book was never mentioned to him 
 
         (tr. p. 73).  Claimant testified that eventually he.reported the 
 
         pain in his right wrist, which is his dominant arm, to his 
 
         supervisor Clara Ward (tr. p. 32).  The following day first aid 
 
         gave him an elastic wrist band to wear on his right wrist.  He 
 
         continued wearing the band, but in approximately two months the 
 
         pain started to move up his arm and he noticed a knot on his 
 
         right wrist.  This was near the end of May or around the first of 
 
         June (tr. pp. 35 & 36).
 
         
 
              Clara Ward completed a supervisor's accident report on July 
 
         20, 1987.  She described the injury as follows, "Right wrist with 
 
         a small groth [sic] on it.  Strained muscles on forearm and 
 
         elbow."  Ward indicated that the accident date was four months 
 
         ago.  In answer to the question, "How did injury occur?" Ward 
 
         wrote, "Under normal packing procedure of putting parts into 
 
         pallet."  (claimant's ex. A).  Claimant demonstrated that the 
 
         pain began in the middle of his right wrist, progressed up his 
 
         arm toward his elbow, and was localized on his top forearm.  He 
 
         encountered the pain mostly when he had to lift (transcript page 
 
         36).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant saw Michael A. Meyer, M.D., the company physician. 
 
         on July 20, 1987, Dr. Meyer stated that claimant had a ganglion 
 
         on the right wrist and a muscle strain of the right forearm and 
 
         indicated that he was an employee of employer.
 
         
 
              On July 30, 1987, Dr. Meyer diagnosed right wrist myositis 
 
         and referred claimant to Jay P. Ginther, M.D., an orthopedic 
 
         surgeon (tr. p. 38; def. ex. 1).  Dr. Ginther saw claimant on 
 
         several occasions from August 10, 1987 to April 11, 1988.  He 
 
         prescribed a wrist splint, medications and a TENS unit (ex. 2). 
 
         Dr. Ginther took claimant off work from August 10, 1987 to 
 
         November 16, 1987 (def. ex. 2, p. 1; def. ex. 9, pp. 1 & 2; def. 
 
         ex. 11, p. 1).
 
         
 
              Dr. Ginther referred claimant to J. Hoffman, M.D., another 
 
         orthopedic surgeon on September 1, 1987.  Dr. Hoffman diagnosed 
 
         lateral epicondylitis and volar wrist ganglion.  He administered 
 
         a cortical steroid injection and claimant was given a band to 
 
         wear around his forearm.  This caused stiffness and swelling in 
 
         the elbow, wrist and hand and claimant reported to the emergency 
 
         room where he was seen by Dean Ehrecke, M.D.  Dr. Ehrecke thought 
 
         he was wearing the band too tight.  Claimant thought he had a 
 
         severe reaction to the injections.  Claimant chose not to see Dr. 
 
         Hoffman again in the future (def. exs. 3, 4, 7 and tr. pp. 
 
         41-44).
 
         
 
              On September 4, 1987, Dr. Ginther sent claimant to see 
 
         Oliver M. Ancheta, M.D.  Dr. Ancheta performed electromyographic 
 
         studies of the right upper extremity which were normal.  He said 
 
         he did not detect any evidence of entrapment neuropathy on 
 
         clinical or electrophysiologic studies (exs. 5 & 6; tr. pp. 43 & 
 
         44).
 
         
 
              Dr. Ginther said that he considered several different 
 
         diagnoses such as epicondylitis, stress fracture, generalized 
 
         inflammatory disease, nerve entrapment, tennis elbow, but 
 
         concluded on October 23, 1987, "In sum, I do not have a 
 
         definitive diagnosis of this patient's condition, and that is the 
 
         reason for the referral to Iowa City, to see if they can sort 
 
         things out." (ex. 9; see ex. 8).
 
         
 
              Claimant then saw Dr. Mumford and Dr. Steyers (full names 
 
         unknown) at the University of Iowa Hospitals and Clinics.  In 
 
         taking the history they reported, "The symptoms were aggravated 
 
         with work activities which has included lifting of heavy 
 
         refrigerator components.  The symptoms gradually progressed to a 
 
         point where he was unable to proceed with his heavy duties and he 
 
         has been essentially off work for the past few months."  (ex. 
 
         10). Radiographs revealed no bony or soft tissue abnormalities.  
 
         These doctors diagnosed right wrist pain with possible early 
 
         degenerative arthritis of the radioscapho and scaphotrapezio 
 
         joints.  These doctors added these remarks, "We do feel that the 
 
         patient's symptoms are compatible with his clinical history and 
 
         most likely are related to his manual type of labor."  (ex. 10).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Ginther then sent claimant to see Dr. Gerdes on January 
 
         6, 1988 (ex. 11).  Dr. Gerdes saw claimant on February 9, 1988.  
 
         He related that the patient states that this is a work-related 
 
         injury which occurred last March.  Claimant's right hand is 
 
         dominant.  Dr. Gerdes concluded that claimant had recurrent 
 
         myofascitis.  He speculated on whether claimant had a "bit of 
 
         compensation problem." (ex. 13; tr. p. 46).
 
         
 
              Dr. Ginther then sent claimant to see Michael Finan, M.D., 
 
         on February 15, 1988 (tr. p. 48; ex. 11, p. 1).  Dr. Finan saw 
 
         claimant on March 16, 1988.  He very carefully traced claimant's 
 
         course of treatment and performed a very thorough physical 
 
         examination.  Dr. Finan concluded, "Elbow, forearm and 
 
         intermittent right wrist discomfort.  At this time I find no 
 
         organic reason for his discomfort."  (ex. 14, p. 2).
 
         
 
              Claimant was then hospitalized and treated for an unrelated 
 
         heart condition from March 20, 1988 until March 26, 1988 (exs. 
 
         15-25).
 
         
 
              Claimant's personal physician, Anis Ahmad, M.D., referred 
 
         claimant to Jay R. Lee, M.D., for his wrist (tr. p. 49).  Dr. Lee 
 
         saw claimant on April 18, 1988 and diagnosed lateral 
 
         epicondylitis of the right elbow and ganglion cyst of the right 
 
         wrist.  Dr. Lee excised a gangrenous cyst of the right wrist on 
 
         April 20, 1988 (exs. 26-40).  Claimant was off work from the time 
 
         he entered the hospital on April 20, 1988 (exs. 27 & 39) until he 
 
         was released to return to work on June 6, 1988 (ex. 40).  On July 
 
         26, 1988, Dr. Lee reported, "As you know, he injured his right 
 
         arm at work, in March, 1987.  He sustained lateral epicondylitis 
 
         of right elbow and ganglion cyst of right wrist."  (ex. 46).  Dr. 
 
         Lee said the final diagnosis was right tennis elbow with 
 
         persisted pain and discomfort.  The second diagnosis was ganglion 
 
         cyst, treated by surgical removal.  Dr. Lee concluded by saying:
 
         
 
              The ganglion cyst has been excised and the wrist has healed 
 
              without any functional deficit except a 2" disfiguring scar 
 
              over the mass, cyst area.  However, his right elbow is still 
 
              painful and tender and he complains of pain interfering with 
 
              his activities and work.  For this reason, I feel he has 
 
              about 5% of functional deficit to his right upper 
 
              extremity."
 
         
 
         (ex. 46).
 
         
 
              Dr. Gerdes referred claimant to T.L. Von Gillern, M.D., who 
 
         saw claimant on September 27, 1988.
 
         
 
              Dr. Von Gillern stated, "He has had persistent right lateral 
 
         epicondylar pain following an on the job injury."  (ex. 47, p. 
 
         1). Dr. Von Gillern ordered an EMG from V. Verma, M.D., which 
 
         resulted in a normal EMG/NCV examination of the right upper 
 
         extremity (exs. 48 & 49).  This doctor saw claimant on October 
 
         20, 1988; November 15, 1988; December 5, 1988; January 3, 1989; 
 
         February 1, 1989; for both medial and lateral epicondylar point 
 
         tenderness and pain. medications and long-arm casts were tried 
 
         without success (ex. 47, pp. 1 & 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Von Gillern signed attending physician's statements on 
 
         November 3, 1988; December 8, 1988; January 18, 1989; and 
 
         February 20, 1989 which answered the question, "Is condition due 
 
         to injury or sickness arising out of patient's employment?" by 
 
         marking the answer labeled "unknown."  (exs. 51, 52, 54 & 55).  
 
         On February 23, 1989, Dr. Von Gillern admitted claimant to the 
 
         hospital for chronic medial and lateral epicondylitis, right 
 
         elbow and performed a right medial flexor origin and right 
 
         lateral extensor origin release and repair with partial lateral 
 
         epicondylectomy (exs. 56-68).  In the surgical report, Dr. Von 
 
         Gillern stated, "The flexor origin was then released and was then 
 
         explored.  There did appear to be an area of chronic tearing with 
 
         scar tissue which was excised."  He also stated, "The extensor 
 
         origin was released from the lateral epicondyle and this was then 
 
         explored.  There were small areas of chronic scarring which were 
 
         excised and the hemostatis was obtained." (ex. 68, p. 1).  
 
         Claimant was off work from October 20, 1988 (ex. 47, p. 1) until 
 
         he was released to return to work by Dr. Von Gillern on May 12, 
 
         1989 (ex. 70, p. 2). There was no light work available and 
 
         claimant actively returned to work.on June 12, 1989 (tr. p. 55; 
 
         ex. 70).
 
         
 
              Claimant testified that when he returned to work, he noticed 
 
         that his arm wasn't any better.  His hand and arm wake him up in 
 
         the middle of the night.  The soreness is in his forearm like a 
 
         big muscle strain.  The pain is related to how much he has to 
 
         lift.  Lighter parts do not bother him as bad.  Heavier parts 
 
         cause a lot of pain.  The pain is from the forearm to the elbow. 
 
         His thumb now goes numb every now and then.  He continues to take 
 
         medications prescribed by Dr. Von Gillern (tr. pp. 57-59).
 
         
 
              Claimant testified that he received 26 weeks of income 
 
         disability benefits from the employee nonoccupational group 
 
         health plan.  The gross amount was $140, but the net amount, 
 
         after taxes, was $101 (tr. pp. 59 & 60).
 
         
 
              Claimant asserted a claim for the following medical 
 
         expenses:
 
         
 
          EXHIBIT        PROVIDER                         AMOUNT
 
         
 
            C    ROCK VALLEY PHYSICAL THERAPY          $  770.50
 
            D    BLUFF MEDICAL CENTER                     885.47
 
            E    MOLINE ORTHOPEDIC ASSOCIATES           1,522.15
 
            F    ANESTHESIOLOGY- DR. MILLARE              288.00
 
            G    R.L. KREITER, M.D.                       167.00
 
            H    J.R. LEE, M.D.                           247.90
 
            I    WILLIAM MEYER, M.D.                       36.00
 
            K    ST. LUKE'S HOSPITAL                       47.82
 
            L    UNIVERSITY OF IOWA                       122.25
 
            O    JANE LAMB HEALTH CENTER                  129.20
 
         
 
                                       TOTAL           $4,216.29
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Mary Crider, benefits clerk for employer, attempted to 
 
         testify on how much of these bills had been paid, but her 
 
         testimony was not definitive or clear (tr. pp, 89-90).
 
         
 
              Keith Shaw, assistant personnel manager, testified that 
 
         employer manufactures wire shelving and side plates used in 
 
         refrigerators.  He checked the first aid book and found no 
 
         entries for an injury to claimant's right arm.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that.he received an injury on March 3, 1987, which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 3, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on March 3, 1987, 
 
         which arose out of and in the course of employment with employer. 
 
         Claimant admitted that March 3, 1987, may not be an exact date, 
 
         it was simply his best recollection of when the injury occurred.  
 
         Even though some of the doctors recorded that the symptoms first 
 
         arose in the summer of 1987, a number of the other doctors 
 
         recorded that the symptoms began in March of 1987.  Claimant 
 
         first actively sought treatment in May and June of 1987 and that 
 
         may explain why some of the doctors begin their history with 
 
         those dates. Claimant's testimony on the injury date was 
 
         credible.  It was not controverted by any direct evidence.  
 
         Claimant's testimony on the date of injury is accepted as 
 
         correct.
 
         
 
              Claimant had not sustained any prior injuries in any of his 
 
         former employments or otherwise.
 
         
 
              Claimant described that his work of packing refrigerator 
 
         shelving and side panels involved the repetitive use of his hand 
 
         and arms.  Claimant reported the injury to Clara Ward in March of 
 
         1987 (tr. p. 32).  Ward did not record it until July 20, 1987 
 
         (ex. A).  First Aid gave claimant an elastic wrist band the next 
 
         day (tr. p. 35).  When claimant reported a work-related injury, 
 
         employer sent claimant to the company doctor, Dr. Meyer, who 
 
         referred claimant to Dr. Ginther.  Dr. Meyer's two office notes 
 
         are not helpful in proving an injury arising out of and in the 
 
         course of employment.  Dr. Ginther was not able to make a 
 
         diagnosis or determine what was causing the problem.  Dr. Hoffman 
 
         diagnosed lateral epicondylitis and volar wrist ganglion, but 
 
         provides no evidence on whether these conditions were work 
 
         related or not.   Finally, Dr. Ginther referred claimant to the 
 
         University of Iowa with this comment, "In sum, I do not have a 
 
         definitive diagnosis of this patient's condition, and that is the 
 
         reason for the referral to Iowa City, to see if they can sort 
 
         things out." (ex. 9, p. 2).
 
         
 
              Drs. Mumford and Steyers, at the University, stated:
 
         
 
              The symptoms were aggravated with work activities which has 
 
              included lifting of heavy refrigerator components.  The 
 
              symptoms gradually progressed to a point where he was unable 
 
              to proceed with his heavy duties and he has been essentially 
 
              off work for the past few months.  Since he has been off 
 
              work, he does feel that his symptoms have improved."
 
         
 
         (ex. 10).
 
         
 
              These physicians diagnosed right wrist pain with possible 
 
         early degenerative arthritis of the radioscapho and 
 
         scaphotrapezio joints.  These physicians further determined that 
 
         claimant's condition was work related.  They said, "We do feel 
 
         that the patient's symptoms are compatible with his clinical 
 
         history and most likely are related to his manual type of labor." 
 
         (ex. 10).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Gerdes diagnosed recurrent myofascitis, but did not give 
 
         any evidence on whether the condition was work related or not.  
 
         He speculated about a compensation problem, but his comments are 
 
         determined to be pure speculation (ex. 13, p. 1).
 
         
 
              Dr. Finan diagnosed elbow, forearm and intermittent right 
 
         wrist discomfort without organic reason for the discomfort.  He 
 
         suggested the possibility of some functional component to his 
 
         pain.  Dr. Finan's report does not give any evidence, either 
 
         positively or negatively, as to whether the injury is work 
 
         related (ex. 14).
 
         
 
              Dr. Lee clearly stated, "This patient is a 33 year old male 
 
         who sustained injury at work in March of 1987."  Dr. Lee 
 
         diagnosed lateral epicondylitis of the right elbow and a ganglion 
 
         cyst of the right wrist (ex. 27).  Dr. Lee further reported, "As 
 
         you know, he injured his right arm at work, in March, 1987.  He 
 
         sustained lateral epicondylitis of right elbow and ganglion cyst 
 
         of right wrist." (ex. 46).  Dr. Lee further evaluated that 
 
         claimant sustained a 5 percent functional deficit to this right 
 
         upper extremity (ex. 46).
 
         
 
              Dr. Von Gillern said, "He has had persistent right lateral 
 
         epicondylar pain following an on the job injury."  The attending 
 
         physician's forms made out by Dr. Von Gillern which checked a 
 
         block marked "unknown" as to whether the condition was due to the 
 
         patient's employment may or may not have been completed by Dr. 
 
         Von Gillern.  Frequently, if not predominantly, office assistants 
 
         and administrative personnel complete blank forms and the doctor 
 
         merely signs them (exs. 51, 52, 53 & 55).  Dr. Von Gillern's 
 
         office note, which he personally dictated, which stated that 
 
         claimant had a job injury is considered to take precedence over 
 
         the blank forms which may well have been completed by office 
 
         personnel rather than Dr. Von Gillern himself (ex. 47).  In 
 
         conclusion, the only physicians who gave an opinion on whether 
 
         claimant sustained an injury arising out of his employment, Drs. 
 
         Mumford and Steyers, Dr. Lee and Dr. Von Gillern said that 
 
         claimant did receive a work injury.  All of the other physicians, 
 
         Dr. Meyer, Dr. Ginther, Dr. Hoffman, Dr. Gerdes and Dr. Finan, 
 
         were either unable to make a diagnosis, or did not give any 
 
         statement on the issue of causal connection, or both. 
 
         Consequently, claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he received an injury on March 
 
         3, 1987, which arose out of and in the course of employment with 
 
         employer.
 
         
 
              As shown in the summary of the evidence, claimant was off 
 
         work for three periods of time (1) August 20, 1987 to November 
 
         16, 1987; (2) April 20, 1988 to June 6, 1988; and (3) October 20, 
 
         1988 to June 12, 1989.  Dr. Ginther took claimant off work and 
 
         returned him to work for the first period of time.  Dr. Lee took 
 
         claimant off work and returned him to work for the second period 
 
         of time. Dr. Von Gillern took claimant off work and returned him 
 
         to work for the third period of time.  The parties also 
 
         stipulated to these times off work.  It is determined that 
 
         claimant's work injury was the cause of these three periods of 
 
         temporary disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Lee determined that claimant sustained a 5 percent 
 
         permanent impairment to his right upper extremity (ex. 46). 
 
         Claimant's testimony and all of the physicians reports limit the 
 
         injury to the right arm.  The total entitlement for an arm injury 
 
         is 250 weeks.  Iowa Code section 85.34(2)(m).  Five percent of 
 
         250 weeks provides an entitlement of 12.5 weeks of workers' 
 
         compensation permanent partial disability benefits.
 
         
 
              Claimant is entitled to his medical expenses, itemized above 
 
         in the amount of $4,216.29.  From the evidence submitted, 
 
         however, it is not possible to determine with certainty the 
 
         correct amount of credit to which defendants are entitled for 
 
         payments made pursuant to an employee nonoccupational group 
 
         health plan.  The parties did stipulate that the fees charged 
 
         were reasonable and that the treatment was for reasonable and 
 
         necessary medical treatment for this injury.  The attorneys 
 
         further stipulated when the hearing began that defendants were 
 
         entitled for a credit for sick pay and medical expenses paid to 
 
         claimant pursuant to an employee nonoccupational group health 
 
         plan prior to hearing.  The attorneys agreed, "...they will be 
 
         able to work out the amounts after they've had an opportunity to 
 
         do the proper bookkeeping to determine what those amounts should 
 
         be." (tr. p. 6).  Consequently, it is determined that claimant is 
 
         entitled to all of his medical expenses.  Likewise, defendants 
 
         are entitled to a credit for the benefits which they have paid 
 
         under their employee nonoccupational group health plan either as 
 
         sick pay or as medical benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant began working for employer on November 10, 
 
         1986 and continued to be employed there at the time of the 
 
         hearing on August 16, 1989.
 
         
 
              That claimant was employed packing refrigerator shelves and 
 
         side panels into boxes, banding the boxes and putting the boxes 
 
         on pallets.
 
         
 
              That claimant sustained an injury to his right wrist and arm 
 
         which first manifested symptoms on March 3, 1987.
 
         
 
              That claimant was off work due to this injury for three 
 
         periods of time (1) August 20, 1987 to November 16, 1987 (12.571 
 
         weeks); (2) April 20, 1988 to June 6, 1988 (6.714 weeks); and (3) 
 
         October 20, 1988 to June 12, 1989 (33.571 weeks); a total of 
 
         52.856 weeks.
 
         
 
              That Dr. Lee stated that claimant sustained a 5 percent 
 
         permanent impairment to the right upper extremity.
 
         
 
              That claimant testified that he still encounters pain in his 
 
         right wrist and right arm which makes it difficult for him to 
 
         perform his job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant incurred medical expenses in the total amount 
 
         of $4,216.29.
 
         
 
              That defendants have paid portions of the medical expenses 
 
         and have also paid claimant sick pay benefits under the employee 
 
         nonoccupational group health plan.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant sustained an injury on March 3, 1987, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability for 
 
         three periods of time shown above.
 
         
 
              That claimant is entitled to 52.856 weeks of temporary 
 
         disability benefits for these periods of time.
 
         
 
              That the injury was the cause of a 5 percent permanent 
 
         impairment to the right arm.
 
         
 
              That claimant is entitled to 12 1/2 weeks of permanent 
 
         disability benefits for the injury to the right arm.
 
         
 
              That claimant is entitled to full payment of all of his 
 
         medical expenses for this injury and in particular the $4,216.29 
 
         itemized above.
 
         
 
              That defendants are entitled to a credit for the medical 
 
         expenses paid prior to hearing and also the sick pay benefits 
 
         paid to claimant prior to hearing.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant healing period benefits as 
 
         follows:  (1) twelve point five seven one (12.571) weeks for the 
 
         period August 20, 1987 to November 16, 1987; (2) six point seven 
 
         one four (6.714) weeks for the period from April 20, 1988 to June 
 
         6, 1988; (3) thirty-three point five seven one (33.571) weeks for 
 
         the period from October 20, 1988 to June 12, 1989; a total of 
 
         fifty-two point eight five six (52.856) weeks at the rate of two 
 
         hundred six and 20/100 dollars ($206.20) per week in the total 
 
         amount of ten thousand eight hundred ninety-eight and 91/100 
 
         dollars ($10,898.91) for the periods shown above.
 
         
 
              That defendants pay to claimant twelve point five (12.5) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred six and 20/100 dollars ($206.20) per week in the total 
 
         amount of two thousand five hundred seventy-seven and 50/100 
 
         dollars ($2,577.50) commencing on June 12, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants are entitled to a credit for sick pay 
 
         benefits paid to claimant prior to hearing.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services all of the medical expenses incurred for this injury, 
 
         including the $4,216.29 itemized above.
 
         
 
              That defendants are entitled to a credit for medical 
 
         expenses paid to claimant or the provider of medical services 
 
         prior to hearing.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 12th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1066
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. Craig Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport, Iowa  52801-1550
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 51402.40; 51402.60; 
 
                                       51802; 51803; 51501; 51701; 51703
 
                                       Filed April 12, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN SPICER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 855415
 
         COLLIS MANUFACTURING,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         KEMPER INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         
 
              Claimant did prove an injury arising out of and in the 
 
         course of employment of a repetitive nature from packing 
 
         refrigerator shelves in boxes as well as causal connection of the 
 
         injury to temporary and permanent disability.
 
         
 
         51802
 
         
 
              Claimant awarded 12.5 weeks of permanent partial disability 
 
         benefits pursuant to the rating of one of his surgeons.  The 
 
         other surgeon may also have given an additional rating, but some 
 
         evidence from the other surgeon was excluded from evidence 
 
         because it was not timely generated or served.
 
         
 
         51501
 
         
 
              Claimant awarded medical benefits of $4,216.29.
 
         
 
         51701; 51703
 
         
 
              Defendants were entitled to a credit for group plan benefits 
 
         paid to claimant prior to hearing as agreed to by the parties.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROY ALLEN KRAMER
 
                      :
 
                 Claimant, :      File No. 855418
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN MORRELL & COMPANY,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            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 December 13, 1990 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 September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St., Box 455
 
            Spirit Lake, Iowa 51360
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            P.O. Box 7038
 
            Spencer, Iowa 51301
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 12, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROY ALLEN KRAMER
 
                      :
 
                 Claimant, :      File No. 855418
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN MORRELL & COMPANY,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            13, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROY ALLEN KRAMER,             :
 
                                          :
 
                 Claimant,                :         File No. 855418
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN MORRELL & COMPANY,       :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed October 27, 1987.  Claimant allegedly 
 
            sustained a work injury to his back, neck, muscular, 
 
            skeletal and nervous systems of the body on October 3, 1979, 
 
            when he was struck by a falling hog carcass.  He now seeks 
 
            benefits under the Iowa Workers' Compensation Act from his 
 
            self-insured employer, John Morrell & Company.
 
            
 
                 Hearing on the arbitration petition was had in Storm 
 
            Lake, Iowa, on April 12, 1990.  The record consists of the 
 
            testimony of claimant and Dennis Howrey and joint exhibits 1 
 
            through 5.  In addition, official notice was taken of 
 
            industrial commissioner files number 801735 and 801734, 
 
            which involved the identical parties.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and John Morrell & Company at the time of the 
 
            alleged injury; that claimant is not entitled to temporary 
 
            total or healing period benefits; that if claimant has 
 
            sustained compensable permanent disability, it is an 
 
            industrial disability to the body as a whole; that medical 
 
            benefits are not applicable; that defendant is not entitled 
 
            to credit for benefits paid prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment with John Morrell on October 3, 
 
            1979; whether the injury caused permanent disability and the 
 
            extent thereof; the appropriate rate of weekly compensation; 
 
            whether defendant has a valid notice defense under Iowa Code 
 
            section 85.23; whether defendant has a valid limitations 
 
            defense under Iowa Code section 85.26; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Defendant is a meat packing business.  On October 3, 
 
            1979, claimant was employed on the kill floor of a pork 
 
            plant operated by Morrell.  On that date, claimant was 
 
            working on a line where hog carcasses were transported 
 
            overhead on hooks.  One hog carcass broke loose and fell on 
 
            claimant, knocking him to the floor.  This incident was 
 
            observed by at least two supervisory employees (foremen 
 
            Haukoos and Woodyard) and one of them, probably Woodyard, 
 
            pulled the hog carcass off claimant and helped him up.  He 
 
            was sent to the company nurse and referred to a chiropractic 
 
            physician, Dr. Moreau.  Company records ("Injury Record 
 
            Card") for October 3, 1979 duly reflect that claimant was 
 
            "hit by hog in neck" and referred to Dr. Moreau.
 
            
 
                 Although claimant testified in his deposition of August 
 
            30, 1988, that he then missed one or two weeks of work, he 
 
            actually did not.  Attendance records show that he was sick 
 
            on October 6, gone once with permission the next week, sick 
 
            one day the next week, and absent with explanation on one 
 
            occasion in the week following.
 
            
 
                 Dr. Moreau treated claimant with a brace and returned 
 
            him to work, possibly light duty at first.  However, 
 
            claimant continued having intermittent problems.  Claimant 
 
            gave history to R. S. Hranac, M.D., H. K. Ivy, M.D., S. N. 
 
            Bell, M.D., J. D. Bartleson, M.D., and Lowell F. A. 
 
            Peterson, M.D., that his lumbar spine problems began in 1979 
 
            when he was hit by a hog carcass and have continued since.  
 
            Dr. Hranac's chart notes of August 4, 1981 indicated that 
 
            claimant had had back trouble for two years since a hog hit 
 
            him in the back and that he had been seeing Dr. Moreau about 
 
            every other week since.  Dr. Ivy wrote on May 24, 1985 that 
 
            claimant's problem began when he was hit by the hog carcass 
 
            in 1979 and that his distress had continued to the present 
 
            time.  On May 24, 1985, claimant gave Dr. Bell a history of 
 
            chronic low back pain since the hog carcass injury in 1979.  
 
            On May 29, 1985, Dr. Bartleson wrote that pain settled in 
 
            claimant's low back following the hog carcass incident and 
 
            that he had suffered fluctuating low back pain ever since.
 
            
 
                 Lowell F. A. Peterson, M.D., a board-certified 
 
            orthopaedic surgeon, testified by deposition on March 17, 
 
            1986.  On a diagnosis of degenerative arthritic changes in 
 
            the lumbosacral facet joints resulting in mechanical pain on 
 
            the basis of facet arthritis, he assigned claimant a ten 
 
            percent body as a whole impairment which he ascribed to the 
 
            1979 work injury.  Claimant, who appeared to this observer 
 
            to be of at least average intelligence (he is a high school 
 
            graduate), asserts that this deposition was when he 
 
            "discovered" the 1979 injury and its potential as a 
 
            compensable work injury.
 
            
 
                 The 1979 work injury was discussed by Deputy Industrial 
 
            Commissioner Walter R. McManus, Jr., in cases 801734 and 
 
            801735.  Claimant subsequently alleged a 1985 work injury 
 
            which was reviewed at that time.  In a decision filed July 
 
            21, 1987, Deputy McManus denied benefits based on the 
 
            alleged 1985 injury.  Claimant filed this petition three 
 
            months later.
 
            conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.23 provides as follows:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Where the employer or the employer's representatives 
 
            have actual knowledge of the occurrence of an injury within 
 
            ninety days from the date of that injury, no notice is 
 
            required.  Defendant's records establish conclusively that 
 
            Morrell had notice of the injury on the day it occurred and 
 
            that claimant was referred to a company physician.  The 
 
            incident was witnessed by two supervisory personnel, who are 
 
            "representatives."  Knipe v. Skelgas Co., 229 Iowa 740, 294 
 
            N.W. 880 (1941).  An employer has actual knowledge of the 
 
            occurrence of an injury when a representative has 
 
            information that the employee suffered an injury and that 
 
            the injury might be work related.  Robinson v. Dep't of 
 
            Transp., 296 N.W.2d 809 (Iowa 1980).  Defendant's notice 
 
            defense under Iowa Code section 85.23 must fail.
 
            
 
                 Iowa Code section 85.26(1) provides:
 
            
 
                 An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 As this action was filed on October 27, 1987, it 
 
            clearly is beyond two years from the date of the occurrence 
 
            of the injury for which benefits are claimed.  Since weekly 
 
            benefits were not paid, the three-year statute does not 
 
            apply.
 
            
 
                 However, Iowa has adopted the "Discovery Rule" with 
 
            respect to the two-year statute of limitations.  Orr v. 
 
            Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980).  The 
 
            two-year period in which to file a claim does not start 
 
            running until the worker knows or, in the exercise of 
 
            reasonable diligence, should know that the injury is both 
 
            serious and work connected.  Id.  In determining when the 
 
            worker "should know," a reasonable person standard is to be 
 
            employed, taking into account the intelligence and education 
 
            of the worker.  Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
            (Iowa 1980).
 
            
 
                 In this case, a claimant of apparently average or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            greater intelligence and the holder of a high school diploma 
 
            suffered an injury which required the prescription of a back 
 
            brace and which caused him intermittent pain from the date 
 
            of injury forward.  The pain was severe enough to inspire 
 
            claimant to visit a chiropractor every other week for two 
 
            years.  It is held that, in the exercise of reasonable 
 
            diligence, claimant should have known no later than Dr. 
 
            Hranac's note of August 4, 1981 that his injury was both 
 
            serious and work connected.  It is obvious the injury was 
 
            work connected, as one can scarcely escape noticing being 
 
            knocked down by a several hundred pound hog carcass.  The 
 
            chronic nature of claimant's back pain beginning from that 
 
            date and continuing for years afterwards should have alerted 
 
            him to the seriousness of the injury.  Therefore, defendant 
 
            has met its burden of proof in establishing that this claim 
 
            is barred by the statute of limitations set forth in Iowa 
 
            Code section 85.26.  It seems a reasonable inference that 
 
            claimant's petition in this case was inspired not by his 
 
            "discovery" of the injury at the time of Dr. Peterson's 
 
            deposition some 17 months before the petition was filed, but 
 
            rather, by dissatisfaction with the arbitration decision 
 
            concerning his alleged 1985 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P.O. Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            316 11th Street SW Plaza
 
            P.O. Box 7038
 
            Spencer, Iowa  51301
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2401; 2402
 
                           Filed December 13, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROY ALLEN KRAMER,             :
 
                                          :
 
                 Claimant,                :         File No. 855418
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN MORRELL & COMPANY,       :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            2401
 
            Claimant was knocked to the ground by a flying hog carcass 
 
            and helped up by a foreman who witnessed the incident.  
 
            Company records reflect he was sent to a physician the same 
 
            day.  Held:  defendant had actual knowledge of the injury 
 
            and no formal notice was required.
 
            
 
            2402
 
            Claimant filed arbitration petition in 1987 for claimed 1979 
 
            injury.  He claimed he "discovered" the injury through a 
 
            physician's deposition in 1986 (concerning another alleged 
 
            injury, also to the back).  Claimant gave history to four 
 
            doctors of intermittent pain for at least two years after 
 
            the injury, severe enough to require bi-weekly chiropractic 
 
            care.  Held:  in the exercise of reasonable diligence, 
 
            claimant "should have known" injury was both serious and 
 
            work connected.  Claim was barred under 85.26.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD D. FRIETS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            FARMERS COOPERATIVE COMPANY   :          File No. 855421
 
            OF LEDYARD,                   :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            FARMLAND MUTUAL INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Richard D. Friets, filed on November 3, 1987, 
 
            against his employer, Farmers Cooperative Company of 
 
            Ledyard, and its insurance carrier, Farmland Mutual 
 
            Insurance Company, defendants.  The case was heard on May 
 
            31, 1989, in Storm Lake, Iowa at the Buena Vista County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant; the testimony of Edward J. Mayland, manager of 
 
            defendant-employer's establishment; and, the testimony of 
 
            Edward Wiggins, assistant manager of the cooperative.  
 
            Additionally, the record consists of exhibits A-K and AA to 
 
            WW.  Defendants objected to exhibit C.  It is the 
 
            determination of the undersigned that exhibit C is 
 
            admissible.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  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 
 
            disability benefits; and, 4) whether claimant provided 
 
            adequate notice under section 85.23.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 50 years old at the time of the hearing.  
 
            He commenced his employment with defendant-employer in 
 
            October of 1985.  Primarily, claimant was hired by Ed 
 
            Wiggins to haul fertilizer from the fertilizer plant to the 
 
            location where fertilizer was being applied by the "Big A 
 
            spreader."  Claimant was also required to clean the elevator 
 
            when instructed to do so.
 
            
 
                 Claimant testified he reported to work at 7:00 a.m.; he 
 
            took a dinner break at noon; and, he worked until 5:00 or 
 
            5:30 p.m.  Claimant also reported he was required to write 
 
            on his own time card.  His card was kept at the fertilizer 
 
            plant but turned into the bookkeeper at the end of the week.
 
            
 
                 On October 31, 1985, claimant reported to work at the 
 
            regularly scheduled time.  Around 4:00 p.m., the "Big A 
 
            spreader" developed mechanical problems.  Claimant testified 
 
            Ed Wiggins directed him to drive to Algona in his own truck 
 
            so claimant could pick up a part for the "Big A."  Ed 
 
            Wiggins testified he could think of no reason why claimant 
 
            would be directed to drive to Algona nor did Mr. Wiggins 
 
            recall directing claimant to drive to Bancroft, Iowa.  Mr. 
 
            Wiggins denied telling claimant he should drive his personal 
 
            vehicle to Algona.
 
            
 
                 Claimant testified he drove to Algona but he could not 
 
            find the necessary parts in two different places so he 
 
            decided to drive back to Ledyard to see if there was 
 
            anything else for him to do and, if not, to call it a day.  
 
            Claimant drove back on a two lane state highway.  
 
            Approximately three miles south and one mile west of 
 
            Ledyard, claimant struck a tractor with two wagons of corn.  
 
            Claimant's head hit the windshield and his body, at the belt 
 
            line, struck the steering wheel.  Eventually, claimant was 
 
            taken to the Kossuth County Hospital where he was later 
 
            released.  The records for the emergency room do not 
 
            indicate any complaints of back problems.
 
            
 
                 The next morning, claimant advised his supervisor he 
 
            was injured in a motor vehicle accident on the 31st.  
 
            Claimant did not expressly state the injury was work 
 
            related.  Claimant worked the day following the accident.  
 
            There were no back complaints expressed.  In fact, he was 
 
            directed to drive to Blue Earth and Jackson, Minnesota for 
 
            replacement parts.  Claimant worked for three days following 
 
            his accident.  He voiced no back complaints during that time 
 
            frame.  Claimant was then terminated because work was not 
 
            available.  He was never rehired by defendant-employer.
 
            
 
                 It was not until November 22, 1985, that claimant again 
 
            sought medical attention.  He sought treatment at the Park 
 
            Clinic in Mason City, Iowa.  However, claimant's complaints 
 
            primarily centered around his diabetes mellitus.  X-rays of 
 
            the chest and cervical spine were taken.  The x-rays 
 
            revealed in relevant portion:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 CERVICAL SPINE:  There is old calcification in  
 
                 portions of the anterior longitudinal ligament 
 
                 between C4 and C5 as well as between C5 and C6.  
 
                 There is an old-appearing partial compression 
 
                 deformity of C5.  There is no spondylolisthesis.  
 
                 The disc spaces are well maintained.  The neural 
 
                 foramina are patent bilaterally.
 
            
 
                 IMPRESSION:  OLD POST-TRAUMATIC CHANGES IN THE 
 
                 C5-7                        LEVEL AS NOTED ABOVE.  
 
                 NO ACUTE-APPEARING               CHANGES.
 
            
 
                 Claimant did not seek medical treatment again for his 
 
            back until September 9, 1986.  Timothy C. Mead, M.D., in his 
 
            office notes for that day, wrote:
 
            
 
                 He has been having some lumbar pain and also 
 
                 numbness and tingling of both hands.  He has some 
 
                 nocturnal dysesthesias when I do Phalen's test, 
 
                 median nerve compression, Tinel's sign all give 
 
                 the same symptoms and peripheral median nerve 
 
                 pain.  Cervical spine motion is normal without 
 
                 discomfort.
 
            
 
                     ...
 
            
 
                 IMPRESSION:  Tarsal tunnel syndrome.  The lumbar 
 
                 spine is fully mobile.  There is tenderness down 
 
                 in the lumbosacral junction.  He rides a truck, 
 
                 often going 10-12 hours a day.  We talked about 
 
                 general care of the back and I encouraged him to 
 
                 use some moist heat, some MOTRIN, 600 mg. q.i.d. 
 
                 and see if this won't be helpful for him....
 
            
 
                 In November of 1986, claimant was hospitalized for his 
 
            diabetes.  X-rays of the back were again taken.  They 
 
            revealed:
 
            
 
                 LUMBAR SPINE:  There is mild positional-appearing 
 
                 dextroscoliosis.  There is narrowing of the L4-5 
 
                 disc with vacuum disc phenomenon at that level.  
 
                 There is mild degenerative lipping of the L4 and 5 
 
                 vertebrae.  There is congenital-appearing wedging 
 
                 of the T12 and L1 vertebrae.  There are sclerotic 
 
                 degenerative changes of the L4-5 apophyseal 
 
                 joints.  In additional [sic], one can see 
 
                 interruption of both L4 pars interarticulares.  
 
                 This is seen best on the lateral views.
 
            
 
                 IMPRESSION:  Grade I anterolisthesis of L4 
 
                 relative to L5 secondary to bilateral L4 pars 
 
                 interarticulares    interruptions.
 
            2.  Degenerative disc disease at the L4-
 
            5 interspace          level.
 
            3.  Positional-appearing scoliosis.
 
            
 
                 M. W. Crane, M.D., diagnosed claimant as:
 
            
 
                 IMPRESSION:  The patient carries a diagnosis of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 peripheral neuropathy secondary to diabetes.  I 
 
                 feel he may also have a significant component of 
 
                 spinal stenosis.
 
            
 
                 DISCUSSION:  It is difficult to separate out the 
 
                 neurologic problems related to the diabetes versus 
 
                 those related to a possible spinal stenosis.  The 
 
                 claudication type symptoms are very suggestive of 
 
                 a spinal claudication syndrome which would be a 
 
                 stenosis picture.  He does not show any signs of 
 
                 peripheral vascular problems that would produce 
 
                 such a claudication picture.  The fact that he had 
 
                 a spondylolisthesis previously slightly decreases 
 
                 the likelihood however, I feel there may be a 
 
                 change in the bone spur formation with secondary 
 
                 osteoarthritic bone formation it may then be 
 
                 causing a stenosis type problem.
 
            
 
                     Timothy C. Mead, M.D., an orthopedic surgeon and an 
 
            associate of Dr. Crane's who also practices medicine at the 
 
            Park Clinic in Mason City, opined claimant's low back 
 
            problems were not directly related to or caused by the 
 
            automobile accident of October 31, 1985.
 
            
 
                 Dr. Mead, in his deposition, testified that claimant 
 
            had back complaints from September 9, 1986, until he was 
 
            hospitalized in November of 1986 for low back pain and 
 
            swelling in the right leg.  Claimant was diagnosed as 
 
            having:
 
            
 
                 1.  Spinal stenosis secondary to degenerative disc 
 
                 disease with severe radicular pain on admission.
 
            
 
                 2.  Resolving superficial phlebitis with negative 
 
                 venogram during his hospitalization.
 
            
 
                 3)  Diabetes mellitus.
 
            
 
                 4)  Peripheral neuropathy.
 
            
 
                 Claimant again saw Dr. Mead on December 9, 1986.  Dr. 
 
            Mead's office note for that day reveals:  "...He does have a 
 
            known spondylolisthesis.  He states all of this has gotten 
 
            worse since he was involved in a motor vehicle accident 
 
            while working...."
 
            
 
                 On January 12, 1987, claimant again saw Dr. Mead.  The 
 
            office note provides in relevant portion:
 
            
 
                 He states he had gone to visit with a lawyer.  He 
 
                 states that he felt that the accident caused a 
 
                 slippage in his vertebra.  The accident, he 
 
                 states, was a year ago on Halloween.  He states he 
 
                 had not really had much back problem before then.  
 
                 Perusing the record, I notice that back in 1978 he 
 
                 was noted to have Grade I spondylolisthesis at 
 
                 that time.  I felt that the actual slippage, 
 
                 therefore, predated the accident.  Whether he has 
 
                 had a lot more radicular symptoms since that time 
 
                 is another matter....
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant also sought conservative medical treatment 
 
            from the Back Rehabilitation Clinic of America, Inc.  The 
 
            clinic was located in Spirit Lake, Iowa.  Claimant was 
 
            dissatisfied with the treatment he received in Spirit Lake.  
 
            Claimant discontinued his treatment with Brian W. Nelson, 
 
            M.D., at the back clinic.
 
            
 
                 Dr. Nelson testified by way of deposition.  He first 
 
            examined claimant on February 2, 1987.  The physician lost 
 
            his narrative report of the examination on that date.  
 
            However, he did recall claimant mentioning an accident on 
 
            October 31, 1985.  He also recalled a history of 
 
            spondylolisthesis predating to 1978.  Dr. Nelson diagnosed 
 
            claimant as having spondylolisthesis and leg pain caused by 
 
            nerve root irritation and diabetes.  Eventually, Dr. Nelson 
 
            referred claimant to Richard F. Nice, M.D., for possible 
 
            surgery.
 
            
 
                 Dr. Nelson, in his deposition, testified he would 
 
            expect back symptoms to manifest themselves within 48 to 72 
 
            hours after an accident and that symptoms were usually 
 
            immediate.
 
            
 
                 Claimant then sought treatment from Richard F. Nice, 
 
            M.D., an orthopedic surgeon.  The first visit occurred on 
 
            May 13, 1987.  Dr. Nice obtained a medical history from 
 
            claimant in which claimant states in relevant portion:
 
            
 
                 [T]hat he was involved in a motorvehicle [sic] 
 
                 accident one year ago when he hit a load of corn 
 
                 in the dark with his pickup truck.  He states that 
 
                 since that time he has had pain in his back with 
 
                 radiation down the right leg and into the big toe 
 
                 most of the time since then....
 
            
 
                 Dr. Nice, in his deposition of October 26, 1988, opined 
 
            to a reasonable degree of medical certainty that claimant's 
 
            motor vehicle accident of October 31, 1985, caused or 
 
            aggravated claimant's back condition.  Dr. Nice also opined 
 
            that but for the aforementioned accident, claimant would not 
 
            have had a Gill-type laminectomy with excision of L4-5 disc.  
 
            During his deposition, Dr. Nice first learned of claimant's 
 
            other motor vehicle accident in January of 1986.  Dr. Nice 
 
            testified such an accident could affect claimant's back 
 
            condition.
 
            
 
                 Dr. Nice opined claimant had a permanent partial 
 
            impairment.  He rated claimant at 25 percent, 20 percent and 
 
            again at 25 percent.
 
            
 
                 Following claimant's surgery, he last saw Dr. Nice on 
 
            November 2, 1987.  Claimant never returned to him for 
 
            additional treatment.
 
            
 
                                conclusions of law
 
            
 
                 Firstly, there is the issue of the employee-employer 
 
            relationship to resolve.  Claimant was clearly an employee 
 
            of defendant-employer.  All of claimant's activities were 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            directed by his supervisor, Edward Wiggins.  
 
            Defendant-employer had the right to control claimant's 
 
            activities.  Claimant was paid by the hour by 
 
            defendant-employer.  Defendant-employer had the right to dis
 
            charge or terminate claimant.  Claimant performed duties 
 
            directly in line with the work performed by 
 
            defendant-employer.  See Nelson v. Cities Service Oil Co., 
 
            259 Iowa 1209, 146 N.W.2d 261, 265 (1966).  For purposes of 
 
            the Iowa Workers' Compensation laws, claimant was an 
 
            employee.
 
            
 
                 The second issue to address is whether claimant 
 
            complied with section 85.23 of the Iowa Code.  The section 
 
            provides:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Here there was actual knowledge of the occurrence of an 
 
            injury.  Claimant was returning from an errand in Algona.  
 
            Claimant's supervisor had directed claimant to secure 
 
            machinery parts for equipment belonging to defendant.  There 
 
            was no evidence the Algona trip was for anything but a work 
 
            related task.  The supervisor had actual knowledge there was 
 
            a potential workers' compensation claim involved.  Claimant 
 
            was returning from the trip when he was involved in the 
 
            motor vehicle accident.  Claimant's supervisor, Ed Wiggins, 
 
            visited with claimant relative to the motor vehicle 
 
            accident, the day following the incident.  Mr. Wiggins 
 
            specifically asked claimant if there were any injuries.  The 
 
            supervisor also visibly observed a bump on claimant's head.
 
            
 
                 Since the supervisor had actual knowledge of the 
 
            occurrence of the injury, no additional notice under section 
 
            85.23 was necessary.  Defendant-employer had ample 
 
            opportunity to investigate the injury.
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 31, 
 
            1985, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Likewise, for the same reasons as stated under the 
 
            notice section, claimant has proven by a preponderance of 
 
            the evidence that he sustained an injury which arose out of 
 
            and in the course of his employment.
 
            
 
                 A separate issue to discuss is whether claimant has 
 
            established the requisite causal connection between his 
 
            claimed condition and the work related incident of October 
 
            31, 1985.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 31, 
 
            1985, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the do
 
            main of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an em
 
            ployer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case at hand, claimant had several preexisting 
 
            conditions.  Since at least 1978, claimant had evidence of a 
 
            spondylolisthesis and diabetes mellitus as well.  Claimant 
 
            had not followed his doctor's orders with respect to his 
 
            diet and medication.  Two years prior to the date of the 
 
            injury, claimant had totally discontinued the use of his 
 
            medication.  Claimant had not followed his diabetic diet.  
 
            He was overweight.  He had not seen a physician for five 
 
            years prior to his October 31, 1985, motor vehicle accident.  
 
            In the emergency room, claimant voiced no back complaints.  
 
            The next day, he only complained of head contusions.  
 
            Claimant made no other back complaints.  On his visit of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            November 22, 1985, claimant sought medical treatment for 
 
            conditions primarily related to his diabetes.  Claimant had 
 
            a negative straight leg test.  The test indicated there was 
 
            no irritation of the nerve root running down to the leg.  
 
            X-rays revealed "old post-traumatic changes in the C5-7 
 
            level..."
 
            
 
                 Claimant sustained a second motor vehicle accident on 
 
            January 1, 1986.  Subsequent visits to the Park Clinic 
 
            centered around claimant's diabetic condition.  Claimant 
 
            never informed his doctors of the second accident.  It was 
 
            not until September 9, 1986, that medical notes actually 
 
            showed problems with the back.  This was nearly one year 
 
            after the work injury.  Even then, claimant demonstrated 
 
            full mobility of the spine.
 
            
 
                 Dr. Mead, the original treating physician, did not 
 
            causally relate claimant's back condition to the October 31, 
 
            1985 work injury.  Dr. Mead is a board certified orthopedic 
 
            surgeon.  He had ample opportunity to examine and treat 
 
            claimant at or near the time of the work injury.  Dr. Mead 
 
            is credible.  Dr. Nice, on the other hand, did not begin to 
 
            treat claimant until nearly 17 months after the work injury.  
 
            Dr. Nice's first contact with claimant was more remote in 
 
            time.  Other factors, besides the October 31, 1985 injury 
 
            could have intervened between that date, and May 13, 1987, 
 
            the date Dr. Nice first examined claimant.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has not 
 
            proven by a preponderance of the evidence that his back 
 
            condition is causally related to the work injury which 
 
            occurred on October 31, 1985.  This determination is based 
 
            upon:  1) the aforementioned considerations; 2) expert 
 
            testimony; 3) exhibits; and, 4) based upon agency expertise 
 
            (Iowa Administrative Procedures Act 17A.14(s).
 
            
 
                 Claimant had no permanent impairment.  He is not 
 
            entitled to any weekly benefits.  He only sustained minor 
 
            contusions and abrasions.  He missed no work days.  No 
 
            temporary total disability or healing period benefits are 
 
            due to claimant.
 
            
 
                 Since claimant did sustain a minor work injury, there 
 
            is the final issue dealing with medical bills causally 
 
            related to the injury.  Defendants deny responsibility for 
 
            any medical bills since they did not give express authority 
 
            for the treatment.  However, under two separate theories, 
 
            defendants are liable for the subsequent listed charges.
 
            Firstly, in emergency situations, the employee has the right 
 
            to select the care without prior authorization from the 
 
            employer.  Jeffrey v. Jack A. Schroeder, Inc., Thirty-Second 
 
            Biennial Rep., Iowa Indus. Comm'r. 121 (1974).  Secondly, if 
 
            an employer denies liability, that employer cannot later 
 
            assert the medical treatment was unauthorized.  Holbert v. 
 
            Townsend Engineering Company, Thirty-Second Biennial Rep., 
 
            Iowa Indus. Comm'r. 78, 80 (Review Decision 1975).  
 
            Defendants are liable for the following medical services 
 
            under either theory.  Since the actual charges were not 
 
            provided, I can only list the date and provider.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                10-31-85    Emergency Room Kossuth County Hospital
 
                11-22-85    Park Clinic, office visit
 
                11-22-85    Radiographic Report, North Iowa Medical 
 
            Center
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall be responsible for the payment of the 
 
            following medical benefits:
 
            
 
                 10-31-85   Kossuth County Hospital (Emergency room)
 
                 11-22-85   Park Clinic (office visit)
 
                 11-22-85   North Iowa Medical Center (radiographic 
 
            report)
 
            
 
                 Costs of this action are assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
             
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael R. Bovee
 
            Attorney at Law
 
            316 Eleventh St SW Plaza
 
            P O Box 7038
 
            Spencer  IA  51301
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            1100 Des Moines Bldg
 
            Des Moines  IA  50309-2464
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1100; 1108.5
 
                                                    Filed August 10, 
 
            1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD D. FRIETS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            FARMERS COOPERATIVE COMPANY   :          File No. 855421
 
            OF LEDYARD,                   :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            FARMLAND MUTUAL INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant was involved in a motor vehicle accident which 
 
            arose out of and in the course of his employment.  Claimant 
 
            suffered minor contusions only.
 
            
 
            1108.5
 
            
 
                 Claimant could not prove by a preponderance of the 
 
            evidence that his claimed back condition was causally 
 
            related to the work related motor vehicle accident.  
 
            Claimant had several preexisting conditions.  Since at least 
 
            1978, claimant had evidence of a spondylolisthesis and 
 
            diabetes mellitus as well.  Claimant had not followed his 
 
            doctor's orders with respect to his diet and medication.  
 
            Two years prior to the date of the injury, claimant had 
 
            totally discontinued the use of his medication.  Claimant 
 
            had not followed his diabetic diet.  He was overweight.  He 
 
            had not seen a physician for five years prior to his October 
 
            31, 1985, motor vehicle accident.  In the emergency room, 
 
            claimant voiced no back complaints.  The next day, he only 
 
            complained of head contusions.  Claimant made no other back 
 
            complaints.  On his visit of November 22, 1985, claimant 
 
            sought medical treatment for conditions primarily related to 
 
            his diabetes.  Claimant had a negative straight leg test.  
 
            The test indicated there was no irritation of the nerve root 
 
            running down to the leg.  X-rays revealed "old 
 
            post-traumatic changes in the C5-7 level..."
 
            
 
                 Claimant sustained a second motor vehicle accident on 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            January 1, 1986.  Subsequent visits to the Park Clinic 
 
            centered around claimant's diabetic condition.  Claimant 
 
            never informed his doctors of the second accident.  It was 
 
            not until September 9, 1986, that medical notes actually 
 
            showed problems with the back.  This was nearly one year 
 
            after the work injury.  Even then, claimant demonstrated 
 
            full mobility of the spine.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY J. KLODT,
 
         
 
              Claimant,                             File No. 855422
 
         
 
         vs.                                          A P P E A L
 
         
 
         HILLSIDE MANOR CARE CENTER,                D E C I S I O N
 
         
 
              Employer,                                F I L E D
 
              Self-Insured,
 
              Defendant.                              AUG 17 1989
 
         
 
                                                  INDUSTRIAL SERVICES
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying medical 
 
         benefits as the result of an alleged injury on April 30, 1987.  
 
         The record on appeal consists of the transcript of the arbitration 
 
         hearing; claimant's exhibits 1 through 8; and defendant's exhibits 
 
         1 and 2.  Both parties filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issue on appeal:  "Did the 
 
         Deputy err in denial of 85.27 benefits?"
 
         
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                 ANALYSIS
 
         
 
              The initial question to be addressed is whether claimant has 
 
         shown that on April 30, 1987, she suffered an injury.  Claimant 
 
         testified to swallowing a chicken bone at work which she alleges 
 
         lodged in her throat.  However, none of the medical evidence 
 
         corroborates her statement.  No bone was found during several 
 
         internal examination procedures.  Claimant stated,that her doctor 
 
         told her he had seen some redness in her throat, but this 
 
         statement is not corroborated by any of the medical evidence.  It 
 
         is concluded that claimant has failed to establish that an injury 
 
         occurred on April 30, 1987.
 
         
 
                                                
 
                                                         
 
              Even assuming that claimant had shown that an injury 
 
         occurred, claimant also bears the burden of showing that the 
 
         injury arose out of and was in the course of her employment. 
 
         Claimant was on the employer's premises at the time of the 
 
         alleged injury.  The food was prepared by the employer.  Claimant 
 
         was clearly in the course of her employment at the time of the 
 
         alleged injury.
 
         
 
              However, claimant must also show that her alleged injury 
 
         arose out of her employment.  This requires a showing of.a causal 
 
         connection between the alleged injury and the employment.  Even 
 
         if claimant did in fact swallow a chicken bone, claimant has not 
 
         shown that this occurrence arose out of her employment.  To have 
 
         arisen out of the employment, the injury must be caused by some 
 
         aspect of the employment that significantly increases the danger 
 
         of injury.  Eating a chicken bone is equally hazardous whether it 
 
         occurs at work or at home or in a restaurant.  Claimant's 
 
         employment did not significantly increase that hazard.
 
         
 
              Claimant has also failed to show a causal connection between 
 
         the medical expenses and her alleged work injury.  Claimant 
 
         argues that the costs of the internal examination procedures are 
 
         recoverable since they were performed to ascertain if a chicken 
 
         bone was in fact lodged in claimant's throat.  A claimant who 
 
         undergoes a medical procedure always runs the risk that the 
 
         results of the procedure may reveal that the ailment is not 
 
         compensable.  The mere fact that the procedure was commenced with 
 
         a subjective belief by claimant that the ailment was work related 
 
         does not make the procedure compensable as related to a work 
 
         injury.  The procedures did not reveal a work-related injury.  
 
         Claimant is not entitled to medical benefits.
 
         
 
              In his brief claimant stated:
 
         
 
                   The Deputy seems to reason that because there is no 
 
              medical evidence to prove that IN FACT there was a chicken 
 
              bone lodged in Betty Klodt's throat, she is not entitled to 
 
              reimbursement for the stipulated medical expenses for 
 
              looking for the bone.
 
         
 
                   This reasoning is ridiculous and would lead to the 
 
              extreme situation where an employee, who in good faith 
 
              believing that she is suffering from an injury which arose 
 
              in the work place, must run the risk that such is not the 
 
              case when she seeks medical attention for that condition.
 
         
 
                   Contrary to the analysis provided by the Deputy, there 
 
              is no medical evidence to indicate that the act of eating 
 
              chicken was NOT the probable cause of the operative 
 
              procedure for which the medical bills were incurred.
 
         
 
                   ....
 
         
 
                   Since when are medical bills incurred for diagnosis or 
 
              testing disallowed simply because no condition was found 
 
                                                
 
                                                         
 
                   which in retrospect pinpoint the exact medical cause?
 
         
 
              The above statements reverse the burden of proof.  Claimant 
 
         has the burden of proof not defendants.  Furthermore, claimant's 
 
         do run the risk of having to pay for medical expenses if they are 
 
         unable to prove injuries arose out of and in the course of 
 
         employment or a causal connection between injuries and the 
 
         medical expenses they incur.  Employers do not become liable 
 
         because of good faith of an employee.  Employers become liable 
 
         when the employee meets the statutory requirements of proof.
 
         
 
              It should be mentioned that it does not help a party's 
 
         position to state in a brief that a deputy's "reasoning is 
 
         ridiculous" when such reasoning is based on the facts presented 
 
         and the appropriate law.
 
         
 
                              FINDING OF FACT
 
         
 
              1.  Claimant did not have a chicken bone lodged in her 
 
         throat as a result of eating chicken at her employers on April 
 
         30, 1987.
 
         
 
              2.  Claimant's throat problems were not the result of any 
 
         work related incident on April 30, 1987.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              Claimant failed to prove she received an injury arising out 
 
         of and in the course of her employment with defendant on April 
 
         30, 1987.
 
         
 
              Claimant failed to prove that any claimed medical expenses 
 
         were causally connected to an injury arising out of and in the 
 
         course of her employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant takes nothing from these proceedings.
 
         
 
              That claimant pays costs of these proceedings pursuant to 
 
         Division Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 17th day of August, 1989.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. John N. Moreland
 
                                                
 
                                                         
 
         Attorney at Law
 
         129 W. 4th
 
         P.O. Box 250
 
         Ottumwa, Iowa  52501
 
         
 
         Mr. Patrick F. Curran
 
         Attorney at Law
 
         419 Church St.
 
         Ottumwa, Iowa  52501
 
         
 
         
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2201,1108.50,2501
 
                                            Filed August 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY J. KLODT,
 
         
 
              Claimant,                             File No. 855422
 
         
 
         vs.
 
                                                      A P P E A L
 
         HILLSIDE MANOR CARE CENTER,
 
         
 
              Employer,                             D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2201, 1108.50, 2501
 
         
 
              Claimant who alleged she swallowed a chicken bone at work 
 
         failed to show she had suffered an injury where surgery did not 
 
         find a bone or evidence of injury.  Even if an injury from 
 
         swallowing a chicken bone had been proven, there was no showing 
 
         that such an injury would have arisen out of claimant's 
 
         employment (i.e., eating chicken is equally hazardous wherever it 
 
         occurs, whether at work or elsewhere).  Claimant's medical 
 
         expenses were not causally related to a work injury.  Claimant's 
 
         good faith belief that a work injury occurred does not make her 
 
         medical expenses employer's obligation.
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY J. KLODT,                            File No. 855422
 
         
 
              Claimant,                          A R B I T R A T I O N
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         HILLSIDE MANOR CARE CENTER,                   F I L E D
 
         
 
              Employer,                               FEB 1 1989
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Betty J. 
 
         Klodt, claimant, against Hillside Manor Care Center, self-insured 
 
         employer, defendant.  The case was heard by the undersigned in 
 
         Ottumwa, Iowa on December 21, 1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1 through 8, and 
 
         defendant's exhibits 1 and 2.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved on 
 
         July 21, 1988, the issues presented for this proceeding are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of her employment;
 
         
 
              2)  Whether there is a causal relationship between the 
 
         alleged injury and the disability; and,
 
         
 
              3)  Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant is a 47 year old registered nurse.  On April 30, 
 
         1987, claimant was having lunch in defendant's dining room.  She 
 
         was eating chicken prepared and served by defendant.  Claimant 
 
         testified she swallowed a bone and it lodged in her throat. 
 
         Claimant reported she could not dislodge the alleged bone. 
 
         Consequently, she excused herself, left the lunchroom, tried to 
 
         gargle and even ate soda crackers in order to dislodge the bone. 
 
         The bone would not dislodge.  Claimant continued to work that 
 
         afternoon.  She left defendant's care facility around 6:00 p.m.
 
         
 
              That evening, claimant prepared hamburgers for dinner so she 
 
         could try to dislodge the alleged bone.  Claimant testified she 
 
                                                
 
                                                         
 
         felt something at the side of her throat.  However, claimant, 
 
         even after gargling again could not dislodge the matter.
 
         
 
              On the next morning, claimant returned to the care facility. 
 
         At approximately 7:30 a.m., she met with the administrator, 
 
         reported the incident to him and completed defendant's forms for 
 
         workers' compensation.
 
         
 
              After working that day, claimant was seen by Kurt M. 
 
         Anderson, M.D.  He performed a barium swallow.  His notes for May 
 
         1, 1987, revealed the following:
 
         
 
              ...Patient was eating chicken yesterday afternoon and had 
 
              the acute sensation of a foreign body in the region of the 
 
              left tonsil.  This later moved down to the region in the 
 
              left base of tongue area and this morning it felt that it 
 
              was in the cricoid area.  Now perhaps it is even lower than 
 
              that at the sternal notch.  This discomfort has persisted or 
 
              even increased in the last 8-10 hours.  EXAM:  OP/OC, HP/LX 
 
              is unremarkable.  Barium swallow is pending.  ADDENDUM:  
 
              barium swallow showed normal flow of barium and the cottom 
 
              [sic] ball did not hang up, however, she continues to remain 
 
              rather narvous [sic] and has the sensation of pressure over 
 
              her upper sternum.  IMPRESSION:  rule out small chicken bone 
 
              salvageable foreign body.  Schedule her for esophagoscopy.
 
         
 
              The esophagoscopy was scheduled and performed on that same 
 
         date.  Dr. Anderson's postoperative notes revealed:
 
         
 
              The patient was placed on the operating table in the supine 
 
              position and underwent the satisfactory induction of general 
 
              endotracheal anesthesia.  The eyes were protected with 
 
              lubricant and tape.  The maxillary teeth were protected with 
 
              a rubber tooth guard.  A lubricated rigid esophagoscope was 
 
              then passed.  The region of the cricopharyngeus was 
 
              carefully inspected and no foreign body or evidence of 
 
              mucosal trauma could be identified.  The esophagoscope was 
 
              passed to the full length.  It was then slowly withdrawn and 
 
              using careful suctioning of secretions, the mucosa was 
 
              carefully inspected. Again no foreign body could be 
 
              identified.  The esophagoscope was then withdrawn and the 
 
              Holinger anterior commissure laryngoscope was inserted.  The 
 
              base of tongue, vallecula, and epiglottis all appeared 
 
              normal.  The pharyngeal wall and piriform sinuses appeared 
 
              unremarkable.  The endolarynx was also unremarkable.  The 
 
              short rigid esophagoscope was again passed and withdrawn and 
 
              again after careful inspection, no foreign body could be 
 
              identified.  The procedure was then terminated and the 
 
              patient was allowed to awaken and be extubated.
 
         
 
              Claimant testified she was verbally informed by her 
 
         physician that while he could find no physical evidence of bones 
 
         or other matter, he did see evidence of redness where claimant 
 
         reported the alleged bone had first lodged.  No indication to 
 
         that effect was found in any medical reports.
 
                                                
 
                                                         
 
         
 
                                APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on April 30, 1987 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As to employees having fixed hours and place of work, 
 
         injuries occurring on the premises while they are going to and 
 
         from work before or after working hours or at lunch time are 
 
         compensable, but if the injury occurs off the premises, it is not 
 
         compensable, subject to several exceptions....1 Larson Workmen's 
 
         Compensation Law, page 4-3, section 15.00.
 
         
 
              Likewise, with respect to the specific issue of lunch time 
 
         injuries, Larson states at 1 Larson Workmen's Compensation Law 
 
         page 4-116.15 - 4-116.16 section 15.50.
 
         
 
              The basic rule, then, is that the journey to and from meals, 
 
         on the premises of the employer, is in the course of employment. 
 
         Conversely, when the employee with fixed time and place of work 
 
         has left the premises for lunch, he is outside of the course of 
 
         his employment if he falls, is struck by an automobile crossing 
 
         the street, or is otherwise injured.
 
         
 
              The above principles are also cited in the case of Owens v. 
 
         River Hills Care Center, I-3 Iowa Industrial Commissioner 
 
                                                
 
                                                         
 
         Decision 648 (1985).  There the deputy industrial commissioner 
 
         determined claimant was in the course of her employment when she 
 
         fell while she was descending a stairway on defendant's premises 
 
         to go to supper.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 30, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
 
 
                                
 
                                                         
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              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).
 
         
 
                                   ANALYSIS
 
         
 
              In the case at bar, claimant has satisfactorily demonstrated 
 
         she was in the course of her employment when she allegedly 
 
         swallowed a chicken bone.  Claimant was on the premises of 
 
         defendant.  Claimant was eating a meal prepared by employees of 
 
         defendant.  She was authorized to be on her lunch break.  It is 
 
         concluded claimant was in the course of her employment at the 
 
         time of the alleged injury.  However, it is concluded that the 
 
         act of eating the chicken in defendant's cafeteria was not 
 
         causally related to the throat problems on which claimant now 
 
         bases her claim.  Claimant testified to the sequence of events 
 
         leading up to her office visit with Dr. Anderson.  Nevertheless, 
 
         Dr. Anderson, in both of his written medical reports, writes:
 
         
 
              IMPRESSION:  rule out small chicken bone salvageable foreign 
 
              body....
 
         
 
              PREOPERATIVE DIAGNOSIS:  Rule out possible esophageal 
 
              foreign body (chicken bone)
 
         
 
              POSTOPERATIVE DIAGNOSIS:  No esophageal foreign body 
 
              identified.
 
         
 
              There is no medical evidence to indicate that the act of 
 
         eating chicken was the probable cause of claimant's throat 
 
         problems.  The medical documentation does not support claimant's 
 
         hearsay statement that the physician reported there was a 
 
         reddened area where a bone had been lodged.  Because medical 
 
         causation has not been established, benefits under section 85.27 
 
         are denied.
 
                                                
 
                                                         
 
         
 
                               FINDING OF FACT
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following finding of fact 
 
         and conclusion of law are made:
 
         
 
              FINDING 1.  Claimant did not sustain permanent or temporary 
 
         injuries to her throat as a result of work related incidents 
 
         allegedly occurring on April 30, 1987.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              Claimant did not establish by a preponderance of the 
 
         evidence that she is entitled to any benefits under section 
 
         85.27.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Claimant pays costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 1st day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. MCGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John N. Moreland
 
         Attorney at Law
 
         129 W. 4th
 
         P. 0. Box 250
 
         Ottumwa, Iowa  52501
 
         
 
         Mr. Patrick F. Curran
 
         Attorney at Law
 
         419 Church St.
 
         Ottumwa, Iowa  52501
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108; 2700
 
                                            Filed February 1, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY J. KLODT,
 
         
 
              Claimant,
 
                                                 File No. 855422
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         HILLSIDE MANOR CARE CENTER,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and the alleged work related injury.
 
         
 
         2700
 
         
 
              Claimant failed to show an entitlement to medical benefits.