BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID CUE,
 
         
 
              Claimant,
 
                                                File No. 865320
 
         vs.
 
                                               A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and                                         F I L E D
 
         
 
         AETNA CASUALTY & SURETY                    AUG 30 1989
 
         COMPANY,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         David Cue, against Farmland Foods, employer, and Aetna Casualty & 
 
         Surety Company, insurance carrier, to recover benefits as a 
 
         result of an alleged injury sustained on September 26, 1987.  
 
         This matter comes on for hearing before the deputy industrial 
 
         commissioner in Sioux City, Iowa, on June 20, 1989.  The record 
 
         consists of the testimony of claimant, claimant's wife, Barbara 
 
         Holmes, and Karen Stricklett; and joint exhibits 1 through 49.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's injury on September 26, 1987 arose 
 
         out of and in the course of his employment;
 
              
 
              2.  Whether claimant's claim is barred by the statute of 
 
         limitations, 85.26 Iowa Code;
 
              
 
              3.  Whether claimant's alleged disability is causally 
 
         connected to his alleged injury of September 26, 1987;
 
              
 
              4.  The nature and extent of claimant's disability;
 
              
 
              5.  Whether claimant is entitled to permanent total 
 
         disability pursuant to the odd-lot doctrine; and
 
         
 
              6.  Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                              REVIEW OF THE EVIDENCE
 
              
 
              Claimant testified to the various manual labor jobs he 
 
         performed beginning at age 14 up to April 1974, when he began 
 
         employment with defendant employer.  Claimant said his pre-April 
 
         1974 jobs included carpentry work, ready-mix concrete work, truck 
 
         driving, laying asphalt, loading hides at IBP, and general heavy 
 
         construction work.
 
              
 
              Claimant described the various jobs he performed after he 
 
         began working at Farmland Foods.  Claimant said these jobs 
 
         included working on the cut floor, cutting shoulder picnics, 
 
         pulling butts, throwing loin boxes and rib boxes, running the 
 
         belly saw, grading and skinning hams, loading boxes of meat on 
 
         pallets manually and with a machine, inventory, assembly, and 
 
         dock loading.  Claimant contends that his jobs with Farmland over 
 
         the years prior to his alleged injury on September 26, 1987 
 
         involved repetitive lifting 5 to 120 pounds six to ten hours per 
 
         day. Claimant testified there is no one injury he incurred.  
 
         Claimant contends that the repetitive twisting, bending and 
 
         lifting he had done at work resulted in him not being able to 
 
         work.  Claimant said his back hurt so bad on April 26, 1987 he 
 
         went home.
 
              
 
              Claimant testified that his wife and not claimant raises 
 
         dairy goats on their acreage.  Claimant said that his wife also 
 
         has six feeder pigs and they both have a few chickens, a few 
 
         ducks, cats and 20 dogs.  Claimant said he and his wife raise 
 
         alfalfa, both for food for the animals and to sell.
 
              
 
              Claimant said he has talked to a rehabilitation consultant 
 
         who indicated nothing could be done to help him until the doctor 
 
         indicated what he could and could not do.  Claimant contends the 
 
         doctors told him he could do nothing.  Claimant stated he has had 
 
         migraine headaches for the last seven to eight years, and that 
 
         these headaches have become so severe that they go down into his 
 
         neck and shoulders.  Claimant stated that he started getting 
 
         migraine headaches in 1979 or 1980, but he did not start getting 
 
         the real bad cluster migraines until the last four years.
 
              
 
              Claimant stated he injured his head in 1974 and was 
 
         hospitalized overnight when a truck transmission fell on his 
 
         head. Claimant stated in his April 1989 deposition that he "hurt, 
 
         pulled muscles in my back and hurt it several times at work.  I 
 
         got hurt in '79, I had it hurt in '84.  I've pulled muscles in my 
 
         back. There's a number of times that I've had back sprain or 
 
         strain, whatever they call it."  (Joint Exhibit 48, page 36)  
 
         Claimant said he is presently taking Voltain for his back and 
 
         Verapamil three times a day for his headaches.  Claimant admitted 
 
         he has a degenerative disc disease and was made aware of it by 
 
         D.M. Tan Creti, M.D., Leslie Hellbusch, M.D., and Dr. Rutherford 
 
         in 1985.
 
         
 
              Claimant also acknowledged that he has had left leg trouble 
 
         since his fall in 1979.  Claimant said his leg condition had been 
 
         getting worse during the year prior to September 26, 1987 injury. 
 
         Claimant stated:  "It just wouldn't do what it was suppose to, 
 
         and stuff."  (Jt. Ex. 48, p. 46)  Claimant did not recall any 
 
         doctor giving him a 25 percent rating for his 1979 injury.  
 
         Claimant admitted he saw Leonard Weber, M.D., a neurologist, in 
 
         July 1987 because:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              My left leg wasn't working right.  I was afraid it had 
 
              something to do with cluster migraines is why I went to see 
 
              him, because he's a headache specialist.  That was when he 
 
              diagnosed the cluster migraines for sure, and he told me he 
 
              thought my leg was, my back, and I should do back exercises. 
 
              And I told him I had all them sheets for back exercises.  
 
              And he said if it kept getting worse, I should see a 
 
              specialist. And that's all there was to it.
 
              
 
         (Jt. Ex. 48, p. 48)
 
         
 
              Claimant said he has had a hearing before a social security 
 
         administrative law judge.
 
         
 
              Claimant testified that he presently cannot stand or sit 
 
         down, cannot walk too far, and cannot bend or lift anything.  In 
 
         his deposition approximately two months earlier,claimant stated;
 
         
 
              I have a lot of pain in my back.  And I have pain in my left 
 
              leg; and it's shooting pains, and it doesn't always work 
 
              right.  I don't -- the nerve control's not right in it.  And 
 
              I get aches in, on up my upper back and shoulders, but I 
 
              think that's 'cause of the muscles in my lower back.  And of 
 
              course I have migraines all the time; the headaches.
 
              
 
         (Jt. Ex. 48, p. 54)
 
         
 
              Claimant stated Dr. Tan Creti, in September 1985, prescribed 
 
         the cane he is using because his left leg gives out.
 
         
 
              Claimant said he has not returned to work since his 
 
         September 26, 1987 injury and emphasized he is not able to 
 
         perform the work at defendant employer as a dock worker due to 
 
         his present condition.  Claimant denied that an incident with a 
 
         goat he was walking on September 26, 1987 resulted in any back 
 
         injury. Claimant acknowledged that after this goat incident, his 
 
         back pain became worse.  Claimant contends that the pain in his 
 
         back is the same as the pain he incurred with his alleged 
 
         repetitive September 26, 1987 injury.  Claimant does not contend 
 
         the headaches are the result of his alleged September 26, 1987 
 
         injury.
 
         
 
              Claimant indicated he has not been terminated, but is on 
 
         indefinite sick leave.  Claimant said that Farmland told him if 
 
         he got a light duty slip, he should call Farmland about a job.  
 
         Except for one attempt, claimant said he has made no search for 
 
         other jobs as he has not been released by a doctor.  Claimant 
 
         said he received a work release on June 12, 1989 for light duty 
 
         from Dr. Tan Creti. Claimant said he would accept a job from 
 
         Farmland if offered.
 
         
 
              On cross-examination, claimant acknowledged that when he 
 
         first saw Dr. Tan Creti on September 27, 1987, he did not relate 
 
         his injury to his employment.  Claimant said his wife went with 
 
         him and gave a history to the doctor.  Claimant admitted that 
 
         when he went to the hospital on September 27, 1987, he indicated 
 
         his back flare-up was a result of claimant leading his goat.  
 
         Claimant admitted that prior to his goat incident on September 
 
         26, 1987, he was able to work and that after the goat incident, 
 
         he has been unable to work.  Claimant acknowledged that Dr. 
 
         Hellbusch suggested claimant consider lighter labor and did not 
 
         put him on any absolute permanent restrictions.  Claimant said 
 
         that he did not consider going back to work at Farmland as this 
 
         was contrary to Dr. Tan Creti's advice.  Claimant admitted that 
 
         Dr. Tan Creti sent him to Dr. Hellbusch, who is a specialist.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Brynne Cue, claimant's wife, testified that the goat 
 
         incident caused no difference in claimant's medical condition.  
 
         She contends that from 1985 to 1987, claimant came home in pain 
 
         and had a hard time walking.  Mrs. Cue stated that on September 
 
         26, 1987, claimant was walking a goat to the barn and got a pain 
 
         in his leg and fell down as if he twisted his ankle.  Mrs. Cue 
 
         emphasized that she raises the 40 goats.  She said that claimant 
 
         helps her fix fences, milk the goats, and bale the hay.  Mrs. Cue 
 
         agreed that claimant's migraine headaches have been so bad that 
 
         he is unable to work at times.  Mrs. Cue admitted that claimant 
 
         has had pain since his 1979 injury.  She acknowledged that she 
 
         helped claimant fill out the answers to interrogatories.
 
         
 
              Barbara Holmes works at Crawford Memorial Hospital as an 
 
         x-ray technician.  Holmes testified that she knows claimant, who 
 
         used to work with her husband on the Farmland loading dock and 
 
         used to be her neighbor.  Holmes said she took x-rays of 
 
         claimant's lumbar spine in September 1987.  Holmes stated 
 
         claimant tola her he had slipped chasing a goat.
 
              
 
              Karen Stricklett, a rehabilitation consultant, testified 
 
         that she reviewed claimant's medical records, his deposition, 
 
         talked to claimant, and Farmland's nurse and safety and health 
 
         supervisor. Stricklett said claimant demonstrated no motivation 
 
         to go back to work or to participate in vocational rehabilitation 
 
         services at this time.
 
         
 
              Claimant's medical records indicate claimant experienced 
 
         lumbar muscle spasms on June 2, 1979.  On June 4, 1979, Gerald M. 
 
         Paul, M.D., diagnosed an "acute lumbosacral strain syndrome" and 
 
         indicated "range of motion of his lumbosacral spine is restricted 
 
         by approximately 25 percent." (Jt. Ex. 6, p. 1)
 
         
 
              The notes of D. M. Tan Creti, M.D., reflect that prior to 
 
         September 27, 1987, claimant was having problems with his back in 
 
         November 1982.  In August 1984, claimant told this doctor that he 
 
         hurt his back while lifting boxes and his right leg feels numb. 
 
         Claimant complained to Dr. Tan Creti of back problems in October 
 
         and December 1984, February 1985, and January 17, 1987.
 
              
 
              Claimant went to Leonard E. Weber, M.D., on August 24, 1987 
 
         for an evaluation of his headaches.  On August 25, 1987, Dr. 
 
         Weber wrote in claimant's record:
 
         
 
                Associated symptoms include some fuzziness of vision, 
 
              quivering lights, and vomiting when the headache is severe, 
 
              generally a few times a week.  Sometimes the left leg does 
 
              not seem to do what it is supposed to, over the past two 
 
              months.  This occurs when his headache is especially severe. 
 
              Moreover, when his headaches are severe he can get some 
 
              aching discomfort to the shoulder and back.
 
              
 
         (Jt. Ex. 18, p. 1-2)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In his comments and recommendations, Dr. Weber wrote:
 
              
 
                The constant nature of these headaches, their spread to 
 
              the shoulder and back muscles when severe, and they are 
 
              exploding or non-throbbing band-like quality strongly speaks 
 
              for headaches of the muscle tension type.  He does have some 
 
              features of migraine, however, namely the quivering lights, 
 
              and the occasional vomiting with the more severe headaches.
 
              
 
         (Jt. Ex. 18, p. 3)
 
         
 
              On September 27, 1987, claimant sought emergency treatment. 
 
         His outpatient record signed by claimant, reflects "Patient's 
 
         General Condition, Reactions, or Other Remarks was leading a goat 
 
         last evening at approximately 5:30 pm.  Goat moved suddenly & 
 
         experienced sharp pain left lower back with radiation of pain 
 
         into (L) leg with certain movements.  Has hxg back problems."  
 
         (Jt. Ex. 19, p. 2)  X-ray Report:  "SUMMARY:  Early disc 
 
         degeneration between L5-S1."  (Jt. Ex. 19, p. 1)
 
          
 
              In a Farmland Foods' Medical Certification, Dr. Tan Creti 
 
         checked "No" to the question of "Did this sickness or injury 
 
         arise out of patient's employment?"  On October 19, 1987, Dr. Tan 
 
         Creti reversed his position and marked "Yes" to the same 
 
         question.
 
              
 
              On October 5, 1987, Leslie C. Hellbusch, M.D., a 
 
         neurologist, wrote:
 
                
 
                David Cue was seen in my office on October 5, 1987.  As 
 
              you know, he gets some back and left leg pain which he has 
 
              had now presently for about 10 days.  He initially hurt his 
 
              back on the job in 1979.  He has had other episodes of back 
 
              and left leg pain but prior to this present episode, he was 
 
              asymptomatic for about four months.
 
                
 
                On exam, straight leg raising at 80 degrees on the left 
 
              produced some left posterior thigh pain.  He had a slightly 
 
              decreased range of motion of his back on all directions, all 
 
              these maneuvers producing some back pain.  He had slight 
 
              loss of pin sensation in the left S1 distribution.
 
                
 
                Lumbar CT scan done today on October 5, 1987 showed 
 
              minimal L5-S1 disk bulging.
 
                
 
                He has L5-S1 degenerative disk disease.  I do not think 
 
              he has a frank disk herniation at this time.
 
               
 
         (Jt. Ex. 21)
 
         
 
              On December 18, 1987, Dr. Tan Creti wrote:
 
              
 
                It is my opinion that after study and review of the 
 
              medical records and review of the history that Mr. Cue's 
 
              injuries are a direct result of his work and employment in 
 
              the meat packing industry.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                
 
                The initial history taken on 9/27/87 was that Mr. Cue had 
 
              been leading a goat at his home the evening prior to being 
 
              seen.  The goat moved suddenly and following that he 
 
              developed pain in the lower back and had radiation of the 
 
              pain into the left leg.  Further history revealed that Mr. 
 
              Cue has had a history of work related back problems.
 
         
 
                It is my opinion with reasonable medical certainty that 
 
              the event with the goat at his home was the immediate event 
 
              which lit up the pain and spasm symptoms of his back 
 
              injuries related to his work.  I believe that in the course 
 
              of ordinary daily living activities and his work, these 
 
              symptoms would have eventually been precipitated.  I do not 
 
              believe that the event at home contributed to any 
 
              appreciable extent to the injury of his spine and nerves.
 
              
 
         (Jt. Ex. 24)
 
         
 
              Dr. Hellbusch on April 5, 1988 opined:
 
              
 
                David Cue has a ten percent permanent partial disability 
 
              of the body as a whole as a result of his low back problem.  
 
              In the past, I have suggested to him that he consider 
 
              lighter labor but I do not know any reason to put him on any 
 
              absolute permanent restrictions at this time.  When I last 
 
              saw him in my office on March 3, 1988, I recommended that he 
 
              consider a work hardening physical therapy program or a pain 
 
              clinic.  I also recommended that he should try to increase 
 
              his activity and discontinue his Tylenol with codeine and 
 
              continue the Feldene.
 
              
 
         (Jt. Ex. 28)
 
         
 
              Dr. Tan Creti on October 12, 1988 opined:
 
              
 
                Since it is over one year from the date of the injury I 
 
              believe at this time we can make a determination of 
 
              permanency.  I believe that he has a permanent partial 
 
              disability due to injuries to both the spine and to the 
 
              nervous system.  I believe Mr. Cue has a 12% permanent 
 
              partial disability of the body as a whole as a result of his 
 
              back problems.  I can not believe that his gastrointestinal 
 
              symptoms or that his headaches contribute to this permanent 
 
              partial impairment.
 
              
 
         (Jt. Ex. 31, pp. 31-32)
 
         
 
              Bernard L. Kratochvil, M.D., orthopedic surgeon, examined 
 
         claimant on January 17, 1989 and concluded that claimant had a 
 
         degenerative lumbar disc L5-S1 and a chronic dorsolumbar strain. 
 
         He also did not recommend surgery.  He opined no causal 
 
         connection.  It was obvious in claimant's history that he did not 
 
         know of the goat walking incident in September 1987.  This doctor 
 
         later wrote on April 9, 1989
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                David R. Cue was examined by me for the Disability 
 
              Determinations Services Bureau, on the 17th of January of 
 
              1989.  It is my opinion that his diagnosis of chronic 
 
              dorsolumbar strain is work related.  He does have 
 
              degeneration of the lumbar disc at L5-S1, but the etiology 
 
              of that condition is uncertain.
 
              
 
         (Jt. Ex. 35)
 
         
 
              On April 7, 1989, Dr. Hellbusch responded to claimant's 
 
         attorney and wrote:  "Based on the patient's history and with a 
 
         reasonable degree of medical certainty, I would state that David 
 
         Cue's degenerative disc problem at L-5, S-1 was caused or made 
 
         worse by the repetitive trauma in his work at Farmland Foods 
 
         Plant in Denison Iowa."  (Jt. Ex. 34)  This doctor later 
 
         concurred with a 10 percent impairment or the body as a whole 
 
         rating and indicated, "I have not placed him on any specific 
 
         restrictions.  In the past, I have suggested to him that he 
 
         consider lighter labor." (Jt. Ex. 37)
 
         
 
              Claimant was examined Dr. John J. Dougherty, M.D., on May 1, 
 
         1989.  Dr. Dougherty wrote on May 3, 1989:
 
         
 
                In conclusion, I have reviewed the record on this patient 
 
              and I have reviewed some x-rays that have been forwarded to 
 
              me.  That degenerated disc has been there for a long time. 
 
              Certainly doesn't appear to me that he has any significant 
 
              weakness in the left leg, so I don't quite understand the 
 
              need for a cane.  Also, is rather interesting, you mentioned 
 
              something about a goat, I did not get that history from the 
 
              patient.  It would appear to me that this is just a chronic 
 
              lumbosacral strain superimposed upon a degenerated disc at 
 
              L-5, S-1.
 
                
 
                With regard to permanent partial disability, I think this 
 
              patient is probably entitled to 5-10% permanent partial 
 
              impairment of his body.  It would be interesting to know 
 
              exactly what his myelogram and CT scan showed.  How much of 
 
              this is attributable to what, I don't think there is any way 
 
              you're going to say this.  He had trouble way back in 1979. 
 
              He's had a couple of accidents as per your letter.  He has 
 
              also had a narrowing of his disc space since 1985.  Overall, 
 
              I think that is where he stands.  I really don't think you 
 
              can pin it down any closer than that and it would certainly 
 
              appear to me that this patient is not having the trouble he 
 
              would lead one to believe.  I really question how much he's 
 
              doing.  I think perhaps he should be evaluated by a back 
 
              clinic.  Perhaps he should be evaluated with an EMG or his 
 
              left lower extremity.  I don't know as I can be any more 
 
              specific.
 
                
 
                ....
 
                
 
                It would certainly appear to me that this patient 
 
              exaggerates.  He came with a cane.  That is certainly a bad 
 
              thing for him.  I don't think you can pinpoint this to one 
 
              specific incident.  If it was just due to that, without any 
 
              evidence of herniated disc, I think it should subside.  I 
 
              think it is of longstanding duration.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                    
 
         (Jt. Ex. 39, p. 1-3)
 
         
 
              Farmland records reflect a correspondence from the company 
 
         nurse, Nancy Wiese, dated October 26, 1987, that indicates:
 
               
 
                DAVID CUE DID NOT REPORT ANY BACK PROBLEMS TO ME OR TO 
 
              HIS FOREMAN AT ANY TIME BEFORE HE WENT TO HIS OWN DOCTOR.  
 
              HE STILL DID NOT REPORT ANY WORK RELATED PROBLEM TO US EVEN 
 
              AFTER SEEING HIS DOCTOR UNTIL ON 10/24/87 WHEN I CALLED HIM 
 
              ON THE PHONE TO SEE HOW HE WAS DOING.  HE CLAIMS THAT HE DID 
 
              NOT HAVE ANY INJURY THAT SINCE BACK INJURY IN 1979 HAS HAD 
 
              PROBLEMS WITH HIS BACK.  HE CLAIMS THAT DR. TAN CRETI STATES 
 
              HIS PROBLEM MAY BE A HERNIATED DISK.
 
                    
 
         (Jt. Ex. 41)
 
         
 
              Claimant filed a medical expense claim with his health 
 
         insurance carrier on November 9, 1987 and noted thereon that his 
 
         injury on September 26, 1987 was not a workers' compensation 
 
         matter.  Claimant indicated his claim is related to a June 1979 
 
         and September 26, 1987 accident.
 
               
 
                           APPLICABLE LAW AND ANALYSIS
 
               
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 26, 1987 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 26, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              This 35-year-old claimant has worked at Farmland Foods for 
 
         approximately 15 years.  Claimant incurred an injury in June 1975 
 
         to his low back.  The greater weight of medical evidence 
 
         indicates that claimant has never fully recovered from that 
 
         injury.  Claimant testified that he has had back trouble since 
 
         that injury up to his September 26, 1987 alleged injury.
 
              
 
              Claimant gave a history to Dr. Tan Creti on September 27, 
 
         1987 which indicated claimant was leading a goat at his home the 
 
         evening before.  The goat moved suddenly and following that, 
 
         claimant developed pain in the lower back and into the left leg. 
 
         Dr. Tan Creti had been treating claimant several years before 
 
         this alleged 1987 injury.  Dr. Tan Creti's records of November 
 
         1982 reflect claimant's back problems and also note that in 
 
         August 1987, claimant hurt his back again while lifting boxes.
 
         
 
              Dr. Paul in June 1979 opined "claimant's range of motion of 
 
         his lumbosacral spine is restricted by approximately 25 percent." 
 
         (Jt. Ex. 6)
 
         
 
              Claimant told an x-ray technician on September 27, 1987, 
 
         when he was seeking emergency treatment, that he was leading a 
 
         goat the prior evening when his pain developed.
 
              
 
              The evidence shows claimant's story varied as to the manner 
 
         in which he was injured while caring for the goat.  At those 
 
         times when claimant related his September 26, 1987 injury to this 
 
         goat incident, he also referred to his prior back problems.  It 
 
         was obvious claimant was referring to the 1979 work injury to his 
 
         low back.
 
              
 
              Claimant's answer to interrogatory No. 6 (jt. ex. 47) 
 
         reaffirmed claimant's belief of what he thought caused his 
 
         September 26, 1987 injury.  The undersigned cannot determine from 
 
         the exhibit or other evidence when this answer to interrogatory 
 
         was signed or filed, but it most likely would be after claimant's 
 
         petition was filed in February 1988.  Claimant's wife testified 
 
         that she helped claimant with his answers.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The evidence shows claimant and his wife fixed fences and 
 
         baled hay in relation to caring for the goats.  The wife 
 
         emphasized she owned the goats and did most of the work.  The 
 
         parties also raised some hogs, chickens and ducks.  The 
 
         undersigned believes claimant had more involvement with the care 
 
         of the parties' livestock than what they wanted the undersigned 
 
         to believe.
 
         
 
              Claimant alleges that his injury on September 26, 1987 was 
 
         the result of many cumulative work injuries resulting in his 
 
         inability to work since September 27, 1987.  Claimant refers to 
 
         Dr. Tan Creti's opinion reflected in joint exhibit 24.  The 
 
         undersigned believes a different or confusing message exists in 
 
         this doctor's opinion, particularly concerning Dr. Tan Creti 
 
         reversing his original position reflected in exhibit 20.  Dr. Tan 
 
         Creti refers to the nature of claimant's work and the meat 
 
         packing industry.  He speculates that this injury of September 
 
         26, 1987 would have eventually been precipitated in the course of 
 
         ordinary living activities.  He refers to claimant's past back 
 
         history. Claimant's prior low back history extends over an eight 
 
         year period prior to his alleged September 26, 1987 injury.
 
         
 
              Claimant contends in its brief that the employer would have 
 
         produced witnesses that claimant was not having pain at work. 
 
         Claimant has the burden of proof.  Defendants need not produce 
 
         any evidence if claimant cannot prove his case.
 
         
 
              The undersigned feels sorry for claimant.  He apparently has 
 
         some impairment.  The fact claimant has an impairment does not 
 
         make defendant employer liable unless the injury arose out of and 
 
         in the course of claimant's employment and is causally connected 
 
         to a work-related injury.
 
              
 
              The undersigned finds that claimant's alleged cumulative 
 
         injury on September 26, 1987 did not arise out of and in the 
 
         course of his employment.  The undersigned finds that claimant 
 
         injured his back in 1979 and that he is still suffering from the 
 
         results of that injury to some extent.  The undersigned also 
 
         finds that claimant further injured his back on September 26, 
 
         1987 when he was walking and caring for a goat at his home.  
 
         Claimant's 1979 injury and impairment therefrom precipitated and 
 
         increased the effect of claimant's injury on September 26, 1987, 
 
         which has resulted in an increase in claimant's current 
 
         impairment. Claimant's present disability is not causally 
 
         connected to claimant's alleged cumulative injury on September 
 
         26, 1987.
 
         
 
         There are several other issues that are now moot in light of the 
 
         above findings.  The undersigned deputy finds that claimant was 
 
         not a credible witness.
 
         
 
              Claimant will take nothing from these proceedings.
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  Claimant received an injury on September 26, 1987 while 
 
         walking and caring for a goat at his residence.
 
         
 
              2.  Claimant's injury on September 26, 1987 while walking 
 
         and caring for a goat was not work related.
 
              
 
              3.  Claimant's alleged disability is not the result of a 
 
         work-related cumulative injury on September 26, 1987.
 
              
 
              4.  Claimant received a work-related injury in 1979 which 
 
         contributed to claimant's nonwork-related injury on September 26, 
 
         1987.
 
              
 
              5.  Claimant's nonwork-related injury on September 26, 1987 
 
         materially aggravated claimant's work-related injury of 1979.
 
              
 
              6. Claimant has a degenerative low back disc condition in 
 
         the area of L5-S1 which did not result from claimant's alleged 
 
         cumulative injury on September 26, 1987.
 
         
 
              7.  Claimant is not a credible witness.
 
              
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's alleged cumulative low back injury on September 
 
         26, 1987 did not arise out of and in the course of claimant's 
 
         employment.
 
         
 
              Claimant's current disability is not causally connected to 
 
         his alleged cumulative low back injury on September 26, 1987.
 
              
 
              Claimant's low back degenerative disc condition in the area 
 
         of L5-S1 is not causally connected to his alleged cumulative low 
 
         back injury of September 26, 1987.
 
              
 
              Claimant was injured on September 26, 1987 while walking and 
 
         caring for a goat at his residence.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant and defendants each pay one-half of the costs 
 
         of this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
              
 
              Signed and filed this 30th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P.O. Box 1588
 
         Council Bluffs, IA  51502
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, IA  51102
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                             5-1402.30
 
                                             Filed August 30, 1989
 
                                             Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID CUE,
 
         
 
              Claimant,
 
                                                    File No. 865320
 
         vs.
 
                                                 A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
                        
 
                        
 
         5-1402.30
 
         
 
              Claimant failed to prove his injury arose out of and in the 
 
         course of his employment.
 
              
 
              Claimant's nonwork-related injury occurred while walking a 
 
         goat and not as a result of a cumulative injury.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DUANE LILLY,
 
         
 
              Claimant,                             File No. 865324
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         PLM RAILCAR MAINTENANCE                    D E C I S I O N
 
         COMPANY,
 
                                                       F I L E D
 
              Employer,
 
                                                      DEC 22 1989
 
         and
 
                                                  INDUSTRIAL SERVICES
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Duane Lilly 
 
         against his former employer PLM Railcar Maintenance company and 
 
         its insurance carrier Aetna Casualty & Surety company.  The case 
 
         was heard and fully submitted at Sioux City, Iowa, on December 4, 
 
         1989.  Claimant alleges that he developed tinnitus as a result of 
 
         noise exposure and seeks compensation for healing period, 
 
         permanent partial disability and to recover medical expenses.
 
         
 
              The record in this proceeding consists of testimony from 
 
         Duane Lilly and Karen Keleher.  The record also contains jointly 
 
         offered exhibits 1 through 18.  Official notice was taken of the 
 
         contents of the agency file connected with the prior hearing and 
 
         dismissal and also of the fact that the Monday prior to July 18, 
 
         1987 was July 13, 1987.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties are whether claimant 
 
         sustained an injury which arose out of and in the course of 
 
         employment, determination of the claimant's entitlement to 
 
         weekly.compensation and medical expenses.  Particular issues 
 
         identified are whether any permanent disability is a scheduled 
 
         disability under Iowa Code sections 85B.6, 85.34(2)(r), or an 
 
         industrial disability under Iowa Code section 85.34(2)(u). 
 
         Defendants assert that Iowa Code section 85B.11 bars any recovery 
 
         for occupational hearing loss since claimant's period of 
 
         employment with the employer was less than 90 days.  Defendants 
 
         also seek to recover costs incurred as a result of claimant's 
 
         dismissal of this claim on March 31, 1989, the time this case was 
 
                                                
 
                                                         
 
         previously set for hearing.  Defendants' statement of costs lists 
 
         $1,294.75 in attorney fees and $13.75 in copying charges.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Duane Lilly is a 29-year-old man who is currently employed 
 
         as a beef lugger for IBP, Inc.  His employment history includes 
 
         service in the Army, meat packing industry, and construction 
 
         industry.  He has generally performed laboring type of work.
 
         
 
              Lilly testified that he is afflicted with a ringing or 
 
         buzzing in his ears which has been present continuously since he 
 
         commenced work with PLM Railcar Maintenance Company on July 13, 
 
         1987.  He denied having any problems with his ears prior to that 
 
         date other than one occasion during his employment with John 
 
         Morrell & Company when he had ringing in his ears which continued 
 
         for a short period of time but then ceased.
 
         
 
              Claimant testified that the ringing is aggravated and 
 
         worsened by exposure to loud noise and that if he is exposed to 
 
         loud noise, he develops severe headaches.  Claimant testified 
 
         that since leaving PLM, he held employment for a few days at 
 
         Siouxland Quality Beef where he lugged beef.  Claimant stated 
 
         that the lugging was performed in a noisy processing area of the 
 
         plant.  He stated that even with use of ear plugs, the noise 
 
         aggravated his condition.  Claimant stated that he was unable to 
 
         wear shooter's muff type of ear protection and carry beef at the 
 
         same time. Claimant resigned the Siouxland Quality Beef job after 
 
         only two days because he stated that it aggravated the ringing 
 
         and caused headaches.  Following that, claimant worked for a 
 
         period estimated to be from three to six weeks in a plant which 
 
         processed sheep hides.  He stated that the work was quiet, but 
 
         that he left due to a low rate of pay.
 
         
 
              Claimant worked for J & R Construction as a carpenter until 
 
         May of 1988 when he obtained employment with IBP.  Claimant stated 
 
         that his current job with IBP is not performed in a noisy area.  
 
         He stated that he is now incapable of work which exposes him to 
 
         loud noise.
 
         
 
              Claimant was hired at PLM and started work on July 13, 1987 
 
         (exhibits 5 and 9).  Claimant worked as a sandblaster cleaning 
 
         paint and rust from railroad cars.  He stated that the bulk of 
 
         the cars that he worked on were a type of car used to haul grain, 
 
         but that he also worked on some tank cars which were used to 
 
         transport liquids.  Claimant testified that the sandblaster he 
 
         operated made a loud, high-pitched "schishing" noise.  He stated 
 
                                                
 
                                                         
 
         that while working on the very first day of employment, he 
 
         developed ringing in his ears following exposure to the noise and 
 
         that the ringing has continued to the present time.
 
         
 
              On Friday of the first week during which he worked at PLM, 
 
         claimant reported his problems to the employer's office and was 
 
         seen on the following day by the company physician, whom he had 
 
         seen a week earlier for his preemployment physical.  The doctor 
 
         diagnosed claimant as being afflicted with tinnitus and 
 
         recommended that he wear an earmuff type of hearing protector in 
 
         addition to the foam type earplugs which had been provided by his 
 
         employer (exhibit 3).  Claimant testified that use of both types 
 
         of hearing protective devices at the same time provided adequate 
 
         noise protection, but that the ringing never subsided.  Claimant 
 
         was laid off from his employment with PLM effective September 15 
 
         or 16, 1987 (exhibits 6, 8 and 9).
 
         
 
              When claimant was examined for his preemployment physical on 
 
         July 10, 1987, an audiogram which was taken showed him to have a 
 
         hearing loss of 11.25 decibels in his right ear and 16.25 
 
         decibels in his left ear.  Claimant was evaluated on September 9, 
 
         1988 under the direction of Verne R. Heimann, M.D.  An audiogram 
 
         taken at that time demonstrated a hearing loss of 13.75 decibels 
 
         in claimant's right ear and 18.75 decibels in the left.  The 
 
         foregoing hearing losses are based upon the audiogram reports 
 
         contained as part of exhibits 2 and 4.  The heating.loss in 
 
         decibels is the average loss shown on each audiogram for the four 
 
         frequencies specified in Iowa Code section 85B.4(1), namely, 500, 
 
         1,000, 2,000 and 3,000 Hertz.  Dr. Heimann also diagnosed 
 
         claimant as having tinnitus, but he was uncertain with regard to 
 
         whether it would be permanent.  Dr. Heimann also indicated that 
 
         there was no effective treatment for tinnitus other than aspirin 
 
         or Tylenol for the headaches (exhibit 4).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85B.11 provides that compensation cannot 
 
         be recovered for an occupational hearing loss unless the employee 
 
         has been employed by the employer for at least 90 days.  
 
         Claimant's term of employment with PLM Railcar Maintenance 
 
         Company is far short of that 90-day threshold.  He is therefore 
 
         not entitled to recover compensation under Chapter 85B of The 
 
         Code.  It is also noted that his hearing loss is far less than 
 
         the amount which reaches the threshold of compensability under 
 
         Iowa Code section 85B.9.  For that second reason, he is also 
 
         denied any recovery of weekly compensation under Chapter 85B of 
 
         The Code.
 
         
 
              Claimant also seeks compensation under Chapter 85 of The 
 
         Code.  Chapter 85B.4 of The Code defines an occupational hearing 
 
         loss as one "... which arises out of and in the course of 
 
         employment caused by prolonged exposure to excessive noise 
 
         levels."  According to claimant's testimony, the tinnitus upon 
 
         which his claim is based manifested itself on the first day of 
 
         his employment with PLM and it has not since resolved.  For this 
 
                                                
 
                                                         
 
         reason, it is determined that claimant's claim is not one which 
 
         should be brought under Chapter 85B.  His claim is for a 
 
         traumatic injury, rather than one resulting from prolonged 
 
         exposure.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); 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).
 
         
 
              Claimant's appearance and demeanor were observed as he 
 
         testified.  His testimony was considered in light of the other 
 
         evidence in the case.  He is determined to be a credible witness 
 
         with regard to his recitation of the onset and existence of his 
 
         symptoms.  It is therefore determined that the claimant did 
 
         sustain an injury in the nature of tinnitus which arose out of 
 
         and in the course of his employment.  The finding of proximate 
 
         cause is based upon the scenario of events which claimant 
 
         described, which scenario is accepted as being correct and also 
 
         upon the fact that both physicians, a Dr. Gordon and Dr. Heimann, 
 
 
 
                         
 
                                                         
 
         did not dispute claimant's history regarding the onset of his 
 
         symptoms as following the sandblasting work (exhibits 3 and 4).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that his injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant seeks compensation for temporary total disability 
 
         or healing period.  The record in this case does not contain any 
 
         support for weekly compensation during a :period of recuperation. 
 
         Claimant's own testimony demonstrates that he obtained employment 
 
         with Siouxland Quality Beef shortly following his dismissal from 
 
         PLM.  At no time was claimant under active medical treatment for 
 
         his hearing condition.  There is no evidence in the record from 
 
         any medical authority which indicates that claimant was in any 
 
         way disabled from working during a period of recuperation.  
 
         Claimant's claim for temporary total disability or healing period 
 
         is therefore denied.
 
         
 
              An issue exists in this case with regard to whether any 
 
         permanent disability should be evaluated industrially or as a 
 
         scheduled member hearing loss.  The Iowa Supreme Court has not 
 
         yet addressed the issue of whether tinnitus is a scheduled 
 
         disability or one to be compensated under section 85.34(2)(u).  
 
         The ringing from tinnitus is not normally disabling from an 
 
         industrial standpoint, but if the tinnitus is aggravated by noise 
 
         exposure, the resulting headaches, loss of sleep and emotional 
 
         distress which afflict some tinnitus sufferers can result in a 
 
         lack of ability to perform some types of gainful employment.  
 
         There is also no method of measuring tinnitus objectively.  For 
 
         these reasons, some authorities have ruled that tinnitus should 
 
         be evaluated and compensated as a nonscheduled disability.  
 
         Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn. 1985); 1B Larson 
 
         Workmen's Compensation Law, section 41.55.
 
         
 
                                                
 
                                                         
 
              Tinnitus is commonly, though not exclusively, accompanied by 
 
         a hearing loss, but the relationship between the two is such that 
 
         the existence of an objectively determined hearing loss lends 
 
         credibility to a claim of tinnitus.  Each can exist without the 
 
         other.  The degree or extent of hearing loss is not a reliable 
 
         predictor of whether the hearing loss will be accompanied by 
 
         tinnitus or of the severity of any accompanying tinnitus.  Agency 
 
         expertise is relied upon when providing the foregoing general 
 
         description of the general nature of tinnitus [Iowa Code section 
 
         17A.14(5)].
 
         
 
              The industrial commissioner has determined that tinnitus is 
 
         included within scheduled hearing losses and that the only 
 
         compensation payable for tinnitus is that which is provided for a 
 
         scheduled hearing loss.  In this case, any permanent partial 
 
         disability compensation would be payable under Iowa Code section 
 
         85.34(2)(r).  Cannon v. Keokuk Steel Casting, file number 795331 
 
         (App. Decn. January 27, 1988).
 
         
 
              It appears that claimant would have had a hearing test when 
 
         he commenced employment with IBP, although the records of that 
 
         test have not been received into evidence.  The two audiograms in 
 
         evidence show a worsening of 2.5 decibels in claimant's hearing 
 
         from the time of the first test to the time of the second when 
 
         considering only the four frequencies used for awarding 
 
         compensation.under Chapter 85B of The Code.  Those two 
 
         audiograms.were administered by different technicians at 
 
         different places.  It is noted that while the overall loss 
 
         appears to be slightly more pronounced at the time of the second, 
 
         there are some frequencies where the hearing appears better in 
 
         1988 than it did in 1987.  Division of Industrial Services Rule 
 
         343-2.4 provides that the Guides to the Evaluation of Permanent 
 
         Impairment may be used to determine the payment of weekly 
 
         compensation for permanent partial scheduled injuries and that 
 
         payments so made are to be recognized by the industrial 
 
         commissioner as a prima facie showing of compliance with the 
 
         Workers' Compensation Act.  Dr. Heimann, when he made his ratings 
 
         in exhibit 4, did not state whether or not he used the AMA 
 
         guides.  He rated claimant as having a two percent hearing loss 
 
         in his right ear and a six percent loss in his left ear.  The 
 
         industrial commissioner has ruled that it is not permissible to 
 
         use the AMA guides when evaluating scheduled disability unless a 
 
         physician has stated that the physician used the guides when 
 
         arriving at the impairment rating which the physician provided.  
 
         Shank v. Mercy Hosp. Medical Center, file number 719627 (App 
 
         Decn. August 28, 1989).
 
         
 
              The audiograms clearly show that claimant does have an 
 
         objectively determined hearing loss.  The most remarkable noise 
 
         exposure is that which he experienced during his first week of 
 
         employment with PLM.  It is therefore determined that the noise 
 
         exposure during claimant's first week of employment with PLM is a 
 
         substantial factor in producing the hearing loss which currently 
 
         afflicts him.  The rating made by Dr. Heimann appears to be 
 
         consistent with the audiogram and is not controverted.  It is 
 
                                                
 
                                                         
 
         therefore accepted as being correct.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              In this case it is patently clear that claimant did have 
 
         some preexisting hearing loss.  From the evidence, it appears as 
 
         though that loss has worsened.  The method or scheme of rating 
 
         the loss which was used by Dr. Heimann is not in the record.  It 
 
         therefore is impossible to determine what disability threshold, 
 
         if any, Dr. Heimann used when arriving at his two percent and six 
 
         percent loss ratings.  Accordingly, it cannot be determined from 
 
         the record in this case whether or not any of that two percent or 
 
         six percent disability preexisted claimant's employment with PLM 
 
         Railcar Maintenance.  When the injury is an aggravation of a 
 
         preexisting condition, as is found to be the situation in this 
 
         case, the party defending the claim has the burden of proving the 
 
         existence and extent of any preexisting disability or else the 
 
         entire disability is attributed to the current defendant.  Varied 
 
         Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & 
 
         E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); Rule 
 
         14(f)(5), Iowa Rules of Appellate Procedure.  While the record in 
 
         this case clearly shows that claimant had some prior hearing 
 
         loss, the record does not disclose what portion, if any, of that 
 
         prior loss is included within Dr. Heimann's two percent and six 
 
         percent ratings.  The disability therefore cannot be apportioned 
 
         and the entire disability is assessed to the defendant PLM 
 
         Railcar Maintenance Company.
 
         
 
              Where Dr. Heimann uses the term "hearing loss" in his 
 
         report, the term is construed to be a hearing disability rating, 
 
         rather than a measurement of loss in decibels.  Dr. Heimann 
 
         apparently used some threshold since the two percent and six 
 
         percent ratings are not proportionate to the number of decibels 
 
         of hearing loss which is shown to exist.  Since the average loss 
 
         is less than 25 decibels, it is apparent that Dr. Heimann did not 
 
         use the criteria used in section 85B.9 of The Code to compute the 
 
         percentage of hearing loss.
 
         
 
              The usual method of computing binaural hearing loss is to 
 
         multiply the hearing loss in the best ear by five, add the loss 
 
         in the worst ear and then divide the sum by six.  The binaural 
 
         loss affecting both ears is therefore determined to be two and 
 
         two-thirds percent.  Under section 85.34(2)(r), two and 
 
         two-thirds percent of 175 weeks provides an entitlement to four 
 
         and two-thirds weeks of compensation for permanent partial 
 
         disability.
 
         
 
                                                
 
                                                         
 
              Claimant also seeks to recover $100.00 incurred with Dr. 
 
         Heimann (exhibit 15).  A review of exhibit 14 makes it patently 
 
         clear that the primary purpose of having claimant evaluated was 
 
         for an independent evaluation.  The expense is therefore not 
 
         recoverable as an expenses of treatment under Code section 85.27. 
 
         An employer-retained physician had not provided an evaluation of 
 
         impairment and therefore the expense cannot be recovered under 
 
         section 85.39 of The Code.
 
         
 
              Defendants seek to recover attorney fees and copying 
 
         expenses based upon the prior dismissal.  No explanation is given 
 
         with regard to either.  No claim or request has been made to 
 
         assess fees as a penalty under Iowa Rule of Civil Procedure 
 
         80(a).  The costs which can be recovered and used as an offset 
 
         against the award made herein is therefore limited to those 
 
         matters contained within Division of Industrial Services Rule 
 
         343-4.33.  Attorney fees and copying expenses are not part of 
 
         these costs.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Duane Lilly developed tinnitus and aggravated a 
 
         preexisting hearing loss as a result of noise to which he was 
 
         exposed during the first week of his employment with PLM Railcar 
 
         Maintenance Company.
 
         
 
              2.  Claimant has a two percent hearing loss disability in 
 
         his right ear and a six percent hearing loss disability in his 
 
         left ear.  This results in a two and two-thirds percent binaural 
 
         loss disability.
 
         
 
              3.  The noise to which claimant was exposed during the first 
 
         week of his employment with PLM Railcar Maintenance Company was a 
 
 
 
                               
 
                                                         
 
         substantial factor in producing the hearing loss and disability 
 
         which currently afflicts him.
 
         
 
              4.  It is not possible from the record made to determine how 
 
         claimant's preexisting hearing loss disability as shown in his 
 
         preemployment physical correlates with the hearing loss 
 
         disability ratings provided by Dr. Heimann.
 
         
 
              5.  The record fails to show that claimant was ever disabled 
 
         from engaging in employment in general as a result of the injury 
 
         for purposes of recuperation.
 
         
 
              6.  The $100.00 expense with Dr. Heimann was not incurred 
 
         for the purpose of treatment nor was it incurred following a 
 
         rating of impairment made by an employer-retained physician.
 
         
 
              7.  Claimant's testimony regarding the onset of his symptoms 
 
         and the manner in which they continued to afflict him.is accepted 
 
         as being correct.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is not entitled to any recovery under Chapter 
 
         85B of The Code because his term of employment was less than 90 
 
         days, the hearing loss was not a result of prolonged noise 
 
         exposure and also because the amount of his hearing loss does not 
 
         reach the threshold of compensability provided by Chapter 85B.
 
         
 
              3.  Claimant's hearing loss and tinnitus is a scheduled 
 
         disability to be compensated under the provisions of Code section 
 
         85.34(2)(r).
 
         
 
              4.  Claimant has a two percent loss of hearing in his right 
 
         ear and a six percent loss of hearing in his left ear, which 
 
         converts to a two and two-thirds percent binaural hearing loss 
 
         disability, which was proximately caused by noise exposure at PLM 
 
         Railcar Maintenance Company.
 
         
 
              5.  The tinnitus and loss of hearing is an injury which 
 
         arose out of and in the course of claimant's employment with PLM 
 
         Railcar Maintenance Company.
 
         
 
              6.  The record of this case does not provide a basis for 
 
         computing the percentage of any preexisting hearing loss 
 
         disability and therefore no apportionment of claimant's hearing 
 
         disability can be made.
 
         
 
              7.  Claimant has a two and two-thirds percent binaural loss 
 
         of hearing which entitles him to recover four and two-thirds 
 
         weeks of compensation under the provisions of Iowa Code section 
 
         85.34(2)(r).
 
         
 
                                                
 
                                                         
 
              8.  Claimant is not entitled to recover expenses incurred 
 
         with Dr. Heimann under either Iowa Code section 85.27 or 85.39.
 
         
 
              9.  The costs which defendants may use as an offset in this 
 
         case are limited to those provided by Division of Industrial 
 
         Services Rule 343-4.33.  It does not include attorney fees or 
 
         copying costs.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant four 
 
         and two-thirds (4 2/3) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred 
 
         fifty-nine and 20/100 dollars ($159.20) payable commencing July 
 
         18, 1987.
 
         
 
              IT IS FURTHER ORDERED that all amounts are past due and 
 
         owing and shall be paid in a lump sum together with interest 
 
         pursuant to Iowa Code section 85.30 computed from the date each 
 
         payment came due until the date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to offset 
 
         costs recoverable under Division of Industrial Services Rule 
 
         343-4.33 from the costs and award of weekly compensation made 
 
         herein based upon the voluntary dismissal of this claim on March 
 
         31, 1989.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 22nd day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Ronald E. Runge
 
         Attorney at Law
 
         236 Davidson Building
 
         Sioux City, Iowa  51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
                                                
 
                                                         
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20, 1402.30, 1402.40 
 
                                            1403.20, 1702, 1803.1
 
                                            1806, 2206, 2208, 2907
 
                                            Filed December 22, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DUANE LILLY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 865324
 
         PLM RAILCAR MAINTENANCE
 
         COMPANY,                                 A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30, 1402.40
 
         
 
              Claimant had a preexisting hearing loss.  On the first day of 
 
         work he developed tinnitus which has never completed resolved.  
 
         His measured hearing loss also increased.  A doctor rated a two 
 
         percent hearing loss disability in one ear and a six percent loss 
 
         in the other.
 
         
 
         1403.20, 1702, 1806, 2206, 2208
 
         
 
              The injury was an aggravation of a preexisting condition.  
 
         The measured hearing loss in decibels is not normally considered 
 
         to be equal to the percentage of hearing loss disability.  Since 
 
         the method used by the physician in making the rating was not in 
 
         the record, it could not be determined whether any of the 
 
         disability had preexisted.  Since the defendants benefit from 
 
         showing the amount of any preexisting disability, they have the 
 
         burden of proof to show how much, if any, of the current 
 
         disability preexisted the current injury.
 
         
 
         1803.1
 
         
 
              The loss was held compensable under Iowa Code section 
 
         85.34(2)(r) rather than 85.34(2)(u) or 85B.6.
 
         
 
         2907
 
                                                
 
                                                         
 
         
 
              Defendants sought to recover costs from a prior dismissal of 
 
         this same case.  Attorney fees and copying expenses were not 
 
         allowed.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KIM HAMMAKER,
 
         
 
              Claimant,
 
                                                       File No. 865327
 
         vs.
 
                                                    A R B I T R A T I O N
 
         LOUIS RICH FOODS,
 
                                                       D E C I S I O N
 
         and
 
                                                          F I L E D
 
         LIBERTY MUTUAL,
 
                                                         SEP 17 1989
 
              Insurance Carrier,
 
              Defendants.                      IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by Kim Hammaker, 
 
         claimant, against Louis Rich Foods, employer (hereinafter 
 
         referred to as Rich), and Liberty Mutual Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on March 14, 1986.  On March 21, 
 
         1989, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.  The 
 
         parties have submitted a prehearing report of contested issues 
 
         and stipulations which was approved and accepted as a part of the 
 
         record of this case at the time of hearing.  Oral testimony and 
 
         written exhibits were received during the hearing from the 
 
         parties.  The exhibits offered into the evidence are listed in 
 
         the prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  On March 14, 1986, claimant received an injury which 
 
         arose out of and in the course of her employment with Rich.
 
              
 
              2.  Claimant's entitlement to healing period benefits 
 
         extends from June 10, 1986 through December 4, 1986.
 
              
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is scheduled member disability 
 
         to the arm.
 
              
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of December 5, 1986.
 
              
 
              5.  For purposes of computing claimant's rate of 
 
         compensation, claimant was single and entitled to one exemption 
 
         at the time of the injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              6.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
              
 
              7.  Claimant was paid 12.5 weeks of permanent partial 
 
         disability benefits prior to hearing.
 
              
 
                                      ISSUES
 
                                        
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
              
 
               I.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability; and,
 
              
 
              II.  Claimant's rate of compensation.
 
              
 
                                STATEMENT OF FACTS
 
                                        
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
              
 
              Claimant testified that she worked for Rich from 1984 until 
 
         her work injury.  She stated that her duties consisted of manual 
 
         labor.  Initially she was assigned as a labeler putting labels on 
 
         product.  In March 1986, she was assigned to a molder job where 
 
         she was required to use her fingers and hands on a more 
 
         repetitive basis.  Claimant was also assigned to palletizing 
 
         boxes of product.  Due to recurrent carpal tunnel syndrome 
 
         symptoms, claimant has not returned to work at Rich.
 
              
 
              Between March and June 1986, claimant complained of right 
 
         wrist and hand pain along with numbness after being assigned to 
 
         the molder job.  She was initially treated by the company nurse 
 
         with a wrist splint but was later referred to Steve Palmer, M.D. 
 
         Dr. Palmer diagnosed right carpal tunnel syndrome and treated 
 
         claimant with medication, splint, heat and light duty.  
 
         Claimant's complaints continued with shooting pain at the arm and 
 
         shoulder with activity.  Claimant was referred then to Bruce 
 
         Sprague, M.D., an orthopedic surgeon.  After his examination and 
 
         testing, Dr. Sprague also diagnosed right carpal tunnel syndrome 
 
         and attempted a surgical release of the entrapped median nerve in 
 
         June 1986.
 
              
 
              Claimant testified that she was not greatly helped by the 
 
         surgery and continued complaining of loss of grip strength, night 
 
         pain and limited reaching ability behind her back and above her 
 
         head.  Dr. Sprague left the community and referred claimant to 
 
         another orthopedic surgeon, William Catalona, M.D.  Dr. Catalona 
 
         did not recommend further treatment modalities beyond a change of 
 
         occupation.  Dr. Catalona rated claimant as suffering from a five 
 
         percent permanent partial impairment to the arm.  Claimant 
 
         testified that she was released to return to work without 
 
         restrictions by Dr. Sprague in August of 1986.  In August 1986, 
 
         claimant was also evaluated by a board certified orthopedic 
 
         surgeon, William Irey, M.D.  Using various testing apparatus and 
 
         after his examination of claimant, Dr. Irey found claimant to be 
 
         suffering from only a two percent permanent partial impairment to 
 
         the upper extremity due to approximately a one-third loss of grip 
 
         strength on the right side as compared to the left extremity.  
 
         Dr. Irey found no measurable permanent partial impairment due to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         loss of sensation or range of motion.  Dr. Irey felt that 
 
         although claimant would receive no permanent partial impairment 
 
         rating under AMA Guidelines, he felt that the loss of grip 
 
         strength was sufficient to warrant some permanent partial 
 
         impairment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              In January 1989, claimant was evaluated by F. Dale Wilson, 
 
         M.D., specialty unknown.  Dr. Wilson opined that claimant suffers 
 
         from a 40 percent permanent partial impairment to the arm due to 
 
         loss of sensation, grip strength and continuing pain.  Dr. Wilson 
 
         did not indicate what guidelines or standards, if any, he used in 
 
         rating claimant's impairment.
 
              
 
              Claimant states that she can no longer work at the type of 
 
         work she was performing at Rich.  She can no longer play softball 
 
         or write long letters.  She doubts her ability to operate a 
 
         typewriter.  Claimant said that she disputes the $6.79 per hour 
 
         wages reported by Rich in exhibit A and felt it was higher $6.90 
 
         or so."
 
              
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
               I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). 
 
         When  the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
              
 
              The measurement of functional loss of use or impairment is 
 
         largely a matter of medical opinion.  In this case, we have three 
 
         ratings, 5 percent, 2 percent and 40 percent.  First, the rating 
 
         by Dr. Wilson must be rejected.  Dr. Wilson does not have a 
 
         specialty in orthopedic surgery as do Drs. Irey and Catalona. 
 
         Secondly, Dr. Wilson's rating is so far out of line with the 
 
         other ratings as to not be convincing.  The undersigned cannot 
 
         give much weight to the rating of an orthopedic problem by a 
 
         general practitioner without a record of that practitioner's 
 
         expertise in such matters or at least a record of the doctor's 
 
         use of a recognized rating standard or manual.  Claimant has 
 
         shown neither in this case.  The rating by the board certified 
 
         orthopedic surgeon, Dr. Irey, is the most convincing because Dr. 
 
         Catalona referred to his rating as only "arbitrary" in his 
 
         written report submitted in the evidence.
 
              
 
              Claimant testified as to a loss of range of motion in her 
 
         arm but no physician has opined that this is related to the work 
 
         related carpal tunnel syndrome or any other injury claimant 
 
         experienced at work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Admittedly, claimant is not able to return to work at Rich. 
 
         Probably, the amount of compensation awarded in this case will 
 
         not fully compensate her for her loss of earning capacity.  
 
         However, the undersigned has no choice but to follow our workers' 
 
         compensation statutes which limit an injured workers' 
 
         compensation for injuries to the arm to a schedule based upon a 
 
         loss of function only, not its effect upon claimant's 
 
         employability.  See Chapter 85.34(2) et. seq.  Loss of earning 
 
         capacity is only compensable in industrial disability cases 
 
         involving injuries to the body as a whole.
 
              
 
              From the evidence submitted, it is found as a matter of fact 
 
         that the work injury is a cause of a two percent loss of use of 
 
         the arm.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to five weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(m) which is two percent 
 
         of 250 weeks, the maximum allowable number of weeks for an injury 
 
         to the arm in the subsection.
 
              
 
              II.  With reference to claimant's gross weekly rate of 
 
         compensation, claimant is correct.  The exclusion of 
 
         nonrepresentative weeks in the calculation has long been 
 
         recognized by this agency.  Lewis v. Aalf's Manufacturing Co., I 
 
         Iowa Indus. Comm'r Report 206 (Appeal Decision 1980).  Claimant 
 
         was correct in excluding the two weeks around the holidays in the 
 
         latter part of 1986 as not representative.  However, claimant was 
 
         not convincing in her testimony that she earned in excess of 
 
         $6.79 per hour.  Therefore, using the total of 425.02 hours, in 
 
         the 11 weeks prior to the injury, the average weekly wage over 
 
         the period is found to be $262.35 per week.  Using the 
 
         commissioner's rate booklet for an injury in March 1986 and the 
 
         stipulation as to marital status and exemptions, claimant's rate 
 
         of compensation is found to be $161.74.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  The work injury of March 14, 1986, is a cause of a two 
 
         percent permanent partial impairment to the right arm.  The 
 
         impairment is due to loss of grip strength but claimant has not 
 
         shown by a preponderance of the evidence a measurable loss of 
 
         sensation or loss of range of motion causally connected to the 
 
         work injury.
 
              
 
              2.  Claimant's gross weekly earnings over 11 representative 
 
         weeks prior to the injury was $262.35 per week.
 
              
 
              3.  Claimant has been paid permanent partial disability 
 
         benefits equivalent to 12.5 weeks at the rate of $159.54 per 
 
         week. Claimant has been paid healing period benefits from June 
 
         10, 1986 through December 4, 1986 at the rate of $159.54 per 
 
         week.
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              As claimant has been paid in excess of her entitlement to 
 
         disability benefits, no award of benefits can be made.
 
              
 
                                      ORDER
 
                                        
 
              1.  Claimant shall take nothing from this proceeding.
 
              
 
              2.  Claimant shall pay costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              Signed and filed this 27th day of September, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
              
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 E. 2nd St.
 
         P. O. Box 175
 
         Muscatine, Iowa  52761
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa  52801
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed September 27, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KIM HAMMAKER,
 
         
 
              Claimant,
 
                                                       File No. 865327
 
         vs.
 
                                                    A R B I T R A T I O N
 
         LOUIS RICH FOODS,
 
                                                       D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential - extent of permanent partial disability 
 
                  benefits.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. HANSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 865328 
 
         FARMLAND FOODS,
 
                                                   A R B I T R A T I 0 N 
 
              Employer,
 
                                                      D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Roger L. Hanson, against his employer, Farmland Foods, and its 
 
         insurance carrier, Aetna Casualty & Surety Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury allegedly sustained in spring, 1987.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Sioux City, Iowa, on September 29, 1989.  A first 
 
         report of injury was filed on March 18, 1988.  The file reflects 
 
         that no workers' compensation benefits have been paid claimant.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of JoAnne Hanson, Duane Cato, and Jake 
 
         Schabeen, as well as of joint exhibits 1 through 33.  Defendants 
 
         submitted a brief.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated:
 
         
 
              That claimant's rate of weekly compensation in the event of 
 
         an award is $232.78;
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS
 
         Page 2
 
         
 
         
 
              That claimant's disability, if liability is found, is a 
 
         scheduled member disability to the left leg; and,
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendants are entitled to credit for sick leave 
 
         benefits paid should a workers' compensation award be made and 
 
         that such benefit credit is in the amount of $5,782.80.
 
         
 
              Issues remaining to be decided are:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2. Whether a causal relationship exists between the alleged 
 
         injury and the claimed disability;
 
         
 
              3.The nature and extent of any disability resulting from the 
 
         alleged injury; and,
 
         
 
              4. Whether claimant's claim is barred as filed beyond the 
 
         appropriate statute of limitations.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 56 years old and had worked for Farmland Foods 
 
         for approximately 13 1/2 years before undergoing a 
 
         unicompartmental total arthroplasty in September 1987.  Claimant 
 
         had previously had an arthroscopy with partial removal of the 
 
         medial meniscus of the left knee on April 9, 1982.  That 
 
         procedure was occasioned by a tear on the posterior horn of the 
 
         medial meniscus of the left knee which condition was considered 
 
         the result of claimant's employment at Farmland Foods.  
 
         Defendants paid claimant permanent partial disability benefits of 
 
         10 percent of the left knee on account of the 1982 injury.  
 
         Claimant testified that he had difficulties with the left knee 
 
         for approximately six to eight months after his 1982 surgery, but 
 
         that the knee got to the point where it was "halfway normal" and 
 
         did not bother him for approximately three and one-half years.
 
         
 
              Claimant testified that his left knee started hurting at 
 
         bedtime, apparently in late 1986 or early 1987.  Claimant 
 
         reported that on February 24, 1987, he was working Reo-pac on the 
 
         cure line.  Reo-pac is a standing job and the worker stands on a 
 
         platform or lift that claimant described as approximately one 
 
         foot off the floor.  At times the worker needs to get up and down 
 
         to fix the machine.  Claimant .testified that on February 24, 
 
         1987, he missed the end of the platform or stand with his right 
 
         foot and went down twisting his left knee.  He testified he did 
 
         not report the incident as he figured the knee would be all right 
 
         in a few days, even though he had a bit of left knee pain at the
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS 
 
         Page 3
 
         
 
         
 
         time.  Claimant also reported an incident on March 16, 1987 where 
 
         he fell backwards while raking hams.  He reported that he "lit 
 
         off balance" on his left foot and sprained his left knee.  
 
         Claimant agreed that he also did not report that incident, but 
 
         stated that Al Kneewig, his foreman, saw the incident.  On 
 
         cross-examination, claimant agreed that he mentioned neither 
 
         incident in his petition for benefits or in his responses to 
 
         defendants' interrogatories.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On March 27, 1987, claimant stayed in the plant and worked 
 
         for approximately 19 hours on account of a blizzard which 
 
         prevented his leaving and which prevented much of the night crew 
 
         from arriving for work.  Claimant reported that he operated the 
 
         mule, a machine which moved boxed skids of meats that evening and 
 
         that he felt that bothered his knee.  He reported that subsequent 
 
         to the blizzard, his left knee hurt quite a little more and just 
 
         kept hurting.
 
         
 
              Subsequent to claimant's problems in early spring 1987, 
 
         claimant saw Thomas P. Ferlic, M.D., the board-certified 
 
         orthopaedic surgeon who had performed claimant's 1982 surgery.  
 
         Dr. Ferlic then diagnosed claimant's condition as medial meniscal 
 
         tear of the left knee and degenerative joint disease of the left 
 
         knee.  On April 23, 1987, Dr. Ferlic performed a partial medial 
 
         meniscectomy.  Conservative care was then undertaken, but 
 
         unsuccessfully.  On September 17, 1987, Dr. Ferlic performed the 
 
         hemi-knee arthroplasty referred to above.  In his September 17, 
 
         1987 operative report, Dr. Ferlic reported that the medial 
 
         compartment was noted to have gross degenerative changes with 
 
         osteophytes noted on the entire border of the tibial plateau.
 
         
 
              Claimant has not returned to work for Farmland Foods 
 
         subsequent to September 16, 1987.  Dr. Ferlic does not advise 
 
         that claimant return to Farmland or to like work.  Claimant 
 
         testified that he was paid 94 days of sick leave after he left 
 
         work on September 16, 1987.  The amounts classified as sick leave 
 
         include three weeks of vacation pay as well as holiday pay.
 
         
 
              Claimant has formally retired from Farmland Foods.  He 
 
         currently works for a farmer.  He uses a self-unloading grinder 
 
         mixer to mix hog feed and cleans the hog confinement area with a 
 
         skid loader.  Claimant lives in a two-level house with a 
 
         basement.  He testified he goes to and from the basement, but 
 
         does not use the upper living level of the house.
 
         
 
              In his deposition taken August 30, 1989, Dr. Ferlic 
 
         indicated that claimant could work at that time at a lighter
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS
 
         Page 4
 
         
 
         
 
         job, but that he should not do heavy lifting, bending, stooping, 
 
         squatting or like activities.
 
         
 
              JoAnne Hanson, claimant's spouse, corroborated claimant's 
 
         testimony that he had had no problems with his left knee after 
 
         his recovery from his 1982 surgery until early 1987.  She 
 
         reported that after spring 1987, claimant limped a lot and had 
 
         difficulty with climbing and stooping.  In a letter to Farmland 
 
         Foods dated April 7, 1987, JoAnne Hanson expressed her opinion 
 
         that claimant's knee injury was due to his past injury.  On 
 
         cross-examination at hearing, Mrs. Hanson denied that she felt 
 
         claimant's problem in 1987 was the same problem as he had 
 
         experienced in 1982.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Duane A. Cato, a friend of claimant's and a Farmland Foods 
 
         employee for 11 years, reported that he had worked regularly with 
 
         claimant at Farmland.  He testified that, in his time as a 
 
         coworker of claimant, claimant had worked as a bacon slicer, a 
 
         pack off line worker, and a Reo-pac operator.
 
         
 
              Mr. Cato indicated that bacon is sliced on a vac-line slicer 
 
         which slicer is approximately three and one-half to four feet 
 
         high.  An approximately five foot high pallet of meat is behind 
 
         the slicer.  Cato stated that the belly must be physically rammed 
 
         through the knife to get it started and that that involves a 
 
         great deal of force which is hard on the shoulders and knees.  He 
 
         reported that the worker stoops at the end to get the last belly 
 
         from the pallet to the slicer.  Cato described bacon slicing as a 
 
         fast operating job which involves constant twisting, turning, 
 
         bending and an up-and-down motion.  He stated that claimant 
 
         operated the bacon slicer for approximately four or five years 
 
         from 1981 onward.
 
         
 
              Cato now works as a Reo-pac operator.  On Reo-pac, boneless 
 
         hams come down the line where the operator grabs them and places 
 
         the ham in one of two machines.  The operator then pushes a 
 
         button to start the Reo-pac process.  Cato stated that in bacon 
 
         slicing, one bends way over as well as bends at the knees and 
 
         waist.  He reported that ten skids of meat are processed per day.
 
         
 
              Cato agreed he was not present when claimant allegedly fell 
 
         in March 1987, but stated that claimant talked about the incident 
 
         on the ride home.  Cato worked with claimant during the March 
 
         1987 blizzard.  He reported that claimant complained about his 
 
         left knee in the morning after the blizzard while still at the 
 
         plant and also that Sunday afternoon while riding home.  Cato 
 
         could not remember
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS
 
         Page 5
 
         
 
         
 
         claimant limping in spring 1987, but reported that claimant had 
 
         not complained about his knee after 1982 [until 1987].
 
         
 
              Jake Schabeen testified that he has been employed with 
 
         Farmland Foods for 19 years and is currently assistant plant 
 
         superintendent.  Mr. Schabeen had been claimant's foreman when 
 
         claimant began work with Farmland in 1974.  He reported that he 
 
         has performed the bacon slicing operation and has trained others 
 
         to do that job.  He testified that nine skids are sliced per day.  
 
         Schabeen reported that different movement is required as the 
 
         amount of product on the stacked pallets declines.  He stated 
 
         that the additional bending is from the hips and that squatting 
 
         is not necessary.  Schabeen expressed his belief that the Reo-pac 
 
         operation requires only minimal squatting.. He described the step 
 
         in the Reo-pac operation as equivalent to an ordinary household 
 
         stair step.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On October 25, 1982, Dwight W. Burney, Jr., M.D., a then 
 
         partner of Dr. Ferlic, reported that claimant had full motion of 
 
         the left knee although he lacked about five degrees of full 
 
         extension of the left knee with good flexion.  Ligaments seemed 
 
         stable, but there was definite varus of the left knee and 
 
         tenderness over the medial joint line.  Dr. Burney believed that 
 
         claimant had some traumatic arthritis of the medial compartment 
 
         of the left knee secondary to torn posterior horn of the medial 
 
         meniscus.  He reported that it was possible claimant would be 
 
         helped by valgus osteotomy of the proximal tibia and fibula to 
 
         remove some of the strain from the medial joint compartment, but 
 
         reported that claimant did not wish to consider further surgery.  
 
         He discharged claimant from further observation and opined that 
 
         claimant had a 20 percent permanent partial, disability of the 
 
         left lower extremity as a result of his knee injury and 
 
         subsequent surgery.
 
         
 
              John J. Dougherty, M.D., also a board-certified orthopaedic 
 
         surgeon, examined claimant on December 10, 1982 and issued a 
 
         report on December 13, 1982.  In his report, Dr. Dougherty stated 
 
         that claimant reported he was better since August [1982].  
 
         Claimant at that time had no swelling, but his knee continued to 
 
         bother him medially.  Claimant had no locking or giving out [of 
 
         the knee], but reported that he could not run well.  Claimant 
 
         then reported that squatting bothered him and he had some 
 
         stiffness in the left knee.  Dr. Dougherty reported claimant had 
 
         varus of his knee, but that was about the same as on the other 
 
         side.  Dr. Dougherty did not believe that claimant then was a 
 
         candidate for osteotomy.  Dr. Dougherty opined that claimant had 
 
         a five percent permanent partial impairment to the lower 
 
         extremity based on a history of some residual discomfort in the 
 
         knee.
 
         
 
         
 
         
 
         HANSON v. FARMIAND FOODS
 
         Page 6
 
         
 
         
 
              In a note of October 9, 1984, apparently Dr. Ferlic reported 
 
         that as regards claimant's 1982 arthroscopy, it . . . took him a 
 
         couple months but he did get better and has had no problems since 
 
         that point."
 
         
 
              Dr. Dougherty reexamined claimant on September 7, 1989.  He 
 
         reported that claimant then walked pretty good [sic] and seemed 
 
         to be getting his knee out straight.  He flexed [the left knee] 
 
         at about 90 + 50 degrees and flexed the (right knee] about 10 
 
         degrees further.  Claimant had a little anterior laxity with his 
 
         left knee flexed and a little crepitation with flexion, 
 
         extension, and rotation.  He was minimally tender medially at the 
 
         joint line.  His medial and lateral collateral ligament was 
 
         stable upon stressing and did not bother him.  Claimant had a 
 
         negative McMurray and a negative Lachmans [sign].
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In a report of September 11, 1989, Dr. Dougherty stated the 
 
         following:
 
         
 
              In attempting to answer the questions posed by you, I,think 
 
              there is an increase in the patient's functional impairment 
 
              since 1982.  He now has a unicompartmental total knee 
 
              arthroplasty.  I felt that basically in 1982, he was really 
 
              doing well.  As far as the deterioration, I think it is an 
 
              ongoing problem.  He had a degenerated tear in 1982 
 
              according to Dr. Ferlich [sic].  He also had one in the 
 
              other knee.  I think this gradually attributed after the 
 
              medial meniscectomy to more arthritic problems with his 
 
              knee.
 
              
 
              I suppose one could say that this had something to do with 
 
              the posterior horn tear, although at the time his anterior 
 
              horn and medial portion of the meniscus were intact.  I 
 
              think you'd probably have to say that it might be related 
 
              some to the 1982 accident, I don't think entirely.  
 
              Apparently he had the same kind of tear in the opposite knee 
 
              and he had no injury to attribute this to; namely a 
 
              degenerative tear.  The other thought would be, perhaps the 
 
              meniscal degenerative tear of 1982 of his left knee wasn't 
 
              directly a result of the so called twisting of his knee.  
 
              This could have just been coming on.  Again, I think the 
 
              lifting incident in 1982 could be looked at possibly as an. 
 
              initiating cause of the patient's knee trouble.  From what I 
 
              can gather, I don't think it could be attributed 100% to 
 
              this, especially since he had a similar problem with similar 
 
              type of surgery on his right knee without any history of any 
 
              injury.
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS 
 
         Page 7
 
         
 
         
 
              Certainly I think it is open for discussion, that had he not 
 
              had this so called twisting in 1982, he perhaps would have 
 
              had the same trouble anyway and perhaps he's going to go the 
 
              same way with the right knee.  He says at this point in 
 
              time, he doesn't have any trouble with the right knee, but 
 
              he's two years behind.
 
         
 
              In his deposition of September 20, 1989, Dr. Dougherty 
 
         opined that claimant had something less than 20 percent permanent 
 
         partial impairment resulting from his September 1987 surgical 
 
         procedure.  Dr. Dougherty agreed with an opinion of Dr.. Ferlic 
 
         that subsequent to a meniscectomy, there is a tendency to develop 
 
         degenerative joint disease.  The doctor opined that twisting of 
 
         the legs and squatting could contribute to degenerative changes 
 
         in the meniscus, but that bending from the trunk would probably 
 
         not be significant (for such degenerative changes].
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In his deposition, Dr. Ferlic opined that claimant's 1982 
 
         left knee injury resulted from his work.  He opined that when he 
 
         saw claimant in February 1987, claimant had early degenerative 
 
         joint disease which was exacerbated by work claimant was 
 
         performing at that time.  He described degenerative joint disease 
 
         as an attritional process involving arthritic changes over time.  
 
         He stated:
 
         
 
              A.  Well, many people perform standing, stooping and 
 
              lifting, and never have degenerative changes within their 
 
              knee.  I would say that, that a certain number of people do 
 
              have some degenerative joint disease, which is just, they 
 
              have it for whatever reason.  In this gentleman, however, 
 
              the fact that he had.a medial meniscectomy means that he 
 
              will probably develop degenerative joint disease down the 
 
              line. once you have your cartilage taken, that's, there's a 
 
              correlation with that, with developing degenerative joint 
 
              disease.  And so, if you follow a group of patients who have 
 
              medial meniscectomies done, and you follow them out for a 
 
              period of time, you will find that they begin to develop 
 
              degenerative joint disease as a result of a loss of that 
 
              cartilage.
 
         
 
         (Dr. Ferlic deposition, page 11, line 11 through line  25)
 
         
 
              The following discussion later took place between Dr. Ferlic 
 
         and claimant's counsel:
 
         
 
               . . . I went ahead and arthroscoped him on
 
              4/23/87.  At that time, he did have, he had an
 
         
 
         
 
         
 
         HANSON v. FARMIAND FOODS 
 
         Page 8
 
         
 
         
 
              uneven meniscal surface, which was cleaned, but he also 
 
              showed degenerative changes in the knee, especially over the 
 
              medial femoral condyle.
 
              
 
              Q. Now, you said he had an uneven meniscal --?
 
              
 
              A.  Rim.
 
              
 
              Q. Rim.  What's that tell you, Doctor?
 
              
 
              A. It just tells me that his meniscus had wear and tear 
 
              since I had seen him the last time.
 
              
 
              Q. Doctor, do you have an opinion whether or not that would 
 
              have been caused or aggravated by his employment?
 
              
 
              A. I think it was in correlation with his first injury.  So, 
 
              I can't -- so, caused by his employment, caused back in '82, 
 
              yes, but I think it's, once you take the rim out that the 
 
              posterior horn begins to look like that.  It may have been 
 
              aggravated by his employment; by squatting and stooping, and 
 
              things like that, but the cause was back several years to 
 
              his initial accident.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q. You're saying that the, the bad knee results from the '82 
 
              problem?
 
              
 
              A. Yes. If -- the result of his bad knee in '87 was his '82 
 
              injury, and it  could be exacerbated but not caused by, 
 
              essentially.
 
              
 
              Q. I see.  Would his work that he did, from 1982 to 1987, in 
 
              your opinion, have aggravated the preexisting condition?
 
              
 
              A. Yes, sir.  It could have.
 
              
 
              Q. Would it be your opinion that it did?
 
              
 
                        (short pause.)
 
              
 
              A. Somewhat, yes.  if he had had a sedentary job, I'm, I'm 
 
              sure that, that this problem would have been less likely to 
 
              bother him to the extent it did.  He may have still had the 
 
              problem, but I think that, that you could safely say that 
 
              repetitive load, cyclic loading over those five years had 
 
              it's effect.
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS 
 
         Page 9
 
         
 
         
 
         (Dr. Ferlic deposition, page 13, line 4 through page 14, line 17)
 
         
 
         
 
              The following discussion later took place between the doctor 
 
         and defense counsel:
 
         
 
              Q. Doctor, are you telling us that even though he's retired 
 
              from Farmland Foods, that if he at some future time needs a 
 
              total knee replacement, even if he's doing farming 
 
              activities now, that we're going to attribute that total 
 
              knee replacement to his work he did at Farmland Foods from 
 
              1982 to 1987?
 
              
 
              A. No. I think it can be correlated with his initial 
 
              accident back in 1982, at which time he squatted and injured 
 
              his meniscus.  I think that the literature is fairly 
 
              complete saying that people who suffer this type of 
 
              accident, who suffer medial meniscal tears undergo 
 
              degenerative changes in their medial compartment, in that 
 
              they are likely to have osteoarthritic changes within their 
 
              knee, and that that's a direct correlation over time. . . .
 
         
 
         (Dr. Ferlic deposition, page 20, line 21 through page 21, line 
 
         10)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The doctor subsequently opined that it was medically 
 
         probable that the work claimant performed from 1982 to 1987 
 
         aggravated claimant's condition somewhat.  Dr. Ferlic 
 
         subsequently reported that he had assumed that claimant's work 
 
         [from 1982 to 1987] involved standing and repetitive squatting.
 
         
 
              Dr. Ferlic opined that claimant would have a 50 percent 
 
         "disability" of his left lower extremity, secondary to his 
 
         hemi-knee arthroplasty based on the AMA guides.  The doctor 
 
         subsequently testified that he did not mean that claimant had 50 
 
         percent more disability than he had subsequent to his rating for 
 
         his 1982 condition, but that claimant had 30 percent more 
 
         [permanent partial impairment] than he had had whenever his 
 
         original [permanent partial impairment rating] was assigned.
 
         
 
              Dr. Ferlic further opined that a unicompartmental knee is "a 
 
         device used to buy time" before a total knee osteoplasty.  He 
 
         reported that one could reasonably expect some type of mechanical 
 
         failure within the knee and a need to replace the 
 
         unicompartmental device within 7 to 14 years.
 
         
 
         
 
         
 
         HANSON v. FARMIAND FOODS
 
         Page 10
 
         
 
         
 
              Dr. Ferlic had not been aware that claimant had done farming 
 
         activities since his retirement from Farmland Foods.  The doctor 
 
         reported that when he examined claimant, claimant had stated 
 
         claimant was able to do most of the things he wanted to do.  The 
 
         doctor stated that as the doctor had previously noted that the 
 
         doctor did not wish claimant to return to heavy labor, the doctor 
 
         had assumed claimant was doing lighter labor.  The doctor 
 
         reported that claimant should have a job where he could alternate 
 
         between standing and sitting throughout the day, which job did 
 
         not involve significant walking.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant received an injury 
 
         which arose out of and in the course of his employment in late 
 
         1986 or early 1987.  Given the factual pattern existing in this 
 
         matter, the issue of whether a causal relationship exists between 
 
         the alleged injury and the claimed disability will be discussed 
 
         concurrently, however.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); 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(l).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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, 731-32, 254 N.W. 35,.38 (1934)
 
         
 
         
 
         
 
         HANSON v. FARMIAND FOODS 
 
         Page 11
 
         
 
         
 
         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 his injury 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. 0. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         .375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  Burt
 
         , 247 Iowa 691, 73 N.W.2d 732.  The opinion
 
         
 
         
 
         
 
         HANSON V. FARMIAND FOODS 
 
         Page 12
 
         
 
         
 
         of experts need not be couched in definite, positive or 
 
         unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974).  However, the expert opinion may be accepted or 
 
         rejected, in whole or in part, by the trier of fact.  Id. at 907.  
 
         Further, the weight to be given to such an opinion is for the 
 
         finder of fact, and that may be affected by the completeness of 
 
         the premise given the expert and other surrounding circumstances.  
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867.  See also Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.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 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.
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An award of benefits cannot stand on a showing of a mere 
 
         possibility of a causal connection between the injury and the 
 
         claimant's employment., An award can be sustained if the causal 
 
         connection is not only possible, but fairly probable.  Nellis v. 
 
         Quealy, 237 Iowa 507, 21 N.W.2d 584 (1946).  The work incident or 
 
         activity need not be the sole proximate cause if the injury is 
 
         directly traceable to it.  Holmes v. Bruce Motor Freight, Inc., 
 
         215 N.W.2d 296, 297 (Iowa 1974).
 
         
 
              A cause is proximate if it a substantial factor in bringing 
 
         about the result.  It need be only one cause of the
 
         
 
         
 
         
 
         HANSON v. FARMLAND FOODS 
 
         Page 13
 
         
 
         
 
         result; it need not be the only cause.  Blacksmith v. 
 
         All-American. Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              The American Heritage Dictionary, Second College Edition, at 
 
         page 1213 defines "substantial" as follows:
 
         
 
              1. Of, pertaining to, or having substance; material.  2. Not 
 
              imaginary; true; real.  3. Solidly built; strong.  4. Ample; 
 
              sustaining: a substantial breakfast.  5. Considerable in 
 
              importance, value, degree, amount, or extent: won by a 
 
              substantial margin.
 
         
 
              Claimant's initial claim is of cumulative trauma in 1986 and 
 
         1987 which resulted in the unicompartmental total arthroplasty in 
 
         September 1987.  We do not find that the record when taken as a 
 
         whole supports claimant's claim.  While claimant at hearing 
 
         reported three specific incidents which claimant then testified 
 
         he felt brought on his left knee problems in spring 1987, 
 
         claimant did not identify any of the incidents on his petition 
 
         and did not identify any of the incidents on his answers to 
 
         interrogatories which defendants propounded.  Those facts make 
 
         suspect claimant's claim of a correlation between those alleged 
 
         incidents and his knee problems in 1987.  Likewise, claimant has 
 
         claimed cumulative injury to his knee resulting from the nature 
 
         of his work injuries.  Claimant and Mr. Cato described claimant's 
 
         duties as involving much squatting and bending from the leg or 
 
         knee area.  Mr. Schabeen reported that claimant's various work 
 
         duties since 1982 involved substantially different physical 
 
         movements than that which claimant and Mr. Cato reported.  Mr. 
 
         Schabeen's description of claimant's duties would suggest 
 
         that,only minimal bending and squatting was required of claimant.  
 
         Such appears more consistent with claimant's ability to perform 
 
         his various job duties in the five years subsequent to his 
 
         arthroscopy with partial removal of the medial meniscus of the 
 
         left knee on April 9, 1982. 1
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Likewise, we do not find that the medical evidence supports 
 
         a finding of an injury in spring 1987 with any existing current 
 
         disability being causally connected to that alleged injury. only 
 
         two experts testified in this matter: those being Dr. Dougherty 
 
         and Dr. Ferlic.. The testimony of both is at times twisted and 
 
         tangled.  A recurrent thread appears in the statement of both of 
 
         those gentlemen, however.  That thread is that claimant's current 
 
         problems result from degenerative joint disease which 
 
         degenerative joint disease directly correlates with claimant 
 
         having had a medial meniscectomy in 1982.  Dr. Ferlic went so far 
 
         as to indicate that should claimant require a future total knee
 
         
 
         
 
         
 
         HANSON v.  FARMIAND FOODS 
 
         Page 14
 
         
 
         
 
         replacement, that procedure could be correlated with the initial 
 
         1982 injury.  Both physicians described claimant's degenerative 
 
         joint disease as a gradual, ongoing process with more or less 
 
         inevitable results.  Each on some level appears to believe that 
 
         claimant's work, if such work involves substantial squatting and 
 
         bending, a fact not wholly substantiated on this record, could 
 
         have aggravated claimant's left knee condition.  Neither 
 
         physician appears to believe that claimant's not performing such 
 
         work would have prevented the condition from occurring at some 
 
         time, however.  Given such, we cannot say that any aggravation 
 
         can be classified as a material aggravation of claimant's 
 
         preexisting condition.  Likewise, given such, we cannot say that 
 
         claimant's work at Farmland from 1982 through 1987 has been shown 
 
         to have been a substantial factor in the development of his 
 
         current knee condition.  Therefore, we find that claimant has 
 
         failed to establish both an injury which arose out of and in the 
 
         course of his employment in spring 1987 and a causal relationship 
 
         between that alleged injury and any claimed disability.
 
         
 
              We note in passing the issue of whether claimant's claim is 
 
         barred as filed beyond the appropriate statute of limitations.  
 
         Initially, claimant's claim is not that he had an injury in 1982 
 
         and is entitled to benefits as a result of disability resulting 
 
         from the 1982 injury. claimant's petition filed February 26, 1988 
 
         alleges in paragraph 4 an injury date in late 1986 or early 1987.  
 
         Hence, the question of whether claimant had a compensable injury 
 
         in 1982 is not now before us.  The record does show that claimant 
 
         did receive permanent partial disability benefits of 10 percent 
 
         of the left knee on account the results of his partial removal of 
 
         the medial meniscus of the left knee on April 9, 1982.  The 1982 
 
         injury apparently was established by way of a memorandum of 
 
         agreement.  Section 85.26(l) provides that where weekly benefits 
 
         have been paid, a claim for further weekly benefits must be made 
 
         within three years from the date of the last payment of benefits.  
 
         It would appear that that provision would bar any claim for 
 
         further weekly benefits on account of the 1982 injury.  Claimant, 
 
         of course, is entitled to payment of any medical costs which 
 
         claimant can show are causally related to the 1982 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As claimant has not established an injury arising out of and 
 
         in the course of his employment in 1987 or a.causal relationship 
 
         between that alleged injury and any claimed disability, we need 
 
         not reach the question of the nature and extent of any benefit 
 
         entitlement.
 
         
 
         
 
         
 
         HANSON V..FARMLAND FOODS
 
         Page 15
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant is 56 years old and worked for Farmland Foods for 
 
         approximately 13 and 1/2 years.
 
         
 
              Claimant had a work-related arthroscopy with partial removal 
 
         of the medial meniscus of the left knee on April 9, 1982.
 
         
 
              Claimant had similar surgery on his right knee without 
 
         history of injury in 1984.
 
         
 
              From 1982 through 1987, claimant worked as a bacon slicer, a 
 
         pack off line worker, and a Reo-pac operator.
 
         
 
              Claimant's job duties at Farmland Foods from 1982 through 
 
         1987 may have involved some squatting and some bending at the 
 
         knees, but his duties did not involve substantial squatting or 
 
         bending.
 
         
 
              In spring .1987, claimant had a medial meniscal tear of the 
 
         left knee and degenerative joint disease of the left knee.
 
         
 
              Claimant underwent a partial medial meniscectomy on April 
 
         23, 1987.
 
         
 
              Claimant underwent a hemi-knee arthroplasty otherwise known 
 
         as a unicompartmental total arthroplasty on September 17, 1987.
 
         
 
              Claimant's medial compartment then had gross degenerative 
 
         changes with osteophytes noted on the entire border of the tibial 
 
         plateau.
 
         
 
              A medial meniscectomy with loss of cartilage in the knee 
 
         generally correlates with the development of degenerative joint 
 
         disease.
 
         
 
              Claimant's work at Farmland Foods from 1982 through early 
 
         1987 was not a material or substantial factor in,his left knee 
 
         problems in 1987 and his need for a partial medial meniscectomy 
 
         in April 1987 or a hemi-knee arthroplasty in September 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HANSON V. FARMLAND FOODS
 
         Page 16
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment in spring 1987.
 
         
 
              Claimant has not established a causal relationship between 
 
         an alleged injury in spring 1987 and his claimed disability to 
 
         his left knee.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Claimant pay costs of these proceedings pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 3rd day of January, 1990.
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Gregory J. Siemann
 
         Attorney at Law
 
         801 North Adams
 
         Carroll, Iowa 51401
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.50, 2206
 
                                         Filed January 3, 1990
 
                                         HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. HANSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 865328 
 
         FARMLAND FOODS,
 
                                         A R B I T R A T I 0 N 
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 2206
 
         
 
              Claimant did not show an injury arising out of and in the 
 
         course of his employment in spring, 1987 which injury was the 
 
         result of an aggravation of a preexisting condition where 
 
         conflicting medical evidence more strongly suggested that 
 
         claimant's left knee problems in spring, 1987 and his need for a 
 
         partial medial meniscectomy in April, 1987 and a hemi-knee 
 
         arthroplasty in September, 1987 was a direct correlative of 
 
         claimant's work-related arthroscopy with partial removal of the 
 
         medial meniscus of the left knee on April 9, 1982.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KRISTINE A. RAMIREZ,
 
         
 
              Claimant,                              File No. 865334
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         OSCAR MAYER,                                D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
              Self-Insured,
 
              Defendant.                               SEP 27 1989
 
         
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kristine 
 
         Ramirez, claimant, against Oscar Mayer, a self-insured employer, 
 
         defendant, for workers' compensation benefits as a result of an 
 
         alleged injury on September 30, 1987.  On March 21, 1989, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On September 30, 1987, claimant received an injury which 
 
         arose out of and in the course of her employment with Oscar 
 
         Mayer.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from November 12, 1987 through December 
 
         22, 1987; from March 31, 1988 through April 8, 1988; and, from 
 
         June 7, 1988 through August 21, 1988 and defendants agree that 
 
         she was not working during these periods of time.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  If permanent disability benefits are to be awarded, they 
 
         shall begin as of August 22, 1988.
 
         
 
              5.  Claimant's rate of weekly compensation shall be $299.26.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              6.  The medical benefits submitted by claimant at hearing 
 
         were fair and reasonable but their causal connection to any work 
 
         injury remained at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disabilities; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              The claimant, Kristine Ramirez, has been employed by Oscar 
 
         Mayer Foods Corporation since June 1974.  She has held a number 
 
         of different jobs at the company, but in July of 1987 she 
 
         transferred to an area of the Davenport plant called D-Shaped 
 
         Beef.  This department makes roast beef products known as 
 
         delicatessen meats. Claimant's job was multivac operator.  This 
 
         is a computerized meat processing machine.
 
         
 
              On September 30, 1987, claimant was accidentally struck by 
 
         an airlock door when a fellow employee pulled the cord which 
 
         activates the door.  Claimant continued to work that day although 
 
         she did report to first aid where she was instructed to use ice. 
 
         Claimant continued to work following her accident and did not 
 
         seek any medical care until November 4, 1987.  At that time she 
 
         saw John Bishop, M.D.  She later saw Paul Hartman, M.D., who took 
 
         her off work.  She was then seen by Gordon Flynn, M.D., on 
 
         November 16, 1987.  Claimant remained off work until December 22, 
 
         1987.  She then returned to her job at Oscar Mayer and continued 
 
         to work until surgery on July 15, 1988, with the exception of a 
 
         brief period of layoff unrelated to her injury.  The surgery was 
 
         performed by Arlo Brakel, M.D., a neurosurgeon.  After her 
 
         surgery claimant returned to work for Oscar Mayer with permanent 
 
         work restrictions consisting of no lifting over 20 to 25 pounds 
 
         and no repetitive bending or stooping.  Claimant is performing 
 
         the same job she did prior to her injury.  Mike Moes, the 
 
         claimant's supervisor, testified at the hearing that claimant's 
 
         employment is secure at Oscar Mayer and that her job performance 
 
         has been good following her surgery. Claimant has been encouraged 
 
         to report any difficulties in doing her job and, if necessary, 
 
         she would be assigned a different task. Moes testified that he 
 
         has to date not received any such complaints from claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that she feels secure in her current job 
 
         as she has high seniority in the plant and she now earns $10.90 
 
         an hour, a higher wage than she earned at the time of injury. 
 
         However, due to her back problems she said that she does not work 
 
         all of the overtime offered to her.
 
         
 
              The medical evidence shows that one month prior to her 
 
         accident at Oscar Mayer, claimant saw her family physician, 
 
         Richard Kasper, M.D., for complaints of low back pain radiating 
 
         to the right leg with tingling and numbness in the right foot.  
 
         (Joint Exhibit 1, page 1).  Dr. Kasper's notes disclosed that 
 
         claimant had symptoms "on and off for the past month."  The pain 
 
         was apparently severe enough for the doctor to prescribe bed 
 
         rest, Tylenol No. 3 and Nalfon plus a sleeping medication.  
 
         According to Dr. Kasper, a significant portion of the symptoms 
 
         centered around the great toe in the right foot.  Dr. Kasper 
 
         states as follows in his office note of August 24, 1987:
 
         
 
              Patient has had symptoms on and off for the past month.  In 
 
              the last few days has had decreased sensation in the great 
 
              toe with hipaesthesias on the lateral aspect of the leg.
 
              0:  Has full strength and range of motion of the 
 
              (undecipherable).  However, there is a hint of decreased 
 
              strength of dorsal flexion in the rt great toe.  There is 
 
              subjective decreased light touch sensation to "sharp" on the 
 
              rt.  The patient denies any acute injury.  SLR sign is trace 
 
              positive at 450 on the rt.  There is no pain in the S1 
 
              joint. A:  Symptoms and physical signs suggestive of 
 
              herniated nucleuspulposis?  Probably L-5, S-1....
 
         
 
              Dr. Kasper then ordered a CT scan because he suspected 
 
         lumbar disc disease with radiculopathy.  The CT scan revealed no 
 
         abnormalities.  Claimant testified she only missed one day of 
 
         work after this incident and returned to full duties and 
 
         activities including participation in an aerobics class three 
 
         days a week.
 
         
 
              Claimant also had low back problems necessitating medical 
 
         and chiropractic treatment in the late 1970's diagnosed as low 
 
         back strain.  Between 1980 and 1987, claimant reported two 
 
         incidents of back pain to her physicians but on both occasions 
 
         this occurred in conjunction with low abdominal pain due to 
 
         problems other than low back or muscle strain.  Claimant 
 
         testified that any lost work between 1980 and 1987 were due to 
 
         "female problems."
 
         
 
              Dr. Brakel, in his deposition, initially opined that 
 
         claimant's low back difficulties treated by him were causally 
 
         connected to the September 30, 1987 incident with the door at 
 
         work as claimant had told him that she had no prior back 
 
         problems.  Dr. Brakel changed his opinion after being told by 
 
         defendant's counsel during his deposition of a low back pain 
 
         incident in August of 1987 which was treated by Richard Kasper, 
 
         M.D.  However, in a letter to claimant's attorney in February 
 
         1989 after the deposition, Dr. Brakel opined that claimant's 
 
         problems in August of 1987 were not related to the back 
 
         difficulty treated by him. Dr. Brakel explained that his 
 
         treatment involved the L5-S1 disc which had compressed the S1 
 
         nerve root.  The complaints to the great toe expressed by 
 
         claimant in August 1989 to Dr. Kasper indicated to Dr. Brakel 
 
         that the problems at that time were limited to the L4-5 disc and 
 
         the L5 nerve root.  Dr. Brakel initially rated claimant as 
 
         suffering from a 30 percent disability but stated that a 
 
         permanent rating could not be made until February of 1989.  There 
 
         is no evidence in the record of any rating by Dr. Brakel in 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         February of 1989 or at any later date.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also evaluated by John Sinning, M.D., an 
 
         orthopedic surgeon.  Dr. Sinning opined that claimant suffers from 
 
         a long-standing degenerative disc disease and that claimant has a 
 
         14 percent permanent partial impairment due to this condition.  
 
         Dr. Sinning did not believe that claimant suffered any permanent 
 
         partial impairment as a result of the work injury.  At most, 
 
         according to Dr. Sinning, claimant only temporarily aggravated 
 
         that underlying degenerative disc disease at the time of the 
 
         injury.  Dr. Sinning stated in his written report of March 6, 
 
         1989, that claimant had a four month history of progressive 
 
         difficulties beginning in the summer of 1987.  Dr. Sinning's major 
 
         problem with the causal connection stemmed from the time delay 
 
         between the September 1987 injury and the July 1988 surgery.
 
         
 
              A general practitioner, Gordon Flynn, M.D., whose practice 
 
         involves a considerable amount of occupational medicine upon 
 
         referral from local companies, opined that claimant's 
 
         difficulties were not related to the September 1987 injury due to 
 
         claimant's excessive prior history of back difficulties.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendant places claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the disability.  
 
         From her demeanor while testifying, claimant is found credible.
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the views of the treating physician, 
 
         Dr. Brakel, will be given greater weight on the issue of causal 
 
         connection due to his more extensive clinical involvement in 
 
         claimant's case and his greater familiarity with claimant's 
 
         complaints and treatment.  Dr. Sinning only examined claimant 
 
         once and was incorrect in his history concerning a four month 
 
         progressive pain condition prior to Dr. Kasper's treatment in 
 
         August of 1987.  Dr. Flynn's opinions were rejected due to his 
 
         lack of specialized expertise and his characterization of 
 
         claimant's back problems as extensive prior to August of 1987.  
 
         Dr. Brakel was convincing in stating that the August 1987 
 
         incident was unrelated to the September incident.  There does not 
 
         appear to be a permanency rating by Dr. Brakel and, therefore, 
 
         the only rating available is from Dr. Sinning as to claimant's 
 
         chronic back difficulties.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe,Inc., (Appeal Decision, February 28, 
 
         1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical condition before the work injury was not 
 
         excellent due to occasional episodes of back pain but she had no 
 
         ascertainable permanent impairment or disabilities as a result of 
 
         these problems.  It was not until the incident of September 30, 
 
         1987, that she began to experience continuous pain and was unable 
 
         to return to work activity without experiencing pain.  Also, it 
 
         was only after the work injury of September 1987, that claimant's 
 
         physicians restricted claimant's work activities by permanently 
 
         prohibiting tasks such as heavy lifting, repetitive lifting, 
 
         bending, twisting and stooping.
 
         
 
              However, claimant's medical condition as a result of the 
 
         September 1987 injury, has not prevented a return to her former 
 
         employment.  The efforts of Oscar Mayer to work with claimant and 
 
         return her to gainful employment is admirable.  As a result, 
 
         apart from her lost earnings during her healing period which will 
 
         be compensated by healing period benefits, claimant has suffered 
 
         no significant permanent loss in actual earnings as a result of 
 
         her disability.  Although the award is much lower than would be 
 
         the case if claimant had not returned to work, a showing that 
 
         claimant had no loss of actual earnings does not preclude a 
 
         finding of industrial disability.  See Michael v. Harrison County 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         218, 220 (Appeal Decision 1979).
 
         
 
              Although it can be argued that due to claimant's work 
 
         restrictions, claimant would have difficulty finding replacement 
 
         work should she lose her job at Oscar Mayer, the commissioner has 
 
         ruled that considering such matters would be improper speculation 
 
         in an industrial disability case.  Umphress v. Armstrong Rubber 
 
         Co., Appeal Decision filed August 27, 1987.
 
         
 
              Claimant is 37 years of age and exhibited average 
 
         intelligence at the hearing.  Little is shown to indicate 
 
         claimant's potential for vocational rehabilitation.  However, at 
 
         the present time vocational rehabilitation is unnecessary as 
 
         claimant has returned to her former employment.  The extent of 
 
         claimant's education was not discussed at hearing.
 
         
 
              Claimant's current employment appears suitable and stable at 
 
         the present time.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact that claimant has suffered a 10 percent loss of 
 
         earning capacity from her work injury.  Based on such a finding, 
 
         claimant is entitled as a matter of law to 50 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(u) 
 
         which is 10 percent of 500 weeks, the maximum allowable number of 
 
         weeks for an injury to the body as a whole in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until claimant returns to work.  Dr. Brakel indicated that 
 
         claimant could not be rated permanently until February of 1989.  
 
         Claimant returned to work prior to that time.  Therefore, the 
 
         healing periods requested by claimant will be awarded.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred by her for. 
 
         treatment of the work injury.  However, claimant is entitled to 
 
         an order of reimbursement only if she has paid those expenses. 
 
         Otherwise, claimant is entitled to an order directing the 
 
         responsible defendants to make such payments directly to the 
 
         provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  As 
 
         Dr. Brakel's opinions were accepted in this case, all of the 
 
         medical expenses requested contained in the prehearing report 
 
         will be awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2.  On September 30, 1987, claimant was struck by a door 
 
         while working at Oscar Mayer and suffered an injury to various 
 
         parts of her body including the low back which arose out of and 
 
         in the course of her employment.  The low back injury set up an 
 
         inflammatory condition which continued unabated as the nerve root 
 
         swelling became entrapped in the bony confinement about the exit 
 
         point of the nerve root.
 
         
 
              3.  The work injury of September 30, 1987, was a cause of a 
 
         period of total disability from work beginning on November 12, 
 
         1987 through December 22, 1987; from March 31, 1988 through April 
 
         8, 1988; and from June 7, 1988 through August 21, 1988, at which 
 
         time claimant returned to work.  Claimant reached maximum healing 
 
         after this last period off work.  During these periods of time, 
 
         claimant was off work and received extensive treatment for her 
 
         work injury consisting of limitations on activity, medications 
 
         for pain and inflammation, home exercises, supervised physical 
 
         therapy and eventually surgery.
 
         
 
              4.  The work injury of September 30, 1987, is a cause of a 
 
         14 percent permanent partial impairment to.the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 20 to 25 pounds and no repetitive 
 
         bending, twisting or stooping.  Although she had experienced low 
 
         back strain several years before 1987, claimant had no 
 
         ascertainable functional impairment prior to the work injury of 
 
         September 30, 1987.  A low back injury in August of 1987 was 
 
         unrelated to the September 30, 1987 injury as it involved a 
 
         different nerve root compression.
 
         
 
              5.  The work injury of September 30, 1987 and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         only a 10 percent loss of earning capacity.  Claimant is 37 years 
 
         of age.  Claimant had no ascertainable loss of earning capacity 
 
         prior to the work injury herein.  Claimant's physician imposed 
 
         work activity restrictions does not prevent a return to the job 
 
         she was performing at the time of injury but it does prohibit 
 
         employment in many jobs in the Oscar Mayer plant which involves 
 
         heavy manual labor.  Claimant is unable to return to some of the 
 
         manual labor jobs she has held in the past.  A combination of 
 
         claimant's strong motivation to return to work and defendant's 
 
         laudable efforts to help her in this effort have resulted in a 
 
         return to gainful employment which appears suitable and stable at 
 
         the present time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6.  The medical expenses listed in the prehearing report are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of the work injury of September 30, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 18 weeks 
 
         of healing period benefits; 50 weeks of permanent partial 
 
         disability benefits and to medical benefits in the amount of 
 
         $11,553.63 including medical mileage at the rate of $.21 per 
 
         mile.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         ninety-nine and 26/100 dollars ($299.26) per week from August 22, 
 
         1988.
 
         
 
              2.  Defendant shall pay healing period benefits for the 
 
         periods of time set forth in finding number 3 above at the rate 
 
         of two hundred ninety-nine and 26/100 dollars ($299.26) per week.
 
         
 
              3.  Defendant shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of the 
 
         expenses she has paid.  Otherwise, defendant shall pay the 
 
         provider directly along with lawful late payment penalties 
 
         imposed upon the account by the provider.  Defendant shall pay 
 
         medical mileage expenses for transportation expenses incurred by 
 
         claimant for attending medical treatment at the rate of 
 
         twenty-one cents ($.21) per mile.
 
         
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for workers' 
 
         compensation benefits previously paid.
 
         
 
              5.  Defendant shall receive credit for previous payments of 
 
         benefits under a nonoccupational group insurance plan pursuant to 
 
         Iowa Code section 85.38(2) as set forth in the prehearing report.
 
         
 
              6.  Defendant shall pay,interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              7.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              8.  Defendant shall submit activity reports on the payment 
 
         of this award as requested by this agency.
 
         
 
         
 
              Signed and filed this 27th day of September, 1989.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         115 E. 6th St.
 
         P. 0. Box 339
 
         Davenport, Iowa  52805
 
         
 
         Mr. Richard M. McMahon
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108
 
                                            Filed September 27, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KRISTINE A. RAMIREZ,
 
         
 
              Claimant,
 
                                                    File No. 865334
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         OSCAR MAYER,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1108 -- Nonprecedential - causal connection issue.