BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         _________________________________________________________________
 
                                       :
 
         DENNIS LILLY,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 861913
 
         STONE CONTAINER CORPORATION,  :
 
                                       :        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  
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on March 27, 1987.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding; joint exhibits 1 
 
         through 72; and defendants' exhibit A.  Both parties filed briefs 
 
         on appeal.
 
         
 
                                      ISSUE
 
         
 
         Defendants state the following issue on appeal:  The extent of 
 
         claimant's industrial disability.
 
             
 
                               FINDINGS OF FACT
 
         
 
         The findings of fact of the arbitration decision filed January 
 
         15, 1991 are adopted herein. 
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
         The conclusions of law are adopted, with the following additional 
 
         analysis:
 
         
 
         Claimant has shown poor motivation to find substitute work.  
 
         Claimant did not take advantage of a job offered to him by 
 
         defendants.  Claimant's age of 36 indicates an ability to retrain 
 
         himself for work within his restrictions.  Claimant's ratings of 
 
         impairment are relatively low.  Based on these and all other 
 
         appropriate factors for determining industrial disability, 
 
         claimant is determined to have an industrial disability of 20 
 
         percent.
 
         
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 
                                     ORDER
 
         
 
         THEREFORE, it is ordered:
 
         
 
         That defendants shall pay unto claimant 53 weeks of healing 
 
         period benefits at the stipulated rate of two hundred 
 
         twenty-three and 36/100 dollars ($223.36) per week commencing 
 
         March 27, 1987 and totalling eleven thousand eight hundred 
 
         thirty-eight and 08/100 dollars ($11,838.08).
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         That defendants shall pay unto claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of two hundred twenty-three and 36/100 dollars ($223.36) per week 
 
         commencing April 1, 1988 and totalling twenty-two thousand three 
 
         hundred thirty-six and 00/100 dollars ($22,336.00).
 
         
 
         That defendants shall have credit for all payments voluntarily 
 
         made prior to hearing.
 
         
 
         That all accrued weekly benefits shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
         That the costs of this action shall be assessed to defendants 
 
         including the cost of the transcription of the hearing.
 
         
 
         That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
    
 
         Signed and filed this ____ day of February, 1992.
 
         
 
         
 
         
 
         
 
                                         ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 13, 1992
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DENNIS LILLY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 861913
 
            STONE CONTAINER CORPORATION,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803
 
            Claimant with poor motivation, 36 years old, with low 
 
            ratings of impairment awarded 20 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS LILLY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861913
 
            STONE CONTAINER CORPORATION,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 13, 1988.  Claimant sustained a work 
 
            injury arising out of his employment with Stone Container 
 
            Corporation on March 27, 1987, and now seeks benefits under 
 
            the Iowa Workers' Compensation Act from that employer and 
 
            its insurance carrier, Kemper Group.
 
            
 
                 Hearing on the arbitration petition was had in Sioux 
 
            City, Iowa, on June 12, 1990.  The record consists of joint 
 
            exhibits 1 through 72 (exhibit 73 was offered, but excluded 
 
            upon objection), defendants' exhibit A, and the testimony of 
 
            the following witnesses:  claimant, Alan Baker, Katherine 
 
            Lilly, James Weiss, Richard Laing and Duane Hennings.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his work with Stone Container 
 
            Corporation on March 27, 1987; that the injury caused 
 
            temporary disability; that if the injury caused permanent 
 
            disability, it is an industrial disability to the body as a 
 
            whole; that the appropriate rate of weekly benefits is 
 
            $223.36; that affirmative defenses are waived; that 
 
            claimant's entitlement to medical benefits is no longer in 
 
            dispute; that defendants paid a total of $28,282.89 on a 
 
            voluntary basis prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused permanent disability; the extent of 
 
            claimant's entitlement to compensation for temporary total 
 
            disability or healing period; the extent of claimant's 
 
            entitlement to compensation for permanent disability; 
 
            taxation of costs.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Dennis Lilly, age 36 at the time of hearing, is a 1971 
 
            high school graduate and is a journeyman brick layer and 
 
            certified welder.  His work history includes work as a 
 
            grocery store clerk, construction worker, brick layer and 
 
            welder.  Claimant has also worked as a laborer, gas station 
 
            attendant and factory assembly worker.  In addition, he 
 
            performed milling work for a lumber company.
 
            
 
                 Claimant began his employment with Stone Container 
 
            Corporation on October 19, 1984.  Defendant is a 
 
            manufacturer of corrugated cardboard boxes.  Prior to 
 
            beginning work with defendant, claimant had suffered pulled 
 
            back muscles and had occasional backaches, but had not lost 
 
            time from work and was under no medical restrictions 
 
            relating to the back.
 
            
 
                 At the time of the work injury, claimant's job involved 
 
            feeding large sheets of cardboard into a machine and various 
 
            associated tasks such as pushing wheeled skids, driving a 
 
            forklift and installing printing dies.
 
            
 
                 Claimant described the work injury as occurring while 
 
            he was "flipping" a skid when his back "snapped."  He 
 
            described suffering sharp pain in the lower back, such that 
 
            after working another 20 minutes, he was no longer able to 
 
            tolerate the pain.  Dick Laing, production manager, sent him 
 
            to the Marian Health Center for immediate care.
 
            
 
                 X-rays obtained on that date by Laura Ouellette, M.D., 
 
            demonstrated no pathology of the SI joint and no obvious 
 
            disc problem, although there was noted to be some 
 
            lumbarization of S1.  Dr. Ouellette's assessment was of 
 
            acute back pain, and a need to consider acute disc disease 
 
            of L4-5.
 
            
 
                 X-rays read on March 27 by S. A. Hultman, M.D., 
 
            demonstrated no evidence of fracture, subluxation or other 
 
            abnormality of the lumbo-sacral spine.  Disc spaces were 
 
            normal in height.  Dr. Hultman's impression was of negative 
 
            lumbosacral spine and SI joints.
 
            
 
                 On the following day, claimant was seen by Wallace 
 
            Wagner, D.C.  Dr. Wagner described the injury as being 
 
            solely work related and including subluxation to the lumber 
 
            [sic] spine and lumbosacral and myofascitis.  His report of 
 
            April 9, 1987 indicated claimant had been able to resume 
 
            light work since March 30 and would be able to resume 
 
            regular work in approximately two weeks.
 
            
 
                 Claimant has subsequently been seen and treated by 
 
            numerous physicians.  He returned to work for only four 
 
            half-days in September 1988, but did not continue because of 
 
            claimed back pain.  He has not looked for work since.  
 
            Although Mr. Lilly claims he wants to return to work he can 
 
            handle, he conceded at hearing that he does not intend to 
 
            undertake vocational rehabilitation or look for work until 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            after this contested case is resolved.
 
            
 
                 A neurologist, G. Horst Blume, M.D., saw claimant for 
 
            evaluation on September 8, 1987 upon Dr. Wagner's referral.  
 
            Dr. Blume's initial impression was that claimant suffered 
 
            from a ruptured lumbar disc, most likely L5-S1.  A CT scan 
 
            of the lumbar spine was thereafter performed on September 
 
            12, 1987.  Radiologist D. K. Brewer, M.D., noted a mild 
 
            central bulging disc at L3-4 and found the L4-5 and L5-S1 
 
            spaces unremarkable.  Dr. Blume's reading of the CT scan was 
 
            of ruptured disc at L3-4 centrally and on the right and a 
 
            centrally protruded disc at L4-5.  He then released claimant 
 
            to return to work one full week after September 13, 1987 
 
            with the only restriction being that he wear a back brace 
 
            prepared by that physician.
 
            
 
                 Magnetic resonance imaging was performed by S. A. 
 
            Hultman, M.D., on December 31, 1987.  Dr. Hultman's 
 
            impression was of degenerative changes with bulging annulus 
 
            at all levels from L3 through S1 and a possible small 
 
            central disc herniation at L3-4.
 
            
 
                 Claimant returned to the Family Practice Center in 
 
            Sioux City (where he had initially been seen by Dr. 
 
            Ouellette) and was from time to time seen by various 
 
            physicians.  On November 21, 1987, Joseph Bingham, M.D., 
 
            prepared an injury report showing that claimant was not yet 
 
            able to return to work.
 
            
 
                 On December 30, 1987, Quentin J. Durward, M.D., wrote 
 
            of being impressed by the genuine nature of claimant's pain 
 
            and believed that he was symptomatic at L3-4.  On December 
 
            13, Dr. Bingham reaffirmed that claimant was unable to 
 
            return to work.
 
            
 
                 On January 21, 1988, Dr. Bingham wrote that the 
 
            earliest date claimant would be able to return to work was 
 
            unknown.
 
            
 
                 Claimant developed headaches following myelography.  He 
 
            was referred to the Mayo Clinic in Minnesota and seen there 
 
            by J. Keith Campbell, M.D.  Dr. Campbell wrote on March 18, 
 
            1988 that neurologic examination revealed no deficit.  His 
 
            review of the myelogram confirmed a midline bulge of 
 
            moderate size at L3-4 and he wrote that review of the 
 
            imaging studies by an unnamed neuroradiologist confirmed 
 
            minimal spondylosis in the cervical region and degeneration 
 
            of the third, fourth and fifth lumbar discs.  Dr. Campbell 
 
            wrote of his view that claimant's symptoms were largely 
 
            mechanical back pain secondary to disc degeneration and 
 
            muscle strain without nerve impingement or instability of 
 
            the lumbar spine.  In particular, he wrote:
 
            
 
                 Even though I anticipate that the patient's 
 
                 symptoms will lessen, it is doubtful if he will be 
 
                 able to return to the type of work he was doing 
 
                 prior to his injury.  With unequivocal MRI scan 
 
                 evidence of disc degeneration at three levels, he 
 
                 should not continue to perform heavy lifting, 
 
                 frequent bending, and pulling.  Even though he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 does not have an actual herniated nucleus 
 
                 pulposus, it is likely that his back will continue 
 
                 to trouble him if he persists with the heavy work 
 
                 that he has done in the past.  I would recommend 
 
                 that he be considered for entry into a vocational 
 
                 rehabilitation program to be trained for a 
 
                 different type of work which did not involve 
 
                 lifting or frequent bending.
 
            
 
                 On May 9, 1988, Robert W. DePompolo, M.D., also of the 
 
            Mayo Clinic, wrote that at the time of evaluation "we" felt 
 
            claimant would be unable to return to heavy-duty work, but 
 
            that light-duty employment might be possible if lifting were 
 
            restricted to under 5-10 pounds and there was no repetitive 
 
            bending, lifting or turning.  Dr. DePompolo noted that 
 
            claimant had been seen two months before and "we" were 
 
            unsure of what had occurred since that time with respect to 
 
            his back pain.  It is unclear to this reader whether the 
 
            restrictions set forth in Dr. DePompolo's letter were 
 
            intended to be permanent in nature or merely a reflection of 
 
            claimant's symptomatology at the time he was seen.  From the 
 
            context, the latter alternative seems more probable.  It is 
 
            also unclear whether his use of the first person plural is 
 
            intended as a literary device or as indicative of a joint 
 
            decision with anonymous colleagues.  Dr. DePompolo went on 
 
            to indicate that degenerative changes of the lumbar spine 
 
            are generally felt to be due to chronic use or trauma, that 
 
            it is often difficult to say that degenerative changes seen 
 
            radiographically are related to symptomatology experienced 
 
            by the patient, and that trying to determine what specific 
 
            activity or set of activities resulted in changes is 
 
            impossible to do in a reasonable fashion.
 
            
 
                 J. Michael Donohue, M.D., of Back Rehabilitation 
 
            Clinics of America, Inc., saw claimant on a number of 
 
            occasions.  His chart notes of March 31, 1988 reflect an 
 
            assessment of chronic low back discomfort.  However, Dr. 
 
            Donohue went on to note that claimant's subjective 
 
            complaints far outweighed objective findings and that "based 
 
            on the positive pain responses in multiple areas testing for 
 
            nonorganic signs of low back pain, I do not anticipate the 
 
            patient will respond to any further medical or 
 
            rehabilitation efforts."  This reader interprets that rather 
 
            artful language as indicative of a belief that claimant was 
 
            either magnifying or, more likely, manufacturing his 
 
            symptomatology.  Dr. Donohue's recommendation was that 
 
            claimant proceed with an impairment rating and hopefully 
 
            attempt to resolve his situation, apparently a reference to 
 
            his workers' compensation claim.
 
            
 
                 Claimant was seen for evaluation on July 18, 1988 by B. 
 
            E. Krysztofiak, M.D.  Dr. Krysztofiak wrote that claimant's 
 
            low back symptoms were probably related to muscle and 
 
            ligament strain.  He believed that claimant should be 
 
            excused from heavy lifting and hard labor until symptoms in 
 
            the lower back have subsided.  On August 18, Dr. Krysztofiak 
 
            wrote that these restrictions should apply when claimant 
 
            returned to work on a trial basis, and that the approximate 
 
            date when claimant could return to his regular duties could 
 
            not be determined at the present time.  Specific weight 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            limits could not be determined without vocational 
 
            assessment.
 
            
 
                 On September 12, 1988, Dr. Bingham wrote that with the 
 
            possibility of a modification in the number of boxes 
 
            claimant lifted at one time, it would be a good time to have 
 
            him return to work on an experimental basis.  He felt that 
 
            claimant had reached a stable position with his back and 
 
            should be able to do the job if he used good judgment; 
 
            because there was no major disc problem, Dr. Bingham did not 
 
            believe claimant stood at risk of a serious complication, 
 
            although he was at a slightly increased risk of recurrent 
 
            strains and discomfort.  On September 26, Dr. Bingham wrote 
 
            that claimant had returned to work for four days on a 
 
            half-time basis, but had to quit due to pain.  On 
 
            examination, claimant's back was very tight.  Dr. Bingham 
 
            wrote that claimant apparently would be unable to tolerate 
 
            his regular work.  On October 12, Dr. Bingham found spasm of 
 
            the lower back muscles and was concerned that claimant's 
 
            problem had reverted to where he had been some time ago and 
 
            that there might be a long delay before he would be ready 
 
            for a trial of work or even training.  He recommended that 
 
            claimant see an orthopaedic surgeon to help determine if 
 
            there was something else going on in claimant's back.
 
            
 
                 Claimant was also seen by B. W. Nelson, M.D., of Back 
 
            Care, Inc.  Dr. Nelson's chart notes of February 21, 1989 
 
            showed an assessment that claimant essentially had 
 
            mechanical low back pain and would probably never completely 
 
            recover.  Based on diagnostic testing, physical exam and 
 
            objective testing, Dr. Nelson rated claimant as having 
 
            sustained an eight percent permanent partial impairment of 
 
            the body as a whole.  He recommended that claimant seek out 
 
            employment which did not involve heavy manual labor and 
 
            suggested a permanent 40-pound lifting restriction.  
 
            Claimant was to avoid jobs requiring standing on his feet 
 
            for longer than four hours at a time or jobs that require 
 
            repetitive stooping and bending.  The doctor felt that 
 
            further treatment modalities were unlikely to have much 
 
            effect on pain.
 
            
 
                 Claimant was also seen for evaluation by Joel T. 
 
            Cotton, M.D., a neurologist.  He wrote on November 8, 1989 
 
            that neurological examination was normal.  He also agreed 
 
            that claimant had musculoskeletal or mechanical low back 
 
            pain and also agreed with Dr. Nelson that claimant should 
 
            avoid heavy lifting along with prolonged standing or walking 
 
            in excess of four hours at a time (unless allowed to 
 
            temporarily rest) and repetitive stooping and bending should 
 
            also be avoided.  He believed that sedentary, light and 
 
            medium manual labor could all reasonably be performed.  He 
 
            further assessed claimant as having sustained a seven 
 
            percent permanent partial impairment of the body as a whole 
 
            and noted that claimant had achieved a state of maximal 
 
            medical benefit.
 
            
 
                 Following an allegation by claimant's attorney in a 
 
            letter of January 23, 1990 (for no obvious legitimate 
 
            reason, a photocopy of this letter was sent to the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            industrial commissioner) that claimant had suffered a change 
 
            for the worse in the past couple of weeks, he was again sent 
 
            to Dr. Cotton.  That physician wrote on February 9, 1990 
 
            that there had been no aggravation of the preexisting 
 
            condition.  He further noted that a videotape of a job 
 
            claimant had been offered by Stone Container Corporation 
 
            (exhibit 64) showed a job that claimant should be able to 
 
            easily tolerate.  Dr. Cotton added:
 
            
 
                 Clinical Impression:  This patient's neurological 
 
                 examination at this time is normal.  There is a 
 
                 large area of abnormal sensation over the back 
 
                 which is entirely out of keeping with known 
 
                 anatomical or physiological mechanisms.  This area 
 
                 of numbness in my experience could not be produced 
 
                 by any lesion in the brain, spinal cord, or 
 
                 peripheral nerves.  An abnormality in the low back 
 
                 of the type that this individual has complained of 
 
                 in the past could in no way produce a disturbance 
 
                 of sensation of the type that this individual 
 
                 describes.  His current complaints are clearly of 
 
                 a neurological and nonorthopedic type at this time 
 
                 in the presence of this diffuse disturbance of 
 
                 sensation.  I find nothing to indicate that his 
 
                 pre-existing condition specifically his low back 
 
                 injury has been aggravated in any way.
 
            
 
                 Also as a result of claimant's attorney's letter, 
 
            claimant was evaluated by an orthopaedic surgeon, John J. 
 
            Dougherty, M.D.  That physician wrote on March 12, 1990 that 
 
            claimant was neurologically within normal limits and was 
 
            hard to evaluate.  "Some of his complaints certainly don't 
 
            fit."  He found no evidence of herniated disc and minimal 
 
            bulging of the annulus and believed that Dr. Cotton and Dr. 
 
            Nelson were very fair and reasonable in assessing a 7-8 
 
            percent permanent partial impairment.  Dr. Dougherty also 
 
            reviewed the videotape and felt that claimant would be able 
 
            to perform the pictured job.  However, he also noted that 
 
            claimant should not be lifting as much as 50 pounds.  Dr. 
 
            Dougherty's assessment was of low back pain superimposed 
 
            upon what appears to be some degenerated disc at L3-4, L4-5, 
 
            and L5-S1 with minimal rotation in the lumbar spine, chronic 
 
            lumbosacral strain.
 
            
 
                 Claimant was also seen for evaluation by Pat Luse, 
 
            D.C., upon his attorney's referral.  Dr. Luse wrote on April 
 
            9, 1990 of a diagnosis of lumbar disc syndrome with 
 
            residuals.  Dr. Luse believed that claimant had sustained an 
 
            injury as a result of the work accident on March 27, 1987 
 
            (the doctor writes 1990, clearly a clerical error), and that 
 
            subjective complaints were consistent with objective 
 
            findings.  Dr. Luse believed that claimant had sustained an 
 
            impairment to the whole person of eight percent (using 
 
            American Medical Association guidelines), and recommended 
 
            restricting more than (?) pounds and frequent bending, 
 
            twisting or lifting and standing without breaks.  The 
 
            photocopy received into evidence (defendants' exhibit A) is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            not well centered on the third page and omits the number of 
 
            pounds to which Dr. Luse would restrict claimant.  Dr. Luse 
 
            also believed claimant should be given a trial period 
 
            performing the job of "bundling slots," the same job 
 
            demonstrated on exhibit 64.
 
            
 
                 Defendants' brief asserts that Dr. Luse's report of 
 
            April 9 was never served on defendants (it is in the form of 
 
            a letter to claimant's attorney).  Rule 343 IAC 4.17 
 
            requires each party to a contested case to serve all medical 
 
            reports and records within ten days of receipt.  Defendants 
 
            claim that they obtained a copy of exhibit A from Dr. Luse 
 
            directly, and then only when they discovered claimant had 
 
            seen that doctor upon receipt of his billing.  Defendants 
 
            suggest that claimant intentionally withheld this report 
 
            because it is in large part adverse to him.  Unfortunately, 
 
            this scenario seems more probable than not.  One might have 
 
            hoped that claimant's attorney would be more attentive to 
 
            such ethical considerations in the very case in which he 
 
            implied that defendants were guilty of a "scam," a scam 
 
            which he was sorry to say some industrial commissioner 
 
            deputies had "bought," in a letter mailed to the industrial 
 
            commissioner.  The only evident reason why a copy of this 
 
            letter would have been sent to the agency is an improper 
 
            effort to inject inflammatory and prejudicial material into 
 
            the adjudication of this contested case.  The undersigned 
 
            deputy expressly disapproves of attorney Harry Smith's 
 
            tactics.
 
            
 
                 Claimant was given a work capacity assessment by Randy 
 
            Presler, P.T., on October 26, 1988.  Mr. Presler felt that 
 
            the validity of his testing was questionable because 
 
            claimant did not exert maximal effort and was caught in 
 
            several inconsistencies.  Presler wrote that in the lifting 
 
            portion of the test, claimant appeared to give less than 
 
            maximal effort and reported an increase in pain when put in 
 
            a better position (with respect to compression of the back).  
 
            In the pushing and pulling portion of the exam, Presler 
 
            believed claimant gave less than maximum effort as indicated 
 
            by the ease at which he handled the weight.  There were no 
 
            physical signs of difficulty as would be present if a person 
 
            was putting forth maximal effort.  Claimant was able to push 
 
            80 pounds maximum in a 1 repetition test on the chest press 
 
            machine.  However, he was able to perform 50 repetitions 
 
            with 43 pounds.  Presler wrote that if a test subject is 
 
            performing to maximal effort on the 1 push test, the same 
 
            person would be able to perform considerable fewer than 50 
 
            repetitions at one-half that resistance.  Claimant 
 
            demonstrated limping and a shortened stride on the right 
 
            side on treadmill testing, but was not observed to show the 
 
            same problem walking around in the facility from test to 
 
            test.  Claimant showed hypersensitivity to palpation from 
 
            the first lumbar vertebra through the sacrum, which Presler 
 
            (not a physician, though) believed to be a nonphysiological 
 
            sign which should not be present with a chronic injury.
 
            
 
                 Defendants assigned claimant to be seen by several 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            representatives of Crawford Risk Management Services, a 
 
            business apparently engaged in vocational rehabilitation.  
 
            Claimant discontinued working with the first two individuals 
 
            assigned and complains that the third, Jim Weiss, did not 
 
            truly wish to assist him in returning to work.  It is true 
 
            that the reports of the first worker, Patricia Conway, 
 
            appear to be written more in an effort to reduce defendants' 
 
            potential liability than to truly rehabilitate claimant.  
 
            Under the circumstances, claimant's unwillingness to 
 
            cooperate with representatives of Crawford Risk Management 
 
            does not reflect adversely on his motivation.
 
            
 
                 Nonetheless, this writer does hold that claimant lacks 
 
            motivation and further lacks credibility as a witness.  His 
 
            demeanor at trial did not inspire confidence in his 
 
            truthfulness.  As has been seen, several physicians and a 
 
            physical therapist have made specific reference to 
 
            inconsistencies and physical impossibilities with respect to 
 
            the pattern of claimant's alleged pain.
 
            
 
                 Also in evidence as exhibit 63 is a surveillance 
 
            videotape showing claimant coaching a little league game.  
 
            As depicted in that videotape, claimant was clearly not as 
 
            stiff in his motions as he presented himself at hearing (on 
 
            a hot day).  The videotape shows him squatting as a first 
 
            base coach for an extended time and squatting while catching 
 
            a little league pitcher.  He is also shown jogging a few 
 
            steps.  He frequently bends forward with his hands on his 
 
            knees.
 
            
 
                 Out of context, none of these activities might seem 
 
            especially significant.  After all, claimant has never 
 
            alleged that his industrial disability is affected by 
 
            inability to act as a little league first base coach.  
 
            However, claimant was unaware of this surveillance when he 
 
            testified in a deposition on August 29, 1989, approximately 
 
            one month later.  In that deposition, claimant portrayed 
 
            himself as so pain-wracked that his maximum lifting 
 
            accomplishment during the previous year was a six-pound bag 
 
            of groceries.  He testified that he had never run nor jogged 
 
            since the work injury due to physical pain (that it was in 
 
            fact physically impossible) and that he could not squat or 
 
            stoop without severe and increasing pain.  Claimant's 
 
            representation of his disability is very much at variance 
 
            with his demonstrated activities.
 
            
 
                 James Weiss is a certified rehabilitation counselor 
 
            with Crawford Risk Management Services.  He met with 
 
            claimant in October, 1989, following which he made the 
 
            videotape of the bundler slot position in January, 1990.  
 
            After Dr. Cotton approved claimant for that job, it was 
 
            offered on January 22.  Claimant did not accept or refuse, 
 
            but wished to talk to his attorney.  On January 23, claimant 
 
            called to inquire as to his seniority, but again refused to 
 
            accept or refuse the job, again citing a need to speak to 
 
            his attorney.  It was after this conversation that Mr. Smith 
 
            wrote to Mr. Plaza in the letter discussed above.  In any 
 
            event, claimant did not attempt to come back to work at this 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            position (Weiss, the individual shown working on the tape, 
 
            himself has an unoperated herniated disc and is under a 
 
            15-pound medical lifting restriction).  Alan Baker described 
 
            the videotape as giving a fairly good idea what that 
 
            particular job was like, but showed the job under ideal 
 
            conditions.  Noting that many skids have bad wheels, he 
 
            expressed surprise that defendants were able to find one 
 
            that rolled as easily as the tape showed.  Plant manager 
 
            Richard Laing testified that the videotape accurately 
 
            depicted that general job.  Since claimant did not attempt 
 
            to work that position, it cannot now be told for certain 
 
            whether he would be able to or not.  His unwillingness does 
 
            reflect adversely on his motivation.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury as he alleges.  They further agree that the work 
 
            injury caused temporary disability, although they dispute 
 
            the extent thereof.  Pursuant to Iowa Code section 85.34(1), 
 
            healing period benefits are payable from the date of injury 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to employment substantially similar to that in 
 
            which he was engaged at the time of injury, whichever first 
 
            occurs.  In this case, claimant has not returned to work and 
 
            medical restrictions indicate that he is not likely to ever 
 
            be medically capable of returning to substantially similar 
 
            employment.  Accordingly, healing period must be held to end 
 
            at such time as it is medically indicated that significant 
 
            improvement from the injury is not anticipated.
 
            
 
                 Dr. Donohue indicated that claimant would not benefit 
 
            from further medical treatment as early as March 31, 1988.  
 
            Claimant suffered a claimed exacerbation in September, when 
 
            he attempted to return to work, but it does not appear in 
 
            retrospect that his condition has changed for the better 
 
            since March 31, 1988.  It is held that healing period 
 
            benefits shall be awarded from March 27, 1987 through March 
 
            31, 1988, a total of 53 weeks.
 
            
 
                 The parties also dispute whether a causal nexus exists 
 
            between the stipulated work injury and permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 27, 
 
            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 
 
            Hosp., 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.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).
 
            
 
                 Various physicians have found that claimant has 
 
            sustained physical impairment resulting from the injury, in 
 
            particular treating physician Nelson.  While Dr. DePompolo 
 
            may have found it impossible to causally relate the injury 
 
            to claimant's later disability, he did not opine that no 
 
            such causal nexus exists.  No physician has.  Claimant has 
 
            met his burden of proof in establishing permanent disability 
 
            caused by the subject work injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Dr. Nelson imposed a 40-pound lifting restriction, 
 
            along with restrictions against repetitive stooping and 
 
            bending and standing more than four hours.  Dr. Cotton adds 
 
            a restriction against walking in excess of four hours.  
 
            Except for Dr. Blume, who saw claimant rather early in his 
 
            recuperation, none of the physicians believe that claimant 
 
            has sustained a herniated disc.  Rather, it appears that his 
 
            residual pain is of musculoskeletal origin.  While he may 
 
            have had some history of previous backaches, it was not 
 
            disabling.
 
            
 
                 Given his medical restrictions, claimant cannot return 
 
            to his previous job.  It appears unlikely that he could 
 
            return to work as a bricklayer or welder.  He may well be 
 
            able to work as a grocery store clerk, service station 
 
            attendant or assembler, at least in some positions.  
 
            Claimant is a high school graduate and apparently of an 
 
            intelligence (and age) suitable for retraining.  His lack of 
 
            motivation is a factor indicative of lessened industrial 
 
            disability.
 
            
 
                 Considering then these factors in specific and the 
 
            record in general, it is held that claimant has sustained 
 
            industrial disability equivalent to 40 percent of the body 
 
            as a whole, or 200 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant fifty-three (53) 
 
            weeks of healing period benefits at the stipulated rate of 
 
            two hundred twenty-three and 36/100 dollars ($223.36) per 
 
            week commencing March 27, 1987 and totalling eleven thousand 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            eight hundred thirty-eight and 08/100 dollars ($11,838.08).
 
            
 
                 Defendants shall pay unto claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred twenty-three and 36/100 
 
            dollars ($223.36) per week commencing April 1, 1988 and 
 
            totalling forty-four thousand six hundred seventy-two and 
 
            00/100 dollars ($44,672.00).
 
            
 
                 Defendants shall have credit for all payments 
 
            voluntarily made prior to hearing.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed January 15, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS LILLY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 861913
 
            STONE CONTAINER CORPORATION,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, 36-year-old high school graduate of normal 
 
            intelligence, had work history as bricklayer, welder, 
 
            grocery clerk, construction worker, gas station attendant, 
 
            laborer and factory worker.  Motivation was poor, and 
 
            reported symptoms found impossible by some physicians.  
 
            Based on restrictions of 40 pounds lifting, repetitive 
 
            stooping and bending, and standing more than four hours, 
 
            claimant was awarded 40 percent body as a whole for 
 
            non-surgical back condition.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERLYN D. SMITH,
 
         
 
              Claimant,                               File No. 861924
 
                                                 
 
         vs.                                       A R B I T R A T I O N
 
         
 
         LEHIGH PORTLAND CEMENT, INC.,                D E C I S I O N
 
                                  
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        NOV 20 1989
 
         TRAVELERS INSURANCE CO.,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Merlyn D. 
 
         Smith, claimant, against Lehigh Portland Cement Co., employer, 
 
         and Travelers Insurance Company, insurance carrier, defendants, 
 
         for benefits as the result of an alleged injury that occurred on 
 
         August 21, 1987.  A hearing was held in Mason City, Iowa, on 
 
         October 2, 1989, and the case was fully submitted at that time. 
 
         Claimant was represented by Roger P. Owens.  Defendants were 
 
         represented by Jay M. Shriver.  The record consists of the 
 
         testimony of Merlyn D. Smith, claimant; Lou B. Fasing, safety and 
 
         training supervisor; and joint exhibits A and B.  A transcript 
 
         was ordered by the deputy.  Defendants' attorney submitted an 
 
         excellent posthearing brief.  Claimant's attorney did not file a 
 
         posthearing brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         temporary total disability, if defendants are found to be liable 
 
         for the injury, is stipulated to be from August 21, 1987 to 
 
         November 8, 1987.
 
         
 
              That causal connection and entitlement to permanent 
 
         disability are not issues in this case at this time.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $323.65 per week.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the fees charged for medical services and supplies are 
 
         fair and reasonable; that the expenses were incurred for 
 
         reasonable and necessary medical treatment; and that the causal 
 
         connection of the expenses to treatment for a medical 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 in these proceedings.
 
         
 
              That defendants paid claimant sickness and accident benefits 
 
         of income disability from an employee nonoccupational group 
 
         health plan in the amount of $1,804.18 and defendants are 
 
         entitled to a credit for this amount from any award of temporary 
 
         total disability benefits awarded in this decision.
 
         
 
              That defendants have paid claimant or the supplier of 
 
         medical services sickness and accident benefits of medical and 
 
         hospitalization benefits from an employee nonoccupational group 
 
         health plan and that if it is determined that claimant is 
 
         entitled to medical benefits, then claimant is only entitled to 
 
         $665.37 for deductible, coinsurance and other amounts paid by 
 
         claimant personally on his medical bills.
 
         
 
              That defendants seek no credit for workers' compensation 
 
         benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on August 21, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits.
 
         
 
              Whether claimant gave timely notice of an injury, as 
 
         required by Iowa Code section 85.23, has been asserted by 
 
         defendants as an affirmative defense.
 
         
 
              Whether claimant has commenced a timely action, as required 
 
         by Iowa code section 85.26, has been asserted by defendants as an 
 
         affirmative defense.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, age 63, is a retired employee of employer.  He 
 
         worked for employer for 30 1/2 years starting in 1957.  He never 
 
         missed a day of work in the first 17 1/2 years of employment. 
 
         Prior employments are farm and construction work.  He also worked 
 
         part-time for 20 years as an appliance repairman.  Claimant's 
 
         work over the years for employer required heavy lifting on a 
 
         routine basis (transcript pages 13 & 20).  Claimant's work on 
 
         construction and repairing appliances was not as heavy as his 
 
         work for employer (tr. pp. 21, 22 & 28).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had a history of hernia problems dating back to 
 
         1957 and they are documented in the medical evidence.  Claimant 
 
         testified that the incident that precipitated his surgery for 
 
         bilateral inguinal hernias occurred in May of 1987.  He was 
 
         changing the blades on a 623 Tournapul (scraper) when he became 
 
         real sore down below and became nauseated.  These blades weigh 
 
         between 250 and 300 pounds (tr. pp. 45 & 46).  He laid on the 
 
         bench in the garage out in the quarry that afternoon.  On 
 
         previous occasions when the bulges would appear in his abdominal 
 
         wall they would go down at night (tr. p. 17).  Claimant saw David 
 
         A. Ruen, M.D., as a result of this May 1987 episode and claimant 
 
         said Dr. Ruen recommended surgery (tr. p. 18).
 
         
 
              Claimant maintained that he reported this episode to Don 
 
         Olson, his supervisor, on the night he became sick from lifting 
 
         blades on the Tournapul in May 1987 (tr. P. 42).  Claimant 
 
         acknowledged that he did not formally report an injury, but 
 
         rather he was just talking to his supervisor (tr. p. 43).  
 
         Claimant granted that he has had some bulging for 30 to 40 years, 
 
         but that it did not become disabling until May of 1987 (tr. p. 
 
         48). Claimant continued to work until August 21, 1987.  His 
 
         surgery took place on August 24, 1987 (tr. pp. 46 & 47).
 
         
 
              Louis B. Fasing, safety and training supervisor, testified 
 
         he reviewed the company records and could not find any formal 
 
         notice of any work injury reported by claimant.  Fasing examined 
 
         a claim form for accident and health benefits.  He testified that 
 
         Dr. Ruen, or someone in his office, is the person who would have 
 
         indicated on that form a "no" answer to the question, "Is 
 
         condition due to injury or sickness arising out of patient's 
 
         employment."  (exhibit B, p. 2).  Likewise, the same thing would 
 
         apply to Dr. Herlitzka's report that showed an "x" in the "no" 
 
         block for the same question (ex. B, p. 3).
 
         
 
              Fasing verified that it was company procedure, that is 
 
         communicated in safety meetings and on the bulletin boards, that 
 
         work injuries are to be reported to the foreman before leaving 
 
         the plant at the end of the shift (tr. pp. 50 & 51).  Fasing 
 
         replied to claimant's counsel that he did not know how a 
 
         cumulative injury would be reported (tr. p. 52).  Fasing said 
 
         that employer hires Dr. Ruen to perform physical examinations, 
 
         but that the doctor is not an employee of the company.  Fasing 
 
         said that a report of an injury to Dr. Ruen does not constitute a 
 
         report of an injury to the company (tr. pp. 52 & 53).  Fasing 
 
         said he had no idea why Dr. Ruen would check the block that the 
 
         injury was not work related on November 24, 1987, when Dr. Ruen 
 
         received a letter from Dr. Herlitzka dated July 2, 1987, which 
 
         said, "I am quite sure that this is work related because that is 
 
         the only heavy lifting that he really does."  (tr. p. 53) [There 
 
         was no explanation either why Dr. Herlitzka's report of November 
 
         17, 1987, checked the "no" block in view of his letter of July 2, 
 
         1987, saying that it was work related.]
 
         
 
              Fasing acknowledged that claimant reported on July 14, 1987, 
 
         that he was going to have hernia repairs.  A portion of an 
 
         intercompany memo reads as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              ...He told me that on Friday morning he was going to have 
 
              his double hernia repaired.  I told him I was sorry to hear 
 
              about that and asked if he had gotten a second opinion.  He 
 
              said yes, Dr. Herlitzka, as well as, Dr. Ruen.  He then 
 
              stated that both doctors said that these hernias were as a 
 
              result of his work activities at Lehigh.  I asked him if he 
 
              had had them for a long time, and he said several years.  I 
 
              asked him if he could pinpoint anything specific as to what 
 
              had caused the hernias, and he replied that they do a lot of 
 
              heavy lifting at the Quarry Garage and they really don't 
 
              have any type of equipment to do that lifting with.  I said, 
 
              "So you are saying your surgery should be covered under work 
 
              comp?" He said yes, as both doctors said it was caused by 
 
              work....
 
         
 
         (ex. B, p. 1)
 
         
 
              Defendants established that claimant had suffered hernia 
 
         symptoms since at least June 21, 1957, when claimant's family 
 
         physician A.J.R. Stueland, M.D., noted, "Marked impulse of the 
 
         left inguinal ring, however, not enough to call it a true hernia. 
 
         I forgot to mention this to the Pt."  (ex. A, p. 1; tr. p  25). 
 
         On May 18, 1971, claimant reported abdominal pains due to heavy 
 
         lifting (ex. A, p. 4; Tr. p. 27).  On September 20, 1975, Dr. 
 
         Stueland noted claimant reported a left bulge and wanted to be 
 
         checked for hernia again.  None was present (ex. A, p. 6; tr. p. 
 
         31).
 
         
 
              On June 5, 1978, claimant had an enlarged ring on the left, 
 
         but the doctor did not feel like surgical consultation was needed 
 
         (ex. A, p. 6; tr. p. 31).  Claimant was examined for hernia on 
 
         April 7, 1981, but the doctor could not demonstrate a hernia (ex 
 
         A, pp. 7 & 8; tr. p. 32).
 
         
 
              On February 19, 1985, Dr. Ruen reported to the company that 
 
         claimant's physical examination disclosed two small bilateral 
 
         inguinal rings, but no true hernia (ex. A, pp. 10 & 11).  At the 
 
         time of his company physical examination on February 3, 1987, Jon 
 
         R. Yankey, M.D., reported inguinal rings are large, possible 
 
         early hernia, bilaterally (ex. A, pp. 12 & 13).  Dr. Herlitzka 
 
         reported on July 2, 1987, that claimant should have bilateral 
 
         hernia surgery.  The doctor said that it seems to be related to 
 
         work because that is the only heavy lifting he does and that he 
 
         would have to assume it was a workers' compensation matter (ex. 
 
         A, p. 17).
 
         
 
              Claimant was admitted for surgery on August 24, 1987, Drs. 
 
         Ruen and Herlitzka were not aware of claimant's history with Dr. 
 
         Stueland and believed claimant's history began with the physical 
 
         examination by Dr. Ruen in 1985 (ex. A, pp. 21-30).
 
         
 
              As previously stated, Dr. Herlitzka wrote to Dr. Ruen prior 
 
         to the surgery on July 2, 1987 and stated, "I am quite sure that 
 
         this is work related because that is the only lifting that he 
 
         really does." (ex. A, p. 31).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's attorney requested information from Dr. Herlitzka 
 
         on March 18, 1988 (ex. A, p. 33).  Dr. Herlitzka replied on March 
 
         27, 1988.  In the first paragraph of his reply he stated:
 
         
 
              ...Mr. Smith had bilateral inguinal hernias, and they were 
 
              of the direct type which is suggestive that they may have 
 
              occurred with lifting and straining.  He states that the 
 
              only time that he performed any heavy lifting or straining 
 
              was at work, so I assume it a good possibility that the 
 
              hernias occurred on the job.
 
         
 
         (ex. A, p. 33b)
 
         
 
              Later in this letter, Dr. Herlitzka said, "In answer to your 
 
         4th question, 'Were his duties at Lehigh Cement an aggravating 
 
         factor in production of his hernias?' as mentioned above, I would 
 
         say 'Yes'."  (ex. A, p. 33b)
 
         
 
              Shortly before the hearing, defendants' counsel uncovered 
 
         the records of Dr. Stueland and sent these records along with the 
 
         records of Dr. Ruen, Dr. Yankey, Dr. Herlitzka and Mercy Hospital 
 
         to James K. Coddington, M.D., a family practitioner for an 
 
         evaluation.  Dr. Coddington did not examine claimant personally. 
 
         Dr. Coddington reported on September 14, 1989.  He noted that 
 
         claimant complained of hernia symptoms since the employer's 
 
         routine physical examination on June 21, 1957 and it appears in 
 
         several progress notes after that.  He confirmed that direct 
 
         hernias are the result of chronic or acute weakening or tearing 
 
         of the floor of the inguinal canal.  Hernias can be present as 
 
         early as birth and then, "aggravated over a lifetime by lifting, 
 
         coughing, and weakening of these muscles by the aging process." 
 
         (ex. A, p. 35).  Dr. Coddington concluded as follows:
 
         
 
              In view of the patient's history, specifically the early 
 
              development (or detection) of loose or large inguinal rings, 
 
              I conclude to a reasonable degree of medical certainty that 
 
              in all probability the patient would have required 
 
              corrective surgical intervention sometime in his life, 
 
              assuming he remained ambulatory and maintained an average 
 
              lifestyle.  I can also conclude to a reasonable degree of 
 
              medical certainty that Mr. Smith's ultimate manifestation of 
 
              the hernias was in all probability caused, not by a single 
 
              isolated incident since the record is void of such evidence, 
 
              but by natural, everyday activities over a long period of 
 
              time, such as walking, bending, stooping, lifting and 
 
              climbing stairs. Although a single acute incident during 
 
              this patient's lifetime may have necessitated surgical 
 
              intervention, the absence of any documentation of such an 
 
              incident, together with the patient's long history of 
 
              discomfort in the inguinal region, corroborates the 
 
              conclusion that the ultimate protrusions developed very 
 
              gradually over a long period of time and in all probability 
 
              were due to the natural aging process as to any other single 
 
              activity.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. A, p. 35)
 
         
 
                           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 August 21, 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 August 21, 1987, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by.the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain an injury arising out of and in the 
 
         course of employment with employer on August 21, 1987.  As 
 
         defendants pointed out, claimant has demonstrated possible hernia 
 
         symptoms for at least 30 years.  His indirect hernia(s) were 
 
         probably congenital.  The direct hernias are determined to be 
 
         caused by heavy lifting for 30 years.  Dr. Herlitzka wrote to Dr. 
 
         Ruen on July 2, 1987, "I am sure that this is work related 
 
         because that is the only lifting that he really does."  (Ex. A, 
 
         p. 31).  In reply to claimant's counsel on March 27, 1988, Dr. 
 
         Herlitzka said, "Mr. Smith had bilateral inguinal hernias, and 
 
         they were of the direct type which is suggestive that they may 
 
         have occurred with lifting and straining".  Dr. Herlitzka added 
 
         later in that letter that claimant's duties with employer were an 
 
         aggravating factor in the production of his hernias (ex. A, p. 33 
 
         B).  A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It only needs to be one cause; it 
 
         does not have to be the only cause.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Claimant testified that the only heavy lifting he performed 
 
         was for employer at work.  The Tournapul blades weighed 250 to 
 
         300 pounds.  Claimant denied that he performed heavy lifting in 
 
         his part-time job of fixing appliances for 20 years.  Claimant's 
 
         testimony stands uncontroverted, contradicted, unrebutted and 
 
         unrefuted.
 
         
 
              Dr. Coddington's conclusion that the hernias would have 
 
         eventually developed to the point of requiring surgery in any 
 
         event from the aging process alone is not accepted as the best 
 
         evidence in this case where the uncontroverted evidence is that 
 
         claimant.performed heavy lifting for 30 years at work up to as 
 
         much as 250 to 300 pounds.  Dr. Coddington's conclusion does not 
 
         follow his earlier premises or statement.  Dr. Coddington 
 
         acknowledges that direct hernias are the result of chronic or 
 
         acute weakening or tearing of the floor of the inguinal canal.  
 
         He said that it is common for two hernias to appear together.  
 
         This would be especially true where claimant is doing heavy 
 
         lifting with both arms.  Dr. Coddington adds that hernias can be 
 
         aggravated over a lifetime by lifting, coughing and weakening of 
 
         these muscles by the aging process.  However, the aging process 
 
         does not normally include lifting up to 250 to 300 pounds for 30 
 
         years.
 
         
 
              Dr. Coddington supplies the basis for the cumulative injury 
 
         theory in this case by stating that claimant's ultimate 
 
         manifestation of the hernias was in all probability caused by 
 
         natural everyday activities over a long period of time, such as 
 
         walking bending, stooping, lifting and climbing stairs.  
 
         Claimant's job as a mechanic entailed all of these maneuvers, but 
 
         also lifting up to 250 to 300 pounds for possibly 30 years.  Dr. 
 
         Coddington proceeded on the basis there was no evidence of a 
 
         single acute incident, but claimant testified that in May of 
 
         1987, after he lifted the Tournapul blades, he became nauseated 
 
         and was forced to lie on the bench in the garage in the afternoon 
 
         and reported the incident to Don Olson at the end of the day.  
 
         This evidence is not controverted.  Don Olson was not called as a 
 
         witness.  There was no deposition or statement from him.  It was 
 
         not shown that he was unavailable for a statement or deposition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Herlitzka's opinion is accepted as the most reliable 
 
         medical evidence.  It is not only the best reasoned, but also 
 
         comports better to the facts of this case.  Also, Dr. Herlitzka 
 
         was the treating physician and he is also a general surgeon.  Dr. 
 
         Coddington appears to be a family practitioner and his 
 
         qualifications are otherwise unknown.  Rockwell Graphics Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192.  Dr. Herlitzka is a general 
 
         surgeon.  Dr. Coddington's qualifications were not placed in 
 
         evidence.  Reiland v. Palco, Inc., Thirty-second Biennial Report 
 
         of the Industrial Commissioner 56 (1975); Dickey v. ITT 
 
         Continental Baking Co., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 89 (1979).
 
         
 
              It is noted that for 30 years, claimant had hernia-like 
 
         complaints, but Dr. Stueland, Dr. Ruen and Dr. Yankey were all 
 
         careful to point out that he did not have hernias even though the 
 
         inguinal rings were enlarged.  The evidence establishes that 
 
         claimant's symptoms progressed up to the point that Dr. Herlitzka 
 
         determined that surgery was necessary.  Both Dr. Herlitzka and 
 
         Dr. Coddington point out that the repetition of lifting, bending, 
 
         stooping and the like brought about the necessity for surgery.  
 
         It is possible to determine that claimant sustained an injury 
 
         caused by the single incident of lifting the Tournapul blades in 
 
         May of 1987, but the weight of the expert medical evidence and 
 
         all of the evidence supports a cumulative injury.  The decision 
 
         should follow the evidence.  Therefore, it is determined that 
 
         claimant sustained a cumulative injury and that the date of 
 
         injury is the date that claimant first lost time from work due to 
 
         the injury on August 21, 1987.  McKeever Custom Cabinets v. 
 
         Smith, 379 N.W.2d 368, (Iowa 1985).
 
         
 
              It is further determined that the injury was the cause of 
 
         temporary disability from August 21, 1987, the date of the 
 
         injury, until claimant was released to return to work on November 
 
         9, 1987 [ex. A, p. 16; Iowa Code section 85.33(1)].
 
         
 
              Causal connection and entitlement to permanent disability 
 
         were not issues to be decided in this case and the evidence 
 
         establishes that claimant did not suffer any permanent disability 
 
         or restrictions (ex. A, pp. 16 & 33B).
 
         
 
              The statute of limitations is an affirmative defense. 
 
         Defendants did not sustain the burden of proof by a preponderance 
 
         of the evidence that claimant failed to commence this action 
 
         within two years as required by Iowa Code section 85.26.  
 
         Meffered v. Ed Miller and Sons, Inc., Thirty-third Biennial 
 
         Report of the Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The injury date is determined to be August 21, 1987 and the 
 
         petition was filed on January 21, 1988, well within the two year 
 
         period of limitations [Iowa Code section 85.26(1)].
 
         
 
              Likewise, it could be stated that the period of giving 
 
         notice began on August 21, 1987.  However, defendants knew on 
 
         July 14, 1987 that claimant was asserting a workers' compensation 
 
         claim because this is disclosed in the intercompany memo on that 
 
         date that reveals that claimant told his superiors that he was 
 
         asserting a workers' compensation claim based on the fact that 
 
         Dr. Ruen and Dr. Herlitzka told him the hernias were caused by 
 
         heavy lifting at work (ex. B, p. 1).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The purpose of the notice statute is to give defendants the 
 
         opportunity to investigate the injury.  Robinson v. Department of 
 
         Transportation, 296 N.W.2d 809, 811 (Iowa 1989).  Defendants had 
 
         all the information needed to investigate the alleged injury on 
 
         July 14, 1987.  Defendants cannot complain that the notice 
 
         requirement was met prior to the injury date.  Dillinger v. City 
 
         of Sioux City, 368 N.W.2d 176 (Iowa 1985).
 
         
 
              The evidence of record shows that claimant first discovered 
 
         or knew, or should have known, he had a workers' compensation 
 
         claim was on July 2, 1987, when Dr. Herlitzka determined that 
 
         claimant's hernias needed to be surgically repaired and were 
 
         probably caused by heavy lifting at work and wrote a letter to 
 
         this effect to Dr. Ruen (ex. A, pp. 17 & 31).  The evidence of 
 
         record shows claimant made a formal report of injury to his 
 
         superiors on July 14, 1987 (ex. B, p. 1).  Claimant has 
 
         therefore, complied with the discovery rule and placed employer 
 
         on notice of a possible claim within 90 days of when he 
 
         discovered his injury was serious and work connected.  Likewise, 
 
         employer as a "reasonably conscientious employer" could conclude 
 
         that it may have a workers' compensation claim on its hands and 
 
         could investigate the claim.  Woodward v. Armstrong Tire and 
 
         Rubber Co., IV Industrial Commissioner Report 398 (1984).  In 
 
         fact, the memo states that the author of it stated he would check 
 
         into it and get back to claimant the following day (ex. B, p. 1).  
 
         Robinson, 296 N.W.2d 809, 811, 812 (Iowa 1980).
 
         
 
              Therefore, it is determined:  (1) that claimant gave notice 
 
         of the injury on July 14, 1987; (2) that employer had actual 
 
         notice of the injury on July 14, 1987; and (3) that claimant 
 
         first discovered the nature, seriousness and compensability of 
 
         his claim on July 2, 1987.  Therefore, claimant has complied with 
 
         the notice requirement of Iowa Code section 85.23:  (1) by giving 
 
         notice as required by that statute; (2) that this notice then 
 
         constituted actual notice of the injury to employer as of that 
 
         date (Robinson, 296 N.W.2d 809 (Iowa 1980); Lawyer and Higgs, 
 
         Iowa Workers' Compensation--Law and Practice, section 10-2 and 
 
         10-5 footnote 2); and (3) claimant reported the injury within 
 
         ninety days of when he learned it was serious and compensable 
 
         (Robinson, 296 N.W.2d 809 (Iowa 1980); Jacques v. Farmers Lumber 
 
         and Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951); Lawyer and 
 
         Higgs, section 10-9).
 
         
 
              In addition, by way of dicta, defendants have known from 
 
         company physical examinations in 1957, 1985 and 1987 that 
 
         claimant had enlarged inguinal rings and that claimant's job 
 
         required heavy lifting.  Two plus two make four.  Enlarged 
 
         inguinal rings and hernia-like complaints for 30 years combined 
 
         with a job that requires heavy lifting up to 250 to 300 pounds 
 
         would put defendants on notice that continued heavy lifting by a 
 
         man, 61 years of age, who has been performing heavy lifting for 
 
         30 years might quite likely lead to a full blown bilateral hernia 
 
         eventually.  Woodward, IV Industrial Report 398 (1984).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The workers' compensation law was designed to benefit the 
 
         worker and his dependants.  Insofar as statutory requirements 
 
         permit it should be interpreted broadly and liberally toward that 
 
         objective.  Barton v. Nevada Poultry Company, 253 Iowa 285, 289, 
 
         110 N.W.2d 660, 662 91961); Irish v. McCleary Saw Mill, 175 
 
         N.W.2d 364 (Iowa 1970); Caterpillar Tractor Co. v. Shook, 313 
 
         N.W. 503 (Iowa 1981); John Deere Dubuque Works v. Meyers, 410 
 
         N.W.2d 255 (Iowa 1987).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              1.  That claimant was employed by employer from 1957 to 
 
         approximately 1988.
 
         
 
              2.  That claimant routinely performed heavy lifting during 
 
         his 30 years of employment with employer of up to 250 to 300 
 
         pounds.
 
         
 
              3.  That claimant exhibited symptoms of potential hernias 
 
         from 1957 until 1987.
 
         
 
              4.  That on July 2, 1987, Dr. Herlitzka determined that 
 
         bilateral inguinal surgery was needed.
 
         
 
              5.  That Dr. Herlitzka stated that he was quite sure that 
 
         his hernias were work related because that is the only lifting 
 
         that he really does.
 
         
 
              6.  Dr. Herlitzka also stated that claimant's duties at his 
 
         employment were an aggravating factor in the production of his 
 
         hernias.
 
         
 
              7.  That both Dr. Herlitzka and Dr. Coddington indicated 
 
         that repetitive lifting, bending, stooping and other activities 
 
         for many years contributed to the ultimate herniations which 
 
         eventually required surgery on August 24, 1987.
 
         
 
              8.  That the first day that claimant lost time from work was 
 
         August 21, 1987.
 
         
 
              9.  That claimant sustained an injury arising out of and in 
 
         the course of his employment on August 21, 1987.
 
         
 
              10.  That the original notice and petition in this case was 
 
         filed on January 21, 1988.
 
         
 
              11.  That claimant first knew the bilateral hernias were 
 
         work related and serious when Dr. Herlitzka recommended surgery 
 
         on July 2, 1987.
 
         
 
              12.  That claimant made a formal notice of injury on July 
 
         14, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              13.  That claimant was off work for a period of recovery 
 
         from August 21, 1987 to November 9, 1987, at which time he was 
 
         released to return to work without restrictions.
 
         
 
              14.  That claimant did not sustain any permanent disability 
 
         from his hernia injuries.
 
         
 
              15.  That claimant was paid $1,804.18 from the employee 
 
         nonoccupational group health plan and the parties stipulated that 
 
         employer was entitled to a credit for this amount of money.
 
         
 
              16.  That claimant's medical bills were paid by the employee 
 
         nonoccupational group health plan except for $665.47 paid by 
 
         claimant to cover deductibles, coinsurance and possibly other 
 
         items.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did sustain an injury on August 21, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability during 
 
         a period of recovery.
 
         
 
              That claimant is entitled to 11.429 weeks of temporary 
 
         disability benefits from August 21, 1987 to November 9, 1987.
 
         
 
              That claimant is entitled to the payment of his medical 
 
         expenses for this injury.
 
         
 
              That defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant failed to give notice 
 
         as required by Iowa Code section 85.23 or commence a timely 
 
         action as required by Iowa Code section 85.26(1).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant eleven point four two nine 
 
         (11.429) weeks of temporary total disability benefits for the 
 
         period from August 21, 1987 to November 9, 1987 at the rate of 
 
         Three Hundred Twenty-three and 65/100 Dollars ($323.65) per week 
 
         in the total amount of Three Thousand Six Hundred Ninety-nine 
 
         Dollars ($3,699) commencing on August 21, 1987.
 
         
 
              That defendants are to pay this amount in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30 on the weekly workers' compensation benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants are entitled to a credit in the amount of 
 
         One Thousand Eight Hundred Four and 18/100 Dollars ($1,804.18) as 
 
         stipulated to by the parties.
 
         
 
              That defendants pay to claimant Six Hundred Sixty-five and 
 
         47/100 Dollars ($665.47) for medical expenses as stipulated to by 
 
         the parties to reimburse claimant for the amount he paid for 
 
         deductibles, coinsurance and other items related to this injury.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services rule 343-4.33, 
 
         including the cost of the transcript.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency.
 
         
 
              
 
              Signed and filed this 29th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Roger P. Owens
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, IA  50309-1398
 
         
 
         Mr. Jay M. Shriver
 
         Attorney at Law
 
         800 Brick and Tile Bldg
 
         Mason City, IA  50401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1106; 1108.50; 1401; 1402.20; 
 
                                       1402.30; 1402.40; 1402.50; 1402.60; 
 
                                       1801; 2206; 2209; 51403.10; 51701; 
 
                                       1402.50; 2401; 2402; 2801; 2802; 
 
                                       2803; 2501
 
                                       Filed November 29, 1989
 
                                       WALTER R. MCMANUS, JR.
 
                                       
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERLYN D. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.                                           File No. 861924
 
         
 
         LEHIGH PORTLAND CEMENT, INC.,              A R B I T R A T I O N
 
         
 
              Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.50; 1402.60; 
 
         1801; 2206; 2209
 
         
 
              Claimant exhibited hernia symptoms for 30 years of 
 
         employment with employer, but not an actual hernia or hernias, 
 
         until July 2, 1987, when an employer general surgeon diagnosed 
 
         active hernias and recommended bilateral inguinal hernia surgery.  
 
         Employer's surgeon states, "I am quite sure this is work related 
 
         because that is the only heavy lifting he really does."  Claimant 
 
         lifted up to 250 to 300 pounds for over 30 years for employer.  
 
         Defendant's evaluator gave an opinion from records only which did 
 
         not track. He thought aging caused the hernias.  Claimant awarded 
 
         temporary total disability for the period stipulated he was off 
 
         work on account of the hernias and surgery.  Permanent disability 
 
         was not an issue in this case.
 
         
 
         51403.10; 51701
 
         
 
              Defendants allowed credit for payments of medical and income 
 
         disability under an employee nonoccupational group health plan as 
 
         stipulated to by the parties.
 
         
 
         1402.50; 2401; 2402; 2801; 2802; 2803
 
         
 
              The evidence best supported a cumulative injury based on the 
 
         evidence from claimant's doctor and also defendants' doctor and 
 
         the injury date was determined to be the first day claimant lost 
 
         work due to the injury following McKeever.  Claimant had actually 
 
         given supervisor formal notice prior to that date.  (Dillinger 
 
         situation)  Furthermore, claimant complied also with the normal 
 
         section 85.23 requirements and the discovery rule.  It was also 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         implied, as dicta, that employer knew of threatened hernias for 
 
         30 years from the company physical examinations and knew claimant 
 
         performed heavy lifting for over 30 years and that he was 61 
 
         years of age and that this "could" constitute notice under the 
 
         liberal construction of the law given to workers' compensation 
 
         cases.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The action was commenced well within the two year statute of 
 
         limitations.
 
         
 
         2501
 
         
 
              Claimant found entitled to his deductibles, coinsurance and 
 
         other medical he personally paid as stipulated.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PEARL J. STARK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 861926
 
            DONNELLEY MARKETING,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            statement of the case
 
            The record on appeal was reviewed de novo and this decision 
 
            is based on the motion, resistance and all supporting 
 
            affidavits and documents.  Claimant's appeal brief was not 
 
            timely filed, therefore, the appeal was considered generally 
 
            without any specified errors to determine compliance with 
 
            the law.
 
            applicable law
 
            The citations of law in the summary judgment decision are 
 
            appropriate to the issues and evidence.
 
            An additional citation is pertinent:
 
            
 
                    In order to be entitled to a summary judgment, 
 
                 the defendants were required to show there was no 
 
                 genuine issue of material fact involved in the 
 
                 case and that a summary judgment should be entered 
 
                 in their favor as a matter of law.  Rule 237(c), 
 
                 Rules of Civil Procedure; Unification Church v. 
 
                 Clay Central School District, 253 N.W.2d 579, 581 
 
                 (Iowa 1977) and citations.  In passing upon 
 
                 motions for summary judgment, a court is required 
 
                 to look at the entire record in a light most 
 
                 favorable to the party opposing the motion to 
 
                 determine whether the moving party has met his 
 
                 burden.  Unification Church v. Clay Central School 
 
                 District, 253 N.W.2d at 581; Sand Seed Service, 
 
                 Inc. v. Poeckes, 249 N.W.2d 663, 664 (Iowa 1977).
 
            
 
            Iowa Department of Transportation v. Read, 262 N.W.2d 533, 
 
            536 (Iowa 1978).
 
            analysis
 
            The analysis of the evidence in conjunction with the law in 
 
            the summary judgment decision filed May 16, 1989 is adopted.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            1.  Claimant was hired by defendants in Sioux City, Iowa in 
 
            April 1980 to work as a production employee.
 
            2.  Claimant worked at defendants' facility in Sioux City, 
 
            Iowa until 1982, 1983, or 1984, at which time the defendants 
 
            moved its production works to a location at South Sioux 
 
            City, Nebraska.  
 
            3.  Claimant maintained her domicile in the state of Iowa 
 
            after defendants' transfer to Nebraska.
 
            4.  Defendants were licensed to do business in Nebraska 
 
            where it maintained its principal place of operations at the 
 
            time of claimant's injury.  
 
            5.  Defendants maintained warehouse facilities in North 
 
            Sioux City, South Dakota and Sioux City, Iowa subsequent to 
 
            the move of the production operation.
 
            6.  Claimant's wages were paid to her as a Nebraska employee 
 
            from the time of her relocation and claimant paid taxes 
 
            pursuant to Nebraska laws, see defendants exhibit E.  
 
            Claimant's salary check was mailed to her from defendant's 
 
            Nevada, Iowa address.
 
            7.  Occasionally, claimant would work at the warehouse 
 
            facilities subsequent to the time that the production 
 
            operations had been moved to Nebraska.
 
            8.  The allegations upon which claimant makes this claim are 
 
            that she was injured at the South Dakota warehouse while 
 
            lifting a table on September 4, 1986.
 
            9.  In claimant's original notice and petition, she stated 
 
            that she was receiving workers' compensation benefits 
 
            pursuant to South Dakota law.
 
            10.  Exhibit D which is attached to defendants' motion 
 
            establishes that most of claimant's work was performed in 
 
            Nebraska after the production operation was moved to the 
 
            state of Nebraska and that claimant's work in the state of 
 
            Iowa was only occasional.
 
            11.  Majority of claimant's working time was spent in the 
 
            state of Nebraska.
 
            conclusion of law
 
            The evidence shows that defendant employer is principally 
 
            localized in the state of Nebraska and that claimant 
 
            regularly works in the state of Nebraska, therefore there 
 
            was no genuine issue of material fact and that defendants 
 
            are entitled to entry of summary judgment as a matter of 
 
            law.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant's claim against the defendants is dismissed 
 
            for lack of subject matter jurisdiction.
 
            That claimant pay the cost of this action pursuant to 
 
            Division of Industrial Services Rule 343-3.1(2).
 
            Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            P.O. Box 1828
 
            Sioux City, Iowa 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2301
 
                                          Filed July 20, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PEARL J. STARK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 861926
 
            DONNELLEY MARKETING,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2301
 
            The industrial commissioner lacked subject matter 
 
            jurisdiction pursuant to Iowa Code section 85.71(1).  Most 
 
            of claimant's work was performed in Nebraska after 
 
            defendants' production operation was moved to the state of 
 
            Nebraska and that claimant's work in the state of Iowa was 
 
            only occasional.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DUANE ARNHOLD,                :
 
                                          :         File Nos. 825923
 
                 Claimant,                :                   861959
 
                                          :
 
            vs.                           :           A P P E A L
 
                                          :
 
            CITY OF DES MOINES,           :         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.  Pursuant to an Order 
 
            of former industrial commissioner David E. Linquist of June 
 
            13, 1990, claimant's untimely-submitted appeal brief was 
 
            stricken and not considered on appeal.  Defendant's 
 
            timely-submitted appeal brief was considered on appeal.  The 
 
            decision of the deputy filed November 30, 1989, is affirmed 
 
            and is adopted as the final agency action in this case, with 
 
            the following additional analysis:
 
            
 
                 The record reflects that, subsequent to his February 
 
            25, 1986, motor vehicle accident, Lutheran Hospital 
 
            personnel instructed claimant to see Kevin Cunningham, M.D., 
 
            should he have continuing problems.  The deputy recites that 
 
            claimant was directed to see a Dr. K. Anderson.  Such 
 
            appears to be clerical error as there is no further 
 
            reference to a Dr. Anderson in the record.
 
            
 
                 The law regarding industrial disability does not state 
 
            that the filing of the litigated workers' compensation claim 
 
            is a factor to be considered in assessing the loss of 
 
            earning capacity.  As defendant rightly points out in its 
 
            appeal brief, employment action against an employee because 
 
            the employee has filed a workers' compensation claim is 
 
            against public policy under Springer v. Weeks & Leo Co., 429 
 
            N.W.2d 558 (Iowa 1988).  Loss of job mobility is, however, a 
 
            legitimate factor to consider in assessing actual loss of 
 
            earning capacity.  This record clearly demonstrates that, on 
 
            account of his work injury, claimant would have great 
 
            difficulty competitively seeking employment in the areas in 
 
            which he has expertise and training.  Such clearly limits 
 
            claimant's ability to personally choose to leave his current 
 
            employment, should he believe his working conditions are 
 
            less than satisfactory.  Claimant's inability to 
 
            competitively reenter the job market in the areas in which 
 
            he has expertise, education, and experience--an inability 
 
            his work injury produced--reflects an actual loss of earning 
 
            capacity for which the deputy appropriately compensated 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant with an award of industrial disability benefits 
 
            representing a permanent partial disability of 10 percent of 
 
            the body as a whole.
 
            
 
                 Defendant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                 BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael L. Jankins
 
            Attorney at Law
 
            2323 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Steven C. Lussier
 
            Assistant City Attorney
 
            City Hall
 
            400 East First Street
 
            Des Moines, Iowa  50309-1891
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           9999
 
                           Filed November 25, 1991
 
                           BYRON K. ORTON
 
                           WRM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DUANE ARNHOLD,                :
 
                                          :         File Nos. 825923
 
                 Claimant,                :                   861959
 
                                          :
 
            vs.                           :           A P P E A L
 
                                          :
 
            CITY OF DES MOINES,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed November 30, 
 
            1989, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBRA L. PECK, :
 
                      :
 
                 Claimant, :   File Nos. 861960/913244
 
                      :
 
            vs.       :         A P P E A L
 
                      :
 
            WILSON FOODS CORPORATION,     :       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 April 12, 1990 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            Claimant asserts one of the issues on appeal is whether the 
 
            deputy industrial commissioner erred in failing to grant an 
 
            extension of time to file claimant's arbitration brief.  In 
 
            addition to the above mentioned issue, claimant asserted 
 
            other issues which were considered in this appeal decision.  
 
            The arbitration decision itself is, by statute, reviewed de 
 
            novo on appeal.  Miller v. Woodward State Hospital, Appeal 
 
            Decision, May 31, 1990 (#853647).  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBRA L. PECK, :
 
                      :
 
                 Claimant, :   File Nos. 861960/913244
 
                      :
 
            vs.       :         A P P E A L
 
                      :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed Aprul 12, 
 
            1990, with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA L. PECK,
 
         
 
         Claimant,                       File Nos.  861960
 
                                                      913244
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         WILSON FOODS CORPORATION
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Debra L. 
 
         Peck, claimant, against Wilson Foods Corporation, employer and 
 
         self-insured defendant, for benefits as the result of an injury 
 
         that occurred on August 20, 1984 (file no. 861960) and an alleged 
 
         injury which occurred on July 30, 1987 (file no. 913244).  A 
 
         hearing was held in Storm Lake, Iowa, on February 1, 1990 and the 
 
         case was fully submitted at the close of the hearing.  Claimant 
 
         was represented by Harry H. Smith.  Defendant was represented by 
 
         David L. Sayre.  The record consists of the testimony of Debra L. 
 
         Peck, claimant; and joint exhibits 1 through 29.  The deputy 
 
         ordered a transcript of the hearing and that briefs be filed by 
 
         April 1, 1990.  Defendant's attorney submitted an excellent 
 
         brief.  The request of claimant's attorney for a 60-day extension 
 
         to file a brief is denied.
 
         
 
                            INJURY OF AUGUST 20, 1984
 
                                        
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters with.respect 
 
         to the injury of August 20, 1984.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on August 20, 1984, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability.
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $156.63 per week.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged were reasonable and defendant is not offering 
 
         contrary evidence.
 
         
 
              That defendant claims no credit for benefits paid pursuant 
 
         to an employee non-occupational group health plan.
 
         
 
              That defendant has paid $89.53 in workmen's compensation 
 
         benefits to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         with respect to the injury of August 20, 1984.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the extent of benefits to which 
 
         she is entitled.
 
         
 
              Whether claimant is entitled to the medical expense of an 
 
         MRI and the interpretation of it on November 29, 1988 as either a 
 
         medical expense or an independent medical examination expense 
 
         under Iowa Code section 85.39.
 
         
 
              Whether claimant failed to commence a timely action under 
 
         Iowa Code section 85.26 has been asserted by defendant as an 
 
         affirmative defense.
 
         
 
                         ALLEGED INJURY OF JULY 30, 1987
 
                                        
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters with respect 
 
         to the alleged injury of July 30, 1987.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation will be stipulated to by the 
 
         parties in their posthearing briefs.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged were reasonable and defendant is not offering 
 
         contrary evidence.
 
         
 
              That defendant makes no claim for credit for benefits paid 
 
         pursuant. to an employee non-occupational group health plan prior 
 
         to hearing.
 
         
 
              That defendant is entitled to a credit for all prior 
 
         workers' compensation benefits paid to claimant for her back in 
 
         the event it is determined that claimant sustained a cumulative 
 
         injury, more specifically, $89.53 for the injury of August 20, 
 
         1984, while dumping garbage and $996.53 for another back incident 
 
         that occurred on August 23, 1985, while dumping loins (file 
 
         number 804580) (joint exhibits 27 and 29).
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         with respect.the alleged injury of July 30, 1987.
 
         
 
              Whether claimant sustained an injury on July 30, 1987, that 
 
         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, and if so, the extent of benefits 
 
         to which she is entitled.
 
         
 
              Whether claimant is entitled to the medical expense of an 
 
         MRI and the interpretation of it on November 29, 1988, as either 
 
         a medical expense or an independent medical examination expense 
 
         under Iowa Code section 85.39.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born June 24, 1961, was 23 years old at the time 
 
         of the injury on August 20, 1984 and 28 years old at the time of 
 
         the hearing.  She completed 11 years of high school and later 
 
         obtained a GED.  She also acquired a nurse's aide certificate
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 4
 
         
 
         
 
         through on-the-job training.  Past employments include waitress 
 
         and cook, caring for handicapped adults, nurse's aide at a mental 
 
         health institute, housekeeper at a hospital, and operating a 
 
         babysitting service in her home.    Claimant started to work for 
 
         employer in April 1984 and passed a preemployment physical 
 
         examination at that time which included doing ten sit-ups, a 
 
         hernia test and a drug test (transcript pages 27-33).
 
         
 
              Prior to this employment she always enjoyed good general 
 
         health and had no back problems.  She was in an automobile 
 
         accident when she was 11 years old, but was not injured.  She was 
 
         in another automobile accident when she was 16 years old, but 
 
         only received cuts on the forehead; she had no injury to her back 
 
         from it. She had not seen any chiropractors for back care.  Her 
 
         jobs for employer were sorting fat, did loins, palletized and 
 
         stuffed hams.  She bid on the palletizing job and owned it.  It 
 
         required her to weigh 50 to 70 boxes of meat and put them on a 
 
         pallet.  She also handled loins which weighed 70 to 80 pounds 
 
         (tr. pp. 3336).
 
         
 
              Claimant said she first noticed trouble with her back 
 
         pushing hogs.  In this job she pushed two or three hog carcasses 
 
         along on a trolley.  Then later she noticed she had trouble 
 
         dumping garbage from a plastic barrel with water and paper in it 
 
         that weighed 50 or 60 pounds into a combo.  Both pushing hogs and 
 
         dumping garbage are treated as the injury of August 20, 1984, 
 
         even though the petition alleges dumping garbage.  Subsequently, 
 
         claimant sustained another injury on August 23, 1985, dumping 
 
         loins which was treated as a separate claim from these two claims 
 
         and was indentified as file number 804580.  At the time of the 
 
         August 20, 1984 injury, she twisted her back.  She reported it to 
 
         her foreman that day and the nurse the next day.  She was sent to 
 
         see Keith 0. Garner, M. D. , the plant doctor.  He sent her to 
 
         see William Follows, M.D., an orthopedic surgeon.   Claimant said 
 
         Dr. Follows took x-rays, took her off work and gave her a book of 
 
         exercises to perform (tr. pp. 36-43).
 
         
 
              Claimant testified that even though she returned to work, 
 
         she continued to have trouble with her back up until the time she 
 
         voluntarily left her employment with employer.  She described it 
 
         as a dull throbbing pain that occurred while reaching while 
 
         working for employer (tr. pp. 43-45).
 
         
 
              Claimant testified she took some time off in 1985 and was 
 
         sent to see Dr. Scott Neff, D.O., an orthopedic surgeon, for the 
 
         same problem.  He examined her and talked to her, but he did not 
 
         do leg lifts as mentioned in his reports.  She returned to work 
 
         and continued to have the same problems until she decided to 
 
         leave the employer of her own volition, in July of 1987.  She 
 
         believed she voluntarily terminated on July 30, 1987.  At that 
 
         time, she told employer that she wanted something done and they
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         PECK VS.  WILSON FOODS CORPORATION
 
         Page 5
 
         
 
         
 
         sent her to see Dr. Garner and he sent her to see Dr. Neff again 
 
         (tr. pp. 45-59).
 
         
 
              Claimant later saw Horst G. Blume, M.D., a neurosurgeon, for 
 
         an independent medical examination.  He ordered an MRI at St. 
 
         Luke's Hospital and an interpretation of it by Sioux City 
 
         Radiological Group (jt. exs. 20 & 21; tr. pp. 50 & 51)).
 
         
 
              After leaving employer, she then returned to the nursing 
 
         home work again for a period of time.  Then she did not work at 
 
         all from approximately March 1988 until March of 1989.  Her back 
 
         did not improve during that period of time.  It continued 
 
         throbbing and hurting.  She saw her personal physician during 
 
         this period.  In March 1989, she returned to work in the cafe as 
 
         a cashier five to six hours a day.  Currently she works in a 
 
         laundry since November of 1989, folding shop rags and dish 
 
         towels.  Her last wage for employer was $8.70 per hour.  Her 
 
         subsequent employments paid less.  The nursing home paid about 
 
         $3.50 per hour, the cafe paid about $3 per hour and the laundry 
 
         pays $4.25 per hour.  Employer also provided several employee 
 
         benefits such as paid vacations, holiday pay, sick pay and group 
 
         insurance (tr. pp. 52-56).
 
         
 
              The reason she voluntarily terminated her employment with 
 
         employer was because there were so many lay offs and because her 
 
         back hurt a lot (tr. p. 56).
 
         
 
              Claimant acknowledged that she had a number of other 
 
         injuries while working for employer to her thumb, wrist, toe, 
 
         upper shoulder and arm (tr. pp. 57 & 58).
 
         
 
              Currently she feels throbbing in her back and sitting gives 
 
         her prickly problems.  She takes Motrin when it is prescribed and 
 
         Advil when it is not (tr. p. 59).
 
         
 
              She can no longer carry baskets of wet laundry, play 
 
         basketball with her children, go bike riding with her family or 
 
         carry groceries (tr. pp. 59 & 60).
 
         
 
              Claimant said her job was pushing hogs on August 20, 1984.  
 
         She acknowledged she was off from August 30, 1984 to September 5, 
 
         1984, a period of 4 days and was paid $89.53 (jt. ex. 27; Tr. pp. 
 
         60-62)).
 
         
 
              Claimant agreed that she reported and@completed an accident 
 
         report for pain in her lower back which occurred when she twisted 
 
         her back on another occasion while dumping loins on August 23, 
 
         1985 (jt. ex. 25) (file number 804580).  She also agreed that she 
 
         was paid workers' compensation benefits from August 28, 1985 to 
 
         August 29, 1985 and again from September 18, 1985 to October 20,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 6
 
         
 
         
 
         1985, in the amount of $996.24 for this incident (jt. ex. 29; tr. 
 
         pp. 62-65)).
 
         
 
              Claimant admitted that she only injured her back two times 
 
         while working for employer.  One time was August 20, 1984 
 
         (pushing hogs) and the other time was August 23, 1985 (dumping 
 
         loins) (tr. pp. 62, 65 & 66).  Claimant acknowledged that she 
 
         received the last payment for the August 20, 1984 claim on 
 
         September 8, 1984.  The last payment she received on the August 
 
         23, 1985 claim was on October 19, 1985 or October 23, 1985 (tr. 
 
         p. 67)
 
         
 
              Claimant's counsel requested official notice be taken of all 
 
         the industrial commissioner files for the three and one-half year 
 
         period from April 20, 1984 until July 30, 1987.  Defendant 
 
         objected.  The motion was granted and claimant's attorney was 
 
         directed to point out in his posthearing brief what specific 
 
         portions of what claim files he wanted considered in his 
 
         posthearing brief (tr. pp. 68 & 69).
 
         
 
              Employer's medical record on claimant shows she was treated 
 
         for pain in the lower back on the left side from pushing hogs on 
 
         August 20, 1984.  Although she reported to the nurse for 
 
         treatment 21 times, this is the only back complaint listed.  The 
 
         incident of August 23, 1985 dumping loins, is not shown on the 
 
         company's medical report (jt. ex. 1).  Nor is any incident shown 
 
         for dumping garbage on any date.
 
         
 
              On December 12, 1984, Dr. Garner noted that claimant 
 
         complained of falling at work one week ago and her back was 
 
         hurting now on the left side by the scapula and sacrum.  He took 
 
         a chest x-ray which was normal (jt. ex. 3, page 1).
 
         
 
              Dr. Garner also saw claimant on September 9, 1985 for her 
 
         back.  The lower back was sore and she had been to Dr. Breeling, 
 
         her family physician.  Dr. Garner said an x-ray of the 
 
         lumbosacral spine was ok.  It showed a bilateral sacralization of 
 
         L5 pseudo arthrosis.  When she was no better on September 18, 
 
         1985, he sent her to William Follows, M.D. for an appointment on 
 
         September 26, 1985 (jt. ex. 3, p. 1).
 
         
 
              The exhibit list shows that exhibit 2 is one page of office 
 
         notes of Dr. Follows dated December 12, 1984.  However, exhibit 2 
 
         is a letter from Dr. Follows dated September 16, 1985.  It 
 
         begins, "This is a 24-year-old about a year or so ago strained 
 
         her back at Wilsons and did again about two weeks.  She never 
 
         completely recovered from the first time."  Her physical exam 
 
         showed a slight restriction of flexion.  Straight leg raising was 
 
         negative. Neurological examination was negative.  "X-rays are 
 
         normal except for a suggestion of a mild tendency of spondyolysis 
 
         of L-5 bilaterally which may predispose to back strain."  He
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 7
 
         
 
         
 
         prescribed limited activity and some exercises in the industrial 
 
         back book (jt. ex. 2).
 
         
 
              On October 7, 1985, Dr. Garner said physical therapy didn't 
 
         help.  She was doing exercises at home.  Dr. Follows said to give 
 
         it a couple of weeks not working.  Later in the month her back 
 
         was better and she was returned to work on October 21, 1985.
 
         
 
              Next on February 28, 1986, Dr. Garner sent claimant to see 
 
         Dr. Neff for different complaints now to the shoulder and upper 
 
         back.  Dr. Neff ordered an EMG.  On March 19, 1986, Dr. Garner 
 
         noted Dr. Neff's tests were normal and claimant should return to 
 
         work (jt. ex. 3, p. 2).
 
         
 
              On April 2, 1986, Dr. Neff wrote to Dr. Garner about the 
 
         shoulder and upper back:
 
         
 
              EMG study on Debra Peck is normal.  She has a myofascial 
 
              syndrome in her upper back, which is described in the 
 
              orthopaedic literature as a cervicalthoracic myofascial 
 
              tension state.  What that means in English to me is sore 
 
              muscle related to mild activity, and underlying 
 
              predisposition to muscle soreness, usually related to work 
 
              activity, but unaffected by mild recreation.
 
              
 
              I think she can be returned to work, with occasional 
 
              nonsteroidal anti-inflammatory medications, heat, and may be 
 
              some gentle physical therapy on a periodic basis.  I 
 
              certainly see no reason for any kind of impairment or 
 
              disability at this time, and do not find any evidence of a 
 
              surgical lesion.
 
         
 
         (jt. ex. 10).
 
         
 
              Claimant requested to be checked again for her "original 
 
         injury," according to Dr. Garner's office note on September 23, 
 
         1987.  Dr. Garner set up another appointment with Dr. Neff who 
 
         saw claimant on October 19, 1987 (jt. ex. 2, pp. 3 & 4).  Dr. 
 
         Neff reported on October 19, 1987, claimant was working in a 
 
         nursing home now and not working at Wilson's.  He requested to 
 
         see former x-rays and recommended continued conservative 
 
         treatment (jt. ex. 11).
 
         
 
              On February 16, 1988, Dr. Neff said;:he had examined x-rays 
 
         taken by Dr. Follows in September 1985.  "These do not show any 
 
         glaring abnormality but are suspicious for a pars 
 
         interarticularis defect at the L5-Sl level.  If her symptoms are 
 
         persisting or worsening, CT scan of this level would be 
 
         warranted." (jt. ex. 12).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 8
 
         
 
         
 
              On March 21, 1988, claimant's physical examination was 
 
         essentially normal according to Dr. Neff, except the CT scan 
 
         showed degenerative disease.  She was working at the nursing home 
 
         and her local doctor had taken her off work.  Dr. Neff said, "I 
 
         believe this patient has degenerative disease in her back.... 
 
         Because of the degenerative disease that is evident, she might 
 
         even be a candidate for surgical fusion." (jt. ex. 14).
 
         
 
              Dr. Garner performed a social security disability history 
 
         for claimant on June 15, 1988.  He reported that she hurt her 
 
         back while working for employer and also while working in the 
 
         nursing home.  Her lumbar spine was tender.  She has rather weak 
 
         muscles.  Straight leg raising was negative.  She had no evidence 
 
         of radiculopathy.  She had a 20 percent reduction in forward 
 
         flexion of the lumbar spine.  Circulation in the lower 
 
         extremities was normal.  Deep tendon reflexes were normal.  She 
 
         stands normally, but walks with a slight limp, exaggerating the 
 
         left leg.  His diagnosis was lumbosacral strain.  He saw no 
 
         evidence of lumbar disc (ex. 6).
 
         
 
              Horst G. Blume performed a thermogram on November 25, 1988 
 
         with these findings:
 
         
 
              FINDINGS: The lumbar thermogram shows increased heat 
 
              transmission at the level of L4/5, L5/Sl, more on the right 
 
              side than on the left side and considerable reduction of the 
 
              heat transmission in the right posterior thigh and 
 
              considerable heat reduction of the right foot.  And there a 
 
              pattern of subcutaneous veins scattered over the calf area.
 
              
 
              IMPRESSION:  Abnormal lumbar thermogram.
 
              
 
              DISCUSSION: Findings are consistent with L5 and S1 nerve 
 
              root irritation right.
 
         
 
         (jt. ex. 16).
 
         
 
              Dr. Blume examined claimant on November 14, 1988, and made a 
 
         report on February 22, 1989.  Dr. Blume ordered a magnetic 
 
         resonance imaging examination on November 29, 1988 (jt. exs. 20 & 
 
         21).  Dr. Blume reported that claimant told him that in February 
 
         of 1984, she was dumping garbage which consisted of water and 
 
         paper into a combo, twisting at the same time, and heard a pop in 
 
         her back.  He said two weeks later she had a similar incident 
 
         when she apparently had not recovered from the first incident.  
 
         From his physical examination and neurological examination, 
 
         review of the CT scan, the magnetic scan and the thermogram, Dr. 
 
         Blume found degenerative disc pathology at the level of L3-4, 
 
         L4-5, and L5-Sl.  He found a central protruded ruptured disc at 
 
         L5-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION 
 
         Page 9
 
         
 
         
 
         Sl.  He said the patient is not a candidate for surgical 
 
         procedure (jt. ex. 17).
 
         
 
              He concluded as follows:
 
              
 
              I can only say with reasonable medical probability that the 
 
              patient may have had a pre-existing condition of 
 
              degenerative disc disease at L3-4, L4-5, and L5-S1, but the 
 
              ruptured disc at L5-Sl seems to be the most likely related 
 
              to the two accidents that she sustained based on the fact 
 
              that the patient said she did not have any low back pain 
 
              prior to these two accidents.  It is my opinion the first 
 
              accident caused some injury to the disc at L5-Sl and the 
 
              second accident aggravated the previously existing condition 
 
              from the first accident.
 
         
 
         (jt. ex. 17, p. 2)
 
         
 
              He recommended several conservative care modalities, 
 
         medications, back brace, and high and mid-frequency waves to the 
 
         low back (jt. ex. 17, p. 2).
 
         
 
              On May 16, 1989, Dr. Blume wrote to claimant's counsel, "It 
 
         is my opinion that this 27 year old patient has a 
 
         permanent/partial impairment to the body as a whole of 8% as a 
 
         result of the injuries at Wilson Foods." (jt. ex. 18).
 
         
 
                           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(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on August 20, 1984 and/or 
 
         July 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).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict.v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 20, 1984 and/or July 30, 
 
         1985 are causally related to the disability on which she now 
 
         bases her claim.   Bodish v. Fischer, Inc., 257 Iowa 516, 133
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION 
 
         Page 10
 
         
 
         
 
         N.W.2d 867 (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such 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).
 
         
 
              There was some confusion about the injury date of the 1984 
 
         incident as well as in the manner in which it occurred.  
 
         Claimant, herself, pro se, completed a petition requesting an 
 
         independent medical examination dated December 7, 1987, which was 
 
         received in the industrial commissioner's office of January 29, 
 
         1988, which alleged an injury date of February 1984 and described 
 
         that the injury occurred while dumping garbage and she twisted 
 
         her back.  Claimant's counsel completed a petition in arbitration 
 
         dated May 4,. 1988 and received in the industrial commissioner's 
 
         office on May 5, 1988 which alleged an injury date of February 
 
         1984 while dumping garbage and twisted her back.
 
         
 
              Dr. Blume said claimant told him on November 14, 1988 she 
 
         was injured in February of 1984.  Claimant, however, testified 
 
         that she did not begin to work for employer until April of 1984.
 
         
 
              Defendant's answer to the second petition, dated May 12, 
 
         1988, suggested an injury date of August 20, 1984.  Claimant then 
 
         amended the petition January 23, 1989 to a "proper injury date of 
 
         9/20/84." Claimant then amended the petition a second time on 
 
         July 13, 1989, to show a proper injury date of August 20, 1984.
 
         
 
              The company medical record shows that the injury reported on 
 
         August 20, 1984 occurred while claimant was pushing hogs.  
 
         Claimant testified that she first experienced problems while 
 
         pushing hogs and later while dumping garbage.  In any event, in 
 
         the prehearing report the parties agreed that claimant sustained 
 
         an injury on August 20, 1984 which arose out of and in the course 
 
         of employment with employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION 
 
         Page 11
 
         
 
         
 
              Iowa Code section 85.26(l) provides:
 
              
 
              An original proceeding for benefits under this chapter 85A, 
 
              85B, or 85, 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.
 
         
 
              Defendant asserts that the petition was not timely filed.  
 
         Both parties agreed at the prehearing conference and in the 
 
         prehearing report that claimant sustained an injury that arose 
 
         out of and in the course of employment on August 20, 1984.  
 
         Claimant was paid four days of benefits for the period from 
 
         August 30, 1984 to September 5, 1984 and according to the Form 2 
 
         this payment was made on September 1, 1984 and the file was 
 
         closed on September 8, 1984 (jt. ex. 27).  Defendant's counsel 
 
         talked about a payment of September 8, 1984.  In either event, 
 
         September 1, 1984 or September 8, 1984, the statute of 
 
         limitations would have expired three years from the date of the 
 
         last payment on either September 1, 1987 or September 8, 1987.  
 
         Therefore, claimant's pro se petition for medical benefits, filed 
 
         January 29, 1988, was not timely filed.  Likewise, the petition 
 
         of claimant's counsel for arbitration filed May 5, 1988 was not 
 
         timely filed.
 
         
 
              In response, claimant contends that the payment of defendant 
 
         to claimant for time off from August 28, 1985 to August 29, 1985 
 
         and again from September 18, 1985 to October 20, 1985 for the 
 
         injury of August 23, 1985 (file number 804580) were payments for 
 
         the injury of August 20, 1984 and that the statute of limitations 
 
         did not run until three years from those payment dates.  The Form 
 
         2 shows these payments were made and the final report of 
 
         defendant was made on October 19, 1985 (jt. ex. 29).  If 
 
         claimant's contention were correct, the statute of limitations 
 
         would not expire until October 19, 1988 and both claimant's pro 
 
         se petition and claimant's counsel's petition would be timely 
 
         filed when they were received by the industrial commissioner's 
 
         office on January 29, 1988 and May 5, 1988 respectively.
 
         
 
              However, defendant has sustained the burden of proof by a 
 
         preponderance of the evidence that these payments in 1985 were 
 
         not for a continuation of the injury of August 20, 1984.  A new 
 
         accident report was made out for a new accident that occurred on 
 
         August 23, 1985 that resulted in pain in the lower back from 
 
         dumping loins and twisting her back and a new incident was 
 
         described (jt. ex. 28).  A separate first report of injury was 
 
         filed and this was processed as a separate claim under the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 12
 
         
 
         
 
         identification of industrial commissioner's file number 804580 
 
         for a separate injury that occurred on August,23, 1985.
 
         
 
              Dr. Garner saw claimant on September 9, 1985.  She had not 
 
         seen him for her back since December 12, 1984, a period of nine 
 
         months (jt. ex. 3, p. 1).  The company medical record did not 
 
         show any treatment for her back after the entry on August 20, 
 
         1984 (jt. ex. 1, p. 1).  Dr. Follows said, "This is a 24-year-old 
 
         who about a year or so ago strained her back at Wilsons and did 
 
         again about two weeks [ago].  She never completely recovered from 
 
         the first time." (jt. ex. 2).  Thus, even though claimant had not 
 
         completely recovered from the first time, he still described it 
 
         as a separate injury by saying, " ... and did again about two 
 
         weeks (ago]." Therefore, the weight of the evidence and the 
 
         preponderance of the evidence does not support a continuation of 
 
         the injury of August 20, 1984, but rather a new injury imposed on 
 
         the earlier one which may not have completely healed according 
 
         the history claimant gave Dr. Follows.
 
         
 
              Claimant's second contention, which is also the case for the 
 
         alleged injury of July 30, 1987, is that claimant has sustained a 
 
         cumulative injury commencing at the termination of her employment 
 
         in the last part of July 1987.  The parties seemed to generally 
 
         agree on July 30, 1987, as a termination date for lack of a more 
 
         precise date in the record.
 
         
 
              The record does not support a cumulative injury to 
 
         claimant's back. on the contrary, from Dr. Blume's report, it 
 
         appears that claimant suffered from degenerative disc disease at 
 
         L3-4, L4-5, and L5-Sl.  Dr. Blume suggested that her work may 
 
         have aggravated it, but there is no evidence that her work caused 
 
         the degenerative disc disease or made it worse.  Dr. Blume 
 
         further stated that the ruptured disc was caused by the first 
 
         injury, and even though he had both injury dates incorrect, the 
 
         parties have agreed that claimant's first injury was August 20, 
 
         1984.  This places the first back injury into a period for which 
 
         the statute of limitation has expired.  He said the second 
 
         injury, which would be the one which occurred on August 23, 1985, 
 
         only aggravated the existing condition of the ruptured disc from 
 
         the first accident (jt. ex. 17, p. 2), The implication of Dr. 
 
         Blume's evidence is that the first injury caused the 8 percent 
 
         impairment since the second injury was only an aggravation of a 
 
         preexisting condition (jt. ex., 17, p. 1; jt. ex. 18).
 
         
 
              In addition, the company medical record does not support a 
 
         cumulative injury to the back.  Out of 21 entries from June 13, 
 
         1984 to July 7, 1987, only one of the entries describes an injury 
 
         or difficulty to claimant's back and that is the injury of August 
 
         20, 1984 (jt. ex. 1, pp. 1 & 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 13
 
         
 
         
 
              Moreover, Dr. Garner's records do not support a cumulative 
 
         injury to claimant's back.  He shows an entry on December 12, 
 
         1984 for the injury of August 20, 1984.  His next entry on 
 
         September 9, 1985 is apparently for the injury of August 23, 
 
         1985.  He had three more entries on September 18, 1985; October 
 
         7, 1985; and October ? (unreadable), 1985.  He had no more 
 
         entries for back complaints until claimant was terminated on July 
 
         30, 1987 and wanted more medical attention for her back.  Dr. 
 
         Garner has 32 entries during claimant's employment, but only the 
 
         ones cited above; (1) one for the injury of August 20, 1984 and 
 
         (2) four for the injury of August 23, 1985; are for her back over 
 
         the period of three and one-half years claimant was employed by 
 
         employer.  The other entries were for her thumb, wrist, toe, 
 
         upper shoulder and arm.
 
         
 
              Claimant's testimony that her back hurt from the time of the 
 
         first injury on August 20, 1984, until she left her employment on 
 
         July 30, 1987, is outweighed by the company medical records and 
 
         Dr. Garner's office notes that her back problem was not serious 
 
         enough to require treatment by the company nurse or the company 
 
         doctor, except on two occasions, August 20, 1984 and August 23, 
 
         1985.
 
         
 
              Consequently, it must be determined that claimant's 
 
         petitions, with respect to the injury of August 20, 1984, were 
 
         not timely filed.  Defendant has sustained the burden of proof 
 
         that the petitions were not timely filed.  Claimant's two 
 
         contentions: (1) that the 1985 payments were a continuation of 
 
         payments for the injury of August 20, 1984 is not supported by 
 
         the evidence of record and (2) that claimant sustained a 
 
         cumulative injury is not supported by the evidence of record.
 
         
 
              As to the alleged injury of July 30, 1987, claimant did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that she sustained a cumulative injury commencing on July 30, 
 
         1987 or at any other time.  Therefore, all other issues in the 
 
         case relative to causal connection, entitlement, and an 
 
         independent medical examination under Iowa Code section 85.39 are 
 
         moot.
 
         
 
              The discovery rule was not asserted by claimant and there 
 
         was no testimony or other evidence to show that claimant was 
 
         entitled to the discovery rule.
 
         
 
              Claimant knew she had a serious work-related injury both as 
 
         to the injury of August 20, 1984 and the:injury of August 23, 
 
         1985, because she received medical treatment, lost time from work 
 
         and was paid workers' compensation benefits for each injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 14
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury on August 20, 1984 that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the last payment of workers' compensation benefits 
 
         occurred on or before September 8, 1984, when defendant closed 
 
         the file on the Form 2.
 
         
 
              That claimant's pro se petition for an independent medical 
 
         examination was filed on January 29, 1988 and the petition of 
 
         claimant's attorney for arbitration was filed on May 5, 1988.
 
         
 
              That both of the above petitions were not timely filed 
 
         within three years of the last payment of workers' compensation 
 
         benefits in September 1984.
 
         
 
              That Dr. Blume, claimant's evaluating physician, said the 
 
         first injury, the injury of August 20, 1984 was the cause of her 
 
         disc condition at L5, S1, and the subsequent injury, the injury 
 
         of August 23, 1985 was only an aggravation of her preexisting 
 
         condition from the injury of August 20, 1984.
 
         
 
              That claimant testified that her back hurt from the time of 
 
         the injury on August 20, 1984 until she terminated on July 30, 
 
         1987.
 
         
 
              That the company medical records and Dr. Garner's office 
 
         notes only show entries for the injury on August 20, 1984 and the 
 
         injury on August 23, 1985, and show no other back complaints or 
 
         treatment to support a cumulative injury.
 
         
 
              That neither Dr. Garner, Dr. Follows, Dr. Neff or Dr. Blume 
 
         ever made any statement to suggest that claimant had sustained a 
 
         cumulative injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That defendant sustained the burden of proof by a 
 
         preponderance of the evidence that claimant's action with respect 
 
         to the injury of August 20, 1984 was not timely filed.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That since the action for the injury of August 20, 1984 is 
 
         not timely all other issues for this injury of causation, 
 
         entitlement and independent medical examination are moot.
 
         
 
         
 
         
 
         PECK VS. WILSON FOODS CORPORATION
 
         Page 15
 
         
 
         
 
              Claimant is not entitled to the expense of the MRI and the 
 
         interpretation of it as a section 85.27 medical expense because 
 
         it was not ordered by an authorized treating physician in 
 
         conjunction with authorized treatment for this injury.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury of a 
 
         cumulative nature on or about July 30, 1987 that arose out of and 
 
         in the course of employment with employer.
 
         
 
              That since claimant did not prove a work injury on July 30, 
 
         1987, then all other issues for this injury of causation, 
 
         entitlement, medical expenses and independent medical examination 
 
         are moot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendant to claimant.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That 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. Harry Smith
 
         Attorney at Law
 
         PO Box 1194
 
         Sioux  City, Iowa  51102
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine St
 
         Cherokee, Iowa 51012
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         52402; 51106; 51108.50; 51401;
 
                                         51402.20; 51402.30; 51402.40;.
 
                                         51402.60; 52209
 
                                         Filed April 12, 1990 
 
                                         Walter R. McManus, Jr.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA L. PECK,
 
         
 
              Claimant,                         File Nos.  861960
 
                                                     913244
 
         VS.
 
                                         A R B I T R A T I 0 N 
 
         WILSON FOODS CORPORATION,
 
                                              D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         52402
 
         
 
              Defendant sustained the burden of proof by a preponderance 
 
         of the evidence that claimant did not file a timely action under 
 
         Iowa Code section 85.26 for the injury of August 20, 1984.
 
         
 
         511106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 
 
         52209
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a cumulative or 
 
         any other injury that arose out of and in the course of 
 
         employment on July 30, 1987.