Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            KAY E. GLAU,                   :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 862091
 
            UNITED PARCEL SERVICE, INC.,   :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            LIBERTY MUTUAL INSURANCE GROUP,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Kay E. Glau, against her employer, United 
 
            Parcel Services, and its insurance carrier, Liberty Mutual 
 
            Insurance Company, defendants.  The case was heard on 
 
            November 21, 1989, in Storm Lake, Iowa at the Buena Vista 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant and the testimony of Charles Thorsen, supervisor.  
 
            Additionally, the record consists of joint exhibits 1-3, 
 
            claimant's exhibits 1-14, and defendants' exhibits A, B and 
 
            D.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            her employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; 4) 
 
            whether claimant is entitled to medical benefits under 
 
            section 85.27; and, 5) whether claimant is entitled to 
 
            penalty benefits under section 86.13.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was hired by defendant-employer in October of 
 
            1983.  Originally she was hired as a part-time Christmas 
 
            helper where she was required to drive a truck and to 
 
            deliver packages of 50 pounds.  Claimant then became a full 
 
            time driver.
 
            
 
                 On July 30, 1987, claimant was unloading a semitrailer.  
 
            She encountered a package lodged between a post and the 
 
            wheel well.  Claimant contorted her body into such a manner 
 
            that one leg was up on the wheel well while one leg was down 
 
            on the floor.  She pulled upon the package and at that time 
 
            she discovered a sharp pain in her lower back.  The pain 
 
            radiated to other portions of her back.  Claimant still 
 
            could not dislodge the package.  As a result, she called her 
 
            supervisor, Charles Thorsen.  He dislodged the package.  
 
            Claimant, in turn, reported her back injury to him.  
 
            Claimant continued to unload the truck.  She worked the 
 
            remainder of the day and continued to work until August 11, 
 
            1987, when she went to the doctor.
 
            
 
                 Initially, claimant was examined by her family 
 
            physician, John Kelly, M.D.  He wrote in his office notes of 
 
            August 12, 1987:
 
            
 
                 Hurt her back several week [sic] ago at work.  She 
 
                 last hurt it in 1985.  Her back x-rays look okay.  
 
                 She is a little tender for the lumbar spine and 
 
                 parispinous [sic] muscles.  Straight leg raising 
 
                 negative bilaterally to 45 degrees.  Recommend 
 
                 Flexeril 10 t.i.d., local heat.  Keep off work for 
 
                 a week and recheck exam next Monday.
 
            
 
                 Dr. Kelly referred claimant to William Follows, M.D., 
 
            an orthopedic surgeon.  Dr. Follows, in turn, referred 
 
            claimant to J. Michael Donohue, M.D., an orthopedic surgeon 
 
            who specializes in back rehabilitation.  Dr. Donohue treated 
 
            claimant from September 23, 1987 through August 22, 1988.  
 
            Dr. Donohue diagnosed claimant as having:
 
            
 
                 My assessment was that the patient had a chronic 
 
                 myofascial strain with significant functional 
 
                 improvement but persistent soreness symptoms -- or 
 
                 residual symptoms despite the functional 
 
                 improvement.
 
            
 
            (Exhibit 11, page 20, lines 22-25)
 
            
 
                 As of August 22, 1988, Dr. Donohue released claimant to 
 
            return to work without restrictions.  Dr. Donohue did not 
 
            impose any permanent restrictions upon claimant.  Dr. 
 
            Donohue also assessed a three percent functional impairment 
 
            rating.  He opined that claimant's myofascial strain would 
 
            eventually resolve itself.  (Ex. 11, p. 28, lines 18-20).
 
            
 
                 Claimant returned to work on January 14, 1988.  At the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            time of the hearing, claimant was working a regular shift at 
 
            her normal rate of pay.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on 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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 30, 
 
            1987, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 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).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist, 218 Iowa 724, 254 N.W. 35 
 
            (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
            N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
            N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case at hand, claimant has established that she 
 
            has sustained an injury which arose out of and in the course 
 
            of her employment.  Claimant's version of the injury was 
 
            credible and consistent with the versions she reported to 
 
            her physicians.  Additionally, Charles Thorsen, supervisor, 
 
            recalled assisting claimant with a package caught behind a 
 
            wheel well.  While he did not remember claimant verbally 
 
            informing him of a work related back strain, Mr. Thorsen did 
 
            remember that claimant had called on August 12, 1987, about 
 
            a back strain.  Therefore, it is the determination of the 
 
            undersigned that claimant has sustained an injury which 
 
            arose out of and in the course of her employment.
 
            
 
                 Claimant has also established the requisite causal 
 
            connection.  Dr. Kelly believed claimant's condition was 
 
            related to her work injury.  Dr. Donohue causally connected 
 
            claimant's condition to her work injury.  Even though 
 
            claimant had experienced prior occasions where she had 
 
            sustained back strains,  Dr. Donohue opined that since 
 
            claimant had been pain free for two and one half years, her 
 
            condition was related to her work injury of July 30, 1987.
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained a permanent partial disability.  The evidence does 
 
            not support such a finding.  Only Dr. Donohue has assessed a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            functional impairment rating.  While he testified claimant 
 
            has a three percent functional impairment, Dr. Donohue did 
 
            not conclusively establish how he arrived at this rating.  
 
            Additionally, Dr. Donohue did not impose any permanent 
 
            restrictions upon claimant's activities.  Claimant had full 
 
            range of motion.  Moreover, the orthopedic physician 
 
            testified claimant's condition would resolve itself.  
 
            Therefore, it is the determination of the undersigned that 
 
            claimant has not proven by a preponderance of the evidence 
 
            that she has a permanent partial disability.
 
            
 
                 Claimant has established that she has sustained a 
 
            temporary total disability.  Claimant's physicians removed 
 
            her from work.  She was under her doctor's care and 
 
            treatment.  Claimant is entitled to temporary total 
 
            disability benefits for the period from August 12, 1987 
 
            through January 13, 1988.  This is a period of 22.143 weeks.
 
            
 
                 The next issue to determine is the appropriate rate for 
 
            claimant's weekly benefits.  Claimant testified that on the 
 
            date of her injury, she was an hourly paid employee.  She 
 
            was paid at the rate of $15.14 per hour.  She grossed 
 
            $605.60 per week.  Claimant did not produce any records for 
 
            the 13 week period prior to her injury.  Using section 
 
            85.36(6) of the Iowa Code, it is the determination of the 
 
            undersigned that claimant's weekly benefit rate is $385.42 
 
            per week.
 
            
 
                 The issue dealing with medical benefits is the next 
 
            issue to discuss.  Claimant is entitled to the following 
 
            medical benefits under section 85.27:
 
                 Back Rehabilitation Clinics
 
                   of America, Inc.                      $4,660.00
 
                 Dr. Kelly, M.D.                            131.00
 
                 Dr. Follows, M.D.                           70.00
 
                 PT Services, P.C.                          280.00
 
                                                         $5,277.20
 
                 Medical mileage                            317.52
 
                                          Total          $5,594.72
 
            
 
            
 
                 Finally, there is the issue of section 86.13 penalty 
 
            benefits.  Claimant alleges she is entitled to the same.
 
            
 
                 Section 86.13 of the Iowa Code provides in relevant 
 
            portion:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Under section 86.13, benefits are not awarded for 
 
            medical expenses.  The section 86.13 benefits are only 
 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
 
            Report 409 (1983).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 If it is alleged that an employer wrongfully withholds 
 
            weekly compensation benefits from a claimant, the claimant 
 
            must establish the benefits were withheld unreasonably in 
 
            order for the claimant to receive additional benefits under 
 
            section 86.13.  Curtis v. Swift Independent Packing, IV Iowa 
 
            Industrial Commissioner Report 88 at 93 (1984).  In a 
 
            previous decision before the Division of Industrial 
 
            Services, a hearing deputy has ruled that it was reasonable 
 
            for an employer to withhold benefits when the employer was 
 
            not alerted to occurrences which would notify a reasonable 
 
            person that benefits would be due or when there was no work 
 
            time lost.  McCormack v. Sunsprout, I-l Iowa Industrial 
 
            Commissioner Decisions 142 at 144 (1984).
 
            
 
                 In a separate decision before the Division of 
 
            Industrial Services, the same deputy industrial commissioner 
 
            awarded benefits under section 86.13.  Here there was an 
 
            unreasonable delay since there were no contradictions in the 
 
            claimant's claim.  Willis v. Ruan Transport Corporation, IV 
 
            Iowa Industrial Commissioner Report 395 at 396 (1984).  In 
 
            the Willis case at 396 the deputy wrote:
 
            
 
                 ...Reports and letters from the doctor are 
 
                 consistent with claimant's statements regarding 
 
                 his injury.
 
            
 
                 There were no ambiguities and inconsistencies in 
 
                 claimant's claim.  Withholding benefits was 
 
                 arbitrary and unreasonable.  The five percent 
 
                 award based on Iowa Code section 86.13 will be 
 
                 attached to healing period only.  Although the 
 
                 evidence presented clearly relates claimant's 
 
                 permanent impairment to his injury, defendants 
 
                 will be given the benefit of the doubt as to 
 
                 whether or not a failure to pay permanent 
 
                 disability also was unreasonable.  Claimant had 
 
                 prior back troubles and conceivably some portion 
 
                 of his impairment might have been related to those 
 
                 difficulties or to a preexisting arthritis rather 
 
                 than to his injury.
 
            
 
                 See also Walter L. Peterman v. American Freight System, 
 
            File No. 747931 (Arbitration Decision August 10, 1988).
 
            
 
                 Claimant has met her burden of proving that 
 
            defendant-insurance carrier did unreasonably withhold 
 
            claimant's healing period benefits.  Claimant is requesting 
 
            penalty benefits.  It is the determination of the 
 
            undersigned that defendants did unreasonably withhold 
 
            healing period benefits from August 12, 1987 to January 13, 
 
            1988.  Defendants contacted claimant's physicians.  The 
 
            physicians causally connected claimant's back strain to her 
 
            injury at work.  The history which claimant reported was 
 
            consistent with the employee accident report that she 
 
            completed.  Nevertheless, defendants denied liability.  The 
 
            denial was unreasonable, given the available medical 
 
            information which Dr. Donohue reported in his letter of 
 
            October 28, 1987.  Therefore, defendants are liable for 
 
            11.143 weeks of benefits at 50 percent of the weekly rate of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            $371.11.  This represents the period from October 28, 1987 
 
            to January 13, 1988.
 
            
 
                                      order
 
            
 
                  THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay twenty-two point one-four-three 
 
            (22.143) weeks of temporary total disability benefits at the 
 
            rate of three hundred eighty-five and 42/l00 dollars 
 
            ($385.42) per week.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall also pay unto claimant twenty-two 
 
            point one-four-three (22.143) weeks of section 86.13 penalty 
 
            benefits at fifty percent (50%) of the weekly rate of three 
 
            hundred eighty-five and 42/l00 dollars ($385.42) per week 
 
            with interest from the date of this decision.
 
            
 
                 Defendants are to pay three hundred seventeen and 
 
            52/l00 dollars ($317.52) in medical mileage and medical 
 
            benefits in the amount of five thousand five hundred 
 
            ninety-four and 72/l00 dollars ($5,594.72).
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Ned A. Stockdale
 
            Attorney at Law
 
            108 N 7th St
 
            Estherville  IA  51334
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge  IA  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed November 30, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            KAY E. GLAU,                   :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 862091
 
            UNITED PARCEL SERVICE, INC.,   :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            LIBERTY MUTUAL INSURANCE GROUP,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits as 
 
            a result of a work related back injury.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1800
 
            Filed March 24, 1992
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BERTHA WOODRUFF,              :
 
                                          :
 
                 Claimant,                :      File Nos. 862183/852177
 
                                          :                864966/923653
 
            vs.                           :                923654
 
                                          :
 
            SEARS, ROEBUCK & CO.,         :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1800
 
            Claimant, in separate accidents, sustained five percent 
 
            industrial disability to her low back and 16 percent 
 
            impairment to her neck.  The evidence showed that, even 
 
            though claimant had some restrictions, her job did not 
 
            require physical activities which fell outside of the 
 
            limitations.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOEL ROLFES,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 862376
 
            STYLECRAFT, INC.,     
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 4, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            P.O. Box 455
 
            Spirit Lake, Iowa 51360
 
            
 
            Mr. Maynard M. Mohn
 
            Attorney at Law
 
            P.O. Box 72
 
            Estherville, Iowa 52334
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed October 28, 1992
 
                                              Byron K. Orton
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            JOEL ROLFES,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 862376
 
            STYLECRAFT, INC.,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            4, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOEL ROLFES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 862376
 
                                          :
 
            STYLECRAFT, 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.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joel 
 
            Rolfes against his former employer, Stylecraft, Inc., and 
 
            its insurance carrier, Travelers Insurance Company, based 
 
            upon an injury that occurred on August 12, 1987.  Joel seeks 
 
            compensation for permanent partial disability and payment of 
 
            expenses under section 85.27 in the amount of $383.00.
 
            
 
                 The case was heard at Storm Lake, Iowa on July 2, 1991.  
 
            The evidence consists of testimony from Joel Rolfes, Dale 
 
            Meyer and Steven Gruhn.  The record also contains claimant's 
 
            exhibits A through C and defendants' exhibit 1.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Joel Rolfes is a 23-year-old man who currently lives at 
 
            Lake Park, Iowa.  He attended Lake Park High School until 
 
            1985.  He participated in football and wrestling while in 
 
            high school.  He experienced a sore back on several 
 
            occasions for which he sought treatment from a chiropractor.  
 
            Those treatments resolved the back pain.  Dale Meyer, a 
 
            co-worker, confirmed that Joel had been in a lot of 
 
            activities during school, but never appeared to have any 
 
            back problems at that time.
 
            
 
                 Joel commenced employment with Stylecraft in January 
 
            1987.  He worked on a crew whose duties were to assemble 
 
            chairs, place them in plastic and load them onto trucks.  
 
            Joel denied needing any treatment for his back prior to the 
 
            injury in this case and his testimony in that regard is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            confirmed by Dale Meyer.
 
            
 
                 On August 12, 1987, Joel and the others on his crew 
 
            were loading chairs onto a trailer.  The chairs were stacked 
 
            three or four high inside the trailer.  Joel was standing 
 
            with his back toward the stack of chairs and was bending 
 
            forward when a chair fell off the stack and one of its legs 
 
            struck him in the middle portion of his low back.  It was 
 
            estimated that the chair would have weighed somewhere in the 
 
            range of 40-80 pounds.  Joel went to first aid and then 
 
            commenced treatment with Harry W. Hargett, D.C.  His care 
 
            was then transferred by the insurance carrier and employer 
 
            to orthopaedic surgeon J. Michael Donahue, M.D., who first 
 
            saw Joel on August 21, 1987.  Prior to that time, Joel had 
 
            seen Dr. Hargett on four occasions and incurred charges 
 
            totalling $169.00.
 
            
 
                 Dr. Donahue treated Joel conservatively with rest, 
 
            exercises and prescription medications.  Joel seemed to 
 
            improve and Dr. Donahue noted that he was asymptomatic 
 
            commencing August 31, 1987, the second time Joel was seen.  
 
            On September 28, 1987, it was noted that Joel had been back 
 
            to work four weeks with no exacerbation of his symptoms.  He 
 
            was released to perform full activities.  Dr. Donahue 
 
            indicated that he did not anticipate any permanent 
 
            impairment from the injury (exhibit C-6).
 
            
 
                 Dr. Donahue and Joel agreed that Joel was instructed to 
 
            return to Dr. Donahue if he had any further problems with 
 
            his back.  Joel has not returned to Dr. Donahue except for 
 
            an evaluation on February 7, 1989.  When seen at that time, 
 
            Joel was again asymptomatic, but did provide a history of 
 
            having intermittent low back discomfort without any 
 
            particular inciting episodes.
 
            
 
                 Joel resumed work and continued to work in his former 
 
            position handling furniture and loading trucks.  According 
 
            to Dale Meyer and Joel, he was somewhat slower, but 
 
            apparently was able to perform the required duties of the 
 
            job.  The records from Dr. Hargett indicate that Joel sought 
 
            treatments on December 3, 1987, June 1, 1988, August 5, 1988 
 
            and August 12, 1988.  Joel resigned his position with 
 
            Stylecraft in August 1988.  The precise date does not appear 
 
            in the record.  According to Joel, he also received 
 
            chiropractic treatments from Dr. Bock, but no records from
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Dr. Bock are in evidence.  The dates and frequency of those 
 
            treatments are not ascertainable.  According to Joel's 
 
            testimony, Dr. Bock ended his practice in 1988.
 
            
 
                 Joel left his employment at Stylecraft in order to go 
 
            to college.  In the fall of 1988, he also commenced 
 
            employment with Iowa Great Lakes Nursery.  The business 
 
            owner, Steven Gruhn, testified at hearing that Joel is a 
 
            responsible, experienced worker who is, however, slower than 
 
            his co-workers and very careful about his lifting.  Joel is 
 
            allowed time off to get treatment for his back as needed.  
 
            Joel now works as a foreman of a landscape crew.  The job 
 
            allows him to avoid most actual heavy labor and provides him 
 
            with a variety of activities.  It is noted that Joel saw Dr. 
 
            Hargett on only one occasion in 1989, namely, November 29.  
 
            Joel made several visits to Dr. Hargett during 1990.
 
            
 
                 Joel has consulted Dennis L. Johnson, M.D., a qualified 
 
            orthopaedic surgeon, regarding the condition of his back.  
 
            Dr. Johnson diagnosed Joel as having chronic low back 
 
            strain, a condition which is the same as the diagnosis of 
 
            chronic myofascial strain made by Dr. Donahue in February 
 
            1989 (exhibit C-1, pages 7 and 8).  Dr. Johnson described 
 
            the condition as one in which the symptoms will come and go 
 
            intermittently and will continue to do so for the remainder 
 
            of Joel's life (exhibit C-1, pages 8, 9 and 11).  Dr. 
 
            Johnson felt that a causal connection exists between the 
 
            August 12, 1987 injury and the chronic condition which now 
 
            exists in Joel's back (exhibit C-1, page 7).  Dr. Johnson 
 
            assigned a five percent permanent partial impairment rating 
 
            and also recommended that he limit his lifting to 50 pounds 
 
            and avoid repetitive bending and lifting.  Dr. Johnson 
 
            recommended that claimant seek a career in something other 
 
            than manual labor (exhibit C-1, pages 9 and 10).
 
            
 
                 Dr. Hargett reported that Joel's back pain is a direct 
 
            result of his August 12, 1987 injury.  He also provided a 
 
            diagnosis of chronic myofascial strain and rated Joel's 
 
            impairment at five percent (exhibit C-4).
 
            
 
                 Dr. Donahue expressed the opinion that Joel recovered 
 
            from the August 12, 1987 injury and that it is not a cause 
 
            of his current intermittent discomfort.  He bases his 
 
            opinion on the assumption that Joel had no problems over the 
 
            several months following the end of his treatment.  He makes 
 
            that assumption because Joel was instructed to return if he 
 
            had further problems and did not return for any further 
 
            treatment (exhibit C-2, pages 7-10 and 25-28).  Dr. Donahue 
 
            stated that Joel was asymptomatic within ten days after 
 
            commencing treatment (exhibit C-2, pages 15 and 16).  Dr.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Donahue felt that Joel would not have been able to do his 
 
            job with Stylecraft if he were having significant lumbar 
 
            strain symptoms (exhibit C-2, pages 26 and 27).
 
            
 
                 It is found that Joel Rolfes does experience 
 
            intermittent back discomfort as he described at hearing, but 
 
            that the discomfort is not of a degree which is actually 
 
            disabling.  The record fails to identify any objectively 
 
            discernable abnormality in Joel's back.  The only diagnosis 
 
            is in the nature of a chronic strain.  Joel was able to work 
 
            at Stylecraft for nearly a year following the injury.  
 
            Shortly thereafter, he obtained his current job with the 
 
            nursery doing landscaping work.  It would be expected that 
 
            either job would cause occasional back discomfort, even for 
 
            a person with a completely healthy back.  It is found to be 
 
            particularly convincing that, after resuming work at 
 
            Stylecraft, Joel sought treatment with Dr. Hargett in 
 
            December of 1987 and then again in June of 1988.  It is not 
 
            known whether any of the visits made in August of 1988 were 
 
            made while Joel was still employed at Stylecraft.  It 
 
            appears as though the visit in December of 1988 and all 
 
            subsequent visits were made after Joel commenced his 
 
            employment with the nursery.  It is considered particularly 
 
            probative that Joel made only one visit to Dr. Hargett 
 
            during 1989.  According to Joel's testimony, he had ceased 
 
            seeing Dr. Bock when Dr. Bock closed his practice in late 
 
            1988.  Joel worked for the nursery through 1989 and made 
 
            only one visit to a chiropractor.  It is not until 1990 that 
 
            the record of frequent visits to a chiropractor appears to 
 
            have started.  The amount of time which elapsed following 
 
            the initial recovery from the injury until Joel began a 
 
            recurring course of chiropractic treatment strongly 
 
            indicates that Dr. Donahue's assessment of this case is 
 
            correct rather than the assessment made by Drs. Johnson and 
 
            Hargett.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 12, 
 
            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 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 The claimant's burden is to prove an entitlement by a 
 
            preponderance of the evidence.  While a causal connection 
 
            between the injury and the claimant's current complaints is 
 
            certainly possible, the likelihood of such a connection 
 
            cannot be termed as being probable.  It is therefore 
 
            concluded that Joel Rolfes has failed to prove, by a 
 
            preponderance of the evidence, that the injury of August 12, 
 
            1987 was a proximate cause of the current chronic strain 
 
            condition which has been diagnosed.
 
            
 
                 It is particularly noted that Joel left Stylecraft of 
 
            his own accord.  He was not asked to leave.  He apparently 
 
            was working at a level which was satisfactory to both his 
 
            employer and the coemployees on his crew.  If his level of 
 
            productivity had suffered significantly, it would be 
 
            expected that his coemployees would have been somewhat 
 
            disgruntled since their pay was determined by the 
 
            productivity of the crew.  Joel has not always been the 
 
            foreman for the nursery.  When he initially started work for 
 
            that company, he apparently worked to the satisfaction of 
 
            his employer since he was promoted into the supervisory 
 
            position.  When all the evidence in the record is 
 
            considered, it is concluded that Joel has failed to prove, 
 
            by a preponderance of the evidence, that any disability in
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            his back was proximately caused by the August 12, 1987 
 
            injury.  He is therefore not entitled to any recovery for 
 
            permanent partial disability.
 
            
 
                 Joel is entitled to recover the sum of $169.00 incurred 
 
            in his first four visits to Dr. Hargett.  At that point, the 
 
            employer was aware of his injury, but had not directed him 
 
            to any particular source of treatment.  It was reasonable 
 
            for him to go to Dr. Hargett at that time.  Once the 
 
            employer directed Joel to Dr. Donahue, however, care with 
 
            Dr. Hargett was no longer authorized.  Joel agreed that he 
 
            had a standing invitation from Dr. Donahue to return if he 
 
            had problems.  Joel chose, however, to seek chiropractic 
 
            treatment.  The chiropractic charges incurred subsequent to 
 
            August 19, 1987 are therefore concluded to have been 
 
            unauthorized.  Further, the evidence fails to show those 
 
            subsequent charges to have been proximately caused by the 
 
            August 12, 1987 injury.  According to the statements made by 
 
            counsel and as shown on the first page of exhibit A, Joel 
 
            personally paid the initial $169.00 of charges with Dr. 
 
            Hargett.  He is therefore entitled to recover them.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Joel Rolfes 
 
            one hundred sixty-nine and 00/100 dollars ($169.00) as 
 
            reimbursement for expenses of treatment in accordance with 
 
            section 85.27 of The Code.
 
            
 
                 IT IS FURTHER ORDERED that claimant's claim for 
 
            permanent partial disability compensation is denied.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P.O. Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Mr. Maynard M. Mohn
 
            Attorney at Law
 
            103 North Ninth Street
 
            P.O. Box 72
 
            Estherville, Iowa  51334
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.50; 5-1402.30; 2501
 
                           Filed September 4, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOEL ROLFES,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 862376
 
                      :
 
            STYLECRAFT, 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.    :
 
            ____________________________________________________________
 
            
 
            5-1108.50; 5-1402.30
 
            Where there was a considerable amount of intervening time 
 
            between the date of initial recovery from the injury and 
 
            resumption of treatment and conflicting medical opinions on the 
 
            issue, it was determined that the claimant had failed to prove 
 
            that the injury caused the condition for which he was obtaining 
 
            medical treatment and for which he sought permanent partial 
 
            disability.
 
            
 
            2501
 
            Employer held liable for payment of claimant's expenses 
 
            incurred with a chiropractor prior to the time that the 
 
            employer sent him to its chosen orthopaedic surgeon.  
 
            Defendants were relieved from liability for all subsequent 
 
            chiropractic treatments.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         COLETTE M. MARPLE,
 
         
 
              Claimant,                              File No. 862557
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         BIL MAR FOODS.OF IOWA, INC.,                D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           MAR 30 1989
 
         
 
         AMERICAN MOTORISTS INSURANCE              INDUSTRIAL SERVICES
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Colette M. Marple against defendant employer Bil Mar Foods of 
 
         Iowa, Inc., and defendant insurance carrier American Motorists 
 
         Insurance Company to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an alleged injury of August 27, 
 
         1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Storm Lake, Iowa, on March 13, 
 
         1989.  The matter was considered fully submitted at the close of 
 
         hearing.
 
         
 
              The record consists of the testimony of claimant and Dale 
 
         Carver.  In addition, claimant's exhibit A, defendants' exhibit 
 
         A, and joint exhibits X and Y were admitted into evidence.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and approved on March 13, 
 
         1989, the following issues were stipulated:  That an employment 
 
         relationship existed between claimant and employer at the time of 
 
         the alleged injury; that if liability be found, claimant suffered 
 
         an industrial disability to the body as a whole, and the 
 
         commencement date for permanent partial disability, if awarded, 
 
         is February 17, 1988; claimant's rate of compensation is $179.00 
 
         per week; affirmative defenses were waived.
 
         
 
              Pursuant to the preheating report, the following issues 
 
         remain for determination:  Whether claimant sustained an injury 
 
         on August 27, 1987, arising out of and in the course of her 
 
         employment; whether the injury caused either temporary or 
 
         permanent disability; the extent of claimant's entitlement to 
 
                                                
 
                                                         
 
         compensation for temporary total disability, healing period 
 
         benefits, or permanent partial disability; the extent of 
 
         claimant's entitlement to medical benefits, although it was 
 
         stipulated that the fees charged for medical services or supplies 
 
         are fair and reasonable.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she was 43 years old at the time of 
 
         hearing, was single and had two children.  She testified that her 
 
         educational background included a high school diploma earned in 
 
         1964, a course of study at the St. Joseph School of Nursing in 
 
         1964 and 1965, and also at the Antonian School of Practical 
 
         Nursing in 1965 and 1966.  Claimant was certified as a licensed 
 
         practical nurse in 1966.
 
         
 
              Claimant also testified as to her work history following high 
 
         school.  After obtaining her LPN certificate, she began employment 
 
         with Overland Medical Center in St. Louis, Missouri, as a 
 
         "floater" nurse, and worked there for approximately five years, 
 
         earning $4.00 per hour.  Following this employment, claimant 
 
         worked for Rockwood Nursing Home in Ellisville, Missouri, from 
 
         approximately 1973 to 1976.  This position was again as an LPN, 
 
         but claimant also acted as a day shift supervisor.  Her wage was 
 
         the same as was the case in the previous employment.  
 
         Subsequently, claimant was employed with the Fonda Care Center in 
 
         Fonda, Iowa, from approximately 1980 to 1983.  This position paid 
 
         $5.00 per hour, and claimant worked as a night supervisor, along 
 
         with the normal responsibilities of a licensed practical nurse.
 
         
 
              Claimant's next employment was with a business known as 
 
         Iver's Locker in Storm Lake, Iowa.  This was.a retail meat shop, 
 
         and claimant worked as a sales clerk, with ancillary duties such 
 
         as wrapping, stocking shelves, and the like.  She earned $3.60 
 
         per hour, and left that position in June, 1987, after almost two 
 
         years of employment, to accept work with defendant Bil Mar Foods 
 
         of Iowa, Inc.
 
         
 
              Claimant began her work on June 15, 1987, as a Whizard knife 
 
         operator on the production line.  Defendant Bil Mar Foods is a 
 
         turkey processing business.  Claimant remained at the same work 
 
         until the alleged injury of August 27, 1987.
 
         
 
              Claimant's job as a Whizard knife operator involved removing 
 
         a vein and fat pocket from turkey legs as they passed by her on a 
 
         conveyor system.  She was at the end of that particular line, and 
 
         also had responsibilities for sliding accumulated scraps of meat 
 
         from a rubber scraper to her left (turkey legs and meat scraps 
 
         came to her from the right), and scraping them into a bucket with 
 
         her left hand for reuse in processed turkey foods.  Claimant 
 
         required approximately two weeks training at this job, and 
 
         thereafter was able to keep up on her own.  However, she also 
 
         testified that she had problems keeping up without reaching and 
 
         twisting to her right to grasp pieces of meat as they approached 
 
         her on the conveyor.  In her deposition, claimant indicated that 
 
                                                
 
                                                         
 
         she typically moved one foot to the right, and in her testimony 
 
         gave a demonstration of how she would twist to the right to 
 
         intercept approaching meat.  The physical demonstration appeared 
 
         to the deputy to involve a rather extreme and strenuous twisting 
 
         or rotation of the upper torso to the right.
 
         
 
              Claimant also testified to two separate incidents in which 
 
         she suffered back pain.  The first of these, in 1966, occurred 
 
         after claimant assisted her husband in carrying a table saw down 
 
         some stairs; on the following morning, claimant suffered pain in 
 
         her lower back which was diagnosed by her treating physician in 
 
         Missouri as "muscle strain."  Claimant did not consider this 
 
         incident to be of significance.  Her physician prescribed muscle 
 
         relaxants, but not physical therapy.  The problem resolved itself 
 
         in approximately two days, and claimant missed no work and had no 
 
         further problems resulting from the incident.  Claimant described 
 
         the physical symptoms as having awakened with a "catch" in her 
 
         back, that her back felt "locked," and that she had difficulty 
 
         arising from bed.
 
         
 
              The second such incident occurred while claimant was 
 
         employed with Iver's Locker in 1985.  While lifting in a meat 
 
         cooler, claimant suffered pain in her lower back that she 
 
         described as "stabbing."  This pain was unlike the 1966 pain.  
 
         Approximately two days later, she visited Mark Schultz, D.O., one 
 
         of claimant's family physicians operating from the Family Health 
 
         Center, which coincidentally acted as company physicians for Bil 
 
         Mar Foods.  Dr. Schultz diagnosed muscle strain and prescribed 
 
         physical therapy, which claimant underwent.  Once again, claimant 
 
         missed no work by reason of this incident.
 
         
 
              From June 15, 1987 through the date of injury on August 27, 
 
         1987, claimant was under no work restrictions, made no complaints 
 
         to the employer concerning her physical condition, and missed 
 
         work on three days only due to an eye infection.
 
         
 
              Claimant described her injury as occurring approximately two 
 
         hours into her shift on August 27, 1987.  There was no particular 
 
         traumatic event, but claimant suddenly experienced a severe 
 
         stabbing pain in the lower back, causing her to immediately 
 
         request permission to see the plant nurse.  In her deposition, 
 
         claimant also noted that the pain at that time radiated down her 
 
         left leg.  She did not feel any sort of popping sensation or 
 
         anything of that nature.   In her deposition, claimant described 
 
         the discomfort in her back and legs as simultaneous.  Further, 
 
         she added that the pain in her back was similar to that of 
 
         previous incidents, but this was the first time pain had ever 
 
         radiated to the leg.
 
         
 
              The plant nurse promptly made an appointment for claimant 
 
         with Family Health Center, where claimant saw Dr. Nellis.  She 
 
         was sent home for bed rest and prescribed muscle relaxants.  Dr. 
 
         Nellis made a preliminary diagnosis of SI joint strain.
 
         
 
              Claimant remained home, primarily in bed, for four days.  As 
 
                                                
 
                                                         
 
         the pain had begun to subside, she began to work the next week, 
 
         and did work all week.  However, claimant stated that she 
 
         suffered pain off and on all of that week.
 
         
 
              Claimant was up all night suffering from pain on September 
 
         9, 1987.  She called in sick on the following morning.  She 
 
         returned to Family Health Clinic and saw Dr. Daniels, who 
 
         prescribed medications and one week of bed rest.  Claimant 
 
         described this therapy as being "a little" helpful.  On September 
 
         15, 1987, claimant was notified by Human Resources manager Dale 
 
         Carver that it was necessary to fill her position and that she 
 
         was discharged. On the following day, claimant saw Jonathan J. 
 
         Hruska, M.D., of the Family Health Center, and was sent to 
 
         physical therapy.  Two weeks later, she again saw Dr. Hruska, who 
 
         suggested hospitalization.  Claimant declined due to a lack of 
 
         funds.
 
         
 
              Claimant described eventually being admitted to Buena Vista 
 
         Hospital on October 16, 1987, by Dr. Hruska.  Although she had 
 
         remained inactive during all of this time, her symptoms did not 
 
         improve.  After further physical therapy, medications and bed 
 
         rest failed to help, claimant was referred to Richard Salib, 
 
         M.D., of the Institute for Low Back Care in Minneapolis, 
 
         Minnesota.
 
         
 
                            
 
                                                         
 
              After a radiological examination, Dr. Salib diagnosed a 
 
         ruptured disc and performed surgery the following day.  Claimant 
 
         considered the surgery to be quite successful, and was even able 
 
         to drive herself home from Minnesota.  She was given a release to 
 
         return to work on February 16, 1988.  For follow-up care, 
 
         claimant made some four trips to Minnesota and had room expenses 
 
         of $74.00. Claimant also sustained medical bills which were 
 
         introduced into evidence.
 
         
 
              Claimant reported that, as of the time of hearing, she feels 
 
         "great," and has never felt so well in her life.  She performs 
 
         all of her regular work, observing only a 50-pound lifting 
 
         restriction that Dr. Salib gives generally to back surgery 
 
         patients.  Claimant did not seek to return to Bil Mar Foods, and 
 
         is now self-employed. She first operated a car and truck wash and 
 
         polishing service, worked also as a hotel housekeeper, and now 
 
         operates a home housecleaning service.
 
         
 
              On cross-examination, claimant revealed a history of other 
 
         back problems, including December 27, 1984 and May 19, 1983.  In 
 
         1984, claimant saw Dr. Schultz with complaints of "chronic back 
 
         pain" which Dr. Schultz referred to as commencing in 1966 and 
 
         which chronically recurs about every four to six weeks while 
 
         working at Iver's Locker.  Dr. Schultz's impression was that of 
 
         chronic unstable low back.  Incidentally, Dr. Schultz also made 
 
         note of claimant's history of frequently seeing chiropractors.  
 
         Claimant repeatedly denied in her testimony having ever seen a 
 
         chiropractor. In the note of May 19, 1983, claimant was seen by 
 
         Dr. Hruska of the Family Health Center, for a complaint of back 
 
         pain which had been present for the past month or so.  Dr. Hruska 
 
         also made note of the "acute onset of severe pain" after claimant 
 
         awakening for the past month or so with moderately severe back 
 
         pain.  Dr. Hruska had an impression of chronic low back pain with 
 
         strain.  He also made note at this time of claimant's history of 
 
         "a couple chiropractic treatments and this seemed to help 
 
         transiently."
 
         
 
              Claimant was also cross-examined concerning her 
 
         conversations with physical therapist Steven Clark.  In notes of 
 
         December 27, 1984, L.P.T. Clark noted claimant's history of back 
 
         pain for several years dating back to 1966, that claimant has 
 
         been seeing a chiropractor for the past two to three years, once 
 
         or twice per year, and that the pain always returns despite those 
 
         chiropractic treatments.  Claimant also denied telling Mr. Clark 
 
         that she had received chiropractic treatments.
 
         
 
              Dale Carver testified that he is Human Resources Manager for 
 
         defendant Bil Mar Foods, and has been for eight years.  He 
 
         narrated a videotape of an individual performing claimant's job 
 
         at a speed which he described as similar to that on the date 
 
         claimant was injured.  He noted that claimant averaged some 40-42 
 
         hours per week.  Mr. Carver described the decision to let 
 
         claimant go as having been motivated by her apparent inability to 
 
         return to work, and because she was not eligible to request a 
 
         medical leave of absence while on her beginning employee 
 
                                                
 
                                                         
 
         probationary period.
 
         
 
              As to the videotape, Mr. Carver described claimant as having 
 
         approximately three feet to work in, which seemed accurate to 
 
         this deputy, but conceded on cross-examination that the 
 
         individual working claimant's job was apparently slightly turned 
 
         to the right.
 
         
 
              Mr. Carver was also asked about claimant's physical 
 
         examination.  She was required to take a preemployment physical 
 
         with the employer's physicians, coincidentally claimant's own 
 
         family doctors.  The purpose of the preemployment physical was to 
 
         screen preexisting problems, communicable diseases, or the like.  
 
         No back x-ray was taken of claimant at the preemployment 
 
         physical, and Mr. Carver noted that this was standard procedure, 
 
         except where there is a history of back problems, and that back 
 
         x-rays are performed only at Bil Mar's request, generally after a 
 
         physician's request for authorization.
 
         
 
              The parties also submitted a large number of medical records 
 
         relating to claimant.  The first of these is the radiological 
 
         report of William W. Klumper, M.D., listed by the parties as 
 
         having occurred January 6, 1981.  A closer review of that exhibit  
 
         shows that it actually bears the date of May 19, 1983, and that 
 
         the earlier date appears on another document that is partially 
 
         covered, so that the photocopy appears to show two separate 
 
         dates. In any event, the 1983 x-ray report of the lumbar spine 
 
         showed slight scoliosis of the mid-lumbar spine toward the right.  
 
         The summary was "mild degenerative changes in the articulating 
 
         facets of the lower lumbar spine."  At page 6 of joint exhibit X 
 
         appears the x-ray report of Dr. Klumper dated September 9, 1987.  
 
         The parties again misdate this report as June 12, 1984.  It is 
 
         clear from the photocopy that this date appears on a radiology 
 
         report approximately four pages down, and is not the date of that 
 
         report. The date of this report is important because it postdates 
 
         the claimed injury.  Dr. Klumper stated that his views of the 
 
         lumbar spine revealed well-defined height of the lumbar bodies 
 
         with minimal hypertrophic lipping and the anterior margins.  Disc 
 
         spaces were well preserved.  Slight narrowing of the disc space 
 
         between L5-S1 was noted, but it was probably within normal limits 
 
         as now hypertrophic lipping was identified.  There was some 
 
         sclerosis of the apophyseal joint margins.  Sacroiliac joints 
 
         were intact.  In summary, Dr. Klumper noted mild degenerative 
 
         arthritis in the articulating facets of the lower lumbar spine.
 
         
 
              As earlier noted, notes of licensed physical therapist Clark 
 
         show claimant was seen on December 27, 1984.  Claimant was at 
 
         that time reporting low back pain localized to the right L5-S1 
 
         region. Mr. Clark reported claimant's history as including 
 
         occasional sharp, shooting pains, lasting for 30 seconds and as 
 
         often as five to six per week.  These pains were described as 
 
         causing claimant to "go to the floor," but after 30 seconds 
 
         claimant was able to arise with no apparent problems.  Mr. Clark 
 
         reported on January 17, 1985, that claimant had demonstrated 
 
         marked improvement and he recommended no further follow-up.
 
                                                
 
                                                         
 
         
 
              Notes of Buena Vista County Hospital dictated by Dr. Hruska 
 
         on October 17, 1987, relate that claimant first visited the 
 
         office after the incident on August 27, 1987, and returned on 
 
         September 9, 1987.  He noted that x-rays showed decreased space 
 
         between L5 and S1 and also made note of claimant's history of 
 
         back problems which were felt to be more of a sacroiliac strain 
 
         or chronic unstable back, but without prior symptoms of radicular 
 
         pain.
 
         
 
              Richard M. Salib, M.D., Institute for Low Back Care Director 
 
         of Orthopaedics, wrote to Dr. Hruska on October 28, 1987.  He at 
 
         that time felt that the 1986 Iver's Locker incident was probable 
 
         muscle spasm giving the appearance of scoliosis, but that her CT 
 
         scan and AP films show no evidence of scoliosis.  He thought the 
 
         original injury was probably an annular tear from which claimant 
 
         completely recovered over a period of one to two months.  He 
 
         diagnosed an extruded herniated disc at L5-S1 with S1 
 
         radiculopathy and recommended a laminotomy and disc excision.
 
         
 
              As of the date of this letter, Dr. Salib felt there was no 
 
         question but that claimant's problems were work-related; she did 
 
         not have pain before she started her job, and she developed pain 
 
         while at work while performing a job that required twisting.  He 
 
         stated:
 
         
 
              There is also no question that she had preexisting disc 
 
              degeneration as many people do.  According to her history, 
 
              the actual tear in the annulus causing extrusion of the disc 
 
              herniation occurred while she was working.
 
         
 
         Although the undersigned considers this statement slightly 
 
         unclear, he interprets it as expressing Dr. Salib's belief that 
 
         claimant did not have preexisting disc degeneration.
 
         
 
              Dr. Salib wrote again to Dr. Hruska on February 17, 1988. 
 
         Claimant returned at that time three months following her 
 
         laminotomy and discectomy and was doing extremely well.  At this 
 
         time, Dr. Salib released claimant to return to work without 
 
         restrictions other than frequent repetitive bending or heavy 
 
         lifting above 50 pounds, "at least for the next few months."  He 
 
         believed that claimant had reached maximum improvement at that 
 
         time.  He expressed the view that claimant had less severe but 
 
         similar symptoms of back and left leg pain in 1986 (it is unclear 
 
         where and when Dr. Salib obtained the history of leg pain in 
 
         1986, which does not appear on the medical records at that time, 
 
         and which is denied by claimant) but that her symptoms completely 
 
         resolved without residual problem until August, 1987, when 
 
         claimant had an acute onset of back and leg pain:
 
         
 
              ...which rapidly progressed into an extruded disc herniation 
 
              over the next few months.  It is my feeling that according 
 
              to her history this occurred while working.
 
         
 
              Dr. Salib wrote to claimant's attorney on July 18, 1988, and 
 
                                                
 
                                                         
 
         noted then that claimant had last been seen on February 17, 1988. 
 
         He expressed the opinion that claimant has a seven percent 
 
         "permanent partial disability to the whole body."
 
         
 
              Dr. Salib again wrote to claimant's attorney on November 
 
         2,1988.  Dr. Salib expressed the view that he was in agreement 
 
         with Dr. Cotton "that the development of the herniated disc was 
 
         not the direct result or causally related to Ms. Marple's 
 
         employment, at least not completely."  He further expressed the 
 
         view that it would be appropriate for workers' compensation laws 
 
         to allow for apportionment of part of the injury to uncontrolled 
 
         circumstances and another to work.
 
         
 
              Dr. Salib wrote again to claimant's counsel on November 21, 
 
         1988.  He stated:
 
         
 
              It is impossible to determine the exact etiology of such a 
 
              problem as a herniated disc with the exception that we know 
 
              that herniated discs occur as a result of twisting and 
 
              bending.  If Ms. Marple's occupation involved frequent 
 
              bending and twisting and lifting, or even twisting alone, it 
 
              is possible that the herniated disc was contributed to by 
 
              her work.  If she performed more of that activity at work 
 
              than at home, then there would seem to be the possibility of 
 
              a cause and effect relationship.
 
         
 
              Because I am not aware of the details of her occupation, 
 
              however, I cannot make a statement to a reasonable degree of 
 
              medical certainty.
 
         
 
              The record does not reflect why Dr. Salib moved over time 
 
         from a position holding that there was a causal connection 
 
         between the work and claimant's injury, to a position where he 
 
 
 
                            
 
                                                         
 
         could find only a possibility of such a connection, and not to a 
 
         medical certainty.
 
         
 
              Medical records of the Family Health Center include 
 
         notations of claimant's back problems on May 19, 1983, December 
 
         27, 1984, and October 6, 1986.  There is also reference to 
 
         claimant's physical examination on June 11, 1987.  They noted 
 
         that claimant had a history of back problems and had been to 
 
         therapy and is on a home program, and further noted that she "has 
 
         had no problems x3 days."  Further, that the back showed good 
 
         range of motion and good strength in all ranges.
 
         
 
              The Family Health Center records also make reference to the 
 
         August 27, 1987 visit, as reported by Dr. Nellis.  In pertinent 
 
         part, Dr. Nellis observed:
 
         
 
              She thinks she has sciatica.  About 2 weeks ago she had 
 
              problems with pain in buttocks area, radiating down the back 
 
              of her leg.  She could hardly lift the knee.  No numbness or 
 
              tingling.  That seems to work itself out, however over the 
 
              last 3 days it has gotten worse again.
 
         
 
              As observed earlier, Dr. Nellis believed claimant was 
 
         suffering from acute SI joint strain.
 
         
 
              Claimant was also seen by Joel T. Cotton, M.D., for 
 
         evaluation.  Claimant gave Dr. Cotton a history of muscle strain, 
 
         particularly incidents in 1966, 1983, 1984 and 1986.  However, 
 
         she told Dr. Cotton that, until the injury of August, 1987, "she 
 
         had no pain whatsoever."  Dr. Cotton's clinical impression was 
 
         one of neurologically normal examination.  He believed that 
 
         claimant's lifting restriction of 50 pounds if given on a purely 
 
         orthopaedic basis for postoperative patients would not seem 
 
         unreasonable. Further, Dr. Cotton opined that a temporal 
 
         relationship may exist between her employment and the onset of 
 
         pain.  After noting that he had reviewed the same videotape shown 
 
         at hearing, he expressed the opinion based upon a reasonable 
 
         degree of medical certainty, that the injury occurring to 
 
         claimant while at work was purely coincidental and that the 
 
         actual performance of the job, either on the date of the injury 
 
         or preceding it, had no role in either causing or aggravating the 
 
         symptoms.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on August 27, 1987 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
                                                
 
                                                         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's  Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  (Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 27, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
                                                
 
                                                         
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              In a case such as this, which does not involve a traumatic 
 
         incident, it is crucial to review the expert evidence in 
 
         determining whether there is a causal connection between the work 
 
         and the alleged injury, particularly as going to the issue of 
 
         whether claimant has met her burden of proof in establishing an 
 
         injury arising out of that employment.  The only two physicians 
 
         to have expressed an opinion on that issue are Dr. Salib and Dr. 
 
         Cotton.  As has been seen, Dr. Salib originally expressed the 
 
         opinion that claimant's problems were work-related, but, by the 
 
         time of his November 2 and November 21 letters to claimant's 
 
         counsel, he agreed with Dr. Cotton that the development of the 
 
         herniated disc "was not the direct result or causally related to 
 
         Ms. Marple's employment, at least not completely" and that he was 
 
         unable to tie the injury to the work to a reasonable degree of 
 
         medical certainty.  His final opinion was only that there was a 
 
         possibility of a cause and effect relationship.  Why Dr. Salib's 
 
         position changed over time remains unclear.  Of course, even Dr. 
 
         Salib's initial opinion may be tainted by an inaccurate history. 
 
         He believed there was no history of radiating pain prior to the 
 
         incident of August 27, 1987.  As shown by Dr. Nellis' notes of 
 
         that very date, this is not accurate.  As has also been seen, 
 
         claimant advised Dr. Nellis that she had suffered with problems 
 
         from pain in the buttocks area radiating down the back of her leg 
 
         for about two weeks, that the problem had seemed to work itself 
 
         out, and had gotten worse again over the last three days.  There 
 
         is no indication whatsoever in Dr. Salib's reports that he was 
 
         aware of the radiating pain having predated August 27, 1987 by as 
 
         much as two weeks.
 
         
 
              On the other hand, Dr. Cotton has expressed the view, which 
 
         he describes as to a reasonable degree of medical certainty, that 
 
         there is only a temporal relationship between the onset of pain 
 
         and the work, and no causative relationship.
 
         
 
              It should be noted that there are a number of inconsistencies 
 
                                                
 
                                                         
 
         in claimant's reports to physicians, particularly with regard to 
 
         whether she has or has not seen a chiropractor.  Two physicians 
 
         and a physical therapist made notes in claimant's chart that she 
 
         had regularly seen a chiropractor, while she denied at hearing 
 
         that she ever had seen such a practitioner for her back problems. 
 
         Further, it is worth noting that it appears to this hearing deputy 
 
         extremely unlikely that claimant actually twisted and rotated her 
 
         upper torso on the job to the extent she demonstrated at hearing. 
 
         This is so because of the limited work space she had available.  
 
         It is the belief of the undersigned that had claimant actually 
 
         twisted and reached as far and to such an extreme degree as was 
 
         demonstrated during hearing, she would have been required to pick 
 
         up meat from directly under the nose of her coworker immediately 
 
         to the right. While she no doubt did tend to twist or move to pick 
 
         up meat as it came to her, it is very difficult to credit her 
 
         demonstration as an accurate portrayal of the physical movements 
 
         she went through.
 
         
 
              Nonetheless, as has been noted, there is at the present time 
 
         no expert testimony tying claimant's injury to the work beyond a 
 
         mere possibility, while there is medical testimony clearly 
 
         expressing the view that no connection exists.  In particular 
 
         conjunction with the notes of Dr. Nellis as to when claimant's 
 
         radiating pain began, it is held that claimant has failed to meet 
 
         her burden of proof in establishing that this injury was causally 
 
         connected to her employment.  Therefore, it is unnecessary to 
 
         address the other issues presented.
 
         
 
                               FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
                         
 
                                                         
 
              1.  Claimant left her work with Bil Mar Foods of Iowa, Inc., 
 
         on August 27, 1987, complaining of pain to the lower back and 
 
         radiating down her left leg.
 
         
 
              2.  While one physician has opined that there is a 
 
         possibility (but not to a reasonable degree of medical certainty) 
 
         that claimant's back problems are related to her employment, 
 
         another physician has opined that there is no such causal 
 
         connection.
 
         
 
              3.  That claimant's symptoms predated her injury by 
 
         approximately two weeks, and became worse over the three days 
 
         immediately preceding the claimed injury, as she described to her 
 
         family physician, Dr. Nellis.
 
         
 
                               CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion is made:
 
         
 
              1.  Claimant has failed to meet her burden of proof in 
 
         establishing that her alleged work injury caused either temporary 
 
         or permanent disability.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant shall take nothing from this proceeding.
 
         
 
              That costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 30th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Hugh J. Perry
 
         Attorney at Law
 
         116 East 5th Street
 
         Box 1125
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
                                                
 
                                                         
 
         P.O. Box 3086
 
         Sioux city, Iowa  51102
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.30
 
                                            Filed March 30, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         COLETTE M. MARPLE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 862557
 
         BIL MAR FOODS OF IOWA, INC.,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         AMERICAN MOTORISTS INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30
 
         
 
              Where one physician could find only a possibility of causal 
 
         connection (and not to a reasonable degree of medical certainty), 
 
         and another physician opined (to a reasonable degree of medical 
 
         certainty) that there was no connection, claimant failed to 
 
         establish a work injury causative of back problems.
 
         
 
         
 
         
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL L. MILLER,            :
 
                                          :
 
                 Claimant,                :      File No. 862774
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS, INC.,           :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  Neither party filed briefs 
 
            on appeal.  Therefore, the appeal will be considered 
 
            generally and without regard to specific issues.  The 
 
            decision of the deputy is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Mr. Dennis M. McElwain
 
            Attorneys at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine St.
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL L. MILLER,                        File No. 862774
 
         
 
              Claimant,                         A R B I T R A T I O N
 
         
 
         vs.                                       D E C I S I O N
 
         
 
         WILSON FOODS, INC.,                          F I L E D
 
         
 
              Employer,                              AUG 23 1989
 
              Self-Insured,
 
              Defendant.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration.  The case is brought by 
 
         Michael L. Miller, claimant, against Wilson Foods Corporation, 
 
         self-insured employer.  The case was heard by the undersigned on 
 
         June 1, 1989, in Storm Lake, Iowa.
 
         
 
              The record consists of joint exhibits 1-28.  The record also 
 
         consists of the testimony of claimant and the testimony of Duane 
 
         Aduddell, employment manager.
 
         
 
                                       ISSUE
 
         
 
              As a result of the prehearing report and order submitted on 
 
         June 1, 1989, the issue presented by the parties is:
 
         
 
              The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendant is liable for the injuries.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties have entered into a number 
 
         of stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That claimant sustained an injury on August 17, 1987, 
 
         which arose out of and in the course of employment with employer 
 
         as to his right shoulder;
 
         
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery is stipulated.  That the 
 
         work injury is a cause of permanent disability;
 
         
 
              4.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from September 3, 1987 
 
         to February 2, 1988.
 
                                                   
 
                                                            
 
         
 
              5.  The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole.  The commencement 
 
         date for permanent partial disability, in the event such benefits 
 
         are awarded, is stipulated to be the 3rd day of February, 1988.
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $205.15 per week.
 
         
 
              7.  Defendant paid claimant 21.857 weeks of healing period 
 
         benefits ($4,484.15), and 60 weeks of permanent partial 
 
         disability benefits ($12,309.00).
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant is 36-years-old and single.  He has completed the 
 
         tenth grade in high school.  In April of 1984, claimant commenced 
 
         his employment with defendant.  Claimant worked in a number of 
 
         departments prior to the date of his work injury.  Primarily, 
 
         claimant was involved with hog cut work, including boning 
 
         shoulders and raising neck bones.
 
         
 
              Claimant testified his shoulder injury was gradual over 
 
         time. Often, claimant was required to use a ten inch knife.  
 
         According to claimant's testimony, his injury occurred on August 
 
         17, 1987, because of repetitious movements of his shoulder.
 
         
 
              Subsequent to the date of the injury, claimant had surgery 
 
         on his right shoulder.  Medical records for the claimant 
 
         indicate:
 
         
 
              PREOPERATIVE DIAGNOSIS:  Right rotator cuff painful
 
                                       arc syndrome.
 
              POSTOPERATIVE DIAGNOSIS:  Right rotator cuff painful
 
                                        arc syndrome.
 
              TITLE OF OPERATION:  Neer [sic] partial acrominectomy,
 
                                       right AC arthroplasty.
 
         
 
              FINDINGS:  The patient had partially torn his long head of 
 
              the biceps and his supraspinatus tendon.  He had a lot of 
 
              redundant synovial tissue, combined with subacromial bursa 
 
              tissue.  The patient also had a small spur on the 
 
              anterolateral part of the acromion, an old AC separation 
 
              with irregularity on the inferior aspect of the clavicle.
 
         
 
              Subsequent to the date of the surgery, Dennis L. Johnson, 
 
         M.D., the treating surgeon opined:
 
         
 
              Mr. Miller was in to see us on 1/26/88 for his final 
 
              evaluation with regard to the right shouilder [sic].
 
         
 
              Mr. Miller showed tenderness with elevation of the right 
 
              shoulder at about 45 degrees, referred diffusely to the area 
 
              of the right acromion.  However, when distracted he was able 
 
                                                   
 
                                                            
 
                   to elevate his right shoulder to at least 70 degrees and 
 
              could reach up over his shoulder to put the sleeve of his 
 
              shirt on.  Passively he has abduction of about 100 degrees 
 
              and flexion of about 100 degrees.
 
         
 
              I believe that Mr. Miller has a permanent partial physical 
 
              impairment rating of 20 percent of the upper extremity equal 
 
              to 12 percent of the whole man impairment.
 
         
 
              I believe that he can go to work within the restrictions of 
 
              his Functional Capacities Assessment safely but recommend 
 
              that he not do work above the level of the shoulder - about 
 
              nipple level work and below is satisfactory but not above.
 
         
 
              In a follow-up report, Dr. Johnson writes:
 
         
 
              Mr. Michael Miller's functional capacities assessment was 
 
              taken in to [sic] account in the process of his disability 
 
              rating.  Mr. Miller does have some limitation of motion in 
 
              the right shoulder.  His FCA data indicates that he was not 
 
              cooperating to the best degree when performing and certainly 
 
              the load limits which were determined in his FCA are safe 
 
              working limitations for this person.
 
         
 
              Medical evidence also establishes that claimant was 
 
         evaluated by Scott B. Neff, D.O., an orthopedic surgeon, and by a 
 
         physical therapist, Thomas W. Bower, L.P.T.  Their report of June 
 
         13, 1988, stated:
 
         
 
              Physical examination reveals forward elevation to 80 
 
              degrees. The arm locks at approximately 80 degrees and with 
 
              the patient externally rotating and extending the shoulder 
 
              he is able to raise the arm slightly further.  Extension is 
 
              40 degrees, abduction is only 60 degrees, external rotation 
 
              is 75 degrees and internal rotation is 40 degrees.  There is 
 
              a marked indentation over the AC joint and this is 
 
              apparently due to the fact that the deltoid has failed to 
 
              reattach.  The patient states that he is working on more of 
 
              a on/off basis and has the option of either working or not, 
 
              depending on the seniority of the job.  The job that the 
 
              patient apparently sustained the injuries from, is.no longer 
 
              available in the plant.
 
         
 
              On the basis of the testing today, it appears that the 
 
              patient is most likley [sic] still impinging.  This is 
 
              explaining the locking sensation this gentleman is 
 
              experiencing.
 
         
 
              Based on the range of motion loss this patient has 
 
              sustained, he has incurred a 20 percent impairment to the 
 
              right upper extremity.  Since this has dealt with the 
 
              rotator cuff, the figure would be converted to the body as a 
 
              whole which would be 12 percent body as a whole rating.  It 
 
              is very difficult and there are no specific guides available 
 
              today to account for the long head of the biceps tendon 
 
                                                   
 
                                                            
 
                   rupture.  Certainly I feel there would be an additional 
 
              impairment involved here but it is difficult to arrive at a 
 
              specific figure for this. Therefore, on the basis of the 
 
              shoulder itself, the patient has incurred a 12 percent 
 
              impairment to the body as a whole.
 
         
 
              Claimant was released to return to work as of February 3, 
 
         1988.  Dr. Johnson placed a lifting requirement of 35 pounds upon 
 
         claimant.  The treating physician also restricted claimant from 
 
         working above shoulder level.  Dr. Johnson opined claimant should 
 
         work only at nipple level or below.
 
         
 
              Claimant testified that prior to his return to work, 
 
         defendant engaged in reorganization of the company.  Some 
 
         departments within the plant were closed.  Many workers were laid 
 
         off or bumped, depending upon the number of years of service they 
 
         had.  As a consequence, laid off workers, including claimant, 
 
         were placed in a labor pool where they were required to report 
 
         for possible duty every Monday morning.  Work was assigned to the 
 
         most senior worker.  Claimant testified there were numerous jobs 
 
         for which he was medically disqualified and that as a result of 
 
         his right shoulder injury, claimant suffered a loss of earnings 
 
         and a loss of earnings capacity.  Claimant maintained there was 
 
         not much available work during 1989, but that he was working at 
 
         the time of the hearing.
 
 
 
                               
 
                                                            
 
         
 
              Duane Aduddell, the employment manager, testified at the 
 
         hearing.  He reported claimant worked 15 weeks during the last 52 
 
         weeks.  Mr. Aduddell also reported less senior employees in the 
 
         labor pool worked 33 weeks during the last 52 weeks.
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by.a preponderance of the 
 
         evidence that he received an injury on August 17, 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 supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the.health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
                                                   
 
                                                            
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the 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 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                    ANALYSIS
 
         
 
              The sole issue to address here is the nature and extent of 
 
         claimant's permanent partial disability.  The medical testimony 
 
         is undisputed.  Both orthopedic physicians opine claimant has a 
 
         functional impairment of 12 percent to the body as a whole. 
 
         Claimant argues he has an industrial disability greater than the 
 
         12 percent figure.  Defendant maintains claimant has no 
 
         industrial disability greater than the 12 percent impairment 
 
         rating.
 
         
 
              Claimant admits he has voluntarily taken a 30 day leave of 
 
         absence since his injury.  He also admits he has passed on jobs, 
 
         although claimant reports he has never passed on a job because he 
 
         could not do it.
 
         
 
              Claimant states if he had not been medically disqualified, 
 
         he could work in the pace boning department almost every day.  
 
         Mr. Aduddell, however, maintains claimant is medically qualified 
 
         for 75 percent of all available jobs within the plant.  Mr. 
 
         Aduddell reports there has been work for claimant but he has 
 
         refused the positions offered.  Claimant acknowledges he did not 
 
         report to work every Monday unless he was required to do so.
 
         
 
              On the date of the hearing claimant had been working at 
 
         defendant's establishment for the second consecutive week.  He 
 
         had been working in the packaging department, a job he was 
 
         qualified to do.  Claimant reported there is more work available 
 
         during the summer when other employees are on vacations.  
 
                                                   
 
                                                            
 
         Claimant also reported he wanted to continue his employment at 
 
         defendant's establishment and that within a year he could obtain 
 
         a better position due to his seniority status.
 
         
 
              After reviewing the evidence presented, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability of 12 percent.  While claimant has only worked 
 
         15 weeks during the prior calendar year, there is insufficient 
 
         evidence to establish claimant's physical condition solely 
 
         precluded him from additional employment.  Rather, it appears 
 
         claimant, without a physician's order, voluntarily removed 
 
         himself from the labor pool.  Such a decision was purely 
 
         personal. Claimant is fit to perform approximately 75 percent of 
 
         the jobs in the plant.  Claimant has not established that loss of 
 
         earnings are due to his work injury.
 
         
 
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              FINDING 1.  As a result of his work injury on August 17, 
 
         1987, claimant sustained an injury to his right shoulder.
 
         
 
              FINDING 2.  Claimant, as a result of his work injury on 
 
         August 17, 1987, has a 12 percent functional impairment to the 
 
         body as a whole.
 
         
 
              FINDING 3.  Claimant has voluntarily declined various 
 
         positions at the plant.
 
         
 
              FINDING 4.  Claimant is currently employed at defendant's 
 
         establishment.
 
         
 
              CONCLUSION A.  As a result of his work injury on August 17, 
 
         1987, claimant has a 12 percent permanent partial disability to 
 
 
 
                  
 
                                                            
 
         the body as a whole.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant sixty (60) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred five and 15/100 dollars ($205.15) per week as 
 
         a result of the injury on August 17, 1987.
 
         
 
              Defendant is to pay unto claimant twenty-one and 
 
         eight-five-seven (21.857 ) weeks of healing period benefits at 
 
         the stipulated rate of two hundred five and 15/100 dollars 
 
         ($205.15) per week as a result of the injury on August 17, 1987.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant,to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant shall take credit for benefits previously paid.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 23rd day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Mr. Dennis M. McElwain
 
         Attorneys at Law
 
         P. 0. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         P. 0. Box 535
 
         Cherokee, Iowa  51012
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1804
 
                                            Filed August 23, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL L. MILLER,
 
         
 
              Claimant,
 
                                                 File No. 862774
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         WILSON FOODS, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1804
 
         
 
              Claimant established he had a 12 percent permanent partial 
 
         disability as a result of a right shoulder injury which was 
 
         repetitive in nature.  Claimant voluntarily determined not to 
 
         appear for work on days where he was not required to do so.
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL L. MILLER,            :
 
                                          :
 
                 Claimant,                :      File No. 862774
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS, INC.,           :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9998
 
            
 
            Deputy's decision summarily affirmed on appeal.